Pleading the Sixth: For decades, Santa Cruz County has delegated to private law firms, through county contracts, all decision-making about the provision of Sixth Amendment right to counsel services. The county cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all. At the same time, the county does not require that the contract private law firms explain: how much tax-payer money they spend on overhead and what is acquired; how much money they pay to partners, associate attorneys, and staff; nor what services are provided in exchange. A new 6AC report explains why these problems result from the State of California’s failure to uphold its constitutional obligations.
In 1963, the U.S. Supreme Court held in Gideon v. Wainwright that providing and protecting the Sixth Amendment right to effective assistance of counsel for indigent people who face possible loss of liberty is a constitutional obligation of the states – not of local governments – under the due process clause of the Fourteenth Amendment. To fulfill this constitutional responsibility to ensure effective representation for indigent people at the trial-court level, each state must have oversight of all of the systems that provide that representation. A state may establish an indigent representation services commission to provide that oversight, or it may assign responsibility for that oversight to a state agency or state officer.
California is one of only seven states that do not have any state commission, state agency, or state officer charged with oversight of any aspect of trial-level indigent representation services in criminal and juvenile delinquency cases. (The other six states are Arizona, Illinois, Nebraska, Pennsylvania, South Dakota, and Washington.) Instead, California has delegated to each of its 58 counties the responsibility for providing effective assistance of counsel to indigent people at the trial court level. Each county board of supervisors, or the individual superior court judges in the county, or the board and judges collectively, determine the method(s) used to provide representation to indigent people at the trial level. Counties are responsible at the outset for funding all trial-level indigent representation services.
On September 24, 2020, the Sixth Amendment Center (6AC) released The Right to Counsel in Santa Cruz County, California, which details how the state’s abdication of its Sixth Amendment responsibilities has resulted in a county indigent defense system where conflicts of interest and excessive caseloads create a serious risk of indigent defendants being deprived of their constitutional right to counsel in the trial courts. This is not the first time the 6AC has documented deficiencies in the Sixth Amendment right to counsel in California, but it is the first time we do so through a full evaluation of a California county’s indigent representation system.
In its attempt to fulfill the right to counsel responsibilities delegated to it by the state, Santa Cruz County has chosen to use private attorneys to provide all indigent representation services in its trial courts. The results of 6AC’s evaluation and findings show how the decades-long battle about whether California can best uphold its constitutional obligations through a coordinated statewide system or through decentralized county-based systems misses the point.
Trial-level right to counsel services in Santa Cruz County
For 45 years, the County of Santa Cruz has contracted with the same private law firm to provide primary indigent representation services. For conflict representation, the county has separately contracted for decades with two other law firms. In 2014, Santa Cruz County created the Criminal Defense Conflicts Program (CDCP) in the county counsel’s office, administering a panel of private attorneys who are available to be appointed on a case-by-case basis in cases where all three of the contract law firms have a conflict of interest.
Santa Cruz County does not have any office or person that is charged with oversight of the entire indigent representation system, and the county cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all. In the absence of this information, it is impossible for the county to determine how much the provision of indigent representation should cost or how to provide it effectively.
Instead, Santa Cruz County has delegated all decision-making about providing the right to counsel to the three private contract law firms, but without requiring those contract law firms to report information critical to knowing whether they are providing effective assistance of counsel to the indigent people whom they are appointed to represent. Because of the lack of transparency, the Santa Cruz County board of supervisors, county administration, and taxpayers have no way of knowing the actual cost of providing a core, constitutionally-obligated government function, including budget details on overhead, salaries, and benefits.
What is known is that the county’s contracts with each of the three private law firms require the law firms to provide representation in an unlimited number of cases in exchange for a flat annual fee along with the possibility of additional compensation in “extraordinary circumstances.” These contracts create conflicts of interest between the financial interests of the law firms, partners, and associates, and the case-related interests of the indigent people whom they are appointed to represent.
From the county’s point of view, the flat fees the county pays under the contracts have been for the most part the amounts the law firms requested, so the county assumed the funding was sufficient to ensure effective representation. Yet the law firm partners have failed to negotiate with the county for contract terms that ensure sufficient time and resources to provide effective representation, in part based on the understood threat that the county might turn to a low-bid approach to contracting. The law firm partners asked for what they thought they could get and still be awarded the contracts, rather than bargaining for what was actually needed to provide effective representation to each and every person appointed to their firm. For example, the law firms have not invested in needed infrastructure. All of the contract law firms have some sort of computers, but all are inadequate to manage discovery in their appointed cases, and the contract law firm attorneys often purchase their own laptops and cellphones to have access while they are in court. Many of the case-related functions that are typically done by most attorneys across the country on-line or on computers are instead performed manually by attorneys and staff at the contract law firms in Santa Cruz County.
