Gideon Alert: New Orleans DA questions appointed counsel for those who make bail

BY David Carroll on Wednesday, November 9, 2011 at 9:48 AM

Bail is often posted by someone else on behalf of a defendant.  Another person may have all sorts of reasons for wanting to get the defendant out of jail.  For example, parents of an adult defendant may find themselves serving as caretaker for the defendant’s children while the defendant is in jail, or a defendant’s in-laws may want the defendant to get back to work to support the family.  But these people may not have a similar or any incentive to hire a lawyer to defend the charge against the defendant.  The assets of others cannot be considered in determining whether the defendant is indigent and entitled to a public lawyer, because others cannot be compelled to hire a lawyer for the defendant.  

Despite this, New Orleans District Attorney Leon Cannizzaro is advocating that, if a defendant posts bail, the defendant probably should not receive a public defender, as reported by on November 4, 2011.  “This is an absolute wasting of the resources,” Cannizzaro reportedly said.  “You have this person who’s had to pay over $10,000 to commercial surety companies in order to secure his freedom, when that money could have been used to pay for a lawyer.”
Though Gideon v. Wainwright requires states to provide counsel for those unable to afford a lawyer, it does not tell states how to determine who is financially eligible.  Jurisdictions across the country have weighed various interests when considering how best to make such determinations.  Many jurisdictions have no eligibility guidelines and conduct no inquiry, or simply appoint a lawyer for all defendants who claim they cannot afford retained counsel.  The reasons for this approach vary: poverty rates among the defendant population may have been empirically found to be so high that the cost of eligibility screening would exceed the potential cost-savings; the judiciary may have determined that the need to keep court dockets moving is more important than taking the time and effort to conduct eligibility screening; or the reason may be simple inertia on the part of the responsible officials. 
Other jurisdictions have decided that important fiscal goals of cost-control and accountability are served by implementing procedures to ensure that no one who can afford counsel is appointed one at public expense.  In these areas of the country, there is often very thorough verification of financial information provided by the defendant – many times by an independent pre-trial services unit and often at substantial costs.  
State and county policymakers must decide to what extent the need to ensure the public that money is being spent efficiently outweighs the cost of eligibility verification processes.  If they are determined to move ahead with more rigorous screening, national standards can be used to structure the process.
The third of the American Bar Association’s Ten Principles of a Public Defense Delivery System addresses the obligation of public defense systems to provide for prompt financial eligibility screening of defendants, toward the goal of early appointment of counsel.  Footnotes to Principle 3 point to standards to guide how best to make financial eligibility determinations. 
The Guidelines for Legal Defense Systems in the United States issued by the National Study Commission on Defense Services state that, “[e]ffective representation should be provided to anyone who is unable, without substantial financial hardship to himself or to his dependents, to obtain such representation.” (Guideline 1.5).  “Substantial hardship” is also the standard promulgated by the ABA Standards for Criminal Justice.  While ABA Providing Defense Services Standard 5-7.1 makes no effort to define need or hardship, it does prohibit denial of appointed counsel because of a person's ability to pay part of the cost of representation, because friends or relatives have resources to retain counsel, or because bond has been or can be posted.  
In practice, the “substantial hardship” standard has led many jurisdictions to create a tiered screening system.  At some minimum asset threshold, a defendant is presumed eligible without undergoing further screening.  Defendants who are above the presumptive threshold are then subjected to a more rigorous screening process to determine if their particular circumstances (including seriousness of the charges being faced, monthly expenses, local private counsel rates) would result in a “substantial hardship” if they tried to retain private counsel.  
Louisiana law creates just such a presumptive standard.  R.S. 15:175 A(1)(b) states: “A person will be deemed ‘indigent’ who is unable, without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own.  ‘Substantial financial hardship’ is presumptively determined to include all defendants who receive public assistance, such as Food Stamps, Temporary Assistance for Needy Families, Medicaid, Disability Insurance, resides in public housing, or earns less than two hundred percent of the Federal Poverty Guideline.  A defendant is presumed to have a substantial financial hardship if he or she is currently serving a sentence in a correctional institution or is housed in a mental health facility.”  And despite the district attorney’s opinion to the contrary, R.S. 15:175 B(2) clearly states: “Release on bail alone shall not disqualify a person for appointment of counsel.”
For those who do not meet the presumptive standard, but who may still qualify under the “substantial hardship” standard, many jurisdictions have developed financial eligibility formulas that take into account a household’s net income, liquid assets, reasonable necessary expenses and other exceptional expenses.  Under Guideline 1.5 cited above, liquid assets include cash in hand, stocks and bonds, bank accounts and any other property that can be readily converted to cash.  Factors that are not to be considered include the person's car, house, household furnishings, clothing, any property declared exempt from attachment or execution by law, the person’s release on bond, or the resources of a spouse, parent, or other person.  Next, the screening agency assesses a defendant’s reasonable necessary expenses and other money owed for exceptional expenses, like medical care not covered by insurance, or court-ordered family support. Though jurisdictions vary as to what constitutes “necessary” expenses, most include rent, day care, and utilities.  Screeners then determine the available funds an individual has to contribute toward defense representation by adding the net income and liquid assets and subtracting from the total the sum of reasonable and exceptional expenses. The resulting available funds can then be measured against a second tier presumptive eligibility standard.  In many jurisdictions, this second presumptive level is a designated percentage of the Federal Poverty Guidelines.  
Many jurisdictions have pre-trial services units that are responsible for eligibility screening.  Since pre-trial units are often responsible for recommending to a judge whether an arrestee should be detained or released and for presenting judges with independent assessments on bail recommendations, it makes sense for the unit to also screen for public defender eligibility.  Much of the same information is required to determine both eligibility for a public defender and flight risk.   Having the indigency determination done at the same time as the risk assessment allows for earlier notification of appointment to the public defender offices.  This, in turn, allows defenders to be more informed when meeting the client and leads to more informed bail hearings.
In New Orleans, there is hope that establishing a pre-trial services unit will make eligibility screening more objective.  As reported by, the district attorney and public defender “agreed that a pre-trial services program would improve the situation by providing independent screening of defendants.  That’s the system is [sic] used in federal court, but state courts in New Orleans have never funded such a program.”

For help with pre-trial services in your jurisdiction, please visit our friends at the Pre-Trial Justice Institute.
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