GIDEON IN THE HOOSIER STATE: THE RESPONSE TO INDIGENT DEFENSE STANDARDS AND THE IMPACT OF THE INDIANA PUBLIC DEFENDER COMMISSION A THESIS SUBMITTED TO THE GRADUATE SCHOOL IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE MASTER OF PUBLIC ADMINISTRATION BY CALEB J. BEASLEY DR. JOHN ROUSE, CHAIRPERSON BALL STATE UNIVERSITY MUNCIE, INDIANA AUGUST 2011 2 ACKNOWLEDGEMENTS Every relatively large scholarly work I have ever completed has been the result of some kind of collaborative effort. As regards this thesis, I must first acknowledge the contributions and support of my thesis chair, Dr. John Rouse, and the other members of my committee, Dr. Charles Taylor and Dr. Brandon Waite. Their suggestions, criticisms, and words of encouragement have made the narrative of this paper much stronger than it otherwise would have been. I must also thank Mr. Jeff Weise and Ms. Deborah Neal for providing access to loads of data on and insight into the operations of the Indiana Public Defender Commission, and without whose cooperation and assistance this study would not have been possible. While he did not participate in this study in any significant way, I want to acknowledge my brother Samuel Beasley, for sharing his passion and his thoughts on his work as a public defender in Delaware County; indeed, he is the one who got me interested in this topic. Finally, I would like to thank my wife, Ashley, and my stepdaughter, Kaylee, for their patience and support as I have completed this part of my professional journey. 3 TABLE OF CONTENTS INTRODUCTION........................................................................................................ 4 THE RIGHT TO COUNSEL FOR INDIGENT DEFENDANTS............................................ 7 INDIGENT DEFENSE IN THE UNITED STATES............................................................ 16 PUBLIC DEFENDER OFFICES IN INDIANA................................................................. 28 THEORY AND HYPOTHESIS...................................................................................... 38 DATA SOURCES AND METHODOLOGY..................................................................... 44 RESULTS.................................................................................................................. 55 ANALYSIS................................................................................................................ 70 COMMENTARY........................................................................................................ 80 APPENDIX A: COUNTIES ELIGIBLE FOR IPDC REIMBURSEMENT............................. 82 APPENDIX B: IPDC STANDARDS FOR INDIGENT DEFENSE IN NON-CAPITAL CASES..................................................................................................................... 83 APPENDIX C: IPDC ATTORNEY QUALIFICATION WORKSHEET................................ 108 APPENDIX D: IPDC CASELOAD WORKSHEET FOR FULL-TIME ATTORNEYS (ADEQUATE SUPPORT)............................................................................................ 109 APPENDIX E: IPDC CASELOAD WORKSHEET FOR FULL-TIME ATTORNEYS (INADEQUATE SUPPORT)......................................................................................... 110 APPENDIX F: IPDC CASELOAD WORKSHEET FOR PART-TIME ATTORNEYS (ADEQUATE SUPPORT)............................................................................................ 111 APPENDIX G: IPDC CASELOAD WORKSHEET FOR PART-TIME ATTORNEYS (INADEQUATE SUPPORT)......................................................................................... 112 BIBLIOGRAPHY........................................................................................................ 113 4 INTRODUCTION In 1963, the Supreme Court of the United States decided that state and local governments had an obligation to provide legal counsel for indigent defendants in criminal trials, on the basis that the Sixth Amendment’s right to counsel provisions could not be adequately fulfilled if poor defendants were left to fend for themselves in a complex and adversarial legal system.1 At the time the Gideon decision was handed down, indigent defendants were provided with counsel in federal courts across the country and in a number of states that had already come to conclusions similar to those reached in Gideon. Since then, in every state and every municipality, any defendant who cannot pay for an attorney is provided one at little or no personal expense. While this sweeping change would seem to satisfy the Court’s concerns, questions remain about the quality of counsel provided by defense attorneys who are employed by the state. Many scholars, lawyers, and advocates have argued that public defender systems around the country are inadequate to the task of ensuring that indigent defendants are provided a defense equal to that provided to wealthy defendants by their private counselors. The crux of this problem might be simply stated: private attorneys stand to make much more money in defense work than do public defenders; thus, defense attorneys who are paid by the hour by better-off clients have much greater incentive to invest time and effort in a case. Public defenders, most of whom are paid flat annual salaries or moderate hourly rates for their work for indigent clients, stand to gain very 1 U.S. Supreme Court. Gideon v. Wainwright. 372 U.S. 335 (1963). 5 little by investing themselves more heavily in their work, especially when they can be accumulating billable hours in private practice, which many public defenders carry on while they are employed by the state. While Gideon guaranteed that any person who is charged with a crime will be provided an attorney if they cannot afford one, it did not guarantee that the services of appointed counsel would be effective. This raises concerns about equity in the criminal justice system and the degree to which all citizens are truly equal in the American legal system. There is another reason for concern about the quality of public defenders’ work, this one focused on the costs incurred by the public to imprison and supervise offenders. In the public defender system, taxpayers pay attorneys to provide adequate legal counsel to indigent defendants. That is a clear cost that is born by the public regardless of whether or not the counsel provided is of high or poor quality. But the costs to John Q. Taxpayer will likely increase as the quality of public defender counsel decreases. In a very practical sense, good defense work should produce dropped charges, lightened sentences, and more favorable (for defendants) plea agreements. And every dropped charge, lightened sentence and favorable plea agreement represents fewer dollars that must be spent on the imprisonment and supervision of offenders. Thus, good public defenders can significantly cut government costs. With the increasing pressure placed on local budgets by diminishing tax bases, local and state governments have an interest in seeing that the money they spend on indigent defense is put to good use.2 2 Of course, there is an obvious political downside for public officials inclined to promote improved criminal defense and less severe punishments in a “tough on crime” political environment. 6 Some state and local governments have attempted to address concerns about the quality of counsel provided to indigent defendants by raising public defender salaries and enhancing benefit packages, or by incentivizing additional investment through “bonuses” for extra efforts, such as appeals work. State and local governments have also established offices that are responsible for overseeing indigent defense programs and for ensuring that public defender offices meet certain standards of conduct and performance. This paper will examine the extent to which such standards are applied to local public defender offices and the degree to which local offices are complying with these standards. In particular, this paper will focus on public defender programs in the state of Indiana. The majority of criminal defendants in the state – and across the nation – qualify for public provision of counsel as originally mandated by the majority opinion in Gideon. Thus, public defender offices play a pivotal role in most of the criminal cases that are processed in Indiana’s courts. 7 THE RIGHT TO COUNSEL FOR INDIGENT DEFENDANTS The American legal system is founded on the idea of an adversary system of justice, and it is this “contentious procedure” that makes necessary the provision of counsel for criminal defendants, even those who cannot afford to pay one on their own. Wice succinctly describes the nature of criminal legal proceedings thus: In criminal cases the opposing adversaries are the prosecutor representing the state (the plaintiff or injured party) and the defense counsel representing the accused defendant whose guilt must be established “beyond a reasonable doubt.” The basic assumption underlying the adversary system is that the legal struggle between these two protagonists – the prosecutor and the defense counsel – before a neutral judge will uncover the truth and permit the court to reach a just decision. Closely paralleling a boxing match, the two adversaries are required to battle vigorously yet fairly before a judge acting as a referee for ensuring that it is a fair fight.3 The notion of a “fair fight” would require that those representing each side of the adversarial system be relatively equal in their skills and competencies, their ability to prosecute or defend an accused person. The gravity of the potential consequences in 3 P. Wice, Public Defenders and the American Justice System (Westport, CT: Praeger, 2005), 1. 8 criminal proceedings further requires some level of parity between the opposing parties, as the defendant’s property, personal freedom, and life can be at stake. Establishing parity between opposing counsel is already a daunting task, given the often significant resources that prosecuting attorneys have at their disposal, including the assistance of the police and other specialized support staff. The typical defendant without legal representation would lack not only the financial and human capital available to the prosecutor, but would also be at a disadvantage for having limited knowledge of the legal process. A criminal trial is a complicated process, and a defendant would be at a disadvantage from the moment charges are filed. It takes a certain amount of legal expertise to effectively interrogate witnesses, gather evidence, and file pretrial motions that will help one’s case. As the trial begins, a defendant’s lack of training and experience in the process of jury selection, cross-examination, raising objections, and making opening and closing arguments would only further limit their chances of staging a successful defense. A criminal proceeding in which one side is represented by a trained and adequately-supported attorney and the other is represented by an unqualified layman defending himself is not a fair fight, but a sham trial. The writers of the Constitution likely knew this to be the case, and so included the right to counsel in the Bill of Rights. Bundled in with the Sixth Amendment’s guarantees of a speedy and fair trial, a jury of one’s peers, and the right to face one’s accuser, is the right of the accused “to have the assistance of counsel for his defence.” At the time, however, this was a federal guarantee, which left many defendants in state proceedings exposed to the kind of mismatch described above. Constitutional law scholar Mason Beaney explains the situation in the early years of the republic: 9 Only a few states guaranteed in their constitutions the right to appointed counsel; more commonly, state and federal statutes provided for appointed counsel under particular circumstances, while judicial discretion to appoint counsel was sometimes exercised in special cases. In most jurisdictions counsel was appointed in none but the most serious cases, often only when the crime was punishable by death.4 Like other provisions in the Bill of Rights, the right to counsel would be extended to the subjects of state actions when, in 1868, the Fourteenth Amendment was passed along with the Thirteenth and Fifteenth Amendment. While these amendments were largely focused on protecting the rights of black Americans against abuses, the Fourteenth contained two important provisions that would come to affect all Americans. The Fourteenth Amendment declared that no state shall “deprive any person of life, liberty, or property, without due process of law,” nor can any state “deny to any person within its jurisdiction the equal protection of the laws.” These two key provisions – the due process and equal protection clause, respectively – would both be central in the future trajectory of right-to-counsel law in the United States. The first major right-to-counsel case would not come to the Supreme Court for over fifty years. Then, in the landmark Powell v. Alabama case (287 U.S. 45 ), the justices confronted the issue head-on. The case involved nine black defendants who were charged with raping two white women, with the potential penalty being death. The judge 4 R. Herman, et al., Counsel for the Poor (Lexington, MA: Lexington Books, 1977), 208. 10 in the case sought counsel for the nine indigent defendants, but finding none willing from the local bar was left to appoint one young and inexperienced Chattanooga attorney to represent all of them. The trials each took about one day for each defendant, and eight defendants received the death penalty while the youngest, a thirteen-year old boy, was sentenced to life in prison. The case gained national attention and was appealed by a New York-based civil rights lawyer, who argued to the Supreme Court that the defendants had been denied the effective assistance of counsel, which violated the Fourteenth Amendment’s due process requirements. The Supreme Court agreed. In the majority opinion, Justice Sutherland made it plain that the due process provisions required counsel to be not only present but effective, and particularly so in cases where the possible penalty was as grave as death or life in prison. The majority opinion crystallized the significance of effective counsel: Left without aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge to adequately prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he may not be guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is of the ignorant and illiterate, or those of feeble intellect.5 5 U.S. Supreme Court, Powell v. Alabama, 287 U.S. 45 (1932). 11 While such an argument would seem to point the way to a legal mandate for universal provision of counsel, the majority in Powell was not prepared to make broad, sweeping changes to the American legal landscape. Rather, the decision made clear that the finding of a violation of one’s right to counsel was dependent on the circumstances and facts of the case and that such a finding should only be made in extraordinary cases such as Powell. Indeed, the opinion would eventually be understood to require the assistance of counsel in capital cases as a means of satisfying constitutional due process requirements. The Court would revisit the issue ten years later in Betts v. Brady (316 U.S. 455 ). Betts was a Maryland farmer accused of robbery. After being denied a courtappointed lawyer, Betts was left to defend himself and was ultimately convicted. State and federal appellate courts upheld the conviction, as did the Supreme Court. The majority opinion in Betts mirrored Powell’s limited and particularized approach: the Court held that the Sixth Amendment’s right to counsel applied only to federal criminal cases (as the provision had not yet been officially “incorporated” via the Fourteenth Amendment) and that state provision of counsel for all indigent defendants was not required by the Fourteenth Amendment’s due process provisions. States were free to appoint counsel or provide public defenders, but it was not constitutionally required. In this decision, the Court established the “special circumstances” rule as a tool for trial courts to use in determining when counsel must be provided for indigent defendants, arguing, as one legal scholar would put it, that “in some circumstances refusal to observe the counsel guarantee could result in a deprivation of due process.”6 But not in all 6 L.J. Barker et al., Civil Liberties and the Constitution: Cases and Commentaries, 8th ed., (Princeton, NJ: Prentice Hall, 1999), 375. 12 criminal cases: counsel was only required when the defendant was clearly incapable of mustering a defense. It would be twenty-one years before the Court would revisit the right-to-counsel issue in Gideon v. Wainwright. Clarence Earl Gideon was charged with having broken and entered a pool hall with intent to commit a misdemeanor, which under Florida law at the time was considered a felony. Gideon was unable to hire his own attorney and so requested that one be appointed to his case. The trial judge denied Gideon’s request and informed him that appointed counsel was only required in capital cases. Gideon attempted his own defense, but was eventually convicted and sentenced to five years in prison. While in prison, Gideon petitioned the Supreme Court to have his conviction overturned on the basis of the state’s refusal to provide him with an attorney. The Supreme Court agreed to hear Gideon’s case and to answer the question posed by Justice Hugo Black in the majority opinion: “Should this Court’s holding in Betts v. Brady be reconsidered?” In Gideon v. Wainwright, the Court did reconsider the Betts “special circumstances” rule and in overruling its previous decision, leveled the playing field for poor defendants against whom the apparatus of the state had been brought to bear in a criminal proceeding. In the majority opinion, Justice Black referred back to the arguments of Powell and Betts and followed them to what he saw as a logical conclusion: We accept Betts v. Brady’s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is “fundamental and essential to a fair trial” is made obligatory on the states by the Fourteenth Amendment. We think the 13 Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights...in our adversary system of criminal justice, any person hauled 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.7 Gideon’s conviction would be overturned and sent back to the originating court for a retrial, which Gideon won with the assistance of a local appointed attorney. And like that, states would have to make preparations for the appointment of counsel to all indigent defendants in felony cases, if they were not already doing so.8 Obviously, this shift created significant logistical and financial burdens for local governments, burdens which many continue to struggle with today. While the Gideon decision seemed to have settled the matter, there were as yet other issues to resolve. As Wice explains, “in the years following the Gideon decision, the Supreme Court has ruled on a defendant’s right to an attorney at all critical stages of a criminal proceeding and on the right to legal assistance for nearly all categories of crimes.”9 The more challenging problem of determining what exactly is meant by 7 U.S. Supreme Court, Gideon v. Wainwright, 372 U.S. 335 (1963). 8 The Gideon decision would be extended to misdemeanors ten years after the initial decision was handed down. 9 Wice, 7. In Kirby v. Illinois (406 U.S. 682 ), the Court held that assistance of counsel was not constitutionally required until formal prosecution proceedings had been initiated. Justice Potter Stewart explain why the filing of formal charges was selected as the critical stage for the appointment of counsel: “It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is the point, therefore, that marks the 14 “effective assistance of counsel” has been one that the Court has had to deal with on a number of occasions. In 1970, in McMann v. Richardson (397 U.S. 759), the Court held that some minimum level of effectiveness or competence was necessary to satisfy the Sixth Amendment guarantee, with the majority opinion stating that “counsel...can also deprive a defendant of the right to effective assistance simply by failing to render ‘adequate legal assistance.’” The Court was somewhat more specific in its definition of effectiveness in the majority decision in Tollett v. Henderson (411 U.S. 258 ), where it held that so long as attorney errors did not combine to create a “mockery of justice,” there would be no basis for a reversal. The Court attempted to clarify this standard in its 1984 decision in the case of Strickland v. Washington (446 U.S. 668). In this case, the defendant challenged his counsel’s competence because the attorney failed to do such things as request a psychiatric report, investigate and prepare character witnesses, or cross-examine the medical experts at trial. The Court denied the appeal, outlining in its opinion a twopronged standard for considerations of counsel’s effectiveness: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” 15 defense. This requires showing that counsel errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.10 Thus, the Court placed the burden of proving that the outcome would have been different but for the ineffectiveness of counsel squarely on the shoulders of the defendant. As a guide for what would constitute “deficient” counsel, the Court simply stated that “the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” In a separate decision delivered on the same day, the Court held that inadequacies in counsel training or experience are not sufficient to constitute an ineffectiveness claim, but must be supported by evidence of serious errors that made for an unreliable result.11 Thus, while the Court has required counsel to be made available to all criminal defendants, it has also held that any alleged deficiencies in counsel’s performance must be serious enough as to deny the defendant’s right to a fair trial in order for a challenge to be upheld.12 10 U.S. Supreme Court, Strickland v. Washington, 446 U.S. 668 (1984). 