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December 2, 2011

Examining flat-fee systems for indigent defense

This effective new piece from Stateline.org, which is headlined ""States beginning to rethink indigent defense systems," discusses the rise in flat-fee arrangements for indigent defense systems.  Here are excerpts:

Flat-fee contracting for indigent defense is used in more than a dozen states around the country. Fixed-rate contracts negotiated by governments with private attorneys are a common way for counties and states to save money in hard fiscal times.  But they have drawn criticism from a variety of quarters.  Nevada, Idaho, Michigan and Pennsylvania have all established special commissions to look at indigent defense in general and flat fees in particular....

Attorneys who take flat-fee contracts for indigent defense are often severely overburdened with cases — in one example in Lyon County, Nevada, an attorney who took over a public defense contract just weeks after passing his state bar exam was handling 200 indigent felony and 400 indigent misdemeanor cases during his first year as a practicing lawyer....

Critics argue ... that a flat-fee contracting system for indigent defense may actually cost more in the long run.  “It really is penny-wise and pound-foolish to use a flat-fee compensation system that doesn’t pay lawyers what they need for investigations and casework,” says Virginia Sloan, president of the Constitution Project, a Washington, D.C.-based group that focuses on right-to-counsel issues.  “You end up with a trial that is not done right, which can lead to potentially costly appeals, and you may have to retry the case, which is bad for the victims and very expensive.”...

Mary Schmid Mergler, senior counsel for the Constitution Project’s criminal justice program, says that amid the pressure of overall state and local budget cuts, flat-fee contracting is on the increase.  Still, there has been movement in the other direction. Washington State and Iowa have banned the practice outright.  Oregon uses a flat-fee system, but actively enforces caseload limits at the state level.  Public defenders in Oregon are limited to handling a set number of cases within the state-awarded contract, and every six months the caseloads are reevaluated.

December 2, 2011 at 08:28 AM | Permalink


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In my opinion, the "critics" cited in this article are vastly overestimating the financial cost of indigent defendants receiving substandard representation. Yes, appeals and retrials cost some money, but I suspect that this amount is much, much less than what it would cost to pay for qualified counsel and defense investigators to do a top-notch job for all indigent defendants.

The true cost of insufficiently funded programs that provide defense to indigent persons is the integrity and reliability of the justice system. But, to the misfortune of the indigent, those are costs that don't show up on government budget sheets.

Posted by: John | Dec 2, 2011 9:19:38 AM

Indigents don't deserve a "top-notch job" because they don't pay for it.

Posted by: Adamakis | Dec 2, 2011 10:16:26 AM

OK, how about "constitutionally adequate"? Substitute that term and the rest of John's post still rings true.

Posted by: Def. Atty. | Dec 2, 2011 11:51:28 AM

Yes adamakis you are correct. Because in the legal profession staying awake during the trial does in fact represent a top notch job.

Posted by: Daniel | Dec 2, 2011 12:57:31 PM

Colloquy during a potential habeas preceding:

JUDGE: Did you perform constitutionally adequate work, counselor?

LAWYER: Absolutely! I was awake throughout the entire trial.

JUDGE: Okay. And?

LAWYER: And I was sober for most of it!

Posted by: anon | Dec 2, 2011 5:08:06 PM

i have to agree. UNLESS we are wlling to limit govt to the same about of funds! once any investigation hits that limit if there is no evidence....case is dropped! then i'm good! otherwise it's a rip off for every individual involved. EXCEPT for the lawyers like that one citied! no way in hell he/she did shit outside of show up to plead out each and every case!

which in MY BOOK is a CRIME!

Posted by: rodsmith | Dec 2, 2011 10:02:07 PM

What world does Ms. Sloan live in? (a) if they contract the trials, they probably contract the appeals the same way; (b) even if there is a halfway competent appellate lawyer, all or most issues are probably waived; and (c) it is unlikely there is representation available to take these (presumably) non-capital cases through a postconviction IAC claim.

As John notes, there are massive and unfair costs, but they are human and systemic/political, likely not financial.

Posted by: Anon2 | Dec 5, 2011 10:49:38 PM

Perhaps a flat fee system with allowances for varying types of costs (i.e. PIs, experts, etc.)?

As far as the work load, how does a new attorney get 600 cases to begin with? Especially in this economy. Unless he was handling them for $100 per case, or something too ridiculously low for any decent attorney to accept, I just don't see it happening.

Posted by: Low Price Attorney | Feb 13, 2012 3:48:37 PM

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