UPDATE ON INDIGENT DEFENSE SERVICES

UPDATE ON INDIGENT DEFENSE SERVICES IDS PRESENTATION TO NC COURTS COMMISSION Presented by Thomas K. Maher, IDS Executive Director W. James Payne, IDS Commission Chair Christine Mumma, IDS Commission Member January 2o, 2015 This Presentation Will Cover: Highlights in development of current indigent defense systems The role of specialized defenders (e.g., the Capital and Appellate Defenders) The strengths and challenges of private assigned counsel ( PAC ), contract defenders, and public defenders Restoring PAC hourly rates (and contractor pay) The role of the IDS Commission Office of Indigent Defense Services 1

HIGHLIGHTS OF INDIGENT DEFENSE SERVICE DELIVERY IN NC Source of Right to Counsel 6 th and 14 th Amendments to U.S. Constitution [R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth..... The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. Gideon v. Wainwright, 372 U.S. 335 (1963) [T]he right to counsel is the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984) (quoting McMann v. Richardson, 397 U.S. 759 (1970)) Office of Indigent Defense Services 2

Source of Right to Counsel Various NC General Statutes also create a right to counsel at state expense: Cases in which an indigent person is entitled to legal representation under G.S. 7A 451 Other cases in which a specific statute creates a right to counsel (e.g., cases in which a minor has been voluntarily admitted to a mental health facility pursuant to G.S. 122C 224.1) Cases in which an indigent person is subject to a deprivation of liberty or other constitutionally protected interest Early Days of Indigent Defense in NC Post Gideon: Cases initially handled by PAC, with offices being created in fits and starts thereafter 1970: General Assembly created first 2 NC public defender offices (Guilford and Cumberland/Hoke Counties) 1973: General Assembly created Offices of Special Counsel at state s 4 mental health hospitals 1973 1975: General Assembly created 3new public defender offices (Buncombe, Mecklenburg, and Gaston Counties) 1981: General Assembly created Office of Appellate Defender ( OAD ) 1981 1997: General Assembly created a series of new public defender offices (covering Pitt, Carteret, Orange, Chatham, Scotland, Robeson, and Durham Counties) 1999: Office of Capital Defender ( OCD ) established as a pilot program within OAD Office of Indigent Defense Services 3

CDM1 Creation of IDS in 2001 IDS created in 2001 at the recommendation of the Indigent Defense Study Commission, which found: Quality and cost effectiveness of indigent defense suffered from lack of centralized planning and oversight Absence of proper management was at least partly the cause of dramatic growth in spending Authority over indigent defense was scattered among AOC, State Bar, local bar committees, hundreds of judges, and 11 public defenders No uniform standards existed Independence of defense function was compromised in conflict with national standards IDS Statutory Mission Enhance oversight of delivery of counsel and related services Improve quality of representation and ensure independence of counsel Establish uniform policies and procedures for delivery of services Generate reliable statistical information in order to evaluate services provided and funds expended Deliver services in most efficient and cost effective manner without sacrificing quality representation Office of Indigent Defense Services 4

Since IDS Was Created IDS tapped into existing resources (OCD and OAD) to create centralized statewide systems for representation in two complex and expensive case types i.e., potentially capital cases at the trial level and direct appeals In 2002, General Assembly s Governmental Operations Committee approved creation of a permanent Capital Defender position in existing OCD IDS itself assumed direct responsibility for centralized statewide system for capital post conviction cases In 2004, as recommended by the ABA Juvenile Justice Center and National Juvenile Defender Center, IDS created Office of Juvenile Defender (now has 2 attorneys) In 2006, IDS created a unit within OAD called Office of Parent Representation (OPR), which assumed responsibility for centralized appellate system in abuse/neglect/dependency, termination of parental rights, and contempt appeals Office of Special Counsel now overseen by Special Counsel Supervising Attorney Also Since IDS Was Created General Assembly created 5 new public defender offices (covering Forsyth County, Districts 1 and 2, Wake County, District 29B, and New Hanover County) Since 2003, IDS has used individually negotiated contracts for some cases, particularly specialized case types such as delinquency and abuse/neglect/dependency In 2011, the General Assembly first directed IDS to issue Requests for Proposals for a more widespread contract system Office of Indigent Defense Services 5

