Alabama Indigent defense changes spark debate Opinions vary on how to deliver quality legal services to poor defendants

By Cameron Steele

The Anniston Star

ANNISTON, Ala. (AP) -- 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.

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."

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."

Published: Wed, May 16, 2012

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