States Scramble to Fund Legal-Aid Programs

By: - November 24, 2003 12:00 am

New York’s court-appointed lawyers will get 100 percent raises next year to represent poor people in court one striking example of how states as diverse as Massachusetts, Kentucky and Minnesota are struggling to continue legal representation for indigents despite severe budget crunches.

The big pay hike financed by increases in traffic fines and in fees for drivers’ licenses and other services responds to a ruling by the state’s highest court, which said stingy pay for court-appointed attorneys is leading to inadequate representation for indigent defendants.

Beginning January 1, the state will pay an hour for work on felony cases and an hour for misdemeanor work, more than double previous rates that were as low as an hour for out-of-court work.

The previous fees were so far below the going rate for most private lawyers that they resulted in “denial of counsel, delay in the appointment of counsel, and less than meaningful and effective representation,” said the New Yok Court of Appeals Justice Lucindo Suarez.

The New York situation exemplifies a dilemma faced by most states that rely on court-appointed attorneys to represent poor defendants: The pay has fallen so far below what lawyers can make in private practice that it’s hard to find people to represent those who can’t pay their own defense costs.

As a result, some defendants must choose between representing themselves or waiting in jail until the state can find a lawyer for them.

In Hampden County, Massachusetts, at least 19 such indigents are now cooling their heels in jail waiting, according to a Boston Globe report. Some have been there for over a month.

Massachusetts pays an hour for most low-income defense cases.

And once poor people do get court-appointed lawyers, they often receive substandard representation, says Norm Lefstein, an expert on criminal justice at the Indiana University School of Law. “The fees that are paid to assigned counsel are so pathetic that they discourage full and effective representation of the client,” Lefstein said.

Eighteen states have tried to tackle the problem by charging low-income defendants a fee although the defendants can petition to have them waived in every such state except Minnesota and Florida. (The other states that use some sort of fee system include Arkansas, Colorado, Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, South Carolina, Tennessee, Vermont and Wisconsin.).

Those fees are keeping South Carolina’s indigent defense program afloat, according to Lisa Graves, assistant director of the state’s Office of Indigent Defense (OID).

The OID has a 2003 budget of only ,000, down almost million from its appropriated funding for 2002. It still manages to pay court-appointed lawyers with revenue from a fee charged indigent defendants, along with fines from crimes like drunk driving. But judges are often reluctant to collect the fees, Graves said, and she is uncertain whether OID can continue to cover its costs with such an uncertain stream of revenue.

“We have not had to refuse payment for any cases, but it could happen toward the end of the fiscal year,” she added.

Minnesota has also adopted legal copayment as a fiscal stopgap measure. In July, the state began charging people represented by public defenders and court-appointed lawyers between and .

The legislature earmarked the fees to cover a million cut in the state’s public defender budget. The Hennepin County public defender’s office, however, has taken Minnesota to court, arguing that the fees violate the constitutionally guaranteed right to counsel.

“The first thing we did was to challenge the constitutionality of the device that was put in place to help us,” said Scott Pederson, an administrator for the county’s public defender’s office. “Our position is that there is a higher principle here. It’s the constitutional protection that we afford indigent people, and asking them to pay for their own representation just flies in the face of that.”

Minnesota’s Supreme Court plans to hear the case in December.

A two-year-old Kentucky statute spreads the financial burden of indigent defense more broadly, requiring anyone who appears in criminal court to pay a 3.5 percent tax on court fees. The tax goes to the Public Defenders Office, whose budget was cut by about 4 percent over the past three years.

Some states are meeting the problem by relying primarily on so-called “public defenders” rather than court-appointed lawyers. Public defenders are state employees paid a fixed salary regardless of their caseload, while court-appointed attorneys are not state employees and are paid by the hour the bigger the workload, the higher the cost.

To make matters worse, budget cuts have forced states that rely primarily on the public defender system to lay off lawyers. The remaining lawyers have had to take on heavier caseloads.

The Kentucky Public Defenders Office eliminated 26 positions after budget cuts in 2001 and 2002. The lawyers left behind now handle an average of 484 cases a year, including misdemeanors and more time-consuming felonies, according to Ernie Lewis, the state’s public advocate.

Lewis says that when public defenders take more than 450 cases per year, they have a hard time keeping track of who they’re supposed to represent on a given day. Some of his staff handle more than 500 cases a year.

“Mainly what they’re doing at that point is processing,” Lewis said. “They’ve become a cog in a machine that’s crunching people up.”

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