Gideon Alert: Ohio Public Defender Commission to force change in Hamilton County (Cincinnati)

BY David Carroll on Monday, June 28, 2010 at 11:33 AM

On June 27th, 2010 the Cincinnati Enquirer reported about how the Ohio Public Defender Commission (OPDC) is forcing change to public defense services in Hamilton County, by withholding state reimbursements and potentially suing the county over failure to provide an adequate right to counsel.

As background, Ohio was the first state to adopt what has come to be known as “the Indiana Model” for providing public defense.  In 1976, the Ohio Legislature created a centralized state oversight system, designed primarily for the purpose of administering state assistance grants to local jurisdictions to improve standards of representation.  Though funding remained predominantly a county function, the state was to reimburse counties up to 50% of their cost.  The statute established the OPDC -- a nine-member board empowered to set the standards of performance for existing county public defender offices and to set statewide criteria for determining indigency, reasonable caseloads, and attorney qualifications.  OPDC oversees and appoints the Director of the Ohio Public Defender Office (OPDO) – a centralized public defender office that serves as the administrative and reimbursement funding agency for the counties, and provides: limited direct trial-level client representation to those counties that cede local control; death penalty appellate and habeas representation; appellate representation in non-capital cases; juvenile appellate representation; and mitigation and investigation services. 

Until 2009, OPDC had never established any meaningful standards for attorney or system performance, and therefore there was no measure by which the central office could judge the effectiveness of the counties’ delivery systems.  And, during this same time period, the state had consistently retreated from their financial commitment – in 2008 counties were reimbursed for only 23% of their public defense costs.  The impact was such that county governments had little incentive to consider due process when weighing budget concerns.

On July 10, 2008, NLADA published a report on indigent defense in Hamilton County (Cincinnati), to the Hamilton County Commission.  NLADA found that, while services were constitutionally inadequate, many of the problems identified are beyond the ability of the County and the Public Defender Office to solve on its own.  Solutions require statutory authority from the state legislature, funding beyond what the county can provide, and the cooperation of the courts, the prosecutors, law enforcement, and the private bar.  On the heels of the report, local advocates pushed for changes, resulting in a stunning victory whereby the governor added $35 million to the State Public Defender budget to bring the state funding closer to the promised 50% level.

Unfortunately, that new funding did not come with enough restrictions or instructions for how it must be used.  Hamilton County's portion of the new funds amounted to $1.2 million.  Rather than give that money entirely to the public defender system in Cincinnati, the county last year reduced the public defender county budget by $700K and increased the sheriff's budget by $700K.  Effectively this meant that the $1.2 million of new money resulted in only $500K going to public defense and the other $700K going to law enforcement.

Such blatant disregard for the intent of the new funding has encouraged the OPDC to put Hamilton County on notice.  Hamilton County has until July 23, 2010 to submit a reform plan or face defunding.  The plan must include a new office with appropriate space for confidential attorney-client discussions, appropriate technology (Cincinnati is yet another example of a major urban jurisdiction that expects public defenders to share computers!), and 42 additional staff.