Californians accused of crimes have the right to an appointed defense attorney if they can’t afford to hire their own. In that way they are just like criminal defendants in every other state — protected, at least in theory, by the Sixth Amendment’s right to counsel.
But California is one of only four states that doesn’t provide those lawyers directly or use state funds to compensate them. California instead leaves it to each county to determine the best way to provide and pay for defense at the trial level, and how much to allocate for crucial defense work like investigations.
The county-based indigent defense system means the strength of a fundamental constitutional right depends not only on whether the defendant has money but where in the state he or she lives. That’s unacceptably random.
There is an Office of the State Public Defender, but it represents only people appealing death sentences and some other post-conviction clients. The office acknowledges that California is “a state with 58 independent indigent defense systems with no centralized funding, standards, or data collection.”
Just over half of California’s counties have their own public defender’s offices, with rosters of full-time, salaried attorneys and support staff. The rest — most of them smaller, rural counties — contract out criminal defense to private attorneys.
Either model can work when the lawyers get sufficient training, resources and, crucially, supervision and monitoring to ensure the quality of their representation meets constitutional standards.
And either model can fail. Fresno County has a public defender’s office but more than 80% of its lawyers just over a decade ago signed a letter saying their caseloads were so high that they didn’t have enough time to perform even the most basic criminal defense tasks — interviewing their clients about their arrests, interviewing witnesses and investigating crime scenes.
In response to a lawsuit, the county in 2020 agreed to increase budget allocations for indigent defense. Importantly, the state — also a defendant — created and promised to fund a new division of the state public defender to help with training and resources at the trial level, not just for Fresno but for all counties.
The state also allocated money for the Board of State and Community Corrections to distribute grants directly to counties for trial preparation and defense. That step brought the state directly into the indigent public defense business, but only temporarily.
There were key limitations: The money was for a three-year period, which ended last year. And it was only for 19 public defender’s offices. What about the 24 counties with no public defender’s offices?
They appoint or contract with private lawyers to provide criminal defense. There is no inherent problem with that; contract lawyers can do a fine job if they have the resources to provide a competent defense.
But 15 of those counties use a compensation format that many states ban because it builds in a conflict of interest. Under flat-fee contracts, counties pay a lawyer, law firm or panel a set rate to take on an unrestricted number of cases, usually for a year.
The less the contractor spends on each case, the greater the profit.
There is a disincentive to spend money on investigators. Or on training on immigration consequences. Or on tracking down witnesses. And there is an incentive to goad the client into an unfavorable plea bargain.
Even lawyers who want desperately to do the best possible job for their clients might have to cut some corners to have enough money left over to make a living.
Flat-fee arrangements for indigent defense, without performance standards, are an affront to the Constitution’s guarantee of counsel to criminal defendants, and should be banned.
A bill to do that cleared the Assembly Public Safety Committee last week. Assembly Bill 690 by Burbank Democrat Nick Schultz, a former county prosecutor in Oregon, would also provide caseload and performance guidelines.
It’s opposed by the California District Attorneys Association, which argued that if caseloads are lowered or compensation increased for contract defense lawyers, the same should be true for public defenders and district attorneys.
But that misses the point. Any format that builds in a conflict of interest is unacceptable. Flat-fee contracts for indigent defense create conflicts of interest. Public defender’s offices don’t.
Doing away with flat-fee contracts won’t be cheap. A revamped system may work only if the state expands its still-paltry allocations to counties beyond the $3.5 million that goes to the state public defender’s office. Schultz’s bill doesn’t do that.
But it’s a good step. In the perpetual tug-of-war between California state government and the counties, the state has to set standards and provide support like data collection, and at least some funding, if the counties are to exercise the independence and creativity that is expected of them. Otherwise, counties will do what they think best, and what they can afford, and it often simply won’t be good enough to meet the requirements of the Constitution.
By Robert Greene. This article was originally published by CalMatters.
