Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

Indigent Defense

Terry Brooks

Efforts Increase to Improve State Systems

Efforts to improve state indigent defense systems have intensified in a number of states in recent months. Thanks, in part, to a joint project between the ABA and the U.S. Department of Justice (DOJ), some states are about to establish statewide indigent defense oversight commissions, and other states are following close behind.

Meanwhile, lawyers in Mississippi are initiating a different type of campaign to compel state funding of indigent defense services. And, a recent court decision in Illinois is causing some concern among public defenders over their vulnerability to suits by former clients alleging malpractice.

The State Commissions Project

The State Commissions Project was born last year as the result of a cooperative agreement between the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID) and the DOJ Bureau of Justice Assistance (BJA) to assist in the development of indigent defense oversight commissions in selected states. The project has been particularly successful in the states of North Carolina, Nevada, Georgia, and Texas.

North Carolina has a state-funded indigent defense system consisting of public defender and contract and assigned counsel programs. In 1999, the North Carolina legislature created two study groups on indigent defense, one to examine the provision of defense services in the state and the other to explore methods for improving the management and accounting of state funds allocated for the services. Recently, with the help of the State Commissions Project, a task force combining both study groups adopted recommendations for improving North Carolina's indigent defense system.

The task force recommended that North Carolina enact legislation to create a permanent Indigent Defense Statewide Commission, an independent agency within the judicial branch. According to the task force, this proposed Indigent Defense Statewide Commission should have broad representation and should be charged with determining the type of system to exist in each of the judicial circuits throughout the state. The task force also recommended that the commission appoint an executive director and a full-time judicial district public defender who would be required to submit an annual plan and budget to the commission regarding effective representation in each county of the judicial district.

In addition, North Carolina's task force recommended that the commission establish uniform qualifications and performance standards for each type of system throughout the state and develop an implementation plan to ensure compliance with the standards. Ultimately, the task force determined that the commission should be responsible for providing effective assistance of counsel in all cases where counsel is mandated in North Carolina, except guardian ad litem cases.

A task force created by the Nevada Supreme Court has requested assistance from the State Commissions Project to gather information on indigent defense systems within the state. The State Commissions Project will conduct on-site empirical research to obtain qualitative and quantitative indigent defense data from a representative sample of five Nevada counties. Ultimately, the task force will use this information, as well as comparison information from other states, to establish a state oversight commission on indigent defense that will implement system improvements.

Meanwhile, state bar leaders in Georgia have been working diligently to create a Governor's Commission on Indigent Defense. The State Commissions Project has been working with the state bar and expects to provide necessary technical assistance once the Governor's Commission is established.

Last year, a legislative proposal for indigent defense improvements in Texas failed to gain approval from the governor. This setback resulted in a renewed determination by grassroots organizations to develop new proposals to improve the system. In particular, the Texas Appleseed organization, with grants from the Open Society Institute and the Public Welfare Foundation, will be conducting a study of indigent defense delivery systems in a representative cross-section of the state. Texas Appleseed also proposes to build a broad coalition of lawyers, bar institutions, judges, prosecutors, criminal justice administrators, and community-based organizations, all coming together to advocate for indigent defense improvements in Texas. Toward this end, Texas Appleseed has enlisted the help of the State Commissions Project to provide information on alternative indigent defense systems in other states.

Novel litigation campaign in Mississippi

Another interesting development in the indigent defense area is occurring in Mississippi, where lawyers are attacking the lack of state funding for indigent defense services by filing lawsuits, on behalf of several counties and their taxpayers, against the State of Mississippi, its governor, and its attorney general. The complaints allege that the state's failure to fund indigent defense violates the Mississippi Constitution and state statutory provisions.

William H. Voth of Arnold & Porter, the law firm coordinating these suits, says that Mississippi is one the of few remaining states that does not provide state funding for the provision of indigent defense services. As a result, the burden of providing such services rests on the mainly rural counties of Mississippi, many of which are strapped for resources. The consequences can be financially devastating for these counties. For example, as stated in one of the complaints, rural Quitman County was forced to raise taxes for three consecutive years and incur debt that took three years to repay just to cover costs of the trials and initial appeals for two individuals accused of committing a crime there.

According to Voth, the quality of representation provided to indigent defendants by the financially struggling counties in Mississippi invariably falls below constitutionally required minimum standards. The litigation asserts that the current systems do not provide indigent criminal defendants the effective assistance of counsel to which they are entitled. The plaintiffs are requesting declaratory and injunctive relief that would require the state to fund a statewide indigent defense system that ensures indigent defendants' constitutional right to counsel.

Malpractice concerns sparked in Illinois

An Illinois appeals court ruled recently that public defenders may be held personally liable for legal malpractice. (Johnson v. Halloran, No. 1-98-2365 (Ill. App. Ct. Jan. 13, 2000).) The Illinois Court of Appeals overturned summary judgment entered by the lower court based on the defendant public defender's claim of sovereign immunity. The appeals court said that plaintiff Richard Johnson should be allowed to proceed with a malpractice suit against the Cook County assistant public defender who represented him in a 1992 rape case. Johnson was convicted and served more than four years of his sentence until he was freed on the basis of DNA evidence. Johnson later filed the malpractice suit, which was dismissed by the circuit court on the theory that public defenders, like prosecutors, are immune from malpractice liability for actions within the scope of their governmental employment. The appeals court, on the other hand, held that governmental immunity should not apply to public defenders because their duty to exercise reasonable care in representing clients arises from the lawyer-client relationship, not from government employment.

The law in other jurisdictions is divided on the question of whether public defenders should be liable in malpractice. Views on the underlying policy question are also split. Some commentators maintain that the threat of malpractice suits will have a chilling effect on lawyers' decisions to enter and stay in the field of public defense work, where the salaries are lower and caseloads often higher than in the private sector. Others believe that indigent defendants are entitled to the same protections against malpractice as paying clients. Those holding this view note that defender agencies will insure against malpractice liability, and suggest that although this has the potential to strain limited resources even further, it also may encourage more realistic caseload assignments for public defenders and thus lessen the risk of attorney error. Either way, this decision has renewed the debate on the issue of malpractice liability for defenders.

The ABA's Standing Committee on Legal Aid and Indigent Defendants is gathering further information to permit it to study the malpractice question. At the same time, the committee is optimistic that 2000 will see progress toward important systemic improvements in a number of states. State commissions that are in the formative stages in North Carolina, Nevada, and Georgia hold the promise of significant improvements in the indigent defense systems in those states. A grassroots effort in Texas may also lead to steps toward a more viable system in that state, and litigation in Mississippi will determine whether the state should relieve counties of the burden of costly systems that some say provide uneven justice. n

Terry Brooks is staff counsel for the ABA Standing Committee on Legal Aid and Indigent Defendants. Since 1985, he has held various positions in the ABA's Division for Legal Services, following a career in other public service posts and a brief stint in private practice. He is a contributing editor to Criminal Justice magazine.