ROLE OF SPECIALIZED DEFENDERS Capital Defender In addition to supervising staff attorneys, the Capital Defender: Screens applications from private attorneys to determine if they are qualified to handle potentially capital cases at the trial level Maintains a roster of private attorneys who handle potentially capital cases that OCD attorneys cannot handle Appoints counsel (in house or roster) to all indigent potentially capital cases Authorizes or denies requests for expert funding in all indigent potentially capital cases Performs case consultations Assists with capital training programs Addresses any problems with quality representation Office of Indigent Defense Services 6

Expansion of OCD OCD enhances quality and contains costs by having dedicated full time attorneys handling potentially capital cases at the trial level, and by providing resources and oversight to approximately 250 private attorneys on rosters Since IDS was created, OCD has expanded: In 2001, pilot project within OAD had 3 attorneys on staff In addition to the Capital Defender, central office in Durham now has 9 staff attorney positions 3 regional offices in Buncombe, Forsyth, and New Hanover counties have 8 staff attorney positions BUT, due to a lot of turnover and vacancies, there was little growth in OCD s effective staff attorney FTEs between FY12 and FY14, so there was little growth in OCD s caseload In addition to handling cases in counties where offices are located and in nearby counties, OCD attorneys handle cases in small rural counties with few or no local attorneys on capital rosters FY Attorney FTEs (excl. Capital Defender) FY12 11 FY13 12.47 FY14 12.33 FY15 14.65 FY16 17 (if no vacancies) Centralized and Independent Systems are Supported by National Guidelines ABA Standards for Criminal Justice Providing Defense Services, Standard 5 1.3(a): The [legal representation] plan and the lawyers serving under it should be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. The selection of lawyers for specific cases should not be made by the judiciary or elected officials, but should be arranged for by the administrators of the defender, assigned counsel and contract forservice programs. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 3.1B: The agency responsible for ensuring that capital defendants receive high quality legal representation should be independent of the judiciary and it, and not the judiciary or elected officials, should select lawyers for specific cases. Office of Indigent Defense Services 7

Congressional Record Senate Cites NC as National Model in 2004 North Carolina has established a centralized, independent appointing authority known as the Indigent Defense Services Commission. The Commission appoints a statewide Capital Defender who is accountable to the Commission but not accountable to the judiciary or to the political branches of government.... Congress viewed the North Carolina system as a national model for establishing an effective capital counsel system. Centralized Systems Better Enable Cost Control IDS has implemented a number of cost control measures in potentially capital cases at the trial level: Decreasing the applicable hourly rate after a potentially capital case has been declared noncapital (currently from $85 to $75) Setting pre trial spending limits for attorneys and some defense experts unless a case has been declared exceptional by IDS Director Requiring attorneys to develop pre trial budgets in most complex and costly cases Those types of controls are easier for a central office to implement than hundreds of different judges spread across the state Office of Indigent Defense Services 8

October 2014 State Auditor Report Key Findings: Based on its policy, IDS assigned the correct number of attorneys and paid the correct rates for capital and non capital murder cases. Based on IDS policy, the assignment of a second attorney was justified in 100% of the cases reviewed. State Auditor reviewed a sample of 217 cases Based on its policy, IDS paid attorneys the correct rate 99.6% of the time. State Auditor reviewed a sample of 940 fee applications and found 4 errors http://www.ncauditor.net/epsweb/reports/performance/per 2013 2000.pdf Appellate Defender In addition to supervising staff attorneys, the Appellate Defender and Parent Representation Coordinator: Screen applications from private attorneys to determine if they are qualified to handle appeals Maintain rosters of private attorneys who handle appeals that OAD attorneys cannot handle Appoint counsel (in house or roster) to all indigent appeals Perform case consultations for trial and appellate attorneys, and moots for appellate attorneys Maintain an online brief bank Assist with appellate training programs Address any problems with quality representation Office of Indigent Defense Services 9

