Gideon Alert: Oklahoma indigent defense system in crisis

BY David Carroll on Thursday, April 15, 2010 at 7:06 AM

The Oklahoma Indigent Defense System (OIDS) was created in the early 1990’s to represent all indigent adults and juveniles in 75 counties.  Staff public defenders handle all serious felony cases, death cases, direct appeals and post-conviction, while contract attorneys handle other felonies, misdemeanors and delinquency cases.  The two major urban counties (Tulsa and Oklahoma City) had pre-existing staffed public defender offices at the time of the statewide reform and opted out of participating in the new system. Public defense in Oklahoma has been historically underfunded -- spending $8.02 per capita on the constitutional right to counsel, or  30+% below the national average of $12.09 per capita.  Even this per capita expenditure of $8.02 gives an inaccurate picture of the amount spent on public defense in most of Oklahoma's counties, because the larger urban counties have more stable funding and spend more.  So the actual per capita spending in many of Oklahoma's counties is lower still.

This morning’s news account by The Oklahoman shows the 75-county statewide system to be in crisis.  Most state agencies in Oklahoma – including OIDS – were asked to reduce their budgets by 7.5% in 2010.  Indigent defense, however, is not like other state agencies.  While a Department of Public Works can decide not to buy a new truck or reduce services as dictated by budget constraints, our Constitution requires that every defendant facing possible incarceration who cannot afford private counsel must be given competent counsel no matter what.  The only way for an indigent defense system to deal with budget cuts during times of increased caseload is to give each attorney more clients and more cases.

OIDS’ 61 staff attorneys each handle between 400-500 cases.  Again, these are death cases, serious felonies and appeals only -- the most serious of all cases.  National standards state that an attorney should handle no more than 25 appeals or 150 felony cases per year and nothing else.  And, that 150 felony number is based on an attorney handling both serious and non-serious felonies, so that some of those cases would be less serious and require less time and resources. Though there are no national workload standards for capital cases, the commentary to the ABA Death Penalty Guideline 6.1 notes: “In terms of actual numbers of hours invested in the defense of capital cases, recent studies indicate that several thousand hours are typically required to provide appropriate representation.  For example, an in-depth examination of federal capital trials from 1990 to 1997 conducted on behalf of the Judicial Conference of the United States found that the total attorney hours per representation in capital cases that actually proceeded to trial averaged 1,889.”  This has generally been interpreted to say that a death-certified attorney should handle no more than three death penalty cases in a year, without handling anything else.  What all this means is, at best, the OIDS attorneys are working at 3 to 5 times over capacity.  Most likely, they are attempting to defend more than eight times the number of cases that they should be under the national guidelines that help to define what is needed to provide constitutionally required representation of clients.

Ominously, state budget authorities are forecasting that state agencies will be cut by an additional 10% next year.