New eligibility guidelines for indigent defense means unfunded mandate in N.Y.

Counties bear more than 60% of indigent defense burden in 17 states

The threshold for qualifying for a public defender in Upstate New York will double this October, but without a commensurate boost from the state, counties are going to be shouldering more of the burden.

Meanwhile, a Pennsylvania Supreme Court case argued in April will determine whether public defender clients may sue to prevent the violation of their right to counsel.

The popular depiction of the overworked, underpaid public defender holds. In 17 states, counties and local governments contribute more than 60 percent of funding for indigent defense. Pennsylvania leads the nation with all of its funding coming from counties, but Utah, Nevada and Arizona are close behind, all contributing at least 99 percent of costs.

In the Empire State, public defenders offices will likely see a boom in cases in the last quarter of 2016 when a court settlement increases the eligibility for indigent defense to 250 percent of the federal poverty level, qualifying a single person with no dependents who earns $29,700.  

Proportion of county spending for indigent defense

100% Pennsylvania

More than 95% Utah, Nevada, Arizona, Nebraska, Washington

More than 90% Michigan, South Dakota

More than 80% Illinois, Texas, Idaho, California

More than 70% Mississippi

More than 60% New York, Georgia, Louisiana, Indiana

Source: The Spangenberg Project, 2008, referenced in 2016 with state associations

“I think it’s fair to say that in certain areas of the office, the caseload impact will be significant,” said Monroe County Public Defender Tim Donaher. “Right now the (attorneys) are frustrated and concerned. If the state can’t find us a way to increase funding, and with the counties being fiscally stressed, it’s going to have a deleterious effect on quality.”

Donaher expects most of that increase in caseload to come from family court and misdemeanors.

Broome County Public Defender Jay Wilber said the increase will come at an odd time for counties, regardless of whether they start their budget years in January or July. And that’s not all.

“Once these guidelines get out, people who may not have applied in the past may now apply,” he said. And, “with the increase in number of clients, we’ll also probably see more conflicts of interest, especially in counties where they do family court.”

Yet, Wilber thinks the new eligibility standard will have some positive effects.

“The standard in Broome County versus Tioga County versus Tompkins County... there was a patchwork of eligibility throughout the state. This is a concerted, thoughtful, logical effort to come up with some guidelines.”

State Sen. John DeFrancisco has sponsored a bill to require the state to fully reimburse counties for indigent legal services.

Donaher, meanwhile, hopes the state will delay the eligibility increase until after a funding mechanism can be worked out.

In Nevada, counties are facing a different indigent legal challenge. In some of the largest yet least-populous counties, attorneys are hard to come by.

Though the state offers counties the chance to participate in its public defender program, two counties have dropped out in the last two years.

“We heard that they (public defenders) weren’t traveling out to the rural counties and weren’t doing what they were supposed to be doing,” said Dagny Stapleton, deputy director of the Nevada Association of Counties (NACO). “They just couldn’t cut it; they weren’t providing the service.”

In 2015, the Nevada Supreme Court banned flat fee contracting for public defenders, joining Idaho and Michigan. That the flat fee structure gives attorneys an incentive to do little work on each case is only part of the problem. The distance between attorneys and their clients, often hours and hundreds of miles, limits the time available for legal work and transportation costs mount.

“It’s hard for a contract defender in Nevada to balance travel in rural counties with a regular legal practice,” said Jeff Fointaine, NACO’s executive director.  “And with few attorneys in each area, it’s hard to avoid conflicts of interest in cases.”

Most of the rural counties contract with attorneys to handle indigent cases, but the work is staggering, and when the death penalty is in play, it challenges both the defender and the county.

“Lyon County had a capital case (in 2013) and they budgeted $200,000 for the defense,” Fontaine said. “It’s a rural county; it’s a poor county that can ill afford this kind of expense, but they did. But there’s no adequate funding to support public defense in a case like that.

“There’s been a lot of concern about the level of indigent defense services in rural counties.”

The recent legislative session saw the third defeat for a bill to transfer capital cases to the state public defender’s office to relieve the cost burden on rural counties.

In Pennsylvania, where counties cover all of the public defender costs, state association Deputy Director Brinda Penyak sees skilled defense as an investment.

“What counties are learning is there is return on investment in effective indigent defense in the pretrial area,” she said. “If you’ve got a good defender, someone who can work with clients when they’re sitting in jail pre-trial, can provide them with guidance and maybe get them into some programming if they are going to be incarcerated down the road, maybe it’s for less time because they’ve completed some of that upfront.”

But, of course, getting that good defender is a challenge. And although Pennsylvania’s budget situation currently looks better than last year’s, which went unresolved for more than six months, Penyak doesn’t see any help coming from the state.

Habitual underfunding led then-Chief Public Defender Al Flora to sue Luzerne County, claiming his office was stretched so thin it had to turn away clients, violating their right to counsel. His suit, filed in 2012, was argued before the Pennsylvania Supreme Court last month.

Penyak said in addition to the cost of defending a capital case, the public defenders often just don’t have the experience to do it right.

“In a lot of cases, they haven’t been through that kind of trial, they haven’t had the kind of experience putting together the kind of defense an individual needs,” she said. “They just don’t have the trial experience to know what to put on to get the best outcome.”

But it’s not all bad. In Ohio, the Legislature agreed to take on a 50-50 partnership with local governments. According to the 2008 Spangenburg Project, counties and local governments were handling more than 67 percent of the costs.

“We had a lot of successful grass roots advocacy,” said Suzanne Dulaney, executive director of the County Commissioners Association of Ohio. “We really got great participation from our members.”

It comes to an additional $12 million total from the state, plus $1.5 million that will go to fund defense in capital cases.

In Idaho, the Legislature will put $5.5 million into grants for counties to meet new standards for indigent defense services established by the Public Defense Commission.

“A minimum of $25,000 if you’re a small county and up to 15 percent of the average of your last three years,” said Dan Chadwick, executive director of the Idaho Association of Counties. “That means $1 million for Ada County.”

The counties will get their money in October, before negotiated rulemaking sets up the new standards.

Nationally, counties spent $19 billion on all judicial and legal services in 2012.