11 U.S. Supreme Court, U.S. v. Cronic, 466 U.S. 648 (1984). 12 Richard Klein, in a blistering critique of the Strickland decision and its effect on the quality of indigent defense services, says the following: “Were the court to have set a requirement for the performance of counsel that would have, for example, complied with the recommendations of the American Bar Association, governments would have had to dedicate substantially more monies to the defense of the indigent. The Court, however, refused to adhere to the ABA Criminal Justice Standards which, as the Introduction to the Standards states, reflect a ‘consensus view of all segments of the criminal justice community about what good, professional practice is and should be’. . . [and] are extremely useful standards for consultation by lawyers and judges who want to do ‘the right thing’ or as important to avoid doing ‘the wrong thing.’ Instead, the Court in Strickland v. Washington interpreted the requirements of the Sixth Amendment’s right to effective assistance of counsel in such an ultimately meaningless manner as to require little more than a warm body with a law degree standing next to the defendant.” Klein, 16 INDIGENT DEFENSE IN THE UNITED STATES Following the Gideon decision, most state and local governments began the process of either reforming or creating their systems of indigent defense to meet what was sure to be a burgeoning need for defense attorneys for indigent defendants. While many states created public defender systems for all of the local government units within their borders, others devolved the responsibility to the counties. In 2007, the U.S. Department of Justice’s Bureau of Justice Statistics conducted a Census of Public Defender Offices (CPDO) in order to determine how services were delivered and how public defender offices were organized across the country. The CDPO found, among other things, that approximately half of the states utilized county-based public defender agencies, while the other half relied on state-based public defender programs. The general results of the 2007 CPDO are displayed below in Table 1. State-based systems are more common in smaller states and have fewer cases and attorneys on their staffs. County-based systems are more prevalent in more populous states. They handle nearly three times the number of cases but their staff and budget are each approximately double that of the state-based systems. “The Constitutionalization of Ineffective Assistance of Counsel,” Maryland Law Review, (1999). 17 Table 1: Characteristics of public defender offices, by type of office, 2007 Number Population Number Number FTE Type of of served in of of cases litigating offices states thousands offices received attorneys Total expenditures in thousands U.S. total 50 240,160 957 5,572,450 15,026 $2,310,040 State-based 22 73,370 427 1,491,420 4,321 $833,358 County-based 28 166,790 530 4,081,030 10,705 $1,476,682 The Court provided little guidance or specific details as to how exactly the right to counsel requirement needed to be met, but left it to individual states and counties to sort out how they could best fulfill the new obligation. Different arrangements were created to suit the varied needs of jurisdictions across the country, but most of the indigent defense programs in the country fell into one of four categories: public defender programs, assigned counsel systems, contracts, or mixed (which might actually be a hybrid of two or more of these three systems). A 2000 survey by the Bureau of Justice Statistics found that public defender programs received 71 percent of the indigent defense expenditures for the counties surveyed, and that assigned counsel programs and contract systems accounted for 21 percent and 6 percent of expenditures, respectively. The bulk of the costs for indigent defense (60 percent) fell on county governments, while states paid 25 percent of the total expenditures and city, federal, and private agencies picked up the remaining 15 percent. In the counties included in the DOJ survey, approximately 80 percent of all defendants received representation from some kind of indigent defense system.13 13 Bureau of Justice Statistics, Defense Counsel in Criminal Cases (Washington, D.C.: U.S. Department of Justice, November 2000), 1. 18 A public defender program typically consists of a group of attorneys who are paid salaries to defend most or all of the poor defendants in a particular county. Public defender agencies are more common in large counties that tend to be more populous: the aforementioned DOJ study also found that public defender offices operate in 90 out of the country’s 100 most populous counties.14 Most public defender agencies are staffed by full-time attorneys, though some jurisdictions utilize part-time attorneys in public defender offices. Depending on the size of the office and its budget, a public defender agency will usually have either an executive director or chief public defender, support staff, and a number of deputy public defenders. In many counties, individual public defenders are assigned to particular courtrooms, while in others attorney case assignments are made based on the stage of the case or the severity of the charge. The caseloads of attorneys in the public defender’s office usually consist primarily or entirely of criminal defense work, which is not always the case in assigned-counsel and contract systems. An assigned-counsel system is different from the typical public defender agency in that assigned counsel models rely on judges appointing lawyers to poor defendants on a case-by-case basis. The attorneys have typically volunteered to be placed on the roster of assigned-counsel attorneys, though some small jurisdictions may appoint any attorney from the local bar association. While public defender offices are more commonly found in large cities and counties, assigned-counsel systems are well-suited to smaller jurisdictions with lighter criminal caseloads. In fact, most counties use some variation of an assigned-counsel system. Even public defender offices must occasionally use 14 Ibid. 19 assigned counsel in cases where public defenders have conflict-of-interest problems, which typically result from cases that have multiple defendants (one attorney can only represent one defendant in such a case). Compared to the salaried attorneys from public defender offices, assigned-counsel attorneys are often criticized as being inexperienced in the practice of criminal law. While the American Bar Association (ABA) has clearly stated that “assigned counsel shall be compensated for all hours necessary to provide quality legal representation,” research has indicated that this is not the case in all jurisdictions. Klein and Spangenberg, in their study of indigent defense for the ABA, found that compensation for assigned-counsel varies significantly throughout the states, with most states paying $20 and $30 per hour for out of court work and $30 to $40 per hour for in court work.15 In addition to being paid significantly lower hourly rates than their services could earn in private practice, assigned-counsel are often left without any support staff and thus bearing the financial burden of any necessary investigation or preparatory materials. Obviously, these problems with attorney compensation often produce problems in the quality of counsel, as Klein and Spangenberg explain: Some attorneys, whose practices are largely dependent on court appointments, find that they must make up for the low compensation per case by taking on more clients than they can properly represent. For others who take on 15 R. Klein and R. Spangenberg, The Indigent Defense Crisis (Washington, D.C.: American Bar Association, 1993), 5. 20 indigent assignments, a temptation to devote their energies to paying clients and neglect their indigent clients exists. Even the most diligent and dedicated attorney, when adequately compensated, might have to forego necessary case preparation and consultation with expert witnesses and critical witnesses may be overlooked without proper investigative resources.16 Thus, the assigned-counsel attorneys are often not only under-compensated but also overworked, as they take on more work to make up for these deficiencies in pay. This is not to say that all assigned-counsel systems provide less effective assistance of counsel than their public defender counterparts, only to say that deficiencies in funding are a serious concern for assigned-counsel systems. The third type of indigent defense system is the contract system, where individual attorneys, groups of attorneys, or law firms submit bids to local governments and enter into contracts to provide indigent defense services in that jurisdiction for a given period of time. This approach is generally viewed as a less expensive alternative to the assigned-counsel and public defender systems. Worden’s analysis of the recent expansion of contract systems illustrates how the justifications for this model are similar to other arguments made in favor of the privatization of government services. According to this research, there are three main reasons why counties might adopt the contract model: 16 Klein and Spangenberg, 6. 21 1. It is more efficient than public defender programs because competition motivates groups to bid at the lowest possible amount. 2. It induces more flexibility since it is outside the rule-bound public agencies. 3.The private producers are exempt from public regulations that therefore bypass costly procedures affecting public agencies.17 While these arguments may justify contract systems on the surface, they do little to address concerns about the effectiveness of the counsel provided to indigent defendants. In many ways, the contract system is similar to the assigned-counsel system, especially in its creation of incentives for attorneys and firms to maximize their profits by spending as little time as possible on each case. Research, however, has not concluded that contract or assigned-counsel systems provide less effective counsel than public defender systems. Most of the research into public defender effectiveness has been based on comparisons of public defenders and private defense attorneys. The findings of the research in this area have been mixed, with some studies finding that public defenders are less effective than private counsel and others finding no appreciable difference in the performance of the two types of attorneys. Harrison and Ostrom’s (1998) study of nine state trial courts found that public defenders generally perform as well as private counsel in obtaining positive outcomes for their clients.18 This study focused on conviction rates and found no advantage for clients with either type of attorney. Spohn and Holleran’s 17 A. Worden, “Privatizing Due Process,” Justice System Journal 15: 390-418 (1991). 18 R.A. Harrison and B.J. Ostrom, “Indigent Defenders Get the Job Done and Done Well,” in The Criminal Justice System: Politics and Policies, 7th ed., eds. G.F. Cole and M. Gertz (Bellmont, CA: Wadsworth, 1998). 22 (2000) study of three large urban areas also found that attorney type had no effect on the odds of incarceration.19 Using more sophisticated analytical methods, Walker, Spohn and Delone (2004) found that while attorney type was predictive of case outcomes it was less predictive than offense seriousness, prior records, pretrial status, and disposition type.20 One study that found similar results but with a different definition of “outcomes” was Hartley, Miller and Spohn’s (2010) study that tested the notion that public defenders are less effective than private defense lawyers by examining the effect of the type of counsel (public or private) on three different case-processing stages: the bail decision, a plea bargaining decision, and the sentencing decision.21 The dependent variable for bail was based on whether the defendant was released on recognizance or had bail set by the judge. The dependent variable for the plea bargaining stage was whether the primary charge was reduced, and dependent variables for the two sentencing stages include a measure of whether the defendant was incarcerated, and for those incarcerated the length of their sentence. The primary independent variable was the type of counsel, but other variables were included, such as defendants’ race, gender, and employment status, as well as whether the defendant had a prior record, used a weapon, or was under some type of criminal justice control at the time of the offense. Ultimately, Hartley, Miller, and Spohn found that type of counsel had no direct effect on the outcomes of the court processes. 19 C. Spohn and D. Holleran, “The Imprisonment Penalty Paid by Young, Unemployed Black and Hispanic Male Offenders,” Criminology 38 (2000), 281-306. 20 S. Walker, C. Spohn, and M. Delone, The Color of Justice: Race, Ethnicity, and Crime in America, 3rd ed. (Toronto: Wadsworth, 2004). 21 R. Hartley, H. Miller, and C. Spohn, “Do You Get What You Pay For? Type of Counsel and Its Effect on Criminal Court Outcomes,” Journal of Criminal Justice 38 (2010), 1062-1063. 23 Other studies have found that defendants with public defenders will likely have less favorable case outcomes than those with private defense counsel. Harlow (2000) found that conviction rates were similar for defendants with publicly financed and private attorneys, but that pretrial release was less common for state defendants with public attorneys and that defendants with public defenders were sentenced more often to prison or jail than defendants with private counsel.22 Finally, Harlow found that prison inmates spoke to court-appointed lawyers later and less often than to private attorneys. Hoffman, Rubin and Shepherd (2004) utilized a comprehensive econometric approach in order to examine the effectiveness of public defenders and private counsel, and found that, in general, public defenders achieved worse “outcomes” than private defense attorneys.23 Hoffman et al.’s research focused on three variables: 1) the type of counsel (public defender, private attorney, or court-appointed private attorney); 2) defense attorney effectiveness, measured by sentence outcome; and 3) the number of motions filed by defense counsel. In looking at the sentence outcomes for particular cases, Hoffman et al. compared the actual sentence received by a defendant to the maximum possible sentence. Based on this figure, they calculated two figures: an “absolute sentence reduction,” simply subtracting the sentence received from the sentence faced, and a “percentage sentence reduction,” which divided the absolute sentence reduction by the total sentence faced. This provided two measures of attorney 22 C.W. Harlow, “Defense Counsel in Criminal Cases,” Bureau of Justice Statistics Special Report (2000), 5-10. 23 M. Hoffman, P.H. Rubin, and J. Shepherd, “An Empirical Study of Public Defender Effectiveness: Self-Selection by the ‘Marginally Indigent,” Gruder Institute of Law and Behavioral Research (May 2004), 233-235. 24 effectiveness that could be utilized to show differences in performance of public and private counsel, and public defenders scored lower on each measure. More comparable to the study at hand – which does not compare public and private defense counsel but different types of public defenders – is Iyengar’s (2006) comparison of the effectiveness of two different types of federal public defenders. The two different types of federal public defenders are salaried public defenders and private attorneys who were contracted to serve as indigent defense counsel on an hourly basis (also known as Criminal Justice Act – or CJA – panel attorneys). The study examined case level data from 51 districts in the United States and “estimated the difference in probability of guilt and sentence length between CJA panel attorneys an Federal Public Defenders.” Iyengar’s analysis found a significant difference in the probability of guilt and sentence length between the two types of defense counsel, and that attorney experience, wages, law school quality and average caseload likely account for over half of the overall difference in performance.24 The mixed findings in the research on public defender effectiveness and the general perception that indigent defense services are insufficient have led numerous organizations and governments to develop standards for the provision of counsel for poor defendants. The American Bar Association, along with other associations and interest groups, has attempted to bring some level of uniformity and minimum standards to bear on the nation’s indigent defense systems by establishing ten basic standards for public defender services: 24 R. Iyengar, “Not Getting Their Due Process: An Evaluation of Federal Indigent Defense Counsel,” American Law and Economics Association Annual Meeting (2006), 1-3. 25 1. The public defense function, including the selection, funding and payment of defense counsel, is independent. 2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar. 3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after arrest, detention, or request for counsel. 4. Defense counsel is provided sufficient time and a confidential space within which to meet with the client. 5. Defense counsel’s workload is controlled to permit the rendering of quality representation. 6. Defense counsel’s ability, training, and experience match the complexity of the case. 7. The same attorney continuously represents the client until completion of the case. 8. There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner. 9. Defense counsel is provided with and required to attend continuing legal education. 26 10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.25 These standards are similar in many respects to those set by the Indiana Public Defender Commission and to standards set by other state agencies across the country. In a study of public defender agencies nationwide, Carroll and Wallace (2003) conducted a 50-state survey of public defender agencies to examine the impact of indigent defense standards, a survey followed more closely by investigating the impact in four geographic areas. Carroll and Wallace found that “the implementation of indigent defense standards can have numerous and varied impacts for both indigent defense and the criminal justice system, and that the impacts are overwhelmingly viewed as positive not only by indigent defense agencies, but by the judiciary, prosecutors, legislative authorities and funding agencies.”26 They also found that the positive impacts of standards were significantly dependent on the manner and level of enforcement. Of particular interest for this research is Carroll and Wallace’s finding that, in Indiana’s system, the level of state funding contingent upon compliance directly affects the likelihood of standards compliance. They found that compliance went from 0 percent when there was no state reimbursement, to 1 percent of counties when the state reimbursement rate was set at 25 percent, to 54 percent when the rate was raised to 40 25 American Bar Association. Ten Principles of a Public Defense Delivery System (2002). The ABA’s principles were derived from Scott Wallace and James R. Neuhard’s “The Ten Commandments of Public Defense Delivery Systems,” 1973. 