Changes to how Alabama runs indigent defense spark debate
by Cameron Steele
May 13, 2012 | 6756 views |  0 comments | 12 12 recommendations | email to a friend | print
In an image blurred for illustrative purposes, a defendant and his attorney are shown in a courtroom in Oklahoma in 2010. (from an Associated Press photo)
In an image blurred for illustrative purposes, a defendant and his attorney are shown in a courtroom in Oklahoma in 2010. (from an Associated Press photo)
Anyone in the United States charged with a crime has the constitutional right to help from an attorney.

Good lawyers don’t work cheap — even when governments wind up footing the bill for defendants who can’t afford to hire attorneys on their own, a type of legal work known as indigent defense.

Because the poor make up a huge portion of those charged with crimes in Alabama, indigent defense is expensive — costing the state $63.2 million in fiscal 2011.

While state officials agree indigent defense is a vital function of the courts, there is less common ground about how to fund and deliver quality legal services to poor defendants on the state dime.

For years, different counties in Alabama have chosen different systems — contract, appointment and public defense office — to provide that adequate representation for indigent people and adequate compensation for the lawyers who do the work. That decentralized approach is still in place today, but last year, the state Legislature took its first steps toward overhauling the indigent defense system and bringing down its cost with the creation of a new office within the state Finance Department.

Called the Office of Indigent Defense Services, it monitors the systems used by the different counties, reviews the bills that attorneys submit to the state and, somewhat controversially, is helping to switch many of the appointment-based systems to contract work — the cheapest way to provide indigent defense services.

“Cost control is clearly an enormous benefit of the contract system,” State Deputy Finance Director Clinton Carter said.

Just because something is less expensive doesn’t mean it’s better, critics counter. As more counties jump on the contract system bandwagon, other officials in Calhoun County and across the state worry about the effect on the quality of legal services provided to defendants who qualify as indigent.

“The cheapest way is not necessarily the most effective — or even the most constitutional,” said Patrick Tuten, president of the Alabama Criminal Defense Lawyers Association.

Cost concerns

Still, expense is something state legislators have been particularly concerned with, and with good reason: Between fiscal 2005 and 2011, the amount of money the state paid to attorneys who defended people unable to pay for legal representation themselves jumped from $30 million to $63.2 million. There’s much debate surrounding the reasons for the steep increase. Regardless, most state leaders and court officials agree a more unified oversight system for Alabama’s confederation of indigent defense systems should have been created years ago.

The creation of the Office of Indigent Defense Services was for years delayed for the reason that many legislative measures are: Officials couldn’t agree on the language, Tuten said. Now that the office is in its new monitor role, officials still don’t agree on many of the measures it is enforcing.

Capping the hourly rates of lawyers who do indigent work is one of those new cost-curbing measures: Attorneys can no longer charge more than $70 per hour for time spent on indigent cases — $15 less than they used to be able to bill the state.

But perhaps more important to cutting costs — and most alarming to some criminal defense experts — is the promotion of the contract-based system over court-appointed attorneys. By urging counties to switch to contract-based systems, Office of Indigent Defense officials hope to reduce indigent defense costs by $20 million as soon as fiscal 2013.

Contract systems are set up so that a certain number of lawyers in a county are hired to split the indigent cases between them, and are paid a set annual amount, no matter how their caseloads fluctuate.

That’s a less-expensive scheme than the appointment system, in which a judge appoints attorneys to indigent work on a case-by-case basis. At the conclusion of a particular case, the court-appointed attorney submits a bill to the state to recoup the costs of defense.

Contract systems are also cheaper than public defenders’ offices, which have high overhead costs and state-employed attorneys to defend people on the state’s dime.

Public defenders’ offices are necessary for a few counties like Tuscaloosa and Jefferson, Carter said, which have huge criminal justice systems and correspondingly high numbers of indigent defense cases.

The state could probably do without appointment systems, Carter said.

“From my perspective, the contract system provides a better quality of services,” the deputy finance director said. “It brings on a set number of attorneys … eliminates favoritism and cronyism that inflates cost, and the state is paying a flat rate.”

Adequate representation, compensation

A number of officials, though, take issue with contract systems and their “flat” rates.

They contend that paying attorneys a predetermined amount — no matter how much their caseloads increase — takes away the incentive to get to know clients, properly investigative cases, seek out experts for trial and, in general, spend satisfactory amounts of time on cases.

“The economic incentive in the contract system is to get the most amount of cases in the least of amount of time, because the reward is the same at the end,” said Malcolm Street, Calhoun County’s presiding circuit judge.

