The Pitfalls of Indigent Defense Funding Cuts
It is no secret that North Carolina is in budget crisis hell. The state legislature is faced with tough decisions regarding how to handle the cuts that must be made to balance the budget and keep government running smoothly. Indigent Defense has been a major area of debate for years, and the cuts to budget that is already in a multi million dollar shortfall will likely have an even greater impact than most of the general public realize.
In 2000, the North Carolina General Assembly passed the Indigent Defense Services Act of 2000, which created the Office of Indigent Defense Services, (IDS). IDS is charged with the responsibility of overseeing the provision of legal representation to indigent defendants and others entitled to counsel under North Carolina law. The IDS Commission and Office support adequate funding for the entire criminal justice system, including the courts themselves, the prosecution, and the defense.
When I finished law school in 2002 and decided to come home to North Carolina, I began my legal career at the Mecklenburg County Public Defender’s Office. As an Assistant Public Defender, I was truly trained and groomed to become a good defense attorney. I only left the Public Defender’s Office because I always wanted my own law practice, and I wanted to be able to practice different areas of law, particularly family law.
But I never stopped handling indigent cases.
As soon as I left the Public Defender’s Office I immediately applied to be on the list of private attorneys that handle indigent defense cases. Cases are assigned to attorneys on this list when there is a conflict of interest and the Public Defender can not represent a defendant because there are co-defendants, prior representation of co-defendants or an overflow of clients.
Unfortunately, IDS has been targeted for cuts that threaten to affect the criminal justice system in multiple ways. In March 2011, the Conference of District Attorneys gave a presentation to legislators comparing the budgets for Indigent Defense and their statewide and local budgets. The tone of the presentation indicated that they were outspent on every turn. Yet, the numbers did not necessarily give an accurate and fair comparison to the amount to time spent preparing a case and how the resources are utilized between Prosecutors and Defense Attorneys. In short, the Conference of District Attorneys’ presentation ask for cuts not to take place with them, but to consider cutting IDS funding.
In April 2011, IDS responded with a thorough paper outlining all of the issues raised in “North Carolina’s Criminal Justice System: A Comparison of Prosecution and Indigent Defense Resources.” In this paper, IDS outlined not just a true comparison of the usage of funding and the recoupment from clients, it also pointed out results from studies that were particularly interesting. Specifically, the paper indicated that a recent study showed ”The amount of time that a DA has to spend prosecuting an individual case is not comparable to the amount of time that a defense attorney has to spend defending it. A recent workload study of North Carolina DA Offices showed that DAs, on average, spend 6.5 minutes prosecuting a traffic case, 19 minutes prosecuting a misdemeanor case (other than DWI or drug offense), 43 minutes prosecuting a DWI, and 55 minutes prosecuting a drug offense other than trafficking. It simply is not possible to provide a competent defense in such a short time period, in part because defense attorneys have to conduct an independent investigation and because the DAs control the calendaring of cases.”
In my years as a defense attorney, my experience allows me to prepare a misdemeanor case fairly quickly but felony matters take so much more time and energy from meeting with clients, visiting them in jail if they are incarcerated, researching issues and drafting pleadings, and reviewing discovery. Most private attorneys who handle indigent cases, myself included, do not have investigators and paralegals at our disposal, so we are in the trenches doing the work ourselves.
The outcry from defense bars across the state regarding the proposed cuts to IDS funding have been profound. Many private attorneys have removed themselves from the Indigent lists as the threat of a hourly rate cut is a greater possibility. The impact on counties that do not have Public Defender Officers will be felt statewide, as private attorneys are necessary to handle those conflict and overflow cases I mentioned earlier. Many excellent attorneys may be forced to remove themselves to the list if the hourly rate decreases from it’s current rate of $75.00 per hour because it is not feasible to handle the cases and not even break even with the time and effort expended. And frankly, it is the rising stars and seasoned attorneys that are most needed on these Indigent Lists.
Most of the general public may not ever need an attorney, or grasp the impact effective representation means on the lives of indigent persons. However, the impact in the long term is, for lack of a better way of putting it, a no brainer. With less attorneys on Indigent Lists, Judges could be forced to appoint attorneys to handle these matters, which would be attorneys unwilling to do so. The number of claims of ineffective assistance of counsel could increase, putting a strain on the system and could affect the results of cases of countless defendants.
In a system where IDS is already strained and looking at a $30 million dollar shortfall, cuts to the attorney hourly rate and decrease in funding for attorneys to obtain assistance in case preparation with private investigators, and other experts, further cuts could result in disastrous consequences and erode our Constitutional rights.