26 S. Wallace and D. Carroll, “The Implementation and Impact of Indigent Defense Standards,” National Legal Aid and Defender Association, (2003), ii. percent, and rose to 100 percent when the rate was set at 50 percent (the rate for capital cases).27 27 Ibid, iii. 27 28 PUBLIC DEFENDER OFFICES IN INDIANA Public defender offices in Indiana fall into two major categories: court-sponsored offices and commission-sponsored offices. Court-sponsored offices are, in most cases, governed by county court offices and are generally subject to standards set by local court officials. These offices are usually funded by the counties in which they operate. Commission-centered offices are funded in significant part (up to 40 percent) by the Indiana Public Defender Commission and, while immediately accountable to a countylevel public defender commission, are subject to caseload ceilings and other requirements set by the state commission.28 The Indiana Public Defender Commission aims to improve the accountability and effectiveness of partnering public defender offices. This thesis seeks to discover whether that goal is being achieved. In their survey of public defender systems across the country, Carroll and Wallace provide some context for the creation of the state’s public defender commission: Indiana has a strong home-rule tradition, favoring local autonomy over state control in many matters. Indigent defense has always been organized at the county level, and has been provided primarily by part-time “public defenders,” generally operating under a contract with the local judiciary. The likelihood of 28 See Appendix A for a list of the counties eligible for IPDC reimbursement. The standards are included in Appendix B. For a complete listing of the Indiana Public Defender Commission Standards, see “Standards for Indigent Defense Counsel in NonCapital Cases” at http://www.in.gov/judiciary/pdc/docs/standards/indigent-defense-noncap.pdf. 29 Indiana ever adopting a fully integrated statewide public defender system like Massachusetts – that is, a single state agency with plenary responsibility, including implementation of standards, for local district offices – is reported to be quite remote.29 As astute as these observations are, Indiana did indeed create a state agency to provide some oversight and direction for the state’s many public defender offices. In 1989, the state General Assembly created the Indiana Public Defender Commission when it passed P.L. 284-1989. The IPDC was tasked with three main purposes: (1) make recommendations concerning standards for indigent defense services provided for defendants against whom the State has sought the death sentence under I.C. 35-50-2-9; (2) adopt guidelines and salary fee schedules pursuant to which Indiana counties are eligible for reimbursement under I.C. 33-40-6; and (3) review and approve requests from county auditors for state reimbursement from the Public Defense Fund in capital cases.30 In 1993, the General Assembly amended the Commission statute to authorize reimbursement from the Public Defense Fund of up to 25 percent of a county’s 29 Carroll and Wallace, 30. 30 Indiana Public Defender Commission, 2009-2010 Annual Report, 1. 30 expenditures in capital cases. The reimbursement rate was raised to 40 percent in 1997 for all non-capital cases, except misdemeanors. At present, the IPDC still focuses much of its efforts on services for indigent defendants in death penalty cases, making recommendations in a number of subject areas including the selection and qualification of attorneys, determining conflicts of interest, and the provision of support services necessary to provide adequate legal representation in capital cases. The Commission also must make recommendations concerning the provision of public defender services across the state. State law now requires the IPDC to adopt guidelines and standards for reimbursement-eligible counties that address how participating counties address several key functions: (A) Determining indigency and the eligibility of legal representation. (B) The issuance and enforcement of orders requiring defendants to pay for the costs of court appointed legal representation under I.C. 33-40-3. (C) The use and expenditure of funds in the county supplemental public defender services fund established by I.C. 33-40-3-1. (D) Qualifications of attorneys to represent indigent defendants at public expense. (E) Minimum and maximum caseloads of public defender offices and contract attorneys.31 These standards and their application to Indiana counties participating in the IPDC reimbursement program are at the center of the present research. 31 Indiana Public Defender Commission, 2009-2010 Annual Report, pg. 2-3. 31 The Commission formalized the Standards for Indigent Defense Services in Non- Capital Cases on January 1, 1995. Compliance by the counties was, and remains, strictly voluntary; that is, there is no statute requiring all public defender offices to meet these standards. However, any counties that opt for compliance with state standards qualify to have a portion of the costs incurred by their public defender offices reimbursed by the state. As of this writing, state statute sets the maximum reimbursement rate at 40 percent of indigent defense costs for counties that are in compliance with the standards. The 40 percent reimbursement applies to non-capital felony and juvenile cases; misdemeanor casework does not qualify for reimbursement, and capital cases qualify under a slightly different system.32 Under the first IPDC standard, counties with populations of at least 12,000 that are seeking reimbursement from the IPDC must first establish a three-member County Public Defender Board that will administer the county’s public defender services and ensure that standards are met. In order to maintain the independence of the Board, one member is to be appointed by the County’s executive, and the other two members are to be appointed by the county’s judges. The judge-appointed members may not be from the same political party, they may not be judges, court employees, government attorneys, or law enforcement officers, and they must have a track record of interest in the provision of quality services to poor defendants. The standard indicates that these requirements are important prerequisites for establishing the independence of the public defenders, especially from the courts and judges, as well as the prosecutor’s office. The county 32 The standards for capital cases are set by the Indiana State Supreme Court under Rule 24 of the state’s Rules of Criminal Procedure, and the reimbursement rate for these cases can be as high as 50 percent. I.C. 33-9-14-4(a); 33-9-14-15. 32 public defender board must also adopt a comprehensive plan for public defender services, set standards for defendant eligibility, and establish policies for ordering indigent persons to pay some or all of the costs of their defense. IPDC standards also require that participating public defender offices demonstrate some parity between the compensation of indigent defense attorneys and their counterparts in similar positions in the prosecutor’s office. Compliance with this standard is particularly difficult to monitor and track, as attorneys in the prosecutor’s office are typically full-time salaried employees, while many public defenders work parttime or on an as-needed basis. The IPDC has attempted to solve this comparability problem by requiring that the chief public defender’s salary be at least 90 percent of the chief prosecutor’s salary and requiring the hourly rate for assigned counsel to be at least $60 per hour. The assumption driving this standard is that it will lead to the attorneys on either side of a case being of comparable skill and worth, so that poor defendants are not left with the least capable attorneys. In order to address the oft-repeated complaint that public defenders were overworked and stretched too thin, the IPDC established caseload standards that placed a ceiling on the number of different types of cases an attorney could be assigned each year.33 The caseload limits vary depending on the type of case, whether the attorney is 33 The caseload limits set by the IPDC are based on caseload standards first formulated by the National Advisory Commission on Criminal Justice Standards and Goals (NAC) in 1973. In that document, the NAC recommended the following maximum caseloads for a full-time public defender with adequate support staff: Felony Cases Misdemeanor Cases Juvenile Delinquency Cases Not more than 150 Not more than 400 Not more than 200 33 full- or part-time, and on the support staff available to the individual attorneys. The individual caseload amounts are based on the assumed difficulty of each type of case, and not on the assumed amount of time it is expected the case will take to bring to resolution. Selected caseload limits are displayed in Table 2.34 Table 2: Caseload Standards set by the Indiana Public Defender Commission Full-Time Attorneys Part-Time Attorneys Adequate Support Staff Inadequate Support Staff Adequate Support Staff Inadequate Support Staff Felonies 150 120 75 60 Class D Felonies 200 150 100 75 Appeals 25 20 12 10 Misdemeanors 400 300 200 150 Juvenile 250 200 125 100 Each quarter, the county public defender boards report every attorney’s individual caseloads to the IPDC, which evaluates whether each county is in compliance. If the caseload limits are exceeded, the chief public defender or the individual public defender Mental Health/Civil Commitment Proceedings Not more than 200 Appeals Not more than 25 According to the Commentary for Standard J, these standards were endorsed by the National Legal Aid and Defender Association, and are used extensively in the field across the country. The IPDC also notes that for the vast majority of public defender agencies in the state, the “Inadequate Support Staff” caseload limits will likely be appropriate. 34 In fact, Standard J includes caseload limits for fifteen specific types of cases: All Felonies; Non-Capital Murder, A, B, C felonies; Class D felonies only; Misdemeanors only; JD-C Felony and above; JD-D Felony; JD-Misd; JS-Juvenile Status; JC-Juvenile CHINS; JT-TPR; Juvenile Probation violation; JM-Juvenile Miscellaneous; Other; Trial Appeal; Guilty Plea Appeal. 34 in question is required to inform the judge of the appointing courts and refuse to accept any more cases. In order to qualify as having adequate support staff, a public defender agency must meet the standards displayed in Table 3. Given the low attorney to staff ratio in these standards, it is not surprising that many of Indiana’s cash-strapped indigent defense agencies – including those participating in the state’s reimbursement program – cannot afford to provide adequate support staff for their attorneys. Table 3: Standards for Adequate Support Staff Paralegal – Felony One for every four attorneys Paralegal – Misdemeanor One for every five attorneys Paralegal – Juvenile One for every four attorneys Paralegal – Mental Health One for every two attorneys Investigator – Felony One for every four attorneys Investigator – Misdemeanor One for every six attorneys Investigator – Juvenile One for every six attorneys Law Clerk - Appeal One for every two attorneys Secretary – Felony One for every four attorneys Secretary - Misdemeanor One for every six attorneys Secretary - Juvenile One for every five attorneys The standards also deal with the qualifications of attorneys who serve as public defenders in participating counties. The IPDC sets minimum experience qualifications for attorneys based on the seriousness of the offense. These qualifications are outlined in Table 4 below. 35 Table 4: Attorney Qualification Requirements set by the Indiana Public Defender Commission Required criminal litigation experience Required jury trials Murder 3 years, and 3 felony jury trials A/B Felony 2 years, and 2 felony jury trials C Felony 1 year, and 3 criminal jury trials Juv. Del. 3 years criminal or juvenile litigation, and 3 felony or 3 juvenile trials 3 years, and 6 hours of training Appeal The IPDC adopted this standard because in non-capital cases in Indiana, any attorney licensed to practice law in the state may be appointed counsel for the accused in any criminal case. Thus, an attorney who has never tried a case or never done any criminal defense work could be appointed to serve as counsel in a serious felony case. This standard sets baseline requirements such that this should never happen in a participating county. The IPDC monitors counties’ adherence to these standards through quarterly reports that the local public defender boards submit to the state commission. These quarterly reports consist of two main documents: the attorney qualifications sheet and the quarterly caseload report. The attorney qualifications sheet requires counties to provide information about the individual attorneys who served as public defenders in the previous quarter, including the following: the names of the attorneys; whether they are full- or part-time; their highest level of qualification as outlined in the Standards for Indigent Defense; whether they are assigned, hourly, contracted, or salaried; and their compensation for the quarter. The quarterly caseload report documents on a rolling four- 36 quarter basis the number of different types of cases each attorney has been assigned. The caseload report for each attorney is divided into twelve categories of cases, from murder to probation violations to trial appeals, with each category having its own caseload ceiling (as described above). As discussed earlier, the caseload limits for different types of cases vary, depending on the nature of the case (A felony vs. juvenile probation, for example), whether the attorney is full- or part-time, and whether the attorney has adequate support staff. In order to standardize the caseload reporting system, the IPDC developed formulas that assigned weighted values to different types of cases by dividing the number of cases assigned in a specific category by the maximum allowable cases in the category.35 This creates a Full-Time Equivalent (FTE) percentage. The FTE percentage of each category is added together and totaled for each quarter, and the totals from each quarter are added together to provide a one-year rolling total figure for an attorney’s caseload. Over a twelve-month period, if the FTE percentage exceeds 1.000, this indicates that the attorney’s caseload is not in compliance. According to the IPDC staff counsel, this system “ensures that attorneys handling mixed caseloads (felony and non- 35 Again, the caseload limits were based on the recommendations of a 1973 report from the National Advisory Commission (NAC) on Criminal Justice Standards and Goals, which was sponsored by the Department of Justice. In this report, the NAC suggested that on average, public defenders should not have more than 150 felonies, 400 misdemeanors, 200 juvenile cases, 200 mental health cases, or 25 appeals in a single year. The IPDC used these figures in its own caseload standards. The FTE percentage allows for cases from more than one category to be incorporated into an attorney’s total caseload. For more on the NAC, see the Report of the National Advisory Commission on Criminal Justice Standards and Goals, U.S. Department of Justice (1973), esp. pages 276277. 37 felony) are not being assigned too many cases in a 12-month period and indicates to staff counsel that the county is in compliance with Commission Standards.”36 The rest of this study is dedicated to assessing the extent to which the caseload and other standards are being met by counties that participate in the IPDC’s reimbursement program. In addition to examining counties’ rates of compliance, this study will also explore a number of other dimensions of indigent defense in participating counties. By analyzing data about the individual attorneys who serve as public defenders across the state, a number of important questions can be answered regarding the qualifications, workload, and compensation of attorneys. 36 D. Neal, <[email protected]> “IPDC Standards,” 7 March 2011, personal email. (7 March 2011). 38 THEORY AND HYPOTHESIS Before a hypothesis can be developed that would describe the potential relationship between different public defender systems and meeting standards for indigent defense, a suitable theory for explaining the suggested relationships must be either developed or adopted. For this particular study, we could focus on the individual (public defenders) or organizational (PD offices and agencies) level. The organizational level will be our first concern, as this is the point at which the most important questions can be answered: what differentiates participating counties from non-participating counties, and are participating counties meeting the IPDC standards? In the area of organizational theory, the approach that most effectively addresses these kinds of question is resource dependence theory (RDT). Pfeffer and Salancik’s (1978) The External Control of Organizations: A Resource Dependence Perspective introduced the concept to the field of organizational theory and strategic management. At its core, the RDT approach emphasizes the importance of changes and influences from an organization’s external environment. As Pfeffer and Salancik put it, in order to “understand the behavior of an organization you must understand the context of that behavior – that is, the ecology of the organization.”37 Power in the RDT approach is construed to be control over resources that are useful to an 37 J. Pfeffer and G.R. Salancik. The External Control of Organizations: A Resource Dependence Perspective (New York: Harper & Row, 1978), 1. 39 organization. In a follow-up essay, Pfeffer outlined five important premises of the RDT approach: 1) the fundamental units for understanding intercorporate relations and society are organizations; 2) these organizations are not autonomous but rather are constrained by a network of interdependencies with other organizations; 3) interdependence, when coupled with uncertainty about what the actions will be of those with which the organizations are interdependent, leads to a situation in which survival and continued success are uncertain; therefore, 4) organizations take actions to manage external interdependencies, although such actions are never completely successful and produce new patterns of dependence and interdependence; and 5) these patterns of dependence produce interorganizational as well as intraorganizational power, where such power has some effect on organizational behavior.38 Thus, RDT is concerned with resource interdependencies between organizations and how these interdependencies affect power dynamics between different organizations. The “dependent” organization is expected to seek out ways in which it can escape its dependency status, while the organization that is facilitating the dependency will be in a position of power, able to influence the activities of the other organization. 38 J. Pfeffer. “A Resource Dependence Perspective on Interorganizational Relations,” in Intercorporate Relations: The Structural Analysis of Business, ed. M.S. Mizruchi and M. Schwartz (Cambridge, U.K.: Cambridge University Press, 1987), 26-27. [Originally sourced in A. Hillman, M. Withers, and B. Collins, “Resource Dependence Theory: A Review,” Journal of Management (2009).] 40 For the purposes of this study, the primary organizations being studied include the commission-centered public defender offices, county-centered public defender offices, and the state public defender commission. The commission-centered offices are funded in large part (with reimbursement up to 40 percent) by the state public defender commission. This relationship will provide a useful application of resource dependence theory in a public agency setting. Based on this understanding of resource dependence theory, we can posit one basic hypothesis regarding the relationship that might exist between the county public defender offices and the state public defender commission. The first hypothesis is focused on the relationship between counties’ resource needs and participation in the state’s reimbursement program: My theory is that counties that need more resources will be more likely to participate in the state’s reimbursement program than counties that have lesser resource demands: the promise of state reimbursement will attract those counties in the greatest need of financial assistance to support their public defender activities. Hypothesis 1: Counties with greater resource needs will be more likely to participate in the state’s reimbursement program than counties with lower resource needs. Null Hypothesis 1: Counties with greater resource needs will not be more likely to participate in the state’s reimbursement program than counties with lower resource needs. 