Public Defender Underbudgeted Essay, Research Paper

When a person has been accused of a crime they must go before a judge to determine his or her, guilt/innocence. But, what happens when the defendant can not afford to have legal representation. The answer to this question is in the US Constitution. This is located in the Sixth Amendment. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense .

If a defendant cannot afford legal defense, he or she would be provided with one for little or no cost.

The public defender is a lawyer appointed or elected by a city or county as a full-

time, official defender to represent indigents in criminal cases at public expense. Assigned

council is a bit different: any private lawyer designated by a city or county court to

represent indigent defendants in criminal cases at public expense. Assigned council are

lawyers who practice privately and are asked to take on a case city or county

However in recent years the lawyers assigned to these cases are barely breaking even (taking overhead into play) financially. Due to counties and states making budget cuts, the number of experienced public defenders have decreased. These lawyers are leaving the office to work for firms or start their own practices. A survey of attorneys who withdrew from the assigned counsel pool showed two-thirds of them left over the pay.

This leaves behind inexperienced young lawyers to take the cases to gain credentials. “The result is the risk that people will be railroaded through the system,” said by Ray McFarland, a bar association trustee and chairman of the Bar task force. “It’s not a concern that guilty people will go free- in fact, they’ll probably be hammered harder. But some people who are innocent won’t be treated fairly.”(Carter) How can a person get a fair trial when the odds are against them from the start? It s like the prosecution is the Yankee s and your defense is the Royals. The chances of winning are very slim (The last time the Royals beat the Yankees was about four years ago).

One of the problems is that most states leaves it up to the county, to pick up the tab for the public defenders. In a report from the Texas Appleseed Foundation a nonpartisan group that works on issues of legal representation for the poor and minorities, found that only North Dakota and South Carolina spent less per capita on what is known as indigent defense (Butterfield). The meaning of what Butterfield says is that for each

individual person North Dakota and South Carolina spend the least amount of money in

the United States for their free legal defense. The state of Texas did not provide money to

defend poor people charged with crimes; this task was left to its 254 counties. The effect

that this has is that the state of Texas has more executions and has a higher prison

population then any other state. What s more is that Texas doesn’t even have the highest

population In the US. At root, they say, these issues are linked by the poor quality of

courtroom defense for many defendants. (Butterfield)

The counties want to keep costs to a minimum. Some counties pay a flat fee for

the service of the defenders. Which range from $50- $350 a case “The flat-fee structure

creates disincentives for lawyers to argue too hard, because they won’t get any more

money,”(Butterfield) This was a quote from Mr. Beardall who was a major player in the

Appleseed report. A large county can have up to 50,000 cases per year and only have 200

lawyers work on these cases.

This problem isn t just concentrated in Texas. Every state under pays the public

defenders and the budgets keep getting smaller. If this trend continue then the only

lawyers who will be working these assigned cases would be fresh out of law school. With

little to no experience, cause the older lawyers wouldn t touch these cases. This problem

needs to be averted through legislation or the right of an attorney for a poor citizen will be

no longer. If there is no chance at winning, then why even bother trying to plead not

guilty.

The problem of public defenders and assigned council being under paid has not gone unnoticed by some counties. There have been task forces set up to find ways to combat this ongoing dilemma. For example King County is the largest county with the highest population and most serious crimes in Washington. I use a county as an example because many counties regulate the pay of the public defender not the state. King county pays its conflict attorneys less than any county in the state. The 225 staff lawyers in those agencies handled nearly 50,000 cases last year, including about 10,000 felonies and 10,000 misdemeanors. It’s an assessment shared by a task force commissioned by the King County Bar Association, which yesterday released a report urging the county to more than double the amount it pays so-called “assigned counsel” the last line of defense for hundreds of citizens accused of crimes . (Carter)

This Task force s members included three judges, four criminal defense lawyers and the chief of staff of the King County Prosecutor’s Office. This is an experienced group of individuals that have or have had personal experience with the matter. The pay rate, according to the task force, is “unreasonably low and negatively impacts criminal justice in King County.”(Carter)

After examining the situations the task force came up with a few ideas to resolve the problem. First the task force recommended the county increase that rate to $75 an hour, bringing it in line with rates paid by other similar-sized jurisdictions and the federal government. King County – with the largest population and most serious crime in Washington pays its conflict attorneys less than any county in the state. After looking into this the County budget officials say they have no intention of pumping that much new money into the Office of the Public Defender, which administers the conflict attorneys as well as the four public defender’s offices.

