Pleading the Sixth: In holding that the right to the assistance of counsel is a guarantee of our federal Constitution, the U.S. Supreme Court in Gideon v. Wainwright made that right obligatory on state governments by virtue of the Fourteenth Amendment – it was not an obligation of the courts, nor the duty of the legal profession, nor county government, but the states. Despite this, many states pass on this constitutional obligation to their counties. Small-town America simply cannot keep up with increasing demands for services in the face of decreasing revenue, as demonstrated in a spotlight feature on Putnam County, Indiana.
Putnam County (Greencastle) is a small county of approximately 38,000 people in central Indiana that, like too many counties across the country, struggles to provide indigent defense services with little state funding support. According to the November 28, 2012 edition of the Banner-Graphic, the county is facing hard economic times and a consequent uptick in both the number of cases entering the criminal courts and the percentage of those cases requiring a public attorney. As chief judge Matthew Headley states in the Banner-Graphic article, “[p]eople aren’t working like they use to. A lot of times families would come up with the necessary amount of money to hire a lawyer for the accused and they just don’t do that like they used to.” The county council is weighing options that pit cost-savings against due process concerns.
Unfortunately, this is not the first time Putnam County has confronted an increasing demand for indigent defense services in the face of decreasing revenue. A review of the county’s history will provide the context for the difficult position that all small counties nationwide are placed in when trying to shoulder the full burden for funding and administering a state’s right to counsel obligations. Moreover, we review how Indiana’s plan to assist counties has been largely unsuccessful to help jurisdictions, like Putnam County.
Indigent Defense Service in Indiana
Three state agencies have been created to assist Indiana counties provide constitutionally adequate indigent defense services. The Indiana State Public Defender provides representation in post-conviction proceedings (i.e., indigent adults and juveniles who are incarcerated and are challenging a sentence or a commitment). The Indiana Public Defense Council is a public defense support center, providing training and help-desk assistance to approximately 1,100 public defenders, assigned counsel and contract defenders across the state. The Indiana Public Defender Commission (IPDC) is an eleven-member commission appointed by a diversity of factions [Governor (3 appointments); Chief Justice (3); Speaker of the House (2); Senate President Pro Tempore (2); and the Indiana Criminal Justice Institute, which is the state’s criminal justice planning committee (1)]. The IPDC promulgates standards related to workload, attorney qualifications, and pay parity, among others, for both capital and non-capital representation. Those counties that meet the IPDC standards are eligible to be reimbursed 50% of their capital representation costs and up to 40% of their non-capital costs.
Unfortunately, state funding for the reimbursement plan has not always kept pace with its intended effect. According to the IPDC 2011-2012 annual report, reimbursements to counties for non-capital representation had dropped to a low of 25% in 2003-2004. In the 2011-2012 fiscal year, however, the Commission was able to raise the reimburse rate for participating counties back up to the state’s intended 40%. But part of the explanation for why the state was able to reimburse counties 40% of their non-capital representation costs is due to the fact that the number of counties seeking reimbursements has steadily decreased from a high of 72% of all counties participating (or, 66 of 92 counties) to just 52 counties today (56%). But why are so many counties leaving the state’s reimbursement program?
The story of Putnam County provides the answer.
Indigent defense services in Putnam County pre-2010
Putnam County has never sought state reimbursement for their non-capital representation costs. Historically, public defenders in Putnam County were always part-time county employees. That is, they received a pro-rated county salary and benefits but were allowed to represent private defendants during their non public defender hours. Two defenders worked in a small office within the Courthouse labeled as the “Public Defender’s Office,” though in reality the office space was merely two open cubicles – the county could not even put doors on the cubicles due to budgetary restraints. The public defenders shared part-time secretarial support and a single telephone line. One handled matters in the Circuit Court (primarily serious felonies) while the other covered Superior Court (primarily misdemeanors). Another set of two attorneys worked in a similarly cramped office environment.
The American Bar Association, Ten Principles of a Public Defense Delivery System (Principle 4) requires an indigent defense system to ensure that “[d]efense counsel is provided sufficient time and confidential space within which to meet with client,” noting that “[c]ounsel should have confidential access to the client for the full exchange of legal, procedural, and factual information between counsel and client.”
According to an attorney disciplinary matter eventually decided by the Indiana Supreme Court in 2009, such systemic assurances of confidentiality was not the norm in Putnam County. The facts asserted in the disciplinary hearing involved one of the public defenders (Defender A) asking the other (Defender B) for advice on a client willing to offer incriminating evidence against another defendant who shared a cell. Unbeknownst to the Defender A, Defender B had the other defendant on a child abuse and neglect proceeding and recognized the facts of the case almost immediately (though no names were shared). Despite having Defender B on the dependency case, the defendant in question had retained private counsel on the criminal charge. Defender B promptly alerted the private counsel that his client’s cellmate (who was being represented by Defender A) was ready to talk.
