Friday, July 20, 2012

Indigent defense under attack again

You know the drill.

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you...

And who pays for those attorneys? The taxpayers do. And with counties and states looking to slash budgets due to reduced revenues, fees for court appointed attorneys are among the first to go. And local governments have to find ways to pay for those tax breaks and other goodies they toss at corporations to set up shop in their backyard.

Down in Florida the legislature decided to move away from paying appointed attorneys by the hour and to institute flat fees for certain criminal cases.

Not that there's anything inherently wrong with flat fees. Most of us charge a flat fee because we know it's about the only way we know we're going to get paid. Of course we charge what the market will bear.

Not so for court appointed attorneys. The state set the fees low. Very low. So low, in fact, that the fees serve only to discourage appointed attorneys from defending an indigent client with the same level of vigor as a paying client.

The Palm Beach Post gives us the story of Joe Walsh, a criminal defense attorney who took over a case when the original attorney appointed to handle the matter became ill. Mr. Walsh spent 40 hours on the case and his client ended up walking out of jail with time served on an aggravated battery charge.

Mr. Walsh's reward from the State of Florida was a check for $1,000 that he will have to split with the original attorney.

Normally, Walsh would have charged a fee for his work as a private attorney who takes court-appointed cases when other lawyers cannot. But now, because Florida this year created a small registry of court-appointed attorneys who will be paid flat fees, Walsh must split $1,000 with the previous attorney assigned to the case — taking home less than a third of what he would normally make. 
“It’s sad, because the legislature is putting financial concerns over a defendant’s constitutional right to representation,” sadi Walsh, whose offices are in West Palm Beach. He would have been paid $5 to $10 per hour for his work if he applied the new fees to some of his old cases. The state’s minimum wage is $7.67 per hour. 
The push behind the new law, which lawmakers passed in March and went into effect July 1, was to lower the amount of state money paid to private defense lawyers. State records show the state paid $6.5 million over its original $3 million budget.

No one can afford to work under such conditions. And that's exactly what the Florida legislature counted on. The low flat fee serves only to encourage appointed attorneys to plead their client's cases out as soon as possible. After all, if you're already being underpaid on a case, why go any further than you have to?

The Florida Association of Criminal Defense Lawyers knows this and that's why they filed an objection with the head of the Miami-Dade County Circuit Court. Such a scheme makes a mockery out of a criminal defendant's right to, not only, counsel, but effective counsel.

As Karl Marx might have said, this is the inherent contradiction in the state providing attorneys for criminal defendants who can't afford to hire one on their own. Indigent defendants have a right to be skeptical of their appointed counsel knowing that their attorney is being paid by the same people who are prosecuting him. As long as we leave the cost of appointing attorneys to state and local government there will always be a tension between the state's desire to prosecute and that state's obligation to appoint counsel. And we all know who comes out ahead in that fight.

When states and counties talk about improving the efficiency of their indigent defense programs they are really talking about reducing the cost of appointing attorneys and increasing the number of pleas. And whether this be accomplished by low flat fees, ridiculously low hourly rates or increasing caseloads on public defenders is quite immaterial to those who control the purse.

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