Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Summer 2000
Vol. 15, Issue 2

Indigent Defense

Terry Brooks and Shubhangi Deoras

Spotlight on Alabama and West Virginia

Recent developments in Alabama promise a comprehensive overhaul of its system of providing indigent defense services-building on years of effort by the bar, courts, and legislature to improve the state's appointed counsel system. And in West Virginia, the state legislature has increased the indigent defense budget to accommodate that state's unique problem with respect to rising caseloads.


The Chief Justice of the Alabama Supreme Court in April 2000 established a new Committee on Indigent Defense within the Alabama Judicial System Study Commission. The committee is charged with studying the current state of indigent defense services in Alabama and making recommendations to the Alabama Supreme Court and state legislature regarding the direction to be taken in providing these services in the future, including whether it is feasible to establish a public defender system. Members on this committee include circuit and district court judges, juvenile and municipal judges, court administrators, district attorneys, public defenders, circuit clerks, legislative representatives, and state bar representatives.

Keith B. Norman, executive director of the Alabama State Bar, reports that this follows several decades of effort to improve defense services to poor people in Alabama. In the early 1970s, the Alabama State Bar's examination of the issue resulted in legislation authorizing payments to court-appointed attorneys representing indigent defendants out of the Fair Trial Tax Fund, comprised of monies collected from court filing fees in civil cases. In the early 1980s, the hourly rates paid out of the Fair Trial Tax Fund to court-appointed counsel were slightly increased, to $20 for out-of-court work and $40 for in-court work; however, expenses were not reimbursable.

In 1988, the Alabama Judicial System Study Commission, created by statute to address systemic justice issues, appointed a task force headed by then-Circuit Judge Robert Hodges to take a look at the indigent defense issue. The Hodges Commission made the following findings: (1) rates paid to appointed counsel were among the lowest in the country; (2) payments to appointed counsel were not made in a timely manner; and (3) the caps set by the legislature on the total amount of allowable fees per case were also among the lowest in the country. The Hodges Commission recommended the establishment of a statewide public defender system to increase the quality of indigent defense representation and reduce the number of appeals based on ineffective assistance of counsel. The commission further recommended that, should the legislature find this course of action not economically feasible, at the very least the legislature should increase the fees on court filings in order to raise the rates of pay for appointed counsel. However, no action was taken pursuant to these recommendations due to the lack of available funding at the time.

In 1993, the Alabama Criminal Court of Appeals decided that attorneys representing indigent defendants are entitled to expenses as well as fees, allowing attorneys to request payment of overhead costs. (See May v. State, 672 So. 2d 1307 (Ala. Crim. App. 1993), cert. denied, 672 So. 2d 1310 (Ala. 1995).)

Finally, in 1999, Alabama passed legislation increasing court filing fees in order to raise hourly appointed counsel rates to $40 for out-of-court work and $60 for in-court work, raise fee caps on representation for felony and misdemeanor cases, and remove the fee cap for capital cases.

With the increase in court filing fees, bar and judicial leaders believe that there may be enough funds available within the Fair Trial Tax Fund to fund a statewide public defender system. Towards that end, the chief justice appointed the new Committee on Indigent Defense. The committee plans to submit recommendations to the Alabama Judicial Study Commission by the end of this year.

Rising Caseloads in West Virginia

In West Virginia, all indigent defense services are funded by a state general fund appropriation. Local indigent defense programs consist of both public defender and assigned counsel programs and are administered, coordinated, and monitored by Public Defender Services (PDS), a statewide executive branch agency.

According to Jack Rogers, the executive director, PDS has experienced funding problems due to increasing indigent defense caseloads for the past several years. From 1991 to 1998, West Virginia's total indigent defense caseload increased by 10 to 15 percent. According to Rogers, several factors unique to West Virginia contributed to this unprecedented rise. In 1995, West Virginia connected its interstate highways for the first time, which effectively opened the state to a drug corridor that runs west from the eastern seaboard. This drastically increased the amount of drug cases; for example, one local public defender office along the corridor tripled its caseload during this time. The increase in drug trafficking led to a concomitant increase in illegal gun use and sales. Also during this time, the state abuse and neglect law changed dramatically, becoming more complex and creating a logjam in domestic violence caseloads. These factors combined proved to be more than PDS could handle on its annual budget, which remained at the same level from fiscal years 1995 through 1997.

In 1999, with the consent of the governor of West Virginia, Rogers appointed a 25-member task force, comprised of judges, legislators, public defenders, district attorneys, and executive branch representatives, to study the problems of rising costs and indigent defense caseloads. The West Virginia Indigent Defense Task Force submitted its recommendations to the governor and state legislature this January. Specifically, the task force recommended increasing the budget for PDS in order to raise the salaries of the staff to a competitive level, hire qualified management-information systems staff, and operate the statutorily-required auditing division, appellate division, and resource center. In addition, the task force recommended the creation of an advisory commission to counsel the executive director of PDS on important issues such as securing adequate financing, overseeing budget preparations, establishing indigent defense standards and guidelines, monitoring indigent defense caseloads, and evaluating the need for new public defender corporations. The task force also recommended that the legislature establish reasonable limits for the time period after rendering service when assigned counsel may submit vouchers for payment.

In March 2000, as a result of these recommendations, the West Virginia legislature approved a budget increase for PDS as well as additional funds to establish a fee-for-service arrangement with the state computer center for necessary computer support. Additionally, the legislature approved funding for two appellate attorneys to operate the appellate division, one criminal law research attorney for the resource center, and necessary support staff.

The recent increase in support for the provision of indigent defense services in West Virginia and the gathering momentum for systemic change in Alabama bode extremely well for continued improvements in the indigent defense systems of these two states. n

Terry Brooks is staff counsel for the ABA Standing Committee on Legal Aid and Indigent Defendants. He is a contributing editor to Criminal Justice magazine. Shubhangi Deoras is assistant committee counsel.