With the first plan falling through and money still need by the offices the task force made sometime later made a second proposal to the county. They recommending the pool of roughly 100 assigned-conflict lawyers are given a raise to $50 an hour. (Carter) Private lawyers in compassion make about $150 dollars an hour this would make the public lawyers break even when counting overhead. If this went through it would be a start for the public defenders office to get back on financial track. However, This is not new money being given to the public defenders. This money is being cut from other area’s of the budget. Overtime that amount of money will pile up and some other department of the state will suffer. This could also cause a domino effect. If the public defenders get a $50 dollar raise each it could make the prosecutors office think about how they can get more money. Then someone else will try to get more money and it will keep going on and on. That $50-an-hour rate is the amount County Executive Ron Sims has seized on as he presents his budget to the County Council next week. Only he plans to take five years to reach it, said Budget Director Pam Steel. The county plans to increase assigned counsel compensation by $3.40 an hour next year, with similar raises planned through 2005 . (Carter)

In the end the public defenders in King County had a small victory. More in the approval of this raise then the actually what was approved. Five years is a very long time to make an increase especially if the money is needed now. These increase only makes them break even the public defenders offices are losing money every year until 2005. The thing that is most significant about the decision is that the problem is recognized as a problem that needs to be addressed.

The Spangenberg Group, a Newton, Mass.-based research firm specializing in improving justice programs, points out that rates have been raised in nine states on a statewide basis since 1997, while two more states have increases slated to go into effect this year. Several local, rather than state, governments have also raised rates, the group says. (Dukart) This is a start, but it s still not enough there are still far too many states that have not taken action as of yet.

Virginia is one of the worst states in the nation as far as it s policies on the payment of public defenders. Virginia law caps reimbursement for defense on felony cases punishable by up to 20 years at $450 per case. The most common rate across the state is $30-$40 per hour. In a survey done by the American bar Association in 1997 says the average cost of keeping a legal office’s doors open is $57 per hour. Anything less than that, Wallace continued, and a lawyer is working for free, and the states that are paying that much for contract or court-appointed public defense are very few . (Dukart) This number is unbelievable considering King County had to fight for a raise to $50. Which they don t even make right away. They have to wait for that sum to stabilize. Only two states actually pay over $60 per hour. Arkansas and Nevada paid more than $60 per hour to hired public defenders as their standard, hourly, in-court rate for non-capital felonies at trial.

The American bar Association does not have an official policy on public defender pay rates, but the group has collected data from the Spangenberg Group. Their goal is trying to set minimum standards and encourage courts to adopt an organized framework and system” for public defense. If they set a minimum rate and get an organized framework it could help offices in Virginia, Texas and other lowball states. An exact amount has not yet been imposed. I would imagine it would be at about their estimate of $57 so that the public defenders can at least break even. However, how could the ABA s proposal passed? The states, which pay the low salaries, will not agree to this because they don’t have the money in the budget. The states that will agree to it would be the states that pay over the minimum. For these states to adopt this plan would be very beneficial to the legislature. If they re paying over the set minimum they will be able to argue to the public defenders that they are already getting comparative high pay. This is in the offices asking for raises in the future.

What the public defenders office would like to see done in Kentucky is providing bonuses for employees who reach various levels of service, such as 10 or 15 years. (Brammer) This would keep in the experienced defenders from leaving to pursue more lucrative private offers. If they are not getting the pay right away at least there will be something for them to look forward to in the future.