John Pickens, the director of Alabama Appleseed, a nonprofit advocacy group that works on a number of issues related to poverty in the state, pointed to a 2004 American Bar Association study that said contracts for indigent defense create “plea mill” situations, in which attorneys are simply managing cases rather than actively defending people.

That study surveyed 1,867 felony case files from contract defenders in four of Alabama’s judicial circuits; the survey “revealed that no motions were filed for funds for experts or investigators in 99.4 percent of the cases.”

“There is a trade-off between cost and representation,” Pickens said. “There needs to be a system where attorneys feel like they are adequately compensated and will do the work that is necessary to provide that adequate representation.”

Along that same line, attorneys like Tuten and Bill Broome, a Calhoun County lawyer, worry that contract systems discourage the best and the brightest from taking up the indigent defense mantle.

Criminal defense is hard work, they said, and it can be time-consuming.

“The problem with the contract system is you have no cases or 10 cases, you get paid the same amount,” said Broome, who has been defending indigent people in Calhoun County for 35 years.

Contracts, appointments, questions

Not everyone is unhappy with contract systems. Officials in places like Morgan and Houston counties spoke out favorably after they, in recent years, replaced their court-appointed attorneys with contracted ones, Street acknowledged. Just this year, 10 new counties have made the switch, Carter said, meaning 28 of Alabama’s 67 counties now contract for their indigent defense work.

As a result, the statewide cost for indigent defense work is expected to drop by more than $8 million by the end of fiscal 2012.

“And I do not buy for one second that it leads to inferior quality of representation,” Carter said.

In fact, he believes — thanks to the new oversight of Office of Indigent Defense Services and an increased number of counties using contract systems — attorney abuse in the indigent defense area is on the decline.

The appointment system was often wasteful, Carter said. It saw judges giving inexperienced attorneys tasks they weren’t ready for and some lawyers “stretching on billing mechanisms.”

“The costs per case were being grossly mishandled by the attorneys,” the deputy finance director said.

In addition to the push toward contract systems, the Office of Indigent Defense Services is tackling case-by-case costs through a close review of attorney fees.

For example, if a lawyer submits a $20,000 bill for the defense of a case that usually costs around $2,000, state officials now have the authority to investigate. Before last year, they didn’t.

All attorneys who submit bills totaling more than $100,000 will automatically be reviewed, Carter said.

“We’re much more able to crack down now,” he said.

Centralized oversight

The centralized monitoring system, at least, is something that most court officials say they support — especially for now, while the Office of Indigent Defense Services has no real power to force counties to switch to contract systems if they don’t want to.

Broome acknowledges that sometimes lawyers take advantage of the appointment system. In his years as a court-appointed attorney in Calhoun County, he said he’s seen others let their private practices lag behind while filing hefty, unnecessary bills with the state as part of their indigent “work.”

Pickens, at Alabama Appleseed, also noted how interconnectedness between local judges, defense attorneys and prosecutors in smaller communities can give rise to some of the “cronyism” Carter cited as one of the appointment system’s faults.

“If there’s not in those localities a commitment to really providing constitutionally mandated representation for people accused of committing a crime, it’s not going to happen in that community,” Pickens said.

Moreover, a team commissioned by the Alabama Bar Association in 2006 to study the fairness and accuracy of Alabama’s death penalty system called for a closer, more centralized “oversight of indigent legal services at the circuit level.”

‘Was justice done?’

In Calhoun County, some 40 court-appointed attorneys were paid nearly $2 million to defend more than 3,000 indigent cases last year.

Some lawyers — such as Wendy Draper and Timothy Burgess — were paid more than $100,000 for indigent legal services, state records show. At the other end of the spectrum are attorneys like Ronald Held and Charlotte Tesmer, who earned only a couple hundred dollars from indigent work. (Some of the attorneys who only handled a couple of cases in Calhoun County were paid thousands of more dollars by the state for indigent work in other counties, according to online Finance Department records.) The rest of those appointed attorneys in Calhoun County fell somewhere in between; Bill Broome, for example, received just less than $30,000 from the state in fiscal 2011.

That may seem like a lot of money, but Judge Street points out indigent defendants make up more than 90 percent of the county’s criminal cases.

“I think we do fairly well,” Street said of the county’s indigent defense costs and appointment system. “The question you have to ask is: ‘Was justice done?’”

Star staff writer Cameron Steele: 256-235-3562. On Twitter @Csteele_Star.
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