Expansion of OAD and OPR OAD and OPR enhance quality and contain costs by having dedicated fulltime attorneys handling appeals, and by providing resources and oversight to 68 private attorneys on the criminal appeals roster and 21 private attorneys on the roster for representing parents on appeal Since IDS was created, OAD and OPR have expanded: In 2001, OAD had approximately 10 attorneys on staff In addition to the Appellate Defender, OAD now has 20 staff attorneys handling appeals in noncapital criminal and capital cases In addition to the Parent Representation Coordinator, OPR unit has 3 staff attorneys handling appeals in abuse/neglect/dependency, termination of parental rights, and contempt cases Increased OAD Appeals Expansion has enabled OAD and OPR to handle more direct appeals each year: FY11 Appeals Opened FY12 Appeals Opened FY13 Appeals Opened OAD and OPR 179 234 243 274 PD Offices 0 9 10 11 PAC Roster 1,073 1,059 947 991 FY14 Appeals Opened Numbers are not weighted by complexity of case or length of transcript, and OAD and OPR tend to keep the more complex appeals in house Office of Indigent Defense Services 10

STRENGTHS & CHALLENGES OF PAC, CONTRACT DEFENDERS & PUBLIC DEFENDERS Healthy Systems Have Mix of Service Delivery ABA recommends that indigent defense programs utilize mix of service delivery systems ABA Standards for Criminal Justice Providing Defense Services, Standard 5 1.2: The legal representation plan for each jurisdiction should provide for the services of a full time defender organization when population and caseload are sufficient to support such an organization... Every system should include the active and substantial participation of the private bar. Mix of service delivery provides coverage for conflicts and ensures against overload in PD Offices NC has 100 counties with widely varying populations and caseloads, and best system for handling non capital and non criminal trial level caseload in one county may not be best system for those cases in another county Each delivery group has strengths that complement and fill in gaps of other groups PD offices and PAC/contractors rely on each other as resources Office of Indigent Defense Services 11

Strengths and Challenges of PAC Strengths: Broad knowledge from a variety of other practice areas Flexibility Crucial in areas with low volumes of work Greater ability to deal with changes in law or procedure e.g., Class 3 misdemeanor change Good attorneys who do not want to work full time or to enter into contracts can contribute Pay matches actual demand for types and complexity of cases Allows young attorneys to gain hands on experience Challenges: Less ability to ensure quality and to provide resources and training Inefficiency, particularly if local lists are too large or too small for caseloads Unpredictability of costs Incentive for attorneys to overwork cases to increase hours Retention of qualified, experienced attorneys given current PAC rates and delays in payment caused by budget shortfalls Administrative burden on clerks and judges Strengths and Challenges of Contractors Strengths: Ability for IDS to set cost effective contract amounts Largely predictable costs and some flexibility in dealing with changes in caseloads Quality control in selecting, monitoring, and training contractors Efficiency in handling cases due to larger caseloads Increased ability to address system issues Steady volume of cases and uniform monthly pay attract attorneys who may not be willing to handle significant volume of cases as PAC Enhanced data collection Challenges: Initial cost outlay Attracting and identifying best attorneys for contract types Retention of qualified, experienced attorneys given current contract rates Young attorneys may face difficulty getting their feet in the door Risk in determining coverage needs where volume of work varies over time Large areas for regional defenders to oversee and additional administration for IDS Incentive for attorneys to short cut cases when not paid by the hour Office of Indigent Defense Services 12

Strengths and Challenges of PD Offices Strengths: Institutional actor to work on system issues Efficiency in handling cases Larger caseloads, increased expertise and specialization, and ready availability of counsel to meet court schedules result in less time per case Cost savings for courts and counties, which are better able to control their jail populations Supervision, training, and development of attorneys to improve quality of representation Laboratories for experimentation in ways to improve outcomes e.g., job banks for clients; covering first appearance court Largely predictable costs Trained investigators and other legal assistance inhouse Challenges: Initial cost outlay for IDS and counties Retention of qualified, experienced attorneys and staff absent salary increases Decreased cost effectiveness in areas with low volumes of work Overhead costs of Chief PD s salary, support staff, and resources Without IDS appointment authority, decreased independence from judiciary and accountability to IDS PD System Expansion Under IDS General Assembly has created 5 new offices since 2001, and all offices combined are now handling more than twice as many cases as they were during IDS first year of operations FY PD Dispositions FY02 51,318 FY03 54,314 FY04 66,707 FY05 70,525 FY06 77,717 FY07 84,771 FY08 85,742 FY09 108,535 FY10 109,610 FY11 107,922 FY12 103,074 FY13 100,870 FY14 106,952 Office of Indigent Defense Services 13