Similar financial conflicts exist in the private counsel system administered by the CDCP. For most types of cases, a private attorney appointed through the CDCP is paid an initial flat fee based on the type of case and can be paid additional flat fees for certain events occurring in the case. The event-based fee structure has caused some lawyers to remove themselves from the CDCP, because they have determined it is “untenable financially” to work on cases for a flat fee per event. One attorney, for example, was appointed in a felony case about three years ago. The attorney had devoted well over 100 hours to the case and filed multiple motions, but the attorney had been paid a grand total of only $2,500. Because the attorney believed the case likely would resolve by plea, the attorney did not expect to be paid anything more no matter how much additional work was required.
The financial conflicts created in Santa Cruz County impair the early and continuous representation of each indigent defendant by a single attorney throughout the life of a case. If an attorney is appointed to represent an indigent defendant early in the criminal process, that appointed attorney can effectively represent the client when given the time, training, and resources to do so. But when a series of different attorneys represent that same indigent defendant at different stages of the case, each attorney must begin anew learning the facts of the case, researching the applicable law, and developing a relationship of trust with the defendant. From the defendant’s perspective, what good is it to appoint a lawyer early in the case if that lawyer is taken away and replaced with someone else? As the American Bar Association explains, this method often referred to as “horizontal representation” is most often used as a cost-saving measure in the face of excessive workloads and to the detriment of clients. The contract private law firms in Santa Cruz County have, over the years, established a system of providing attorneys to cover specific courtrooms during initial appearance proceedings known as “arraignment on the complaint.” For indigent defendants who plead not guilty at that first appearance in court, most will be represented by a different attorney, or series of attorneys, at the next proceedings in their case.
As could be predicted, the flat-fee compensation paid to the contract private law firms results in excessive workloads. Santa Cruz County has not set any limits on the number of cases that an attorney representing indigent clients may handle in a year, nor has any other entity been charged with setting maximum indigent defense caseload limits to ensure sufficient time to provide effective assistance of counsel. The individual contract private law firms do not have internal caseload policies or standards.
The primary contract law firm has caseloads far above the national standards, and the three contract law firms combined do not have enough attorneys to handle the total appointed caseload effectively. Under national standards, in fiscal year 2018-19, Santa Cruz County required a minimum of 44.14 full-time equivalent (FTE) attorneys to provide effective assistance to all indigent clients in the new case appointments made during that fiscal year, before even considering the cases they were already handling when the year began. Though 99% of these new cases were appointed to the three contract law firms, in February 2020 the law firms assign this caseload to only 32.5 FTE attorneys.
Additionally, indigent representation system lawyers in Santa Cruz County do not have adequate support staff, such as secretaries, paralegals, and social workers. When an attorney lacks support resources, the attorney must personally perform work that is not only outside the attorney’s expertise, but also takes up valuable time that should be devoted to developing legal arguments and preparing the client’s case. Many felony attorneys at the primary contract law firm speak openly about their “exhaustion” and need for a mental health break from crushing caseloads. One felony attorney who described the felony caseload as excessive stated that he was in trial 34 out of 52 weeks last year. Another felony attorney said he had nine felony jury trials in 2018.
The debate on how best to provide the right to counsel in California
For decades, California has been part of a national debate about whether the right to counsel is best provided by a coordinated statewide indigent representation system or by decentralized county-based systems. Those who advocate for providing representation through decentralized county-based systems point to some of California’s more affluent counties, noting that those counties’ indigent representation services have garnered national respect and received awards from prestigious national organizations that consider them to be among the best in the United States. Meanwhile, less affluent California counties often struggle to meet the state’s obligation to provide the effective right to counsel.
American Bar Association and other national standards call for state funding and state oversight of indigent representation services in large part because, without state funding, the local jurisdictions most in need of indigent representation services often are the ones least able to afford them. In many instances, the circumstances that limit a county’s revenue – such as low property values, high unemployment, high poverty rates, limited household incomes, and limited educational attainment – are correlated with high poverty, resulting in more people who are accused of crime being indigent and entitled to appointed counsel. Further, these less affluent counties typically spend more on social services such as public health needs, unemployment compensation, or housing assistance, leaving fewer resources available for protecting people’s rights under the Sixth Amendment. The dynamic becomes even more pronounced in states like California that have imposed substantial revenue-raising restrictions on counties over the past 35 years. In the face of a long list of county government responsibilities, it is difficult for indigent representation services to rise to the top of the triage list in most California counties. The 2020 global coronavirus pandemic has only exacerbated these issues, leading to greater inequality between more affluent and less affluent counties and their citizens.
Many of the California counties with better indigent representation systems fear that any attempt to get the state involved will result in the leading programs getting worse. For example, if the state created an organization to disseminate state money based on counties meeting mandatory standards, the argument goes, it would give counties that currently exceed those standards a reason to cut services down to the minimum level of services sanctioned by the state. What this argument leaves out are those counties – like Santa Cruz – that at times may have the resources to ensure effective representation to each and every indigent person, but that for a variety of reasons have not used their resources accordingly.