41 This hypothesis does not test the extent to which the inter-organizational transfer of resources will influence behavior; rather, this hypothesis focuses exclusively on the factors that lead counties to enter into a resource-dependent relationship with the state. If the data were available, a second hypothesis addressing the relationship between resource dependency and its effect on organizational behavior could be developed and tested. Such a hypothesis might be posited as follows: Hypothesis 2: Commission-centered PD offices’ dependence on state commission funding will produce higher rates of alignment with state commission standards than those which are found in county-centered offices. Null Hypothesis 2: Commission-centered PD offices’ dependence on state commission funding will not produce higher rates of alignment with state commission standards than those which are found in county-centered offices. Lacking a “stick” with which to independently enforce standards for indigent defense, the IPDC relies on a “carrot” in the form its reimbursement of up to 40 percent of county public defender costs. The theory is that this carrot will effectively influence organizational behavior: a county that is dependent on the state for a significant level of resources is more likely to comply with state standards than one which is not; what’s more, the relative level of a county’s dependence on state funds will affect the degree to which it complies with state standards.39 The present study lacks the data necessary to 39 That is, a county that has 40 percent of its public defender costs absorbed by the state might be more likely to comply with state standards than a county for which the state 42 test this hypothesis and so attempts to compare rates of standards alignment and resource dependency among participating counties. In addition to these lines of inquiry, the available data on the qualifications and caseloads of the attorneys who work in counties which participate in the IPDC’s reimbursement program allow for other interesting questions to be pursued. To that end, the present study will also look into the following questions: 1) What percentage of attorneys from IPDC-reimbursed counties are full-time and part-time employees? What percentage work on assigned-counsel, contract, hourly, and salaried bases? What are the qualification levels of attorneys in participating counties? 2) How do full-time compare with part-time attorneys in terms of their qualification levels? How do attorneys working under different pay systems compare with one another along these same lines? 3) Are there any significant differences in the compensation and workload data for full- and part-time attorneys? Are there any significant differences in the compensation and workload data when attorneys working on an assigned-counsel, contract, hourly, and salaried basis are compared with one another? How are compensation and workload levels related to the qualifications of individual attorneys? Answering questions such as these will provide insight into how IPDC-reimbursed counties actually operate – such as whether compensation is better under one type of pay only pays 10 percent of the indigent defense costs. This would comport with Carroll and Wallace’s (2003) findings of a positive relationship between reimbursement rates and standards compliance. 43 system, or whether caseloads tend to be higher for different types of attorneys – and might point the way to improvements in the administration of the IPDC’s standards and reimbursement regime. 44 DATA SOURCES AND METHODOLOGY Most of the data for this research was collected through the Indiana Public Defender Commission. The primary source of data for aggregate, county-level information for every Indiana county is a 2010 IPDC report that includes, among other things, county populations, the type of indigent defense system utilized, the total reported indigent defense expenditures, the state reimbursement for participating counties, and each county’s per capita cost for indigent defense services. This dataset will be utilized to perform several different analyses of public defender offices at the county level. For starters, basic frequencies will be calculated to determine the rate of participation in the state’s reimbursement program and the percentage of counties with each type of model (public defender agency, assigned-counsel, or contract). More sophisticated analysis involving the comparison of means of per-capita expenses for participating and nonparticipating counties and for the different types of offices can also be done to show which system operates at the lowest cost. The inclusion of additional variables such as the county’s population, median household income, and poverty rate allows for the control of certain variations across counties. The other main sources of information are quarterly reports that each participating county submits to the IPDC in order to demonstrate standards compliance.40 The first report is the “Attorney Qualification” worksheet, which includes information on each attorney’s qualifications, whether they are full- or part time, and how much compensation 40 Copies of these worksheets can be found in Appendices C through G. 45 they were paid in the quarter. The other report is the “Attorney Caseload” worksheet, which documents the number of each type of case that each attorney was assigned in the current quarter and the total number of each type of case assigned in the last four quarters, which provides a total for the rolling year. This worksheet also provides the yearly FTE values for each attorney, which determine whether the attorney’s caseload is below or above the maximum yearly standard. Non-participating counties, which constitute just a little less than half of the counties in the state, do not submit these quarterly reports. In order to collect data on these offices, letters and worksheets were sent to half of the county offices soliciting their participation in the study. Only three counties responded with the attorney qualification and caseload information. In telephone and electronic correspondence with secretaries, attorneys, and county clerks, it was made clear that many of the non-participating counties do not keep track of this information on a yearly, let alone quarterly basis. This is likely due to the fact that the indigent defense services budgets in these counties are relatively low and, not having the opportunity to seek reimbursement from the state, they lack an incentive to keep track of this information. The low response rate and lack of reliable data from non-participating counties unfortunately limit the scope of the present analysis. This issue is further discussed later in this paper. The first hypothesis calls for a comparison of counties that participate in the IPDC reimbursement program with those that do not along a number of indicators that provide some insight into the relative resource demands of these different groups. First, counties are compared along several economic indicators, including poverty rate, median household income, per capita income, and per capita PD expenses. Counties’ poverty 46 rates, median household incomes, and per capita incomes are provided based on U.S. Census data from 2009 and 2010. Per capita PD expenses are calculated by dividing a county’s total expenses from providing public defender services in 2010 by the county’s population. These indicators might reflect resource needs in a number of ways. A relatively high poverty rate can indicate a greater need for PD resources by generally reflecting a county’s diminished ability to pay for PD services and also by indicating a county’s increased need for said services (more poor citizens could mean more poor defendants in the criminal justice system41). Median household and per capita income might more accurately reflect a county’s relative ability to pay for public defender services, in the sense that counties with higher median household and per capita income will be less strapped for cash than those with lower median household and per capita income. Two other measures that can be used to compare participating and nonparticipating counties are the expense per public defender case and the public defender caseload rate. The expense per case can be found by dividing the total costs of each county’s public defender services by the number of cases handled by public defenders. More so than the other economic indicators, the expense per case figure reflects the actual differences in the expenses of counties’ public defender services. The public defender caseload rate is calculated by dividing the total caseload for each county by the county’s population and multiplying the quotient by 10,000. This provides a figure 41 It is important here to recognize that higher poverty rates do not necessarily correlate with higher crime rates across the board; rather, this point simply assumes that even if crime rates are relatively constant across different counties, those with higher poverty rates will require greater PD resources because more of their criminal defendants will come from an impoverished background. 47 similar to and more valuable than a county’s crime rate. A county’s crime rate does not provide an accurate portrayal of a county’s public defender needs for two reasons: the first is that not every crime that is reported is ultimately prosecuted in court, and the second is that not every crime is committed by a person who will require the services of a public defender. Furthermore, public defender caseload rate is perhaps the only indicator used here that reliably measures the relative differences between counties’ public defender burdens, as it directly reflects a need for resources and is not subject to the challenges associated with using financial comparisons, which may or may not be the result of other factors. The use of “other factors” is meant to imply that there is a “chicken or the egg” problem with comparing the public defense expenditures of the participating and nonparticipating counties. While it is possible that lower per capita income or higher costs for public defender services might indicate a greater demand for reimbursement and a stronger likelihood of participation in the IPDC program, it is also possible that higher costs – whether on a per capita or per case basis – is the result of participation in the IPDC reimbursement program. This is due to the fact that one of the standards which applies to participating counties requires them to compensate attorneys at set minimum levels, while non-participating counties are not held to any such standard. It is also possible that counties that participate in the IPDC program increase their compensation of attorneys not only as a function of the state standards but also because IPDC reimbursement allows them to do it.42 Thus, if costs are greater for participating 42 For example, if prior to participation in the IPDC’s reimbursement program a county pays assigned-counsel public defender attorneys at a rate of $65 per hour, said county 48 counties, it is possible that this fact is not a cause but an effect of their participation in the IPDC program. In order to test the hypothesis that “commission-centered PD offices’ dependence on state commission funding will produce significant rates of alignment with state commission standards,” dependent and independent variables must first be identified and operationalized. In terms of the dependent variable, which is broadly defined as “alignment with state commission goals,” compliance rates for individual counties can be calculated for each individual IPDC standard. The present study will not assess compliance for every IPDC standard but focus on the following: the establishment of a public defender board (for counties with a population of 12,000 or more), the application of attorney qualifications to appropriate cases, adherence to caseload limits, and the compensation of attorneys. An index will provide an overall reading of this compliance concept. Overall, the scores generated would provide individual readings on each standard and the total index would show the overall degree to which the PD offices’ operations are aligned with the state commission’s standards. The first step in this process is to determine whether or not a county is complying with particular standards. Compliance with the first standard – the establishment of a county public defender board – is quite simple to measure: either a county has such a board or it does not. The application of attorney qualifications to appropriate cases is a bit trickier. The qualifications of individual attorneys must be identified, and then the might increase its hourly rate to $75 once it is assured of IPDC reimbursement. The county could choose to do this for a number of reasons, one of which might be to attract and retain higher quality public defense attorneys. Whatever the motivation, the promise of state funds could lead counties to increase attorney pay, even when the IPDC compensation standard is already being met. 49 attorney’s caseload for the year must be reviewed to determine whether the attorney took on any cases that were beyond his or her qualifications. Adherence to caseload limits is easy to assess. The IPDC requires attorney caseloads to be provided in a spreadsheet that automatically generates the FTE figure for the year. Any attorney whose FTE figure exceeds 1.000 or 100 percent is not in compliance. The extent to which counties meet state standards for attorney compensation is perhaps the most difficult to evaluate, and this requires the development of a new figure, the “estimated hourly rate,” which is discussed below. Tracking compliance and creating an index from the individual standards is relatively straightforward. Compliance with the PD board standard will be tracked by using a “1” for counties that have established a board, a “.5” for counties that are in the process of establishing a board, and a “0” for counties that have failed to even start the process. The other three standards will be tracked using a compliance rate figure, which will be calculated by placing the number of a county’s attorneys who are meeting the standard as the numerator and the total number of a county’s attorneys as the denominator. Consider the matter of measuring compliance with the caseload standards. If County X has a roster of 15 total public defender attorneys, 1 whose FTE caseload figure exceeds the caseload limit, then County X’s compliance rate for the caseload standard would be .933 (14 in compliance / 15 total). If all of the attorneys in the county were in compliance, the score would be 1.000. Compliance with the attorney qualification standard can be calculated in one of two ways. The first would be to compare each individual attorney’s qualifications (as described on the “Attorney Qualifications” sheet submitted each quarter) with the 50 “Attorney Caseload” worksheet, which not only provides the quarterly and yearly caseload FTE figures but which also indicates the number of different types of cases each attorney was assigned. Cross-checking the two would reveal whether, for instance, an attorney qualified to handle only D Felonies and Misdemeanors has been handling more serious cases than is permitted under the standard. The same calculation as used in the caseload case could be used with this standard as well: identify the number of attorneys who are in compliance with this standard and divide it by the total number of attorneys in the county. Thus, if one attorney out of ten had taken on a case or cases beyond her level of experience, the compliance rate for this figure would come in as .900 (9 in compliance/10 total). There is a problem with this method of measuring compliance for this particular standard, which brings us to a second approach. The attorney who was out of compliance on the attorney qualification standard may have worked one case that was beyond her qualifications, or she may have had dozens of such cases. Counting every attorney who handles any number of cases beyond their qualifications as “out of compliance” thus fails to present a clear picture of the county’s overall level of compliance with the standard. A more reliable measure would focus on the number of cases assigned to attorneys who should not have been working on that particular class of case and compare that to the total number of cases that the county’s public defenders handled in the past year. Whereas the first approach would count one attorney being assigned one case and another being assigned fifty cases beyond their qualifications equally, this method – by focusing on the number of compliant cases – allows for finer distinctions to be drawn. Thus, a county where an attorney with 500 cases in the year, one of which was handled by one 51 inexperienced attorney, will receive a compliance score of .998 (499 compliant cases / 500 total cases), while a county with the same number of cases, but with 50 of them assigned to inexperienced counsel, will come in at a .900 (450 compliant cases / 500 total cases). The present study utilizes this second method to determine compliance with the attorney qualification standard. One final note needs to be made regarding the manner in which this study assesses whether attorneys are being assigned cases that are commensurate with their level of experience and training. The “Attorney Caseload” worksheet tracks cases assignments across thirteen different categories43 of cases, and it is these categories that make it possible to determine compliance with the qualification standard. However, there is one important limitation of the caseload worksheet and how this data is reported. While the IPDC qualification standard makes distinctions between the levels of experience required for an attorney to be assigned to Murders, A/B Felonies, and C Felonies, the worksheet makes no such distinction. Case assignments in these three separate classes are bundled together in the counties’ report. Thus, it is impossible using these documents to determine if an attorney who is eligible to only handle C Felonies and lesser crimes has been assigned to a Murder or A/B Felony case. This issue is discussed further in the “Findings” section of the paper. 43 These categories are as follows: 1) Capital Murder, 2) Murder/A & B Felonies/C Felonies, 3) D Felonies, 4) Criminal Misdemeanors, 5) Juvenile Delinquency (if A/B/C Felony as Adult), 6) Juvenile Delinquency (if D Felony as Adult), 7) Juvenile Delinquency (if Criminal Misdemeanor as Adult), 8) Juvenile Probation Violations, 9) Juvenile CHINS/Termination of Parental Rights, 10) Adult Probation Violations/Mental Health, 11) All Others, 12) Trial Appeals, 13) Guilty Plea Appeals. 52 In order to determine compliance with the attorney compensation standard, the present research introduces one more variable, this one not included in the IPDC’s standards or in the worksheets that are sent to participating counties. This figure is the “estimated hourly rate” (EHR) that each attorney is paid. Given the commonplace practice of hourly billing in the legal profession, developing an estimate of indigent defense attorney’s hourly rates allows for comparisons that could otherwise not be made. It is also the only monetary figure that allows for the comparison of all of the attorneys in the dataset, regardless of which kind of system employs them, their full- or part-times status, and the support staff that are available. The estimated hourly rate is determined for each individual attorney by multiplying the yearly caseload rate by the number of working hours in a year44 (which provides you with an estimate of the number of hours each attorney devoted to indigent defense work throughout the year) and dividing the attorney’s yearly compensation total by the estimated hours worked throughout the year. The equation for a full-time attorney can be summarized as follows: EHR = Total Yearly Compensation / (YCR x 2,000 hours), where EHR represents the estimated hourly rate and YCR represents the yearly caseload rate. So, the estimated hourly rate for a full-time attorney who was paid a total of $67,500 and whose yearly caseload rate was .857 would be calculated as follows: 44 For full-time attorneys, the yearly hours are estimated to be 2,000 hours (40-hour weeks x 50 weeks per year), and for part-time attorneys the figure is 1,000 hours (20hour work weeks x 50 weeks per year) It is important to note that this is an estimate, as the IPDC does not collect time sheets or records of hours billed for each individual attorney. It is also important to recognize that in most public defender, assigned-counsel, and contract systems, attorneys are not paid based on the number of hours they work: most either receive an annual salary or a set rate of pay based on the number or category of the cases they accept in a given time period. 