Pleading the Sixth: The indigent defense reforms enacted in 2011 are starting to take root in Alabama. Rather than leading to a proliferation of flat-fee contracting, as some have feared, state funding has steadily increased under the reforms, prompting both Jefferson County (Birmingham) and Montgomery County (Montgomery) to begin creating public defender offices.
In a companion 6AC blog post, the Alabama legislature initiates action to exonerate the Scottsboro Boys.
The February 9th, 2013 edition of the Anniston Star reports that the state of Alabama is “on track to pay $75.6 million on indigent defense in 2013” – an increase of 26.85% over 2012 spending of $59.6 million. This means that Alabama has more than doubled its indigent defense spending since 2002.
From 2002 to 2012, much of the rapid increase in indigent defense spending in Alabama was seen as a result of the unique structure of the state’s indigent defense system. During that time, while right to counsel services were provided locally, the funding for those services was largely the responsibility of the state. Money from a filing fee in civil court matters was collected in a central fund dedicated to indigent defense services, but whenever the needs of the state’s 67 counties exceeded the amount of dollars available in that fund, the state was responsible for funding the difference out of the state general fund. Either way, the counties and the local courts were not on the hook, fiscally speaking. But the state had no control over the methods used by the counties for providing those services, and thus the way the counties used the state’s funds. Traditionally, Alabama counties employed assigned counsel systems in which judges signed off on lawyer vouchers that were then sent to the state for payment. Critics charged that such a system encouraged judges to use assignments to reward lawyers who contributed to their re-election campaigns.
In 2011, the Alabama legislature passed a bill that created a central Office of Indigent Defense Services (OIDS) to oversee how right to counsel services are provided throughout the state. In conjunction with local authorities, OIDS now has the ability to decide what delivery model is best suited for each county, including whether to create public defender offices or institute private attorney contracts. Whereas some critics suspected OIDS would simply move to flat fee contracts as a means of stemming the increase in spending, without care for quality of representation, the opposite appears to be happening.
Jefferson County (Birmingham) is the state’s most populous county. In 2012, the county and OIDS elected to start the process of creating a public defender office and in November 2012 hired its first chief (as reported here on Alabama.com). The office is expected to hire 35 assistant public defenders. On February 19, 2013, Alabama.com reported that the chief public defender is in the process of accepting applications for two deputy defenders, an office administrator and an information technology specialist to assist her in preparing the office to open later in the year.
Not to be outdone, Montgomery County announced on February 20, 2013 that it too will open a public defender office in the state’s capital city in the coming year, as reported in the Montgomery Advertiser. The office will reportedly have 30 employees, including up to 18 attorneys. A group consisting of the Montgomery County Bar Association, judges of the 15th Judicial Circuit and OIDS expect to hire a chief by June 2013. The goal for the Montgomery public defender office is expressly to meet “national standards.”
The expansion of the public defender model in Alabama is largely seen as a more responsible way of containing costs than moving to a system of flat-fee contracts. Indeed, the dramatic increase in indigent defense spending predicted for this year is largely due to assigned counsel attorneys turning in vouchers for payment while the rules allowing them to bill extra for overhead costs is still in place. According to the Anniston Star, “[l]awyers rushed in to file any outstanding requests for payment before the deadline.” The sponsor of the OIDS bill, Sen. Cam Ward, agrees that “[o]nce we finish closing out contracts with lawyers under the old system, … [y]ou should finally start seeing some savings” with the advent of public defenders in the urban centers.
Whether or not the creation of OIDS and the expansion of public defenders will increase the level of representation provided to the indigent accused in Alabama is still an open question. But, it is clear that the creation of OIDS will end the undue judicial interference when it comes to payment of attorneys and that decision-makers are not simply focused on the bottom-line without regard to quality.