Criminal Justice Section  

   Criminal Justice Magazine

Criminal Justice Magazine
Fall 2000
Volume 15, Issue 3

Indigent Defense

Terry Brooks and Shubhangi Deoras

North Carolina Approves Statewide Program

On August 2, 2000, the governor of North Carolina signed into law the Indigent Defense Services Act of 2000, which transfers responsibility for the development, administration, and oversight of indigent defense programs to an independent statewide commission. The Indigent Defense Services Act is largely the result of the efforts of the North Carolina Indigent Defense Study Commission, which has been assisted since October 1999 by the State Commissions Project, a cooperative agreement between the ABA and the U.S. Department of Justice. The Act’s passage represents a major success for the State Commissions Project, which aims to assist states interested in developing indigent defense oversight commissions or otherwise improving their indigent defense systems. Below is a closer look at the Indigent Defense Services Act and the events and factors leading to its successful enactment.

Indigent Defense Study Commission

In North Carolina, the state funds indigent defense services. However, before the passage of the Indigent Defense Services Act, authority over indigent defense was scattered among the state’s Administrative Office of the Courts, the North Carolina State Bar, 36 local bar committees (coinciding with the state’s 36 judicial districts), 11 independent public defenders, and hundreds of judges appointing and compensating counsel in individual cases. As a result, the services provided have tended to vary from judicial district to judicial district. Less than one-third of the judicial districts (covering 13 counties) have public defenders to provide indigent defense representation, while the rest of the state (87 counties) relies primarily on assigned counsel.

In 1996, the Futures Commission, a commission instituted by the chief justice of the North Carolina Supreme Court to study the "future of the courts" in North Carolina, recommended the creation of a statewide public defender office. Although the North Carolina General Assembly did not enact that recommendation, it passed legislation in 1999 creating a study commission to explore methods for improving management and accountability in the expenditure of state funds allocated for indigent defense without compromising the quality of representation required by state and federal law. The resulting Indigent Defense Study Commission was comprised of members from both chambers of the state legislature, judges from the superior and district court levels, attorneys from the private bar, and a full-time public defender.

Beginning in August 1999, the Indigent Defense Study Commission met on a monthly basis in Raleigh. In addition to receiving technical assistance under the State Commissions Project from The Spangenberg Group, the study commission was aided by the University of North Carolina Institute of Government and the North Carolina Administrative Office of the Courts. According to John Rubin from the Institute of Government, the study commission sought to address continuing concerns over: (1) the quality of legal representation for indigent defendants; (2) the lack of training of indigent defense providers; (3) the lack of uniform rates of compensation for indigent defense providers; and (4) the lack of a managerial authority to oversee and account for state expenditures on indigent defense.

Study commission’s recommendations

In May 2000, merely nine months after its inception, the study commission submitted a report to the North Carolina General Assembly. In its report, the study commission recommended that the general assembly enact legislation to create a permanent, statewide indigent defense commission to be housed within, yet independent from, the judicial branch of state government.

In addition, the study commission recommended that the proposed statewide indigent defense commission be broadly representative in its membership and be responsible for: (1) providing effective assistance of counsel in all cases where counsel is mandated by law in North Carolina; (2) determining the type of indigent defense delivery system in each judicial district; (3) establishing qualification and performance standards for indigent defense providers; (4) developing an implementation plan to ensure compliance with the standards; (5) appointing an executive director who, with the assistance of a professional staff, would be responsible for submitting to the commission an annual plan and budget for providing effective indigent defense representation in each judicial district; and (6) transmitting the indigent defense budget to the general assembly.

Indigent Defense Services Act of 2000

On July 13, 2000, the North Carolina General Assembly implemented the recommendations of the Indigent Defense Study Commission by enacting the Indigent Defense Services Act of 2000. The stated purpose of the Indigent Defense Services Act is to:

(1) Enhance oversight of the delivery of counsel and related services provided at State expense; (2) Improve the quality of representation and ensure the independence of counsel; (3) Establish uniform policies and procedures for the delivery of services; (4) Generate reliable statistical information in order to evaluate the services provided and funds expended; and (5) Deliver services in the most efficient and cost-effective manner without sacrificing quality representation. (N.C. Gen. Stat. §7A–498.1.)

The Indigent Defense Services Act provides for the establishment of an independent Office of Indigent Defense Services and Commission on Indigent Defense Services within the judicial department. The office will be responsible for establishing, supervising, and maintaining a system for providing indigent defense representation and related services in all cases where counsel is required by law. Additionally, the office must develop policies and procedures for determining indigence and must allocate and disburse funds provided by the state for indigent defense.

The Commission on Indigent Defense Services will be responsible for overseeing the work of the Office. Specifically, the commission must determine and establish the type of indigent defense delivery system to be used in each judicial district, which may include appointed counsel, contract counsel, part-time public defenders, public defender offices, appellate defender services, or any combination thereof. In the process, the commission must ensure that affected local bars have the opportunity to be significantly involved in making this determination. Additionally, the commission must develop a wide variety of standards to govern the provision of indigent defense services by the office. Further, the commission must establish the policies and procedures by which the office will distribute funds appropriated by the state for indigent defense. The commission also must approve and recommend to the general assembly a budget for the office.

The act requires that the commission members have significant experience in criminal defense work or a strong commitment to quality indigent defense representation. The members will be appointed by a variety of persons and groups, including the chief justice of the state supreme court, the governor, the leader of each chamber of the state’s general assembly, the North Carolina Public Defenders Association, the North Carolina State Bar, the North Carolina Bar Association, the North Carolina Academy of Trial Lawyers, the North Carolina Association of Black Lawyers, and the North Carolina Association of Women Lawyers.

The members of the commission were appointed by September 1, 2000, and the group’s initial meeting was September 14. The office and the commission will begin full operations by July 1, 2001. During the transition period, the commission will appoint a director who will administer the office and hire four additional staff members, including a chief financial officer, information systems manager, research analyst, and administrative assistant.

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

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