53 EHR = $67,500 / (.857 x 2,000) EHR = $39.38 The attorney’s estimated hourly rate for the given year would thus be $39.38. While the weighted values for the different cases are not meant by the IPDC to reflect the estimated number of hours that each type of case will require, the yearly caseload rate and its assumption of varying levels of difficulty can be construed to indicate an estimate of the amount of time each type of case will demand (presumably, attorneys must spend more time on difficult cases than on simple ones). Furthermore, consider the concept of an “excessive caseload.” If an attorney has an excessive caseload, she has more work than she can handle in the limited hours available in the day, week, or year. She must choose between two bad options: she can work beyond the “regular” work week to fulfill her responsibilities, or she can reduce the quality of her work so that she can be finished in a reasonable amount of time. For the IPDC and other standards-issuing agencies, the second option is clearly the larger concern. Caseload limits set by such agencies, even if they are not explicitly based on estimates of the number of hours required to adequately work a case, are inherently time-oriented. When the IPDC determines that full-time attorneys with adequate support staff should not take on more than 150 major felonies in a year, it is not because the IPDC believes that the attorney and her staff are incapable of doing good work on those major felonies. Rather, the IPDC (and other standard-setting organizations) is concerned that an attorney will simply not have enough time to successfully manage more than 150 cases in a calendar year. 54 However imperfectly the EHR figure reflects the actual hourly rate that attorneys are being paid, it will serve here as a consistent figure for evaluating compliance with the attorney compensation standard, which holds that attorneys in participating counties should be paid an amount no less than $60 per hour. EHR data will be evaluated to determine whether counties are complying with this standard, and this figure will be included in the compliance index for each county. The compliance index will combine the four individual compliance rates into one figure by adding the rates for the standards together and dividing them by four. This will provide an overall reading of the county’s level of compliance with these four standards. Once the compliance rates for individual standards and the compliance index for every county is calculated, these figures can be used to identify relationships between a county’s rate of compliance and other variables. Those which are most obvious are the rate of reimbursement from the state, the poverty rate, and the median household income. The assumption underlying the use of such variables is that resources affect organizational behavior, as noted in the earlier discussion of resource dependency theory. 55 RESULTS There are 92 counties in Indiana. As of December 31, 2010, 51 counties (55.4 percent) participated in the IPDC’s reimbursement program, while 41 counties (44.6 percent) did not. Throughout the state, fourteen (15.2 percent) counties have a public defender office, twenty (21.7 percent) utilize an assigned-counsel system, and 58 (63.0 percent) operate on a contract basis. Of the counties participating in the state reimbursement program, 13 (25.4 percent) utilize a public defender office, 12 (23.5 percent) used assigned-counsel, and 26 (50.9 percent) relied on contracted public defender services. Only one non-participating county used a public defender office, while 8 (19.5 percent) and 32 (78.0 percent) used assigned-counsel and contract systems, respectively. These figures are displayed in Table 5. Table 5: Types of PD Offices By IPDC Reimbursement Status Primary Counties With Defense All Counties Reimbursement Number Percentage Number Percentage System Public Defender 14 15.2% 13 25.4% Office AssignedCounsel Contract Counties Without Reimbursement Number Percentage 1 .02% 20 21.7% 12 23.5% 8 19.5% 58 63.0% 26 50.9% 32 78.0% 56 Table 6 shows the average (mean) poverty rate, per capita income, median household income, and per capita expense of public defender services for counties statewide and for those participating and not participating in the IPDC reimbursement program. According to the most recent census figures, the average poverty rate across all Indiana counties was 12.42 percent, and the median household income and per capita income for the state was $46,549 and $22,600, respectively. The average per capita expense of counties’ public defender services across Indiana in 2010 was $9.59. Counties participating in the IPDC program had a higher average poverty rate and per capita expenses, with lower median household and per capita incomes than the state and nonparticipating county averages. For the counties that participated in the reimbursement program, the mean per capita cost of indigent defense services prior to reimbursement was $11.19, and after reimbursement that mean per capita cost dropped to $8.09. The same figure for non-participating counties was an average of $7.60. The state’s reimbursement program reduces the per capita burden of public defender costs for participating counties on average from about 150 percent of that of non-participating counties to a level where average costs are nearly equal. Actual reimbursement rates for participating counties ranged from 16.4 percent to 36.4 percent of a county’s overall public defender costs. 57 Table 6: Economic Indicators and Per Capita Expenses By IPDC Reimbursement Status Counties With Counties Without All Counties Reimbursement Reimbursement (N=92) (N=51) (N=41) Poverty Rate 12.42 13.52 11.05 (SD=3.905) (SD=3.763) (SD=3.679) Median Household $46,549 $44,668 $48,889 Income (SD=$7,556) (SD=$4,997) (SD=$9,410) Per Capita Income $22,600 $21,977 $23,376 (SD=$3,327) (SD=$2,120) (SD=$4,296) Per Capita PD $9.59 $11.19 $7.60 Expenses (SD=$4.44) (SD=$4.38) (SD=$3.68) As Tables 7.1 and 7.2 show, there are similar differences between the expenses per case of counties participating in the IPDC reimbursement program and counties that are not subject to the state standards. Looking at the averages across different pay systems and counties of different populations, the mean expense per case statewide was $541.42, while the costs for reimbursed and non-reimbursed counties were $585.08 per case and $487.12 per case, respectively. These differences persist, for the most part, when the counties are compared not only by their reimbursement status but also by the primary pay system utilized and the county population. Looking first at the pay system comparison, reimbursed counties have higher average case expenses than their nonreimbursed counterparts in public defender and contract systems, and slightly lower expenses ($631.00 per case for reimbursed counties versus $642.63 per case for nonreimbursed counties) in the assigned-counsel category. Average per-case costs were higher in participating counties in every population category except counties with population ranging from 0-11,999, where reimbursed counties had an average cost of $612.00 and those without reimbursement had an average cost of $623.00. 58 Table 7.1: Expense Per Case by Reimbursement Status and Primary Pay System Counties With Counties Without Primary Pay System All Counties Reimbursement Reimbursement Public Defender $493.36 $500.08 $406.00 N=14 N=13 N=1 SD=$153.58 SD=$157.69 SD=N/A Assigned-Counsel $635.65 $631.00 $642.63 N=20 N=12 N=8 SD=$207.95 SD=$229.17 SD=$186.44 Contract $520.53 $606.38 $450.78 N=58 N=26 N=32 SD=$256.53 SD=$240.12 SD=$247.39 All Pay Systems $541.42 $585.08 $487.12 N=92 N=51 N=41 SD=$237.07 SD=$221.29 SD=$247.39 Table 7.2: Expense Per Case by Reimbursement Status and County Population Counties With Counties Without County Population All Counties Reimbursement Reimbursement 0 - 11,999 $613.57 $612.00 $623.00 N=7 N=6 N=1 SD=$160.93 SD=$176.23 SD=N/A 12,000 - 24,999 $553.22 $608.63 $426.57 N=23 N=16 N=7 SD=$217.15 SD=$222.63 SD=$148.63 25,000 - 49,999 $565.83 $569.00 $563.57 N=36 N=15 N=21 SD=$277.67 SD=$274.83 SD=$286.42 50,000 - 99,999 $501.36 $673.20 $358.17 N=11 N=5 N=6 SD=$258.36 SD=$255.06 SD=$165.28 100,000 - 149,999 $426.57 $442.75 $405.00 N=7 N=4 N=3 SD=$182.24 SD=$98.93 SD=$289.36 150,000 - 249,999 $472.75 $648.50 $297.00 N=4 N=2 N=2 SD=$210.45 SD=$68.59 SD=$67.88 250,000 - 499,999 $582.50 $595.00 $570.00 N=2 N=1 N=1 SD=$17.68 SD=N/A SD=N/A 500,000 + $376.00 $376.00 N=1 N=1 N/A SD=N/A SD=N/A All Counties $541.42 $585.08 $487.12 59 N=91 SD=$238.32 N=50 SD=$223.11 N=41 SD=247.38 Comparing the county caseload rate (the average number of cases per 10,000 of population) for reimbursed and non-reimbursed counties shows a state average rate of 188.41 public defender cases per 10,000 and for participating and non-participating counties, a rate of 203.47 and 169.68 per 10,000, respectively. That is, reimbursed counties have on average, higher rates of public defender cases than their non-reimbursed counterparts. Table 8.1 shows that this disparity persists across all three types of pay systems. Reimbursed public defender offices have an average county caseload rate of 246.33 cases per 10,000 population, while the lone non-reimbursed public defender office has a county caseload rate of 121.43 cases per 10,000 population. The difference between participating and non-participating counties with assigned-counsel systems is less notable, with reimbursed counties registering an average caseload rate of 173.41 per 10,000 and non-reimbursed counties having on average 168.12 cases per 10,000 population. There was a slightly larger difference within the category of contract systems, where reimbursed counties had on average 195.91 cases per 10,000 and nonreimbursed counties had on average 171.56 cases per 10,000. Table 8.2 presents a slightly more complicated picture. In two population classes (counties with populations ranging from 0-11,999 and from 50,000-99,999), non-participating counties have higher average county caseload rates than those counties that have sought state reimbursement. 60 Table 8.1: Cases Per 10,000 by Reimbursement Status and Primary Pay System Counties With Counties Without Primary Pay System All Counties Reimbursement Reimbursement Public Defender 237.43 246.33 121.71 N=14 N=13 N=1 SD=98.86 SD=96.88 SD=N/A Assigned-Counsel 171.29 173.41 168.12 N=20 N=12 N=8 SD=60.61 SD=68.15 SD=51.50 Contract 182.48 195.91 171.56 N=58 N=26 N=32 SD=74.01 SD=70.06 SD=76.41 All Pay Systems 188.41 203.47 169.68 N=92 N=51 N=41 SD=77.78 SD=80.33 SD=71.06 Table 8.2: Cases Per 10,000 by Reimbursement Status and County Population Counties With Counties Without County Population All Counties Reimbursement Reimbursement 0 - 11,999 193.45 186.96 232.43 N=7 N=6 N=1 SD=103.86 SD=112.20 SD=N/A 12,000 - 24,999 184.30 189.26 172.97 N=23 N=16 N=7 SD=61.85 SD=25.90 SD=110.16 25,000 - 49,999 181.70 204.40 165.48 N=36 N=15 N=21 SD=72.93 SD=77.26 SD=66.84 50,000 - 99,999 178.91 166.64 189.14 N=11 N=5 N=6 SD=59.14 SD=67.70 SD=55.24 100,000 - 149,999 200.88 230.00 162.05 N=7 N=4 N=3 SD=73.73 SD=76.29 SD=60.14 150,000 - 249,999 187.54 216.91 158.18 N=4 N=2 N=2 SD=58.01 SD=33.54 SD=74.31 250,000 - 499,999 145.25 189.46 101.03 N=2 N=1 N=1 SD=62.53 SD=N/A SD=N/A 500,000 + 538.62 538.62 N/A N=1 N=1 SD=N/A SD=N/A All Counties 188.41 203.47 169.68 61 N=91 SD=77.98 N=50 SD=80.91 N=41 SD=71.06 Focusing exclusively on those counties that participate in the IPDC reimbursement program, we can look at the rates of compliance with various IPDC standards. As stated earlier, this study looks exclusively at compliance with the following standards: the requirement that counties with populations over 12,000 establish a Public Defender Board; the requirement that attorney caseloads not exceed limits set by the IPDC; the matching of attorneys with classes of cases that they are qualified to handle; and, the minimum compensation levels for salaried and hourly attorneys. As Table 9 shows, 100 percent of participating counties were in compliance with the Public Defender Board standard. Ninety-three percent of attorneys in participating counties had caseloads that did not exceed limits set by the IPDC, and 99 percent of the cases in these counties were handled by attorneys who were considered qualified under the IPDC attorney qualification standards. A little over 23 percent of the attorneys were paid the minimum $60 per hour (according to the “estimated hourly rate” figure explained in earlier pages). Comparing participating counties according to the primary public defense system reveals some differences in the rates of compliance on specific standards. On the caseload standard, 90 percent of attorneys in public defender offices did not exceed caseload limits, while 96 percent of attorneys in assigned-counsel and 93 percent of attorneys in contract systems were in compliance. Differences in the qualifications standard were less significant, with 100 percent of public defenders and 99 percent of both assigned-counsel and contract system attorneys taking on only those cases which they were qualified to handle. Compliance rates were much lower for the hourly rate 62 standard, with counties utilizing contract services having an average of only 19 percent compliance, with 26 percent of attorneys in public defender offices and 29 percent in assigned-counsel systems being compensated according to state standards. As stated earlier, the hourly rate compliance figure should be taken with a large grain of salt for two reasons: this figure is not utilized by the IPDC, and the $60 hourly rate does not apply to all counties, as salaried attorneys are expected to be compensated at levels “comparable to” compensation levels for local prosecutors and deputy prosecutors. Table 9: Compliance Scores (0-1) By Primary Public Defense System All Counties with Public Reimbursement Defender AssignedCounsel (N=51) (N=) PD Board 1.000 1.000 1.000 Compliance Caseload .9319 .9042 .9590 Compliance Qualifications .9980 1.000 .9952 Compliance Hourly Rate .2347 .2615 .2905 Compliance Average Total 3.1646 3.1656 3.2446 Score Contract 1.000 .9345 .9983 .1946 3.1274 Correlation and regression analyses that attempted to identify a relationship between counties’ compliance scores – the total score and the scores on individual standards – and counties’ reimbursement rates, poverty rates, and per capita public defender expenses were run. A significant relationship was not found to exist between any of the possible predictors (reimbursement rates, poverty rates, and per capita expenses) and the rates of compliance on individual standards or as a whole. 63 Looking at the actual attorneys who serve as public defenders in the counties receiving IPDC reimbursement, we see that 29.2 percent of these attorneys work full-time in indigent defense while the remaining 70.8 percent are employed part-time in this line of work. Fifty-three percent of these attorneys operate on an assigned-counsel basis, 32.3 percent work on contracts with the counties, 1.7 percent work on an hourly basis, and the remaining 13 percent are salaried attorneys. In terms of qualifications, 48.4 percent of the attorneys serving as public defenders in participating counties fall into the highest qualification bracket (Murder), 22.6 percent are qualified to handle anything up to A or B Felonies, 5.8 percent can take C Felonies, 3.4 percent can handle any class of juvenile cases, 7.9 percent are qualified to appeal Murder convictions, with .6 percent qualified to appeal other types of cases. The remaining 11.3 percent of these attorneys are spread across several lower qualification categories: D Felonies/Misdemeanors, D Felonies/Some Juvenile Delinquency, and TPR/CHINS cases. The frequency data for these categories are displayed below in Tables 10, 11, and 12. Table10: Attorneys in Participating Counties Working Full and Part Time Full Time Frequency 263 Percent 29.2 Part Time 637 70.8 Total 900 100.0 64 Table 11: Attorneys in Participating Counties Working Under Different Pay Systems Frequency 477 Percent 53.0 Contract 291 32.3 Hourly 15 1.7 Salaried 117 13.0 Total 900 100.0 Assigned-Counsel Table 12: Attorneys in Participating Counties in Different Qualification Categories Frequency Percent Murder 436 48.4 A/B Felony 203 22.6 C Felony 52 5.8 Juvenile Delinquency 31 3.4 Murder Appeal 71 7.9 Other Appeal 5 .6 D Felony/Misdemeanor 55 6.0 D Felony/Some Juvenile 11 1.3 TPR/CHINS 35 4.0 Total 900 100.0 Table 13 shows that approximately half (49.6 percent) of the salaried attorneys are full-time employees. All of the attorneys in hourly systems and nearly all (91.4 percent) of the attorneys in contract systems work on a part-time basis. About two-thirds (61.5 percent) of the attorneys working on an assigned-counsel basis work part-time and the remaining 38.5 percent are employed full-time. 65 Table 13: Full- and Part-Time Status in Different Pay Systems in IPDC-Reimbursed Counties AssignedCounsel Contract Hourly Salaried Full-Time Part-Time Percentage 38.5% 8.6% 0.0% 49.6% Frequency 180 25 0 58 Percentage 61.5% 91.4% 100.0% 50.4% Frequency 287 266 15 59 To look more closely at the qualifications of these attorneys, Tables 14 and 15 compare the percentages of attorneys qualified to handle Murder, A/B Felonies, C Felonies, and Juvenile Delinquency cases among those working Full- and Part-Time and those working under differing pay arrangements. As Table 14 shows, 47.5 percent of attorneys working full-time are qualified to handle Murder cases, while a comparable percentage (50.5 percent) of those working part-time are qualified to work Murders. For A/B felonies, 26.2 percent of full-time and 21.8 percent of part-time attorneys are qualified. Similar differences can be found in the percentages of full- and part-time attorneys qualified to handle C Felonies and Juvenile Delinquency cases. Overall, 87.4 percent of full-time attorneys are qualified in one or more of the four most demanding classes of cases, while 80.0 percent of part-time attorneys can be assigned to a case in one or more of these categories. The differences that exist between attorneys working under different pay arrangements are more telling than those that exist between full- and parttime attorneys. First, consider the class of attorneys qualified to handle Murder cases: 43.2 percent of assigned-counsel attorneys, 49.1 percent of contract attorneys, 33.3 percent of hourly attorneys, and 79.5 percent of salaried attorneys are qualified under this category. Looking across these four categories of cases, we see that 95.8 percent of 66 salaried attorneys, 88.3 percent of assigned-counsel attorneys, 79.9 percent of hourly attorneys, and 67.1 percent of contract attorneys are qualified to handle one or more of these types of cases. Table 14: Qualifications of Full- and Part-Time Attorneys in IPDC-Reimbursed Counties Full-Time Part-Time Percentage Count Percentage Count Murder 47.5% A/B 26.2% C 8.4% JD 5.3% 125 69 22 14 50.5% 21.8% 4.9% 2.8% 308 133 30 17 Table 15: Qualifications of Attorneys in Different Pay Systems in IPDC-Reimbursed Counties Murder A/B C JD AssignedCounsel Contract Hourly Salaried Percentage Count Percentage Count Percentage Count Percentage Count 43.2% 31.5% 8.0% 5.6% 200 146 37 26 49.1% 13.4% 3.5% 1.1% 139 38 10 2 33.3% 20.0% 13.3% 13.3% 5 3 2 2 79.5% 13.7% 2.6% 0.0% 93 16 3 0 Delving further into the data available on individual attorneys working as public defenders in participating counties allows us to compare attorneys’ compensation, caseloads, and hourly rates, among other things. As the tables below show, significant differences emerge when comparing some of these averages for different types of 67 attorneys. Table 16 shows, for example, that full-time attorneys had an average caseload rate of 1.0042, just slightly over the limit set by the IPDC, and average hourly compensation of $48.28, while part-time attorneys had an average caseload rate of .6017, significantly below the limits set by the state, and average hourly compensation of $71.14. Tables 17 and 18 provide the same figures but compares them across different types of attorney pay systems and different qualification categories. Attorneys in an assigned-counsel system have an average caseload rate of .7080 and an average hourly rate of $73.56, those in contract systems average a .7347 caseload rate and $48.35 per hour, and attorneys in salaried positions average a .8011 caseload rate and work at an estimated hourly rate of $47.44. Some of the standard deviations listed in these tables are large. Skewness measures for every category are positive, indicating that the majority of cases fall to the left of the means listed. Table 16: Average Annual Compensation and Workload Comparisons by Full and Part Time Compensation Total Cases Caseload Rate Yearly Hours Hourly Rate Full Time N=263 $49,646 SD=$1,869 209.39 SD=886.94 1.0042 SD=3.0002 2008.35 SD=6000.31 $48.28 SD=$77.76 Part Time N=627 $20,977 SD=$$1,509 55.28 SD=97.28 .6017 SD=.5280 596.95 SD=528.64 $71.14 SD=$270.51 Total N=890 $29,449 SD=$2,085 101.08 SD=494.73 .7213 SD=1.7022 1014.03 SD=3350.03 $64.35 SD=$230.88 68 Table 17: Average Annual Compensation and Workload Comparisons by Pay System Caseload Yearly Compensation Total Cases Rate Hours Hourly Rate Assigned-Counsel N=477 $29,711 SD=$22,790 130.96 SD=673.60 .7080 SD=2.2907 1149.05 SD=4547.55 $73.56 SD=$297 Contract N=291 $25,308 SD=$16,610 57.52 SD=62.90 .7347 SD=.4772 787.36 SD=506.50 $48.35 SD=$94.37 Hourly N=15 $5,074 SD=$3,753 4.80 SD=5.16 .0953 SD=.0905 95.27 SD=90.52 $189.96 SD=$395 Salaried