The Legal System - The Price Of Defending The Criminal Poor

How much does it cost to defend the indigent accused? And are we spending enough to give them a proper defense? The graphic shows total expenditures and the breakdown by source of money for legal counsel for indigent defendants in civil and criminal suits.¹⁶ As might be expected in a legal system in which caseloads continue to rise, expenditures went up, from $357 million in 1979 to $1.3 billion in 1990. In constant 1990 dollars, expenditures doubled from 1979 to 1990. In 1979 expenditures at the state level were 36% of spending. By 1990 state contributions accounted for 45% of spending.

The Bureau of Justice Statistics (BJS) provides more recent data on criminal cases only, from what it calls the only two systematic studies of indigent defense that have been done. The first study in the early 1980s included 50 counties. The second, in 1999, included 100 of the nation's most populous counties. Expenditures for indigent criminal defense services in 1982 in 50 counties totaled about $464 million (inflation-adjusted). Expenditures in 1999 in the same 50 counties totaled about $877 million, a 47% increase. Expenditures in 1999 for the 100 counties were an estimated $1.2 billion.

How big a bite does indigent defense take out of state court prosecutors' budgets? Using 1996 budget data for 81 of the 100 most populous counties, BJS is able to inform us that state court prosecutors in those 81 counties had budgets of $1.9 billion in 1999 (inflation-adjusted) and they spent $1.1 billion of that on indigent criminal defense services.

What do these figures mean? If the defense of indigent criminals is consuming 61% of state prosecutors' budgets, is that enough for a good defense? Let's look at some reports from the states regarding indigent defense spending.

According to the local newspapers, Georgia is facing an indigent defense crisis. The Augusta Chronicle (September 2002) advises: "About 80 percent of criminal defendants in Georgia are too poor to hire a lawyer. Last year, Georgia spent $55.4 million on indi-gent defense, 5 percent more than in 2000." Georgia ranks at or near the bottom in the states for indigent defense spending. The state's share of the $55.4 million spent in 2001 was 12%. Critics of Georgia's system complain that because local government picks up the lion's share of the tab, poor defendants in wealthy counties are better represented than poor defendants in poor counties. One proposed solution? More state money. Is there the political will? Georgia state representative Tom Bordeaux forthrightly explained: "No-body ever gets a lot of votes by campaigning for the rights of criminals…. [The slogan] 'We Provided Accused Criminals With a Better Defense' just doesn't fit on a bumper sticker." In Georgia and elsewhere, the impetus for reform comes from a judge's bench. According to Georgia Supreme Court Justice Robert Benham: "This is an issue that does not have a natural constituency; there is no hue and cry out there."

In New York, lawyers refuse to take any more indigent cases, citing pay rates — unchanged for 16 years — that do not cover expenses ($40 an hour in court, $25 an hour for work out of court). In North Carolina, a reduction in hourly fees from $74 to $65 prompted some court-appointed lawyers to say they would no longer accept indigent clients. In New Jersey, public defenders in death penalty cases are paid $50 an hour. In Cameron County, Texas, court-appointed attorneys earned a maximum of $100 per misdemeanor case and $350 per felony in 1999, no matter how much time they put into a case. According to a 1997 study by the American Bar Association, Alabama had a $1,000 cap in death penalty cases to cover the entire investigation and trial (Hand).

This suggests two questions: Are publicly-financed lawyers as zealous on behalf of their clients as private attorneys are, and are lawyers overpaid? There is plenty of anecdotal evidence about stereotypically incompetent publicly-financed defenders. If they were doing an inadequate job, one might expect to see more of their clients convicted. BJS reports that in the late 1990s, conviction rates in both federal and large state courts were the same regardless of the type of attorney a defendant had. However, defendants with publicly financed attorneys who were found guilty were more likely to go to prison (71% compared to 54% in large state courts, and 88% compared to 77% in federal courts). BJS does not speculate on why this is so. When it comes to length of sentence, a study of 19,000 misdemeanor, felony, and capital murder cases in the state of Virginia found disparities depending on what type of publicly-financed attorney a person had. Defendants represented by court-appointed lawyers could expect to spend two more years in prison than defendants represented by salaried public defenders — or by a private attorney. As

Operating Expenditures and Cases Handled by Indigent Criminal Defense Programs, 100 Most Populous Counties: 1999

		Type of Indigent Defense Service
Expenditures and Cases (000)	Total	Public Defender	Assigned Counsel	Contract
Number of counties	100	90	89	42
Total expenditures	$1,205,136	$880,920	$247,204	$70,012
Median per county	6,941	5,689	2,450	517
Total cases	4,174	3,413	618	143
Median per county	24	20	4	2
Number of programs	314	123	126	65

the table shows, and luckily for indigent criminals, public defender programs handle far more cases than do court-assigned attorneys.

What is the effect of underfunding when it comes to capital cases, where a convicted defendant faces the ultimate penalty? Professor James E. Coleman Jr. of Duke University School of Law told The Star-Ledger (Newark): "Poor compensation almost inevitably means that virtually the only lawyers who are available to handle capital cases for indigent defendants are inexperienced, ill-prepared and under-funded."

Do lawyers charge too much? Consider the state's murder case against accused Oklahoma City bombing conspirator, Terry Nichols, who is indigent.¹⁷ When defense attorneys submitted a bill for $1.7 million for trial preparation, the judge asked for expense reports containing enough detail to determine if they were reasonable. When more justification of expenses was ordered, defense lawyers called the judge "hostile," the trial was stalled, and the matter went to the Oklahoma Supreme Court, which in October 2002 issued a decision placing a new judge in charge of overseeing payments. Defense attorneys estimated they would need an additional $2.7 million to continue the case.

More than $4 million in attorney fees — that sounds like a lot of money. But Adkins points out that the money paid to public defenders must cover not only attorney fees but also expenses including legal research and the compensation of expert witnesses and investigators. In this "get tough on crime age," funding has increased for law enforcement and prosecutors' offices, Adkins contends, but there has been no corresponding increase for public defenders, who may find themselves handling caseloads 5 to 10 times larger than the loads of their prosecutorial opponents. He wonders which voices lawmakers listen to at appropriations time: the ones that want our streets made safer or the ones that want to "ensure that poor Americans accused of crimes have a fair defense."

Sources: Chart, Table: DeFrances, Carol J., Ph.D., et al., "Indigent Defense Services in Large Counties, 1999, BJS, NCJ 184932, November 2000. "Atlanta Law Firm Assists Indigent," Augusta Chronicle, September 1, 2002, pB06. David C. Adkins, "The Silent Repeal of the Sixth Amendment: The Indigent Defense Crisis in the United States," The Prelaw Society Journal (Towson University), Spring 2002, Vol. 15, No. 2, http://www.towson.edu/polsci/polsci.html. Doug Gross, "Providing lawyers for poor no easy job, but some say it's just matter of political will," The Florida Times Union, July 1, 2002, pB1. Frank Green, "Court-appointed lawyers criticized," Times-Dispatch, Dec 18, 2001, http://www.criminaljustice.org/. "Crisis in the court," The JournalNews.com, March 10, 2002, http://www.thejournalnews.com/newsroom/031002/10edlawyerpay.html. Viveca Novak, "The cost of poor advice," CNN.com, June 28, 1999, http://www.cnn.com/. Judson Hand, "In capital cases, poor defendants get what they pay for," The Star Ledger, August 13, 2000, p002. Information retrieved November 6, 2002.