JSERI Blog Archives

On May 9, the U.S. Government Accountability Office (GAO) issued a report assessing the ways in which the federal government has provided funding and other federal support to the states for indigent defense for the last seven years.

On December 8, 2011, Pennsylvania’s Joint State Government Commission issued its report, A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, concluding that public defense providers labor “under an obsolete, purely localized system,” and that the structure of services “impedes efforts to represent clients effectively.” Echoing the 2003 report of the Supreme Court Committee on Racial and Gender Bias in the Judicial System, the new report states:

On November 15, 2011, the Emery County Progress reported that the county attorney -- the same office that prosecutes crimes in the county -- not only plays a major role in selecting opposing counsel, but also controls the budget of the local indigent defense system.  Though this column has reported on undue prosecutorial interference in Utah before (click here to read about Utah district attorneys involved in the selection and oversight of public defenders), this is the first documented instance in which there is a direct financial conflict of interest between the two adversarial components of the court system.  

"[D]ysfunctional family life is rarely observed by individual family members, who are so entrenched in the process that they cannot really see it for what it is." Thus concludes Allegheny County Office of the Public Defender Assessment, a report by the Institute for Law & Policy Planning (L&PP). The study, commissioned by Allegheny County (Pittsburgh), explains why it is that public defense attorneys within deficient systems cannot understand the depth and breadth of the on-going, chronic right to counsel problems in their own jurisdiction.  Because of that, public defense attorneys often cannot fix their own systemic problems.  The L&PP report remained hidden from public view for over two years and only came to light through the committed effort of the American Civil Liberties Union of Pennsylvania (ACLU-PA) to get it released under Pennsylvania’s freedom of information laws.

“When it comes to balancing the scales of justice for the poor with the expense, there simply are no easy answers,” concludes the Knoxville News Sentinel on August 21, 2011 in part of an in-depth, three-part series. The Tennessee Supreme Court proposed a new rule change that attempts to find an easy answer to controlling indigent defense costs by allowing flat-fee contracting for right to counsel services, but the Court has neglected to provide institutional safeguards that would protect the adequacy of representation.  If implemented, this move will buck the trend of other state Supreme Courts, in places like Iowa and Washington, that have recently banned these types of low-bid contracts because they create a direct financial conflict of interest between the attorney and each client.  Tennessee’s high court is accepting public comment on their proposed rule until September 1, 2011.

“The insidiousness of overburdening defense counsel is that it can result in concealing from the courts, and particularly the appellate courts, the nature and extent of damage that is done to defendants by their attorneys' excessive caseloads,” declared the Arizona State Supreme Court in State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (Ariz. Apr. 4, 1984).  The Smith Court found that the lowest bid system for obtaining indigent defense counsel in Mohave County (Kingman) violated the defendant’s right to due process.  In light of the Smith case, Arizona counties struggle to provide fiscal predictability to the taxpaying public, while ensuring the rights to counsel and due process of each indigent defendant. The Wilcox Range News reported on August 10, 2011 that one county – Cochise County (Bisbee) – is currently considering a proposal to switch from an assigned counsel system paying an hourly rate of $50 to a system paying a “flat fee of $150 per misdemeanor case and $900 per felony case.”

On August 2, 2011, the Gotham Gazette provided a lengthy update on the state of New York’s ongoing struggle to provide a meaningful right to counsel for those otherwise unable to afford it.  The New York Civil Liberties Union class action lawsuit against the state, now in the discovery phase, continues to pressure policymakers to find a permanent resolution to the state’s severe, chronic challenges in meeting its 6th Amendment obligations.  Meanwhile, the newly established Office of Indigent Legal Services saw its initial $3 million budget cut in half, limiting its ability to aid county-based service providers in meeting foundational standards.  With progress slow, the Gazette provides a helpful round-up on where efforts currently stand, and where New York policymakers may look next in order to make larger strides towards constitutional compliance.

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.

"Ethical Obligations of Indigent Defense Attorneys to Their Clients" provides a basic introduction to the provision of indigent defense services in courts throughout the country and the ethical obligations of the attorney who provide these services.

On March 3, the Newark Star-Ledger published an editorial on the New Jersey governor’s recent decision to remove the current chief public defender, Yvonne Smith Segars, and nominate a new candidate for the state senate’s approval.  New Jersey has a statewide, state-funded indigent defense system that provides direct services primarily through regional staffed public defender offices.  The state’s chief public defender, who oversees all right to counsel services in the state, is appointed by the governor with approval of the senate.

From time to time, NLADA will publish a more in-depth explanation of a particular topic, concept, or standard. Today, we have posted one such article: Understanding the debate about full-time public defender offices or appointment of private attorneys.