N=117 $40,589 SD=$18,070 95.62 SD=63.22 .8011 SD=.4257 1139.26 SD=546.40 $47.44 SD=$64.59 Total N=900 $29,290 SD=$20,920 100.34 SD=492.04 .7186 SD=1.6940 1013.27 SD=3333.70 $63.90 SD=$230 Table 18: Average Annual Compensation and Workload Comparisons by Attorney Qualification Total Caseload Yearly Hourly Compensation Cases Rate Hours Rate Murder N=436 $34,023 SD=$22,420 105.67 SD=682 .7375 SD=2.2706 1056.80 SD=4530 $80.18 SD=$315 A/B Felony N=203 $28,041 SD=$18,800 102.98 SD=182 .6597 SD=1.0233 935.88 SD=1876 $57.93 SD=$78 C Felony N=52 $27,874 SD=$16,790 188.85 SD=273 .9197 SD=.9312 1496.33 SD=1799 $32.20 SD=18 Juvenile Delinquency N=31 $28,514 SD=$22,060 85.45 SD=78 .3958 SD=.2880 665.00 SD=575 $114.85 SD=$270 Murder Appeal N=71 $17,984 SD=$19,050 71.18 SD=198 .7899 SD=.6833 1045.89 SD=1248 $31.07 SD=$38 Other Appeal N=5 $27,313 SD=$18,980 13.80 SD=13 .7720 SD=.6092 1314.00 SD=1302 $30.98 SD=$25 D Felony/Misdemeanor N=33 $19,881 SD=$17,130 68.82 SD=65 .5108 SD=.4370 708.67 SD=638 $36.43 SD=$45 D Felony/Some Juvenile N=11 $14,439 SD=$11,660 49.55 SD=46 .4375 SD=.3360 437.55 SD=336 $38.61 SD=$21 Total N=878 $29,681 SD=$20,970 101.87 SD=498 .7223 SD=1.7112 1023.79 SD=3373 $64.73 SD=$232 69 Finer distinctions can be made by comparing, for example, the caseload and hourly pay rates of attorneys with different qualification levels within the different types of pay systems. Tables 19 and 20 display the results of an analysis for attorneys qualified to handle Murder, A/B Felony, C Felony or D Felony/Misdemeanor matters in AssignedCounsel, Contract, and Salaried systems. As this shows, assigned-counsel attorneys are better-paid than their counterparts in almost every category and especially in the group of attorneys qualified for Murder. Table 19: Average Caseload Rates by Qualification and Pay System Murder A/B Felony C Felony D Felony/Misd Assigned-Counsel .8085 N=199 SD=3.3424 .5982 N=141 SD=1.0988 1.0035 N=37 SD=1.0489 .2720 N=17 SD=.2463 Contract .6292 N=139 SD=.3490 .8843 N=38 SD=.8269 .6484 N=10 SD=.3049 .7077 N=11 SD=.3124 Table 20: Average Hourly Rates by Qualification and Pay System Assigned-Counsel Contract $105.10 $67.05 Murder N=199 N=139 SD=$449.83 SD=$130.47 $57.61 $44.23 A/B Felony N=141 N=38 SD=$75.42 SD=$50.53 $30.95 $33.94 C Felony N=37 N=10 SD=$20.03 SD=$13.29 $41.04 $35.54 D Felony/Misd N=17 N=11 SD=$60.20 SD=$21.33 Salaried .7815 N=93 SD=.3136 .7821 N=16 SD=.7380 1.3607 N=3 SD=.6027 .8894 N=5 SD=.7164 Salaried $47.59 N=93 SD=$66.63 $57.13 N=16 SD=$67.98 $32.25 N=3 SD=$21.08 $22.71 N=5 SD=$3.11 70 ANALYSIS The fact that counties which have chosen to participate in the IPDC reimbursement program have higher average poverty rates, lower median household and per capita income, and larger average per capita PD expenses would seem to indicate that counties which have greater needs in terms of resources are more likely to participate in the reimbursement program. The large difference between participating and nonparticipating counties’ per capita PD expenses (shown in Figure 1 as $11.19 and $7.60, respectively) appears to be especially telling in this regard, as does the difference in participating and non-participating counties’ average expense per public defender case (shown in Figure 2 as $585.08 and $487.12, respectively). That said, it is important to remember that higher costs for participating counties might come as a result of participation in the IPDC reimbursement program, rather than as an effect of such participation. This is because of the IPDC requirements for minimum compensation levels, requirements which do not apply to non-participating counties. Reimbursed counties might pay more for their public defender services because they are required to pay more. Analysis over time would need to be conducted to determine whether or not this is the case. Evaluation of participating counties’ public defender costs before and after the receipt of state reimbursement dollars should show whether or not state reimbursement causes PD expenses to increase and by how much. 71 Figure 1: Per Capita PD Expenses by Reimbursement Status $12.00 $10.00 State Average $8.00 $6.00 Counties With reimbursement $4.00 Counties Without Reimbursement $2.00 $0.00 Per Capita PD Expenses Figure 2: Expenses Per PD Case by Reimbursement Status $700.00 $600.00 $500.00 State Average $400.00 Counties With Reimbursement $300.00 $200.00 Counties Without Reimbursement $100.00 $0.00 Expenses Per PD Case The average county caseload rate (the number of cases per 10,000 of population) may be a more telling figure, and here again we find significant differences between the figures for participating and non-participating counties. This figure is a direct and comparable measure of the workload demand that different counties are faced with. Furthermore, this figure should not be affected by a county’s participation in the IPDC program, as there is no standard or action from the IPDC that should affect the rate of prosecutable crimes and the number of criminal defendants requiring public defenders. 72 The difference between participating and non-participating counties on this measure is illustrated in Figure 3: participating counties averaged 203.47 PD cases per 10,000 population and non-participating counties averaged 169.68 PD cases per 10,000 of population. Counties that choose to participate in the state’s reimbursement program have, on average, greater workload demands placed on their public defender services than the counties that choose not to participate. This finding supports part of the theory behind the resource dependency perspective, organizations’ resource needs will directly affect their decisions to enter into a dependent relationship with other organizations. Figure 3: PD Cases Per 10,000 Population by Reumbursement Status 210 200 190 State Average 180 Counties With Reimbursement 170 Counties Without Reimbursement 160 150 PD Cases Per 10,000 Population The findings comparing the rates of compliance among participating counties by their nature provide only limited insight into the relationship that exists between resource dependency and organizational behavior. As stated earlier, the more important comparison is not that which can be made of participating counties but between participating and non-participating counties. This was the original aim of this study, which was unable to be carried out due to a lack of available data for non-participating 73 counties. The present study, focusing exclusively on participating counties, found high levels of standards compliance in the establishment of public defender boards, the meeting of attorney caseload limits, and the matching of attorneys with appropriate types of cases. Compliance scores were much lower for the hourly rate standard. There are, however, reasons to suspect that these numbers are not valid measures of counties’ compliance. For one, the measurement of caseload compliance is muddled by the lumping together of Murder, A/B Felony, and C Felony into one category on the Attorney Caseload reports submitted to the IPDC. Another problem with hourly rate compliance is that this measure relies on the estimated hourly rate (EHR) that was developed exclusively for this study and is a derivative measure based on attorneys’ caseloads and compensation. It was not created and is not utilized by the IPDC to determine compliance with state standards. The failure to find any significant relationship between possible predictors of compliance, such as reimbursement rates, poverty rates, and per capita expenses and counties’ actual compliance rates, along with generally high levels of compliance with most standards, seem to indicate that within the participating counties there is little variance in terms of compliance with IPDC standards. Again, the more interesting comparison would be to assess the differences between participating and nonparticipating counties.45 45 Carroll and Wallace (2003), in their study of Vanderburgh County’s participation in the IPDC reimbursement program, found significant changes in caseload numbers when said county began participating in the reimbursement program. “Prior to implementation of the standards in Vanderburgh County, annual felony caseloads were approximately double what is permitted under the standards; i.e., caseloads of 130-140 per part-time attorney were common, compared with the current maximum of 120 for full-time attorney without adequate support staff. Judges reported that the attorneys were “grossly overworked.” (34) 74 Two of the major concerns regarding public defenders are that the attorneys who work in these offices are either not qualified to provide quality counsel or are so overworked or underpaid that they cannot provide competent defenses for their clients. Using the available data on public defenders employed in IPDC-reimbursed counties, we can put some of these concerns to rest. One of the major criticisms of public defenders’ qualifications has been that the widespread employment of part-time public defenders will produce experience disparities with their courtroom foes, full-time prosecuting attorneys. In this sense then, the fact that 70 percent of public defenders in IPDCreimbursed counties work in this capacity on a part-time basis might be cause for concern. However, the finding that 48.4 percent of attorneys in participating counties meet the qualification threshold for the most challenging class of cases (Murder) and that another 22 percent are qualified to handle A and B felonies provides some reassurance that counties receiving reimbursement are able to find highly-qualified individuals to serve as public defense counsel. The finding of little disparity in qualifications between full- and part-time public defense attorneys as displayed in Figure 4 (47.5 percent of fulltime and 50.5 percent of part-time attorneys qualify for Murder, and 26.2 percent of fulltime and 21.8 percent of part-time attorneys qualify for A and B Felonies) provides further reassurance. 75 % in Full-­ or Part-­Time Figure 4: Attorney Qualification by Full- and Part-Time Status 60 50 40 30 Full-­‐Time 20 Part-­‐Time 10 0 Murder A/B Felonies C felonies Juvenile Delinquency Looking at the relationship between pay systems and attorney qualifications, the finding that nearly 80 percent of salaried public defense attorneys versus 43 percent of assigned-counsel, 49 percent of contract, and 33 percent of hourly attorneys are qualified to take on Murder cases is interesting, especially given the fact that only half of salaried public defenders are employed full-time. A question that arises here is whether salaried work is inherently more attractive to more qualified attorneys, especially considering the fact that salaried attorneys in IPDC-reimbursed counties have the highest caseload rate and the lowest estimated hourly compensation rate of attorneys. But overall, there are not significant disparities in terms of qualifications of the attorneys in different types of pay systems. As Figure 5 shows, 43.2 percent of assigned-counsel attorneys are qualified to handle murder and 31.5 percent are qualified to handle A and B felonies, with 88.3 percent of assigned-counsel attorneys qualified to handle one or all of the four most demanding types of cases (Murder, A/B Felonies, C Felonies, and Juvenile Delinquency). Concerns about the qualifications of contract attorneys are also not well-founded, as half (49.1 percent) of contract attorneys are qualified to take Murder cases and 67.1 percent of 76 these attorneys are qualified for Murder, A/B Felonies, C Felonies, or Juvenile Delinquency cases. Figure 5: Qualifications of Attorneys in Different Pay Systems 90 80 70 60 50 Salaried 40 Assigned-­‐Counsel 30 Contract 20 Hourly 10 0 Murder A/B Felonies C Felonies Juvenile Delinquency Data on attorney compensation and caseloads can be used to determine whether public defense counsel is, in fact, overpaid and underworked. To begin with comparisons between different work arrangements, we see that full-time attorneys have a significantly higher average caseload rate (1.0042) than their part-time counterparts (.6017) and a significantly lower EHR (estimated hourly rate), with full-time attorneys bringing an average $48.28 per hour and part-time attorneys earning an average of $71.14 per hour. As discussed in earlier sections, the concern is that attorneys with more demanding caseloads will be inclined – or, perhaps, forced – to devote less time and resources to every additional case they are assigned. Lower compensation rates amplify this problem, as overworked attorneys may feel the need to take on more casework outside of their 77 public defender caseload in order to make more money; additionally, poorly compensated attorneys may come to feel their contributions are undervalued, which could affect the quality of said contributions over time. Figures 6 and 7 illustrate these differences in caseloads and compensation levels. Figure 6: Average Caseload Rate by Full- and Part-Time Status 1.2 1 0.8 0.6 Full-­‐Time 0.4 Part-­‐Time 0.2 0 Caseload Rate Figure 7: Average Estimated Hourly Rate by Full- and Part-Time Status $80.00 $70.00 $60.00 $50.00 $40.00 Full-­‐Time $30.00 Part-­‐Time $20.00 $10.00 $0.00 Estimated Hourly Rate 78 Referring back to the different pay arrangements of attorneys, remember the criticism that assigned-counsel attorneys are typically overworked and underpaid. The findings of this study revealed that in IPDC-reimbursed counties this is not the case. The average caseload rate for assigned-counsel attorneys was fairly high (.7080), but it was still lower than contract attorneys, who had an average caseload rate of .7347, and salaried attorneys, who averaged a .8011 caseload rate. The average caseload for contract attorneys is .7347, which is not close to an “excessive” caseload under IPDC standards and which is still lower than the average caseload rate among salaried public defense attorneys. The concerns about compensation of contract attorneys appear, however, to have some merit: the average EHR for contract attorneys is $48.35, which is low relative to hourly and assigned-counsel hourly rates (but close to the EHR of salaried public defenders). Whether this disparity in compensation creates problems for attorney performance is a matter beyond the scope of the present study. Figure 8: Average Estimated Hourly Rate by Attorney Pay System $200.00 $180.00 $160.00 $140.00 $120.00 Salaried $100.00 Assigned-­‐Counsel $80.00 Contract $60.00 Hourly $40.00 $20.00 $0.00 Estimated Hourly Rate 79 In general, the claim that public defense attorneys are unqualified, overworked, or underpaid is not supported by the data we have on attorneys who work in counties that participate in the IPDC reimbursement program. The question of whether this is a function of said participation or mere coincidence can only by answered by application of similar analysis to data on all public defenders across the state. 80 COMMENTARY The original aim of this study was to closely compare the counties that participate in the IPDC reimbursement program with those that do not, and to particularly look for differences between these two groups in the qualifications, compensation, and caseloads of their attorneys. Ultimately, the breadth of such a study was not feasible at this time given the limited availability of data from non-participating counties. Yet the fact remains that in order to effectively evaluate the impact that the IPDC standards and reimbursement program have on the organizational behavior of county public defender offices, large amounts of data will need to be collected on non-participating counties. While the generally high rates of participating counties’ standards compliance, substantial percentages of highly-qualified attorneys, reasonable caseload figures, and apparently adequate compensation levels seem to indicate that the IPDC program is achieving its goals, these figures must be compared with the same from non-participating counties. Only then can the effectiveness of this program be truly measured. Once the data for participating and non-participating counties are collected, this information can be used to extend the comparison and further assess the impact of the IPDC standards and reimbursement program. That is, a new study can be designed to explore the degree to which alignment with state standards leads to “better” outcomes in the defense of accused indigents. For this step, one could rely heavily on Jacoby (1982) and her application of Dror’s insight that “the primary measure of any policy decision is a 81 definable systemic output.”46 Jacoby argues that systemic output for public defenders is best defined as the disposition of cases – using, in particular, offices’ and attorneys’ overall guilty rates and the average sentence length for various non-capital crimes. For these purposes, this output could be defined as “client outcomes” and would act as the dependent variable for this new hypothesis. Several independent variables could be used to identify how different PD office and attorney characteristics affect client outcomes. For example, do attorneys – or counties, for that matter – with lower caseload rates produce better client outcomes? Do counties with larger percentages of highly-qualified attorneys (Murder, A/B Felonies) provide better services to indigent defendants? Ultimately, following the data on these key questions allows us to answer a larger, and perhaps more important question: “Do the state indigent defense standards – and state funding – increase the quality of indigent defense in Indiana?” This is the question that the IPDC, as well as state legislators, county-level officials, and public defender attorneys, will want to answer as they consider the future of the IPDC’s reimbursement program and the addition of new counties to the list of participants. 46 J. Jacoby, Basic Issues in Prosecutor and Public Defender Performance, U.S. Department of Justice National Institute of Justice (1982), 9. 82 APPENDIX A: Counties Eligible for IPDC Reimbursement as of December 31, 2010 Adams Martin Allen Monroe Benton Montgomery Blackford Newton Carroll Noble Clark Ohio Decatur Orange Fayette Parke Floyd Perry Fountain Pike Fulton Pulaski Grant Rush Greene St. Joseph Hancock Shelby Howard Spencer Jasper Steuben Jay Sullivan Jennings Switzerland Knox Tippecanoe Kosciusko Union Lagrange Vanderburgh Lake Vermillion LaPorte Vigo Lawrence Wabash Madison Warren Marion 83 APPENDIX B: IPDC Standards for Indigent Defense in Non-Capital Cases STANDARDS FOR INDIGENT DEFENSE SERVICES IN NON-CAPITAL CASES Adopted by the INDIANA PUBLIC DEFENDER COMMISSION - Effective January 1, 1995 as amended October 28, 1998 September 1, 1999 March 10, 2004 July 13, 2006 September 24, 2008 December 10, 2008 STANDARD A. COUNTY PUBLIC DEFENDER BOARD. A county with a population over 12,000 persons shall establish a county public defender board. Counties subject to I.C. 3340-7-1 shall establish a county public defender board pursuant to this statute. Counties excluded from I.C. 33-40-7-1 shall establish a county public defender board under I.C. 36-1-3 with powers and duties consistent with I.C. 33-40-7-6. A lawyer who provides representation to indigent persons shall not be appointed to a county public defender board. Commentary The purpose of the requirement of a county public defender board is to guarantee professional independence of the defense function and the integrity of the relationship between lawyer and client in accordance with the American Bar Association Standards for Criminal Justice, Chapter 5: Providing Defense Services, Standard 5-1.3 (3rd ed. 1990) [hereafter ABA Providing Defense Services]. Since the decision of the United States Supreme Court in Gideon v. Wainwright (1963), 372 U.S. 335, the issue of judicial control of indigent defense counsel has been addressed by a majority of states through the enactment of legislation creating indigent defense delivery systems that are independent of the judiciary. Indiana, however, continues to rely heavily upon the inherent authority of the courts to provide these constitutionally mandated services and independence of the defense function has not been assured. This state is one of the few states where an accused may be represented by an atwill employee of the judge before whom the accused stands charged. 