Somewhat amazingly, the Indiana Supreme Court determined that there was no breach of confidentiality. The Court determined that there was no public defender “office,” but rather two independent lawyers who owed their allegiance to the separate Courts that appointed them. As stated,
Although the common space, staff, letterhead, and phone line might in some circumstances tend to give the impression that [the two public defense attorneys] constituted a firm, the attorneys did not choose or have any say about those trappings, which were provided by the Putnam County courts. They did not hold themselves out for business of any sort to members of the public at this location. Rather, they worked at this location only on court-assigned cases, and each attorney was assigned cases only from the court that retained that attorney.
A dissent entered in the case underscores the need for ABA’s Principle 4’s call for confidentiality. “Because the inviolability of client confidences is one of the bedrocks of our profession,” the dissent argues that the Court should have used a client’s perspective on how the office appeared to them. “I submit that any client, whether telephoning one of these lawyers, receiving a letter from one of these lawyers, or going to an appointment with one of these lawyers at the Public Defender’s Office, would reasonably conclude that these lawyers” were of the same public defender law firm. “Indeed, one need not even apply a reasonable client test here as [Defender A] must have thought that she was in the same firm as [Defender B] or she would not have disclosed confidential client information to him.”
So indigent defense services in Putnam County in 2009 was provided by part-time private lawyers, paid as county employees, but under the direction of the courts, who operated out of small two-person offices that did not protect client confidentiality. But even that was too costly for the county given the economic downturn during that time.
Indigent defense services in Putnam County: 2010-present
According to a January 2010 report from RTV Channel 6 News, Putnam County shut down the quasi-public defender offices at the start of 2010 and moved to direct flat fee contracts. Whereas the questionable public defender model described above cost the county $300,000 per year, the flat fee contracts cost the county only $150,000 through the elimination of office space, support staff and county benefits, and by terminating the four existing public defenders in favor of hiring four younger attorneys for $35,000 per year each. Each of the two new felony attorneys were expected to handle caseloads that would be considered more than the workload of a full-time public defender under national caseload standards. And yet they were handling their court-appointed caseload only part-time.
National caseload standards were first developed under a grant from the United States Department of Justice in 1973 and state that no public attorney should handle more than 150 felonies if that is the only type of case she handles. Comments to ABA Principle 5 on workload states unequivocally that “no event” should the national caseload standards ever be exceeded. Yet, the “part-time” attorneys were expected to handle approximately 240 cases each (or, 160% of the national standards.)
The situation is actually much worse than that. In a conversation with the Sixth Amendment Center, Superior Court Presiding Judge Matthew Headley stated that though the felony numbers have held consistent during the intervening two years, the felony attorneys are also expected to handle approximately 50-100 children in need of services cases or 125 juvenile delinquency cases in addition to the felony work. The 1973 caseload standards state that an attorney handling delinquency cases should handle no more than 200 delinquency proceedings in a given year and nothing else. And, though the national standards do not address dependency representation, states that do have standards for such work (e.g., Washington Defender Association standards) require an attorney to have no more than 80 open dependency cases at any one time. This means that the Superior Court attorneys in Putnam County handle a workload approximately 280% above what prevailing standards require.
To his credit, Judge Headley recognized that the Putnam County criminal justice system cannot be efficient nor effective under such strains and wrote the county commission in early November setting out four options for the county to consider: 1) accept state funding in exchange for meeting IPDC standards; 2) hire two additional public defenders at $35,000 each; 3) move to a system where private attorneys are paid on a flat per case basis (rather than a flat annual rate); or, 4) hire support staff to free up attorney time.
Judge Headley projects that it would cost the county approximately $420,000 per year to meet Indiana Public Defender Commission standards and that the county would recoup about $120,000 of that for a net cost of approximately $300,000. Again, the current flat-fee system costs $150,00 per year. Recall that the system in place prior to 2010 had cost the county $300,000 each year, and it was found to be too costly to maintain. The state’s reimbursement program simply offers no incentive to the county where it would have to increase its costs to a level it had already determined it could not afford, and especially when the county has no guarantee from the state that its actual costs would be capped at $300,000. In fact, as fiscal year 2012 was only the third time in eleven years that the Commission did not have to prorate the non-capital reimbursement to the eligible counties, the state has shown that the guarantee of a 40% reimbursement rate is no guarantee at all.
The dissent in the 2009 disciplinary action sums up the problems of small town Indiana in trying to handle right to counsel constitutional mandates. Openly questioning why the Court should determine that Putnam County was not running a public defender’s office, the dissenting justice opined that “in our state’s Balkanized system of trial courts,” holding that the Putnam County public defender “office” constituted a law firm would have negative financial impacts because of the cost of paying conflict counsel at an hourly rate. “While the necessity of securing ‘conflict’ counsel presents some negative fiscal and other consequences in counties large and small, they are part of the price that our legal system has long paid to maintain the inviolability of client confidences in criminal cases.”
Providing a minimally acceptable level of representation carries a heavy cost. But our constitutional guarantees must be delivered even in tough economic times. Certainly there are some larger and more wealthy counties that have shown they can meet that cost requirement, but small-town America can’t do it — and so it is the state’s obligation to step in.