Offering an incentive to attorneys who accept a position in an area designated as a recruitment-retention problem. Lewis said it has been difficult to keep staff in areas such as Columbia, Hazard, Pikeville, Pineville and Paintsville . (Brammer) This idea would attract more young lawyers who are not attracted by the low pay they would be receiving. A negative aspect to this is that the public defender has to be there for 10-15 years before he or she can receive a bonus. In the time it takes to get to that point the public defender might be in debt due to the lack of funds that he will receive in salary.

The last option would be creating a loan forgiveness program for public defenders. The average student loan of attorneys hired by the department is $39,000 . (Brammer) Taking away debt from a person is a very attractive offer. Not only will the person not have to pay back his or her loan they also do not have to pay the interest on in it during the time it s being paid off. This idea s if put into place would have a very large effect on the on going problems of the public defenders. The only problem now would be to get it passed. That would be if for an average person out of college $39,000. That s an extra $39,000 per person needed to pay off the loan. The legislature might see this as worse then giving out raises. If a raise is given to the public defender they can be fired at anytime. A loan would have to be paid off regardless because it was agrees in the contract that the loan is out of their hands.

There are not many things that can be done to improve the situation that is currently happening. This is because there is no money from the state or local governments. Or at least no new money that they want to pump into their department. When the money will be force to be available then there will be changes in the system.

This has come to be a problem all over the United Sates and can not be ignored for much longer. If the public defenders cannot breakeven much less turn a profit then how can they be able to continue. High costs of operations and low income do not mix well together. They ask for pay raises in places such King county (the highest populated area in Washington) and get denied. This can not be the way if they defend people who can not defend themselves. Their clients will not pay them because do not have the means and are not obligated to do so.

There are many reasons why the pay is so low. A common problem in many states are that judges are often used to approve the compensation and reimbursement claims of panel attorneys (Dukart) With judges controlling compensation and reimbursements it could cause a conflict of interest. “When a judge approves a fee that is less than the amount sought, counsel may rightly or wrongly perceive the reduction as an admonition, rebuke or retaliation for defense tactics,”(Dukart) the group states, citing a 1992 U.S. judicial committee report that looked at public defender compensation systems. That committee’s recommendation was to appoint special review councils and administrators to review compensation and reimbursement claims. (Dukart)

This is an idea that I believe could do a lot for the office of the public defender. With an independent review council there will be a fair assessment of funds given for the work completed. Breaking down the system and adding a third party gives neither side the advantage, it helps the lawyers work in a more comfortable zone they need not worry about the backlash of the presiding judge.

Another Idea which could help the situation is putting a minimum price on cases in all states. Some states already have a maximum, but are yet to have a minimum. For example New York has a maximum of $1200 and Chicago $1250 per case. Often these fee s are waived by the states. (Dukart) But, it s easy to waive the maximum because all it s doing is giving the lawyers more money. We are in a capitalist nation making money is not looked down upon. However going below the minimum per case is like going under the state minimum wage which is illegal and cannot be waived. Public Defenders do not get tips or other money where they do not declare it from the government. What they get paid per case is what the make. Putting a cap on the minimum could be costly to the states at first, but it s well worth it. The public defender is a service provided by the state. the service is sub par or nonexistent then the jails would be overpopulated to the point where there will be no place to put them. There will be a lot more innocent men in jail as well which does not sit well with the citizens of the this great nation. This country would rather see 100 guilty people go free then see one innocent person to locked up.

An important thing to remember is where do most of the people being defended come from and why are they there? After working a the public defenders office in Hartford for a day I got the answer to these questions. For the most part they come from the same part of the city. The areas these people are from who need the representation are low class, uneducated and dangerous. The only thing this tells me is that the state has failed this section of the city. They failed to educate in their schools about crime, drugs, hate, and so many other things that could have been taught. In these types of neighborhoods these criminal actions need to be stressed to the students when they are still young and will be attending class. By the time the student is in high school he doesn t care about school he s doing something else to make money which is not legal in many cases.