84 When counsel is not fully independent to act in the client's behalf, the deficiency is often perceived by the defendant, which fosters suspicion and distrust of the criminal justice system. ABA Providing Defense Services, Standard 5-1.3, provides as follows: (a) The legal representation plan for a jurisdiction should be designed to guarantee the integrity of the relationship between lawyer and client. The 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-for-service programs. (b) An effective means of securing professional independence for defender organizations is to place responsibility for governance in a board of trustees. Assigned-counsel and contract-for-service components of defender systems should be governed by such a board. Provisions for size and manner of selection of boards of trustees should assure their independence. Boards of trustees should not include prosecutors or judges. The primary function of the 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, assigned-counsel and contract-for-service programs consistent with these standards and in keeping with the standards of professional conduct. Boards of trustees should be precluded from interfering in the conduct of particular cases. A majority of the trustees on boards should be members of the bar admitted to practice in the jurisdiction. It is essential that attorneys, however chosen or appointed, be fully independent, free to act on behalf of their clients as dictated by their best professional judgment. A system that does not guarantee the integrity of the professional relationship is fundamentally deficient because it fails to provide counsel who have the same freedom of action as a lawyer whom the person with sufficient means can afford to retain. In Polk County v. Dodson (1981), 454 U.S. 312, 318-321, the court stated: [e]xcept for the source of payment, the relationship [of public defender and client] became identical to that existing between any other lawyer and client. *** Held to the same standards of competence and integrity as a private lawyer, a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client. 85 The importance of independence for lawyers who represent the poor has been stressed in a number of national standards relating to defense services, in addition to those of the ABA. The standards of the National Legal Aid and Defender Association state that "however attorneys are selected to represent qualified clients, they shall be as independent as any other private counsel who undertake the defense of the accused." National Legal Aid and Defender Association, Standards For Defense Services, III. 1. (1976). A similar view is expressed in the standards of the National Advisory Commission: "The method employed to select public defenders should ensure that the public defender is as independent as any private counsel who undertakes the defense of a fee-paying criminally accused person." National Advisory Commission on Criminal Justice Standards and Goals, Courts 13.8 (1973). The Commission believes that the goal of independence as stated in Standard 51.3 of ABA Providing Defense Services, can be substantially achieved by a county public defender board established under either I.C. 33-40-7-3 or I.C. 36-1-3. Under Indiana's home rule statutes, I.C. 36-1-3, counties excepted from I.C. 33-40-7-1 may adopt an ordinance identical to or similar to I.C. 33-40-7-3. The adoption of a county public defender board preserves local control, yet removes public defenders from the direct control and supervision of judges. Counties with a population under 12,000 are not required to have a county public defender board because the Commission believes that the establishment of such a board in the state's least populous counties is unfeasible. 86 STANDARD B. COMPREHENSIVE PLAN. The county public defender board shall adopt a comprehensive plan for indigent defense services either pursuant to or consistent with the provisions in I.C. 33-40-7-5 and shall submit the plan to the Indiana Public Defender Commission. Commentary This standard requires the board to prepare a document called a "comprehensive plan" that describes the method for providing legal services to indigent persons in all courts in the county. This standard does not require that the board adopt any particular type of delivery system or only one system for all courts in the county. The requirement that the plan be submitted to the Commission is provided by law. See I.C. 33-40-7-5. In addition to meeting the specific requirements addressed by these standards, the comprehensive plan should include all procedures and policies related to indigent defense services in the county, including the structure and type of system to be used, staffing, compensation, the number and types of cases, and funding. A form for submitting the comprehensive plan was developed by the Commission to assist counties in meeting this requirement. Indigent criminal defense services in Indiana are currently provided in three basic ways: (1) public defender programs; (2) contracts under I.C. 33-40-7-8 between courts and attorneys or law firms; and (3) assigned counsel systems in which private attorneys are appointed by judges on a case-by-case basis. Because Indiana relies heavily upon the inherent authority of the trials courts for providing indigent defense services at trial and on direct appeal, the majority of counties have a separate and different system for each court rather than a county-wide system for all courts. Nevertheless, most counties have developed a predominant system for providing indigent defense services. 87 STANDARD C. ELIGIBILITY FOR APPOINTMENT OF COUNSEL. The comprehensive plan shall include the applicable rules and procedures for the determination of eligibility for the appointment of counsel at public expense, and shall contain the following provisions: 1. Substantial Hardship. Counsel will be provided to all persons who are financially unable to obtain adequate representation without substantial hardship to themselves or their families. a. Ability to Post Bail. Counsel will not be denied to any person merely because the person is able to obtain pretrial release through a surety bond, property bond, or a cash deposit. b. Employment. Counsel will not be denied to any person merely because the person is employed. 2. Determining Eligibility. The determination of eligibility for the appointment of counsel will include an estimation as to the costs of retaining private counsel and a determination as to whether the person's disposable income and liquid assets are adequate to cover the costs of retaining private counsel. a. Costs of Private Counsel. The determination of the costs of retaining private counsel shall be based upon the nature of the criminal charge, the anticipated complexity of the defense, the estimated cost of presenting a legal defense, and the fees charged by lawyers in the community for providing defense services in similar cases. b. Income. Income shall include all salaries and wages after taxes, including interest, dividends, social security, unemployment compensation workers' compensation, pension, annuities, and contributions from other family members. c. Expenses. Expenses shall include, but are not limited to, all living expenses, business or farm expenses, including food, utilities, housing, child support and alimony obligations, education or employment expenses, child care, medical expenses, and transportation. d. Disposable Income . Disposable income shall be determined by assessing monthly income and subtracting monthly expenses. 88 e. Liquid Assets. Liquid assets shall include, but are not limited to, cash, savings and checking accounts, stocks, bonds, certificates of deposits, and equity in real and personal property exceeding the statutory allowances in I.C. 34-2-28-1 that can be readily converted to cash. 3. Confidentiality. If the accused is questioned about indigency in circumstances where the attorney-client privilege does not apply, the accused shall be advised that any statements made or information given may be used against him or her. Commentary This standard embodies current Indiana law regarding the determination of indigency. The "substantial hardship" test for determining indigency was adopted by the Indiana Supreme Court in Moore v. State (1980), Ind., 401 N.E.2d 676, 678-679, and has been cited with approval in numerous subsequent appellate opinions: ... the defendant does not have to be totally without means to be entitled to counsel. If he legitimately lacks financial resources to employ an attorney, without imposing substantial hardship on himself or his family, the court must appoint counsel to defend him. In Moore, supra, at 679, the court also stated that " [t] he fact that the defendant was able to post a bond is not determinative of his non-indigency but is only a factor to be considered. " This principle was applied in Graves v. State (lst Dist. 1987), Ind.App., 503 N.E.2d 1258, and resulted in a reversal of the conviction because the defendant waived his right to counsel after the trial court denied a request for appointed counsel "merely because he posted bond". Standard C. l.b., which prohibits the denial of appointed counsel merely because the person is employed, is based upon the opinion in Redmond v. State (1988), Ind., 518 N.E.2d 1095. The factors to be considered in determining eligibility in C.2 are consistent with Moore v. State (1980), 273 Ind. 3, 401 N.E.2d 676, 678-679: The determination as to the defendant's indigency is not to be made on a superficial examination of income and ownership of property but must be based on as thorough an examination of the defendant's total financial picture as is practical. The record must show that the determination of ability to pay includes a balancing of assets against liabilities and a consideration of the amount of defendant's disposable income or other resources reasonably available to him after payment of fixed obligations. Although the majority opinion in Moore v. State did not discuss "liquid assets," this was the subject of the dissenting opinion, which the Commission found persuasive. The dissenting justices pointed out that Moore had an equity in real estate as well as 89 equipment in the well drilling business and opined that Moore should have been required to make use of these assets before the court was required to appoint counsel at public expense. STANDARD D. PAYMENT BY ACCUSED OF DEFENSE COSTS. The comprehensive plan shall contain the policies and procedures for ordering indigent persons in criminal cases to pay some or all of the costs of defense services under I.C. 33-40-3-6, and shall specify the procedures for determining the actual costs to the county for defense services provided to the accused. Commentary Indiana courts are authorized by I.C. 33-40-3-6 to order the accused to repay the cost of defense services provided at public expense. The use of this statute poses certain problems that should be addressed in the comprehensive plan. For example, I.C. 33-406(a) does not require that the accused be advised by the court at the time appointed counsel is requested that the accused may be required to repay the county the cost of defense services. The Commission believes in order to prevent subsequent due process challenges by the accused, such an advisement should be given by the court whenever it is contemplated that a repayment order may be issued. In addition, I.C. 33-40-3-6(a)(1) does not limit "reasonable attorney's fees" to the amount actually paid to the attorney appointed to provide representation. The Commission believes that it would be inappropriate to assess attorney's fees in excess of those actually paid by the county. Thus, this standard requires that the comprehensive plan specify the procedures for determining the actual cost to the county for defense services provided to the accused. 8 90 STANDARD E. APPOINTMENT OF COUNSEL. The comprehensive plan shall provide for the appointment of trial counsel meeting the following qualifications. 1. Murder. To be eligible to serve as appointed counsel in a case where the accused is charged with murder, an attorney shall: a. be an experienced and active trial practitioner with at least three (3) years of criminal litigation experience; and b. have prior experience as lead or co-counsel in no fewer than three (3) felony jury trials that were Class C felonies or higher which were tried to completion. 2. Class A or B Felony. To be eligible to serve as appointed counsel in a case where the accused is charged with a Class A or B felony, an attorney shall: a. be an experienced and active trial practitioner with at least two (2) years of criminal litigation experience; and b. have prior experience as lead or co-counsel in at least two (2) felony jury trials which were tried to completion. 3. Class C Felony. To be eligible to serve as appointed counsel in a case where the accused is charged with a Class C felony, an attorney shall: a. be an experienced and active trial practitioner with at least one (1) year of criminal litigation experience; or b. have prior experience as lead or co-counsel in at least three (3) criminal jury trials which were tried to completion. 4. Juvenile Delinquency. To be eligible to serve as lead counsel in a case where a juvenile is alleged to be delinquent, counsel shall possess the following qualifications: 91 a. Where a child is charged with what would be murder if committed by an adult or in any situation where waiver to adult court is sought, an attorney shall be an experienced and active criminal or juvenile law practitioner with at least three (3) years of criminal or juvenile delinquency experience; and have prior experience as lead or cocounsel in no fewer than three (3) felony jury trials that were Class C felonies or higher which were tried to completion, or prior experience as lead or co-counsel in no fewer than three (3) juvenile trials, that would have been Class C felonies or higher if committed by an adult, which were tried to completion. b. Where a child is charged with what would be a Class A or B felony if committed by an adult, an attorney shall be an experienced and active criminal or juvenile law practitioner with at least two (2) years of criminal or juvenile delinquency experience; and have prior experience as lead or co-counsel in no fewer than two (2) felony jury trials which were tried to completion, or two (2) juvenile trials, that would have been felonies if committed by an adult, which were tried to completion. c. To be eligible to serve as lead counsel in other juvenile delinquency cases (Class C felonies and below, all misdemeanors, infractions and status cases), an attorney shall have prior experience as lead or cocounsel in at least one(1) case of the same class or higher which was tried to completion in either adult or juvenile court; or, one (1) year of experience in juvenile delinquency proceedings; or experience in two comparable cases tried to completion in juvenile court under the supervision of an attorney qualified to litigate such cases. Commentary Except for capital cases, any attorney licensed to practice law in Indiana may be appointed as counsel for the accused in any criminal case. This occasionally results in attorneys being appointed to serious felony cases who have never tried a case or who have no criminal defense experience. This standard sets minimum thresholds for the experience levels of appointed attorneys based upon the seriousness of the offense. 92 STANDARD F. APPOINTMENT OF APPELLATE COUNSEL. The comprehensive plan shall provide for the appointment of lead appellate counsel meeting the following qualifications. 1. Murder and Class A or B felony. To be eligible to serve as appointed counsel in a case where the accused is charged with murder or a Class A or B felony, an attorney shall be an experienced and active trial or appellate practitioner with at least three (3) years experience in criminal litigation and have completed prior to appointment at least six (6) hours of training in appellate practice in a course approved by the Indiana Public Defender Commission. 2. Other Cases. To be eligible to serve as appointed counsel in other cases, an attorney shall have completed prior to appointment at least six (6) hours of training in appellate practice in a course approved by the Indiana Public Defender Commission. Commentary See Commentary to Standard E. The requirement of six (6) hours of training in appellate practice prior to appointment is effective as of January 1, 1996. 93 STANDARD G. COMPENSATION OF SALARIED OR CONTRACTUAL PUBLIC DEFENDERS. The comprehensive plan shall provide that the salaries and compensation of salaried and contractual public defenders shall be substantially comparable to similar positions in the office of the Prosecuting Attorney. Compensation shall include, but is not limited to, reimbursement for reasonable office expenses and other reasonable, incidental expenses, e.g., photocopying, long-distance telephone calls, postage, and travel. Commentary Clearly, the current level of compensation for salaried and contractual public defenders is inadequate. For example, in the fourteen counties with a population over 100,000, the average part-time public defender in felony courts is paid $21,000 and is appointed to an average of 70 new cases per year, which means they are paid $300 per case. Part-time public defenders in these same counties handling misdemeanor cases receive an average of 400 new cases per year, which amounts to $52.50 per case. Brief of the Indiana Public Defender Council, In Re: Request for Rule Making Concerning The Marion County Public Defender System, Cause No. 49SOO-9210MS-822. This level of compensation, inevitably, creates grave concerns about the quality of defense services provided to the accused. However, rather than set minimum levels of compensation, the Commission believes that it is more consistent with notions of home rule and county autonomy to peg compensation to rates approved by the county for the prosecution function. 94 STANDARD H. COMPENSATION OF ASSIGNED COUNSEL. The comprehensive plan shall provide that counsel appointed on a case-by-case basis for trial or appeal shall submit a claim for services and reimbursement for expenses. 1. Hourly Rate. Counsel shall be compensated for time actually expended at the hourly rate of not less than sixty dollars ($60.00). 2. Incidental Expenses. Counsel shall be reimbursed for reasonable, incidental expenses, e.g., photocopying, long-distance telephone calls, postage, and travel. 3. Periodic Payments. Periodic payment during the course of counsel's representation shall be made monthly upon request of appointed counsel. Commentary The hourly rates currently paid to assigned counsel in Indiana range from $30-$60 per hour, with the majority of counties using a rate of $40 per hour for out-of-court time and $50 per hour for in-court time. For many attorneys, this barely covers the office overhead. This standard sets a minimum rate of $60 per hour and requires reimbursement for incidental out-of-pocket expenses. This standard also requires that counsel, upon request, be paid a monthly payment rather than waiting until the end of the case. The case for adequate compensation for appointed counsel in criminal cases is well stated in the commentary to Standard 5.2-4 of ABA Providing Defense Services: There are a variety of reasons for requiring that reasonable compensation be paid to assigned counsel. First, it is simply unfair to ask those lawyers who happen to have skill in trial practice and familiarity with criminal law and procedure to donate time to defense representation. It is worth remembering that the judge, prosecutor, and other officials in the criminal courtroom are not expected to do work for compensation that is patently inadequate. Lawyers do, of course, have a public service responsibility, but the dimension of the national need and constitutional importance of counsel is so great that it cannot be discharged by unpaid or inadequately compensated attorneys. Indeed, where payments for counsel are deficient, it is exceedingly difficult to attract able lawyers into criminal practice and to enhance the quality of the defense bar. But most important, the quality of the representation often suffers when adequate compensation for counsel is not available. More than 25 years ago, the President's Crime Commission recommended that counsel be paid "a fee comparable to that which an average lawyer would receive from a paying client for performing similar services." President's Commission on Law 95 Enforcement and Administration of Criminal Justice, Task Force Report: The Courts 67 (1967). Admittedly, an hourly rate of $60 per hour does not really measure up to the Crime Commission's recommendation and is quite modest when compared to what is commonly paid to attorneys in our society when a person's liberty is not at stake. In federal civil rights cases, for example, the fees are much higher than those paid to appointed lawyers in criminal cases. See, e.g., Von Clark v. Butler (5th Cir. 1990), 916 F.2d 225 (affirming attorneys' fees of $100 per hour for preparation time and $200 per hour for in-court time in civil rights claims of excessive use of force in arrest); Cobb v. Miller (5th Cir. 1987), 818 F.2d 1227 (mandating $90 per hour in civil rights litigation for damages resulting during plaintiffs arrest and conviction); Knight v. Alabama (AD. Ala. 1993), 824 F.Supp. 1022 (attorneys' fees in civil rights action of $275 per hour for lead counsel and rates ranging from $ 100 to $200 per hour for other attorneys held to be reasonable). Yet, an hourly rate of $60 per hour will provide some improvement for defense counsel in Indiana indigent criminal cases. Moreover, if the Commission is able to reimburse counties 40% of their indigent defense expenses, there ought not to be any significant net increase for counties in their costs for defense services. 