The State of California’s dereliction of its constitutional obligations to provide effective representation to indigent people was the subject of a class action lawsuit that culminated during the course of this evaluation. In July 2015, the American Civil Liberties Union (ACLU) filed suit against the State of California and Fresno County, alleging that California “has delegated its constitutional duty to run indigent defense systems to individual counties” and does not provide any oversight to ensure those county systems actually provide constitutionally required representation. In particular, because the state requires its counties to bear the cost of providing representation to indigent people and at the same time “places strict limits on the ability of cities and counties to raise revenue,” “indigent defense services vary widely across the state, and some counties with the highest percentages of indigent defendants – like Fresno County – also have the lowest levels of per capita funding due to an impoverished tax base.” The lack of oversight and funding, according to the lawsuit, resulted in a severe shortage of attorneys and support to provide representation to the poor, meaning that attorneys do not “have adequate time and resources to meet with and counsel their clients, investigate, conduct legal research, file and litigate appropriate motions, and take cases to trial when their clients wish to contest the charges.”
In April 2016, the trial court denied the state and Fresno County’s requests to dismiss the lawsuit. In its ruling, the court first found that “[t]he State cannot disclaim its constitutional responsibilities merely because it has delegated such responsibilities to its municipalities . . . [n]or can the State evade its constitutional obligation by passing statutes” – “the State remains responsible, even if it delegated this responsibility to political subdivisions.” Then, the court held that “[s]ystemic violations of the right to counsel can be remedied through prospective relief,” noting that the lawsuit does not challenge individual convictions, but instead “claim[s] that the State systematically deprives Fresno County indigent defendants of the right to counsel,” and the court agreed with the plaintiffs that “mere token appointment of counsel does not satisfy the Sixth Amendment right to counsel.” Therefore, “plaintiffs need not plead and prove the elements of ineffective assistance as to specific individuals in order to state a cause of action” for prospective relief.
In January 2020, the plaintiffs entered into a settlement agreement with the State of California. Without admission of fault or wrongdoing, California agreed to expand the mission of the Office of the State Public Defender (OSPD). Under the settlement agreement, OSPD will provide support for California counties’ trial-level, non-capital public defense systems, that may include but not be limited to: training for trial-level attorneys; indigent defense structure technical assistance to counties; and “efforts to identify further steps that could be taken to improve California counties’ provision of trial-level indigent criminal defense.” Although the expansion of OSPD’s mission is contingent on legislative approval and appropriation of necessary funding, the agreement binds the Office of the Governor to a good faith effort to advocate for these policies.
A useful first step for OSPD to take under the Phillips settlement agreement would be to simply document how the right to counsel is provided in each of California’s 58 counties, collecting uniform data on caseloads and other effective representation indicators, determining which counties comply with national standards like those summarized in the ABA Ten Principles and which counties do not. Armed with this data, OSPD could begin to inform the California legislature about what should be done to rectify failing counties’ indigent representation systems without harming those few counties that exceed the minimum requirements of federal and state case law and national standards. The 6AC report recommends that Santa Cruz County policymakers advocate for legislative approval of and appropriation of necessary funding to fulfill the aims of the State of California’s settlement agreement in Phillips v. California.
Until such time as the State of California accepts its constitutional responsibility to provide state oversight and state funding of the Sixth Amendment right to counsel, Santa Cruz County has no choice but to rectify the deficiencies in the system it is required to provide. The depth and breadth of the problems in California generally, and Santa Cruz County specifically, take on even more poignancy in 2020 as people take to the streets to protest racial injustices in criminal justice systems even as the coronavirus pandemic and raging wildfires threaten individual lives and livelihoods and governmental budgets.
In America’s criminal justice systems, public defense attorneys are intended to hold the justice system accountable, by serving as a check on law enforcement officers and prosecutors and by ensuring that every defendant receives fair and equitable treatment in the courts. Public defense attorneys can only fulfill this constitutional duty when they are qualified, trained, and given sufficient time and resources to provide effective representation under independent supervision.
Restructuring indigent representation services in Santa Cruz County will not be quick or easy. There will be many times when the constitutional obligations under the Sixth Amendment will force serious debate, especially given the potential fiscal impacts of the coronavirus pandemic and wildfires. But Santa Cruz County’s existing contracts with the private law firms that provide representation to indigent people expire on June 30, 2022, and so the county must act without delay.
The 6AC therefore recommends that Santa Cruz County immediately hire a full-time chief public defender. The 6AC recommends that Santa Cruz County authorize and fund that chief public defender to: establish an indigent representation system, including executive staff, a public defender office division, and a conflicts counsel division; promulgate uniform policies and standards for all indigent representation system services; and secure a sufficient number of attorneys, support staff, and supervisors in each division, and with adequate compensation and resources, to ensure conflict-free and effective assistance of counsel to every indigent person.