A recommendation for the state could and should be to put more money into these elementary and middle schools. If the kids are reached when they are younger by faculty that care and can get through to them there will be less crime and less work for the public defenders office. This is a great idea in theory people may think, but if the state spends more now it will spend less later on.

In 1992 Edison schools inc. started the first ever for-profit school. These schools focus on instilling pride and discipline in it s students. (Greenwald/Hamden) For these students Edison makes the schools days longer from the normal seven to their eight hours a day. The day is not the only thing that they increased. The school year is much longer as well from 180 to their 200 days per year. A real advantage that Edison gives to it s students is that every one over second grade gets free use of a home computer linked to the library, a particularly prized perk among Edison students, 60% of whom come from families with incomes below the poverty line . (Greenwald/Hamden) The students according to them when the school first opened ran down the halls yelling and put graffiti on the walls. Now after sometime the hallways are white and quiet. The idea of instilling pride and disciple in the kids worked.

Their is actually statistical evidence that these schools are working in a positive

direction. Fifth-graders at Edison’s Wichita, Kansas school moved up to the 59th national

percentile in reading from the 46th, They also increased scores on a standardized math

test taken by all public school students in Wichita from the 35th percentile to the 64th.

While some financial analysts dispute Edison’s claim that all its schools are operating

profitably now, once corporate and start-up costs are factored out, many previously

skeptical educators now say that children are better educated under Edison’s plan than

those who remain in conventional public schools.(Applebome)

The control comes from the local school board not the companies. What Edison is doing is creating an environment for children that can be profitable to all. If we break it down you can see that if Edison turns a profit in the next quarter the stock will most likely rise. The physical profit means nothing, the money comes from the money invested into the company. When more money is put into the Edison it will be more money available to spend on the schools to make improvements.

The only problem that I think could be a deterrent is that the Edison company is a business. And like any business it could fail. If it fails financially then the school would be closed. That would leave the students in an unfavorable position. If the school goes bust then they would need to go back to the regular public school system unless they can afford private school.

However, if we put this type school in Hartford for example, the children will become more apt. to do something with their lives instead of crime, like continue their education or get a job. There will always be crime coming out of that neighborhood, the rate will be cut dramatically. The district itself will become a nicer place to live within a decade. There will be less crime and destruction that’s a lot less money spent by the state in many different area s of spending. A perfect example is the public defenders office. The less crime that happens in this area the less the public defender needs to work with. The number of cases will go down which takes the work load off and the need to hire more public defenders will be relinquished. When the state does not need to hire more people they will not need to cut out of the budget of the public defenders office.

Legislatures keep saying there is no extra money to pay for the services that is satisfactory for all parties involved. Maybe it s time that they stop trying to think of the problem directly and start to think about how the problem can be fixed indirectly. It was once said that prevention was the best method. To stay away from diseases so why wouldn t it work for the community. If you prevent these people from living a life of poverty and crime then you can prevent a problem in the legal system for years to come. You can’t change all of the people all of the time but you can change some of the people some of the time and some of those people can make a big difference.

Bibliography

1. Butterfield, Fox.(Texas spends little on public defender for poor criminal defendants, reports say.)New York Times (12/20/00):2/5/01

2. Dukar, James.(Low fee s for defenders of poor my jeopardize justice.)Office.com (5/5/00):2/5/01

3. Carter, Mike.(It s pocketbook Vs. Legal principles for lawyers serving poor defendants.) Seattle Times (10/ 6/99):2/5/01

4. Cambell, Mike.(You Have a Right to an Attorney……..Kinda.)The Stranger.com (

11/16-22/00):2/5/01

5. Brammer, Jack. (The case of the skimpy salaries)Lexington Herald-Leader (3/5/99):2/20/01

7. Applebome, Peter. (For-Profit Education Venture to Expand) New York Times (6/2/97): 4/20/01

8. Greenwald/Hamden, John, (School for Profit)Time Magazine (4/24/01):4/25/01

9. (Amendments to the Constitution of the United States)

Factmonster.com 2000 Learning Network:5/1/01