By Joe Watson

Some states may soon be doing more to guarantee the Sixth Amendment right to
counsel for indigent criminal defend-ants.

Special commissions have been convened in Nevada, Idaho, Michigan and
Pennsylvania to investigate how flat-fee contracts with private defense
attorneys are failing defendants who can’t afford to hire counsel. Meanwhile,
some courts are weighing whether the practice of flat-fee indigent defense is
unconstitutional.

Image courtesy americanelephant.com

According to Stateline, the news service of The Pew Center on the States, more
than a dozen states use flat-fee contract attorneys to represent indigent
defendants in order to save money and provide relief to swamped public defenders’
offices. However, critics argue that such “contract counsel” tend to be young,
inexperienced, penurious and overwhelmed by their own caseloads; thus, the
supposed savings effectively subsidize backlogged appellate courts and state
prisons filled with poorly-represented defendants.

“This type of contract creates a direct financial conflict of interest between
the attorney and the client,” said 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.”

In Jackson County, Michigan, for example, contract attorneys are paid a paltry
$600 flat fee per case to defend indigent clients accused of second-degree and
Class A through D felonies, and only $350 per case for lesser felonies. In Lyon
County, Nevada, 200 indigent defense felony cases and 400 misdemeanor cases
were contracted out to a first-year lawyer who had passed his bar exam only a
few weeks earlier.

One of the most egregious examples cited by Stateline occurred in Washoe
County, Nevada. Washoe Legal Services, a nonprofit law firm, agreed in August
2011 to a six-month $80,000 contract to handle all cases adjudicated through
the county’s early resolution program. County officials estimated there were as
many as 1,000 such cases, meaning the firm was being paid as little as $80 to
handle each case.

States and counties that utilize flat-fee contracts for indigent defense have
been accused by critics of running “plea mills” – and those critics include
members of the American Bar Association (ABA).

In February 2002 the ABA issued a report titled “Ten Principles of a Public
Defense Delivery System,” which set forth basic standards for indigent defense
systems. The report recommended that “Contracts with private attorneys for
public defense services should never be let primarily on the basis of cost;
they should specify performance requirements and the anticipated workload,
provide an overflow or funding mechanism for excess, unusual, or complex cases,
and separately fund expert, investigative, and other litigation support
services.”

Michael A. Cherry, associate chief justice of Nevada’s Supreme Court and chair
of the state’s Indigent Defense Commission, argued that the criminal justice
system will remain inequitable so long as flat-fee attorney contracts are used.
But poor rural counties, he acknowledged, aren’t willing to spend more on
indigent defense.

“With the economic times, there’s no money to get counties to do anything
different,” Cherry said. “Flat-fee contracts may have to be a reality.”

Nevada set up a state public defender’s office in 1971 after the U.S. Supreme
Court’s landmark Gideon v. Wainwright decision that requires the appointment of
free counsel to represent indigent criminal defendants. The state covered 80%
of the costs and the counties paid the rest. However, the budget for the public
defender’s office was cut considerably over the years, and in order to get more
return for their indigent defense dollars, counties began awarding contracts to
lawyers willing to accept a flat fee.

The Nevada Supreme Court’s Indigent Defense Commission issued a final report on
November 20, 2007 based on a “statewide survey of indigent defense services.”
The Commission made a number of suggestions for improvements, including
establishing caseload standards and ensuring the “independence from the
judiciary of the court appointed public defense system,” as the role of judges
in appointing counsel “creates an appearance of impropriety and the opportunity
for abuse.”

PLN previously reported criticism of Alabama’s indigent defense system, which
operated with little oversight in terms of judges appointing contract counsel –
including attorneys who had donated to the judges’ election campaigns. [See:
PLN, Sept 2010, p.28]. On June 9, 2011, Alabama created a statewide Office of
Indigent Defense Services to oversee criminal defense systems on the county
level and to set caseload standards, attorney qualification standards, and
standards for the “performance of appointed counsel, contract counsel, and
public defenders.”

Michigan is one of only a few states that provide little or no state funding
for criminal defense services on the county level; consequently, most counties
use contract attorneys rather than public defender offices.

Michigan ACLU legal director Mike J. Steinberg noted that contract counsel
“have to encourage their clients to plead guilty and keep the docket moving in
order to generate the volume that they can make a living. So the incentive is
to get your client to plead guilty as quickly as possible doing the least
amount of work as possible.”

Criticism of Michigan’s indigent defense system came to a head in March 2012,
when the U.S. Supreme Court decided Lafler v. Cooper, 132 S.Ct. 1376 (2012),
which alleged the quality of plea advice given by contract counsel to an
indigent defendant was legally ineffective. The Court held that defendants have
a Sixth Amendment right to effective assistance of counsel during plea
negotiations. [See: PLN, Sept. 2012, p.18].

The petitioners in another case, Duncan v. Michigan, 780 N.W.2d 843 (Mich.
2010), are seeking injunctive relief from what they allege are practices that
violate their rights as indigent defendants; the suit seeks to compel the state
to provide funding for indigent defense services.

These cases prompted Michigan Governor Rick Snyder to issue an executive order
on October 13, 2011 that established an Indigent Defense Advisory Commission.
The Commission issued its final report on June 22, 2012; among numerous
findings, it noted that the state’s indigent defense system consists of “an
uncoordinated, 83-county patchwork quilt of service delivery systems, with each
county’s ‘system’ dependent on its own interpretation of what is adequate and
on its own funding availability.”

The Commission further found “that Michigan’s current system of providing legal
representation for indigent criminal defendants lacks procedural safeguards to
ensure effective public criminal defense services.” Recommendations in the
report included ensuring that “Each local system must take affirmative steps to
avoid the creation of economic disincentives or incentives that threaten to
impair the provision of effective assistance of counsel.”

In Pennsylvania, the Task Force and Advisory Committee on Services to Indigent
Criminal Defendants issued a report in December 2011 that examined indigent defense
systems in a number of states; the Committee wrote that “Pennsylvania [is] the
only state that does not appropriate or provide for so much as a penny toward
assisting the counties in complying with Gideon’s mandate.”

Quoting from a 2003 report that reached similar conclusions, the Committee
noted that “Most counties pay assigned counsel a flat fee (per year in most
counties and per case in Philadelphia), creating a disincentive for counsel to
devote time to a particular case. As a result, attorneys are not taking the
time to visit clients in jail, file motions, conduct effective investigations,
or respond to mail from clients.”

“It is really penny-wise and pound-foolish to use a flat-fee compensation
system that doesn’t pay lawyers what they need for investigations and
casework,” noted Virginia Sloan, president of the Constitution Project, a
Washington, D.C.-based right-to-counsel organization. “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.”

A small contingent of states are moving in a different direction from flat-fee
indigent defense contracting and its inherent flaws, according to the
Constitution Project. Iowa and Washington State have banned contract counsel
altogether. Oregon enforces limits on its flat-fee system at the state level,
and reevaluates caseloads for contract counsel every six months. And in
Tennessee, both the Tennessee Bar Association and the Chattanooga Area Criminal
Defense Lawyers vocally resisted a 2011 proposal that would have allowed
flat-fee contract counsel in that state.

Sources: www.stateline.org, www.jsg.legis.state.pa.us, Report of the Michigan
Advisory Commission on Indigent Defense (June 22, 2012), www.nlada.net,
www.law.umich.edu, www.npr.org, www.aclu.org,

http://www.sixthamendment.org/

(First published by Prison Legal News and used here by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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