Future Expansion of PDs G.S. 7A 498.7(a) provides, After notice to, and consultation with, the affected district bar, senior resident superior court judge, and chief district court judge, [IDS] may recommend to the General Assembly that a district or regional public defender office be established. A legislative act is required in order to establish a new office or to abolish an existing office. S.L. 2013 360, 18A.2 allows IDS to use up to $2.15 million in current biennium to create up to 50 attorneys positions and 25 support staff positions to expand existing offices or create new offices While IDS may create some new positions in existing offices if they would be cost effective, IDS does not have any current plans to recommend creation of new offices (unless requested by local actors or General Assembly) because: High initial cost outlay Expansion generally would not be cost effective compared to low PAC hourly rates Future Expansion of Contracts IDS is working to fulfill legislative mandate to issue RFPs for contracts for all types of indigent cases in all districts Special provision provides that, if contracts can provide representation services more efficiently than current costs and ensure that the quality of representation is sufficient to meet applicable constitutional and statutory standards, [IDS] shall use [PAC] funds to enter into contracts IDS is staggering the issuance of RFPs geographically and by case type, with initial RFPs limited to adult non capital criminal cases and some treatment courts IDS currently has 233 RFP based contract attorneys handling those case types in 18 counties (Districts 3A, 8A, 8B, 9, 9A, 10, 11A, 11B, 14, 15A, and 15B) Progress has been slower than IDS hoped due to staffing constraints and 20% administrative reduction last legislative session In FY14, RFP based contract attorneys handled 18,605 cases (including withdrawals) Amount of contract payments were set to be cost effective compared to the very low PAC hourly rates, and IDS is currently in process of evaluating whether first 2 years of contracts generated savings Office of Indigent Defense Services 14

RESTORING PAC HOURLY RATES (AND CONTRACTOR PAY) PAC Rates Unsustainably Low Most of the current PAC hourly rates are lower than the rates IDS originally set in 2002 Case Type Original IDS Rates (2002) Aug. 2006 Rates Feb. 2008 Rates Jan. 2011 Rates Potentially Capital Cases $85 $95 $95 $95/$85 (depending on how proceeding) High Level Felonies (A D) $65 $65 $75 $75 $70 All Other Superior Court $65 $65 $75 $75 $60 All Other District Court $65 $65 $75 $75 $55 May 2011 Rates $85/$75 (depending on how proceeding) $85 in 2002 has same buying power as $111.58 today, but IDS only pays $85/$75 $65 in 2002 has same buying power as $85.32 today, but IDS only pays $70/$60/$55 depending on type of case Office of Indigent Defense Services 15

PAC/Contractor Rates Unsustainably Low Hourly overhead cost of running many private law offices exceeds the district court rate and, depending on office, may exceed the other rates IDS previous rates of $75 per hour for non capital work and $95/$85 for potentially capital work are more likely to retain quality, experienced counsel on PAC rosters Contract amounts were calculated so that contract system will be cost effective compared to PAC PAC Dropping Off Indigent Rosters IDS is currently conducting a study to determine how many PAC stopped handling indigent cases when the hourly rates were reduced Preliminary results suggest that, since the rate reductions, the pace at which attorneys are leaving indigent defense work has increased dramatically Conservatively, the rate at which attorneys are leaving indigent defense has increased at least 33% and probably closer to 50% Office of Indigent Defense Services 16

