States Rethinking Indigent Defense Systems

Governments can save on legal costs by setting flat fees for those who defend the poor. But many wonder if the practice is fair to defendants.
by , | December 1, 2011

By Maggie Clark, Stateline Staff Writer

This past August, in Nevada’s Washoe County, the second largest county in the state, the nonprofit firm Washoe Legal Services agreed to earn a fee of $80,000 over six months for handling any and all indigent defense cases that go through the county’s early case resolution program. The county estimates that there may be as many as 1,000 cases during that period, which would mean Washoe Legal Services could be making as little as $80 per case. The law firm is additionally responsible for all administrative, investigative, and insurance costs.

Flat-fee contracting for indigent defense is used in more than a dozen states around the country. Fixed-rate contracts negotiated by governments with private attorneys are a common way for counties and states to save money in hard fiscal times. But they have drawn criticism from a variety of quarters. Nevada, Idaho, Michigan and Pennsylvania have all established special commissions to look at indigent defense in general and flat fees in particular.

“This type of contract creates a direct financial conflict of interest between the attorney and the client,” says David Carroll, research director at the National Legal Aid and Defender Association. “Because the lawyer will be paid the same amount, no matter how much or how little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case.”

Flat-fee defense attorneys also must factor in the costs of investigation, bringing in expert witnesses, and any other incidental overhead they incur while working on a case, which all come out of the flat contract amount. This is another reason for them to try and resolve cases as quickly as possible, creating what critics sometimes refer to as “plea mills.”

Critics of flat-fee contracting include not only legal activists but also the American Bar Association. The chair of Nevada’s commission, Associate Chief Supreme Court Justice Michael Cherry, says that as long as flat-fee contracting exists in Nevada, the state cannot have an equitable justice system.

On the other hand, Cherry acknowledges, asking poor rural counties to spend more money on public defense may not be an option. “With the economic times, there’s no money to get counties to do anything different,” Cherry says. “Flat-fee contracts may have to be a reality.”

Declining funds

Nevada didn’t always operate this way. In 1971, it set up a state public defender’s office to comply with the U.S. Supreme Court’s Gideon v. Wainwright decision requiring defense lawyers for indigent defendants. The state paid about 80 percent of the costs, and the counties picked up the rest. But over the years, the program saw its budget cut more and more deeply, and in an effort to get more return for their public defense spending, the counties began to award indigent defense contracts to lawyers willing to accept a flat fee, either by the case or for a specified period of time.

Attorneys who take flat-fee contracts for indigent defense are often severely overburdened with cases — in one example in Lyon County, Nevada, an attorney who took over a public defense contract just weeks after passing his state bar exam was handling 200 indigent felony and 400 indigent misdemeanor cases during his first year as a practicing lawyer.

This is not a unique situation. In most flat-fee jurisdictions, attorneys who take the contracts tend to be young and looking for trial experience, and often have little background in handling such complex cases as rape and murder. The low rates force some lawyers out of public defense work altogether. David Lady, a former indigent defense attorney in Jackson County, Michigan, which has used flat-fee contracts for four years, says he can’t afford to take public defense cases any more because the flat rates are too low, and he no longer needs the trial experience that motivates some of the younger attorneys.

In Jackson County, a lawyer defending an indigent client gets paid $600 per case for second-degree murder and class A through D felonies, and $350 per case for lesser felonies. This year, the county has awarded contracts to 15 attorneys.

Despite the concerns, Jackson County is one jurisdiction whose leaders defend the flat-fee system. Steve Shotwell, chair of the Jackson County Commission, says the county started using flat-fee contracting not only to save money, but also to add diversity to the roster of attorneys taking indigent defense cases. Prior to 2007, Shotwell says, a small number of attorneys were assigned most of the cases, and were paid much more than under current procedures. In his view, the flat-fee system has improved the level of service in the county while forcing costs down.

A money saver?

Critics argue, however, that a flat-fee contracting system for indigent defense may actually cost more in the long run. “It really is penny-wise and pound-foolish to use a flat-fee compensation system that doesn’t pay lawyers what they need for investigations and casework,” says Virginia Sloan, president of the Constitution Project, a Washington, D.C.-based group that focuses on right-to-counsel issues. “You end up with a trial that is not done right, which can lead to potentially costly appeals, and you may have to retry the case, which is bad for the victims and very expensive.”

Michigan’s indigent defense system garnered national attention when a case from the state, Lafler v. Cooper, alleging ineffective assistance of counsel, was heard in the U.S. Supreme Court last month. The case centers on the quality of plea advice given to an indigent defendant by his lawyer. Another case, Duncan v. Michigan, is currently working its way through the state court system. The petitioners are seeking injunctive relief from what they claim are unconstitutional indigent defense practices. These controversies were the genesis of the indigent defense commission that Republican Governor Rick Snyder has formed to address the issue. The commission’s first meeting is Friday (December 2).

Mary Schmid Mergler, senior counsel for the Constitution Project’s criminal justice program, says that amid the pressure of overall state and local budget cuts, flat-fee contracting is on the increase. Still, there has been movement in the other direction. Washington State and Iowa have banned the practice outright. Oregon uses a flat-fee system, but actively enforces caseload limits at the state level. Public defenders in Oregon are limited to handling a set number of cases within the state-awarded contract, and every six months the caseloads are reevaluated.

Earlier this year in Tennessee, the state’s Administrative Office of the Courts, which handles payment for indigent defense claims, proposed a rule change that would have allowed flat-fee contracting in the state. The opposition was swift — the Tennessee Bar Association, the Chattanooga Area Criminal Defense Lawyers, and other groups of attorneys came out against the change. No final decision has been reached as yet.

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