96 STANDARD I. SUPPORT SERVICES. The comprehensive plan shall provide for investigative, expert, and other services necessary to provide quality legal representation consistent with Standard 5-1.4 of the American Bar Association Standards for Criminal Justice, Chapter 5: Providing Defense Services (3rd ed. 1990). Commentary Quality legal representation cannot be rendered unless defense lawyers have adequate support services available. Among these are secretarial, investigative, and expert services, which includes assistance at pre-trial release hearings and sentencing. In addition to personal services, this standard contemplates adequate facilities and equipment, such as computers, telephones, facsimile machines, photocopying, and specialized equipment required to perform necessary investigations. 97 STANDARD J. CASELOADS OF COUNSEL. The comprehensive plan shall insure that all counsel appointed under the plan are not assigned caseloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations. In determining whether the caseloads are excessive, the following caseload guidelines are recommended. 1. Caseloads for Counsel Without Adequate Support Staff. Salaried, contractual, or assigned counsel that do not have support staff consistent with Table 2 should generally not be assigned more than the number of cases in Table 1 in any one category in a 12-month period. The categories in Table 1 should be considered in the disjunctive. Thus, if counsel is assigned cases from more than one category, the percentage of the maximum caseload for each category should be assessed and the combined total should generally not exceed 100%. TABLE 1 Type of Case TRIAL All Felonies (for use in CR 24 compliance only) Non-Capital Murder; Class A, B, C felonies Class D felonies only Misdemeanors only JD-C Felony and above JD-D Felony JD-Misd JS-Juvenile Status JC-Juvenile CHINS JT-TPR Juvenile Probation violation JM-Juvenile Miscellaneous Other (e.g., probation violation, contempt, extradition) APPEAL Trial Appeal Guilty Plea Appeal Full Time Part Time (50%) 120 100 150 300 200 250 300 400 100 100 400 400 300 60 50 75 150 100 125 150 200 50 50 200 200 150 20 10 40 20 2. Caseloads for Counsel With Adequate Support Staff. Salaried counsel with support staff consistent with Table 2 should generally not be assigned more than the number of cases in Table 3 in any one category in a 12-month period. The categories in Table 3 should be considered in the disjunctive. Thus, if counsel is assigned cases from more than one category, the percentage of the maximum caseload for each category should be assessed and the combined total should generally not exceed 100%. 98 Type of Case Class D Felonies only Full Time Part Time (50%) 225 110 3. Caseloads for Counsel Assigned to Class-D-Felony-Only Courts, Without Adequate Support Staff. Salaried, contractual, or assigned counsel that do not have support staff consistent with Table 2 should generally not be assigned more than the number of cases in Table 4 in a 12-month period. TABLE 3 Type of Case TRIAL All Felonies (for use in CR 24 compliance only) Non-Capital Murder; Class A, B, C felonies Class D felonies only Misdemeanors only JD-C Felony and above JD-D Felony JD-Misd JS-Juvenile Status JC-Juvenile CHINS JT-TPR Juvenile Probation violation JM- Juvenile Miscellaneous Other ( e.g., probation violation, contempt, extradition) APPEAL Trial Appeal Guilty Plea Appeal Full Time Part Time (50%) 150 120 200 400 250 300 400 500 120 120 500 400 400 75 60 100 200 125 150 200 250 60 60 250 200 200 25 50 12 24 Commentary One of the most significant impediments to furnishing quality defense representation is the excessive caseloads imposed on salaried and contractual public defenders. Not even the most able and industrious lawyers can provide quality representation when their workloads are unmanageable. Excessive caseloads, moreover, lead to attorney frustration, disillusionment by clients, and undermine the integrity of the adversary system of criminal justice. In an attempt to cope with the problem of excessive caseloads, eight states have established maximum caseload standards by statute or court rule. See Appendix A. All 99 but one of these states have adopted caseload standards similar to the national caseload standards first formulated in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals (NAC). In Standard 13.12, the NAC recommended the following maximum number of cases per year for a full-time public defender working in an office with support staff: Felony Cases Misdemeanor Cases Juvenile Delinquency Petitions Mental Health/Civil Commitment Proceedings Appeals not more than 150 not more than 400 not more than 200 not more than 200 not more than 25 The NAC caseload standards were subsequently endorsed by the National Legal Aid and Defender Association, and are used extensively throughout the country by evaluators, public defender managers, and funding sources. However, these standards have been criticized for being too high. In the 1988 report of the ABA's Special Committee on Criminal Justice in a Free Society, Criminal Justice in Crisis, the committee emphasized the assumptions underlying these recommended caseload standards: Emphasis should be placed on the fact that these guidelines set the maximum conceivable caseload that an attorney could reasonably manage. These numbers are unrealistic in the absence of ideal support conditions or if the attorney is carrying any number of serious or complex cases or death penalty cases. Id., at p. 43, fn. 87. As a result of these concerns and the reality that few, if any, public defender offices in Indiana currently have adequate support staff, the Commission adopted two caseload standards, one applicable to county public defender offices with adequate support staff and another standard for counties without adequate support staff. Table 3 is consistent with the NAC Standards and is applicable to counties with adequate support staff. However, the caseload standards which will be applicable to nearly all counties in Indiana are contained in Table 1, which reflects a reduction by 20-25 percent of the maximum number of cases that may be assigned in a year to one attorney. This standard uses the language "should generally not be assigned" in order to avoid a situation where a county would forfeit eligibility for state reimbursement merely because one of its public defenders was assigned a case or two in excess of the maximum number of caseloads in this standard. However, this language should not be interpreted to mean that the Commission will overlook substantial deviations from the caseload standards. 100 STANDARD K. EXCESSIVE CASELOADS. The comprehensive plan shall contain policies and procedures regarding excessive caseloads and shall, at a minimum, contain the following provisions: 1. Individual Public Defenders. Whenever a salaried or contractual public defender determines, in the exercise of his or her best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the attorney is required to inform the county public defender, if any, or other authorities designated by the plan to secure professional independence for indigent defense services in the county. 2. Chief Public Defenders. Whenever the chief public defender determines, in the exercise of his or her best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the chief public defender is required to inform the appropriate judges and refuse to accept the appointment of additional cases. Commentary This standard is derived from ABA Providing Defense Services, Standard 5-5.3, which provides: (a) Neither defender organizations, assigned counsel nor contractors for services should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations. Special consideration should be given to the workload created by representation in capital cases. (b) Whenever defender organizations, individual defenders, assigned counsel or contractors for services determine, in the exercise of their best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the defender organization, individual defender, assigned counsel or contractor for services must take such steps as may be appropriate to reduce further appointments. Courts should not require individuals or programs to accept caseloads that will lead to the furnishing of representation lacking in quality or to the breach of professional obligations. Standard K.1. is consistent with Rule 1.16 of the Indiana Rules of Professional Conduct which provides, in relevant part, as follows: 101 (a) except as stated in paragraph (c) a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; *** (c) when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. The commentary to this rule states that "a lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion." In addition, ABA Providing Defense Services, Standard 4-1.3(e), states that defense counsel "should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation ......” Standard K.2. reflects the Commission's belief that, rather than rely on collateral attacks in post-conviction proceedings in which ineffective assistance is litigated, the better approach is to prevent excessive caseloads by authorizing the chief public defender to refuse excessive assignments. This standard also reflects the belief that the determination of whether caseloads are excessive must be entrusted to the chief public defender, rather than to the courts or to county officials. Once it is determined that quality representation is impossible due to an inordinate workload, several options are available. If an assigned counsel panel is used for conflict cases, additional cases can be assigned to assigned counsel attorneys until the caseload is reduced to an acceptable level. A county may also contract with one or more attorneys to handle the public defender's excessive cases. Another option would be to rely upon the inherent authority of the court to appoint counsel on a case-by-case basis. This standard does not contain a preference for any one method of dealing with excessive cases. It merely requires that the county anticipate and plan for such a contingency if the county elects to have a public defender office and include it in the comprehensive plan. 102 STANDARD L. CONTRACTS. The comprehensive plan shall contain provisions for contracts for defense services under I.C. 33-40-7-8, in the event that such contracts are used. The plan shall provide that contracts not be awarded primarily on the basis of costs and shall otherwise ensure quality legal representation. Procedures for the award of contracts should be published by the contracting authority substantially in advance of the scheduled date of award. The contracting parties should avoid provisions that create conflicts of interest between the contractor and clients. Contracts for services should include, but not be limited to, the following subjects: 1. the categories of cases in which the contractor is to provide services; 2. the term of the contract and the responsibility of the contractor for completion of cases undertaken within the contract term; 3. the basis and method for determining eligibility of persons served by the contract; 4. identification of attorneys who will perform legal representation under the contract and prohibition of substitution of counsel without prior approval; 5. a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses; 6. supervision, evaluation, training and professional development; 7. provision of or access to an appropriate library; 8. a system of case management and reporting; and 9. the grounds for termination of the contract by the parties. Commentary Under I.C. 33-40-7-8, courts in counties with a population under 400,000 are authorized to contract with an attorney or group of attorneys to provide indigent defense representation. The majority of counties in Indiana have at least one court that uses a contract under this statute for providing indigent defense services. The National Criminal Defense Systems Study (National Institute of Justice 1986), estimated that 10% of the counties nationwide employed a contract program as the primary means of providing representation. The Bar Information Program of the ABA estimated that in 1992 that figure may be over 20%. 103 Nearly all contracts under I.C. 33-40-7-8 are fixed price contracts rather than fixed fee-per-case contracts. The determining characteristic of a fixed price contract is that the contracting lawyer or law firm agrees to accept an undetermined number of cases within an agreed upon contract period for a single, flat fee. The contracting attorney(s) are usually responsible for the cost of support services, investigation, and expert witnesses for all of the cases. Even if the actual caseload in the jurisdiction is higher than projected when the contract was signed, the contractor is responsible for providing representation in all cases without additional compensation. This type of contract has been criticized because of its failure to assure that quality legal representation will be provided. In State v. Smith (1984), 681 P.2d 1374, 1381, the Arizona Supreme Court concluded that its state's contract defense system was unconstitutional: (1) The system does not take into account the time that the attorney is expected to spend in representing his share of indigent defendants; (2) The system does not provide for support costs for the attorney, such as investigators, paralegals and law clerks; (3) The system fails to take into account the competency of the attorney. An attorney, especially one newly-admitted to the bar, for example, could bid low in order to obtain a contract, but would not be able to adequately represent all of the clients assigned ... ; and (4) The system does not take into account the complexity of each case. In addition, fixed price contracts have been criticized by both the National Legal Aid and Defender Association and the American Bar Association because they frequently result in, competitive bidding with the award going to the lowest bidder without regard to the quality of representation to be provided. In 1985, the American Bar Association's House of Delegates approved a resolution condemning the awarding of contracts for indigent defense services based solely on cost. In some states, fixed fee-per-case contracts are used which specify a predetermined number of cases for a fixed fee per case. Frequently, funds for support services such as investigations, secretarial help, and expert witnesses are included in the contract. The contracting attorney typically submits a monthly bill indicating the number of cases handled during the period. Once the predetermined number of cases is reached, the contract can be re-negotiated or the attorneys can refuse additional appointments. This standard is designed to prevent excessive caseloads resulting from the use of fixed price contracts and to avoid competitive bidding and the awarding of contracts based solely on cost. The standard reflects the Commission's belief that contracts under I.C. 33-40-7-8 should be consistent with the recommended elements of a contract for 104 services contained in ABA Providing Defense Services, Standard 5-3.3(b), which provides: Contracts for services should include, but not be limited to, the following subjects: i. the categories of cases in which the contractor is to provide services; ii. the term of the contract and the responsibility of the contractor for completion of cases undertaken within the contract term; iii. the basis and method for determining eligibility of persons served by the contract, consistent with standard 5-7. 1; iv. identification of attorneys who will perform legal representation under the contract and prohibition of substitution of counsel without prior approval; v. allowable workloads for individual attorneys, and measures to address excessive workloads, consistent with standard 5-5.3; vi. minimum levels of experience and specific qualification standards for contracting attorneys, including, special provisions for complex matters such as capital cases; vii. a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses; viii. limitations on the practice of law outside of the contract by the contractor; ix. reasonable compensation levels and a designated method of payment; x. sufficient support services and reasonable expenses for investigative services, expert witnesses and other litigation expenses; xi. supervision, evaluation, training and professional development; xii. provision of or access to an appropriate library; xiii. protection of client confidences, attorney-client information and work product related to contract cases; xiv. a system of case management and reporting; xv. the grounds for termination of the contract by the parties. 105 STANDARD M. TRAINING AND PROFESSIONAL DEVELOPMENT. The comprehensive plan shall provide for effective training, professional development and continuing education of all counsel and staff involved in providing defense services at county expense. Commentary Criminal law is a complex and difficult legal area, and the defense of criminal cases requires special knowledge and training. The consequences of mistakes in defense representation can be substantial, including wrongful conviction and the loss of liberty. Currently, continuing legal education training is provided for judges and prosecutors either at county expense or at no charge to the individuals through the Indiana Judicial Center and the Indiana Prosecuting Attorneys Council. Although specialized training is provided for defense attorneys through the Indiana Public Defender Council, these programs cost an average of $75 per day. The Commission believes that training provided to indigent defense counsel should be at least equal to that provided to judges and prosecutors. 106 STANDARD N. COURT AUTHORIZED EXPENDITURES FOR PERSONS REPRESENTED BY RETAINED COUNSEL. The comprehensive plan shall authorize expenditures for investigative, expert, or other services for a person who has retained private counsel for trial or appeal when the person is unable to pay for the services and such services are necessary to prepare and present an adequate defense. Such services are eligible for reimbursement from the public defense fund if authorized by the court. Commentary This standard deals with the occasional situation where an accused can provide counsel but does not have funds for support services, such as an investigator or expert witness. In most courts, the only way to obtain such necessary services is for counsel to withdraw and petition for the appointment of a public defender. This practice is not necessarily in the best interest of the client or the taxpayer. Thus, this standard specifies that these services should be included in the comprehensive plan and be subject to reimbursement. The Federal system provides for this situation in the following section: 18 U.S.C. § 3006A. Adequate representation of defendants (a) Choice of plan.--Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan for furnishing representation for any person financially unable to obtain adequate representation in accordance with this section. Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation. *** (e) Services other than counsel.-(1) Upon request.--Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services. Indiana law provides that a criminal defendant is not constitutionally entitled, at public expense, to any type or number of expert witness he desires to support his case. 107 Kennedy v. State, 578 N.E.2d 633, 640 (Ind. 1991), cert. denied 503 U.S. 921, 112 S. Ct. 1299, 117 L.Ed.2d 521 (1992). A defendant who requests funds for an expert witness has the burden of demonstrating the need for that expert. Id. However, a trial court must provide a defendant access to experts where it is clear that prejudice will otherwise result. Id. See also, Harrison v. State, 644 N.E.2d 1243, 1253 (Ind. 1995), cert. denied ___U.S. ___, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). A request by retained private counsel for funds for investigation, expert, or other services should be made by motion to the court to declare the defendant indigent. The motion should be made ex parte and include the following information where appropriate: -the client's affidavit of indigence -disclosure of the attorney-client fee agreement including the hourly rate and the amount of the fee received by counsel at the time of the motion -a particularized showing of need for the requested services. 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