PAC Dropping Off Indigent Rosters IDS also released PAC survey in early January to determine impact of rate cuts on PAC Survey closes on January 30 th As of January 16 th, 406 PAC had responded from all over the state 41.6% of respondents said rate cuts were primary cause of any changes in their state court practice since May 2011 When asked if they will stop taking state court indigent cases in next 2 years if rates remain at current levels: 18.1% said they definitely will 23.5% said there is a strong possibility 39.7% said they are considering that change Anecdotally, attrition has been higher among more experienced attorneys Restoring PAC Rates (and Adjusting Contractor Pay) IDS Commission never intended May 2011 rate reductions to be permanent, and IDS needs funding to begin restoring PAC rates Otherwise, NC will incur significant long term costs correcting errors and ineffective assistance of counsel on direct appeal and in post conviction Office of Indigent Defense Services 17

Cost of Each $5 Increase in Rates Type of Case Current Hourly Rate Annual Cost of $5 Increase Superior Court Criminal $60 for most $70 for high level felonies $1,629,052 District Court Criminal $55 for most $1,694,836 $70 for high level felonies District Court Civil/Other $55 $1,692,890 District Court Traffic/DWI $55 $569,319 Juvenile Delinquency $55 for most $202,427 $70 for high level felonies Appeals $60 for most $70 for high level felonies $151,900 Potentially Capital Trial $75/$85 (depending on how $497,175 proceeding) Capital Post Conviction $85 $44,385 Comparable Increases to Contractor Pay Not Hourly $483,831 TOTAL $6.42 million Estimated costs based on 2014 caseloads ROLE OF IDS COMMISSION Office of Indigent Defense Services 18

IDS Commission 13 member Commission appointed by various authorities, including Governor, President Pro Tempore of Senate, Speaker of House, Chief Justice, State Bar, various voluntary bar associations, and Commission itself Role is to: Set policy Develop rules and standards Oversee work of IDS Office Assist Office in communications with local bars and judicial officials Commissioners are geographically diverse, and provide representation from various stakeholders in justice system, including defense attorneys, judges, and 2 non lawyers Commission provides broad base of input that strengthens indigent defense function Commission costs very little Commissioners do not receive compensation for their valuable professional time Expenditures are generally limited to mileage reimbursement and lunches at meetings (G.S. 7A 498.4(j)) IDS Commission Committees In addition to its quarterly meetings, the IDS Commission has a number of working Committees, including but not limited to: Budget Capital Client Advisory Contracts Indigency Standards Juvenile Legislative Relations/Executive Personnel Public Defender Review Systems Evaluation Office of Indigent Defense Services 19

Commission Appointees IDS Commission appoints IDS Executive Director, Appellate Defender, Capital Defender, and Juvenile Defender Between 2011 and 2013, IDS Commission also had authority to appoint chief public defenders across the state, but that function was returned to local senior resident superior court judges in S.L. 2013 360 IDS Commission believes that appointment by IDS would enhance efficiency and accountability: IDS currently has responsibility for funding public defender offices but has very limited ability to affect efficiency or quality of offices Appointment by senior resident superior court judges is not conducive to active supervision of chief public defenders Judicial appointment authority has potential to cause problems in multi district offices where 2or more judges could be responsible for 1 appointment decision (e.g., Districts 1 and 2) Public Defender Appointment Authority Judicial appointment of chief public defenders compromises independence of defense in violation of national standards ABA Standards for Criminal Justice Providing Defense Services, Standard 5 4.1: Selection of the chief defender and staff by judges should be prohibited. It was also criticized by NC Office of State Auditor in a 2007 report: [P]ublic defenders cannot be considered independent from the judges that appoint them to office [P]ublic defenders should be appointed by the independent agency tasked with providing oversight for the State s indigent defense delivery system Office of Indigent Defense Services 20

Consistent with National Recommendations ABA Standards for Criminal Justice Providing Defense Services, Standard 5 1.3(b): An effective means of securing professional independence for defender organizations is to place responsibility for governance in a board of trustees.... The primary function of boards of trustees is to support and protect the independence of the defense services program. Boards of trustees should have the power to establish general policy for the operation of defender, assignedcounsel, and contract for service programs.... A majority of the trustees on boards should be members of the bar admitted to practice in the jurisdiction. QUESTIONS? Contact: Thomas.K.Maher@nccourts.org Office of Indigent Defense Services 21