Gideon Alert: Alabama creates statewide indigent defense system

BY David Carroll on Thursday, June 9, 2011 at 9:00 AM

On June 9, 2011, Alabama joined the majority of states in the country that have state-administered right to counsel systems. While Alabama already funds indigent defense at the state level, the legislation (SB 440) creates centralized oversight of right to counsel services, requires the promulgation of standards, and seeks to expand the number of staffed public defender offices. The bill is a compromise reach by a conference committee.  An earlier version of the bill was passed by the Senate (24-3) on May 25 and would have unified the state's divergent county-based right to counsel systems, but only a substitute bill passed in the House. The conference bill passed the Senate unanimously (32-0) and the House voted the measure through on an overwhelmingly bi-partisan basis (97-4-1). Governor Bentley is expected to sign the conference committee version of the bill into law, as he is largely viewed as the leader behind the movement to bring accountability to the delivery of right to counsel services.

 The bill, championed by Senate Republican Cam Ward and House Republican Paul DeMarco, is an attempt to provide accountability to the taxpayers of Alabama, while preserving the fairness of criminal proceedings in a way consistent with many of the American Bar Association Ten Principles of a Public Defense Delivery System. It creates the statewide Office of Indigent Defense Services (OIDS) to oversee all aspects of right to counsel services.

Importantly, the legislation authorizes the Director of OIDS to set caseload standards (Principle 5), attorney qualification standards (Principle 6), and training standards (Principles 6 and 9) to ensure that public defenders have the time, tools, and training to effectively represent their clients. It also requires the Director of OIDS to set standards for the “performance of appointed counsel, contract counsel, and public defenders” and to “supervise compliance with standards adopted by the office” (Principle 10). Additionally, it authorizes the Director of OIDS to create a state appellate defender office for both capital and non-capital representation.

Despite these significant improvements to Alabama’s indigent defense system, there is one major deficiency. The very first of the ABA Ten Principles calls for an independent right to counsel oversight board, whose members are appointed by diverse authorities so that no single official or political party has unchecked power over the indigent defense function. This independent board should be responsible for selecting the director of indigent defense services based on a non-partisan merit procedure to ensure that the most qualified candidate is appointed. And, once chosen, the director should serve for a specific term of years, during which she is not removed from office except for good cause. The pending bill does not provide for a commission at all, opting instead to have the Director of the Office of Indigent Defense Services report to and serve at the pleasure of the Director of Finance. The Director will be chosen from a list of three candidates nominated by the Alabama State Bar Board of Bar Commissioners.

On May 9, 2011, David Carroll wrote a letter to Governor Bentley highlighting this aspect of the bill. Legislative leaders agreed that more independent oversight is warranted but feared the clock would run out on Alabama’s truncated legislative session if amendments were added, especially with policymakers dealing with the devastation wrought by tornadoes in the spring. Senate leaders were able to add some level of additional review, through the creation of a five-person review board, to ensure that cost concerns do not predominate the setting of policy. And, though both the District Court and Circuit Court Judges Associations each have one appointment to the review board, they do not make up a majority. The State Bar of Alabama gets two appointments and the Alabama Bar Association (The African American Bar) gets one.

The review board will also have an important role when it comes to determining the manner in which indigent defense services are rendered. The original (pre-conference) bill would have given the OIDS director the authority to determine the type of delivery system employed in each county, including the ability to establish public defender offices wherever it is cost-efficient and effective to do so.  The conference bill as passed allows local interests to make the initial determination of what type of service delivery system will be used.  Where a staffed public defender office is used, all staff public defenders will become state employees and will receive state employment benefits.  The Director of OIDS can appeal from a local decision about the service delivery method to the review board, and the board's determination about service delivery method will be final and binding. Supporters of the bill believe this aspect of the legislation will bring Alabama closer to compliance with Principle 2’s requirements that indigent defense delivery systems consist of both staffed public defender offices and private attorneys in jurisdictions where caseloads are sufficiently high.

Prior to the new legislation, most Alabama counties have provided public counsel by judges appointing private attorneys who are paid by the hour. The exceptions to that are Jefferson County, which contracts out a minor part of their services to the Birmingham Legal Aid Society, and Tuscaloosa County, which maintains a contract for public defense services with a large private law firm, and four counties that have a public defender offices: Escambia County (one attorney); Conecuh & Monroe Counties (one office of two part-time attorneys); and Shelby County.

Alabama gained notoriety over the past several decades for an indigent defense system with a stunning lack of accountability. Currently, the state fills any gap between the actual costs of services rendered and the revenue raised through a $50 civil filing fee. Because the counties do not contribute any money at all to indigent defense and there is no state oversight of how the money is spent, there is also no local accountability for how the money is spent. This means judges can reward attorneys who move dockets quickly and/or who kick back money to judges’ re-election campaigns. Systemic abuses were highlighted in a series run by the Lagniappe newspaper in Mobile (click here, here, here and here). NLADA will continue to work with state policymakers, the State Bar, the OIDS Director and other advocates to ensure more independence in the future, as the benefits of the new bill promise to make significant improvement in the lives of indigent clients.

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