Gideon Alert: The “Indiana Model” creates unequal representation

BY David Carroll on Wednesday, November 10, 2010 at 2:46 PM

Indiana has a strong home-rule tradition, favoring local autonomy over state control in many governmental facets. Indigent defense in the state is organized at the county level, and historically representation has been provided most typically by part-time public defenders operating under contract.

Unlike many other decentralized right to counsel states, Indiana does have a number of state institutions that assist counties, including the State Public Defender (handling all post-conviction proceedings and some direct appeals) and the Indiana Public Defender Council (a support/resource center that prepares procedure manuals, assists in drafting briefs and motions, and conducts research on right to counsel issues).  Additionally, the Indiana Public Defender Commission promulgates statewide indigent defense standards, many of which are consistent with the American Bar Association’s Ten Principles regarding independence of the defense function, workload controls, client eligibility and attorney qualifications, to name a few.  Compliance with these standards, however, is entirely voluntary.   Counties that choose to comply with the state indigent defense standards are eligible to have a portion of their indigent defense costs reimbursed by the state. A state statute authorizes the state to reimburse 40% of the indigent defense expenditures of counties that meet Commission standards.

The primary problem with this model is that it legitimizes the choice to not meet standards.  The ABA has called the Ten Principles the “fundamental criteria” necessary to provide “effective, efficient, high quality, ethical, conflict-free legal representation.” This claim is echoed by our nation’s top law enforcement officer, U.S. Attorney General Eric Holder, who called the ABA standards the “basic building blocks” for a well-functioning public defense system.  The Indiana Model treats what are supposed to be foundational standards as aspirational gold standards.  What occurs under this model is the creation of two separate but unequal systems for indigent clients in the state.  For example, counties that wish to receive state reimbursement are statutorily required to create a local County Public Defender Board of at least three members, whose responsibilities include appointing a county public defender and overseeing the office and its budget. Those counties that do not want state money are free to violate the ABA Principle 1 prohibition against undue judicial interference.  On November 9, 2010, the Gary Post-Tribune reported that the six judges of Porter County, Indiana met in private to select the next head of the public defender office.  They did not divulge the number or identity of the applicants or the process by which they would make the selection.  The article reports one judge as saying that he did not have in mind a list of qualifications for the public defender.  Porter County does not seek state reimbursements.

The tale of the two unequal systems is, perhaps, best exemplified in the area of public defense workload.  Indiana counties that want state monies must abide by stringent caseload limits that are consistent with national workload standards. Moreover, the Indiana standards recognize the importance of non-attorney support staff to effective representation. For example, public defenders in Indiana counties that seek state funding must maintain state-sponsored attorney-to-support staff ratios; if they do not, they must reduced the maximum caseload of their lawyers to, for example, 300 misdemeanor cases per year (down from the statewide standard of 400 misdemeanors for public defenders with appropriate investigator/paralegal staff).  If a county complies, they can be reimbursed up to 40% of their indigent defense costs, while continuing to bear 60% of the cost.  For counties that have lower revenue or fewer sources of revenue, meeting these foundational workload standards is more difficult because it requires them to dedicate a far greater portion of their limited budget to defender services than those counties in better economic standing. As the Porter County judges in the Gary Post-Tribune story frankly admit, meeting the Indiana Commission workload standards would require the county to hire an additional seven attorneys – a cost greater than the reimbursement they would receive back from the state.  By making standards optional, Indiana has created a system where counties will often make choices solely based on financial impact rather than on what is required to guarantee to every client the uniform effective assistance of counsel.

This is especially true in bad economic times.  In 1993, the first year of Indiana’s reimbursement plan, the Commission had $1.25 million available to reimburse counties at a rate of 25% of all county indigent defense expenditures.  Thirteen counties came into compliance that year.  By 1997, the reimbursement rate was raised to 40% and 54 of Indiana’s 92 counties opted in that year and came into compliance with state standards.  By 2009, 66 of Indiana’s 92 counties (71.7%) were in compliance with state standards.  Unfortunately, the current economic woes have reversed that trend, as more and more counties are deciding to forego state funding, avoid having to comply with state and national standards for indigent defense services, and spend even less than the amount that is their 60% share under the state reimbursement plan.  Currently, only 50 counties (54%) participate in the state plan.

The level of justice a poor person receives should not be dependent on whichever side of a county line the crime is alleged to have been committed.  Yet that is exactly what the Indiana Model is producing.   ABA Principle 1 requires that judges not unduly interfere with the defense function.  A November 10, 2010 follow-up story by the Gary Post-Tribune reveals that the Porter County judges hired a new public defender only after he agreed with their terms that he refrain from being involved in politics “to the extent that he was in the past.”  The new public defender is quoted as saying, "whatever the wishes of the judges are, I will comply."