Indiana is failing to equally provide constitutionally guaranteed effective counsel to indigent people accused of misdemeanor, felony and juvenile offenses, according to a report released Monday. In some counties, poor people facing criminal charges are encouraged to negotiate directly with prosecutors before being appointed counsel.
Those are among the findings of a report on the state of Indiana’s provision of public defenders for the indigent released by the Boston-based Sixth Amendment Center. The report was commissioned by the National Association of Criminal Defense Lawyers as part of its public defense reform program.
“The state of Indiana fails to consistently ensure that each person facing potential incarceration has the aid of a lawyer with the time, ability, and resources to present an effective defense, as is the state’s constitutional obligation,” according to the Sixth Amendment Center.
The report identifies numerous key findings regarding the provision of indigent criminal defense in Indiana, several of which it contends are in conflict with United States v. Cronic, 466 U.S. 648 (1984), which clarified that violations of the Sixth Amendment may occur when there is evidence that the adversary system has suffered as a result of the circumstances in which a public defender is appointed.
The report lays out five recommendations for policymakers that it says would help meet the requirements under Cronic. They are:
- Establishing standards in criminal and juvenile delinquency cases for: presence of counsel at critical stages of the proceeding, indigent determination, attorney performance, attorney qualification, training and supervision, and attorney workload;
- Creating a mandatory, standards-based training and supervision system for all indigent defenders;
- Creating an independent system to evaluate compliance with and adherence to standards;
- Prohibiting contracts to provide indigent defense that create financial disincentives for attorneys to provide effective representation; and,
- Creating a statewide appellate defender office as a check against inadequate trial-level representation.
The report highlight’s Indiana’s patchwork approach to providing representation to indigent criminal defendants, noting differences in how indigency is determined from county to county.
“Indiana counties may, if they so choose, receive a partial reimbursement from the state for their indigent defense felony and delinquency costs in exchange for meeting standards set by the Indiana Public Defender Commission (IPDC). But counties are also free to forgo state money and avoid state oversight completely. Thirty-seven of Indiana’s 92 counties (40 percent as of June 30, 2015) choose not to participate in the state’s reimbursement program. Indiana has no oversight over any indigent defense cases in these counties,” the Sixth Amendment Center statement said. It also said the IPDC has just two employees to monitor the work of defenders in the program.
The report looked at public defense in eight sample counties — Blackford, Elkhart, Lake, Lawrence, Marion, Montgomery, Scott and Warrick. The counties use a variety of means of providing indigent defense. “What actually occurs during the course of a case can look quite different from one county to another and even from one court to another within a given county,” the report says.
In more egregious cases, “Some courts encourage defendants to negotiate directly with prosecutors before being appointed counsel, and others accept uncounselled pleas at initial hearings, and/or use non-uniform indigency standards to deny counsel to defendants who would otherwise qualify for counsel in another county,” the Sixth Amendment Center said.
“With little to no state oversight, Indiana’s counties do not consistently require indigent defense attorneys to have specific qualifications necessary to handle cases of varying severity or to have the training needed to handle specific types of cases (other than for capital cases)," the center said in a statement.
According to the report, "The public defense systems in many Indiana counties have undue judicial interference, undue political interference, flat-fee contracts, or all three, that produce conflicts between the lawyer’s financial self-interest and the defendant’s right to effective representation. These conflicts result in public defense attorneys throughout Indiana carrying excessive caseloads and spending insufficient time on appointed cases."
The unequal treatment of poor criminal defendants resulted in the filing of a class-action lawsuit last year against Johnson County.
The suit alleges indigent criminal defendants are not adequately represented because the county and courts there failed to place reasonable limits on caseloads and didn’t properly fund or oversee defenders. The suit also charged that because Johnson County public defenders were hired based on contractual agreements with judges, they lacked independence. That case pending in Shelby Superior Court 1 is set for bench trial beginning May 9, 2017.
The center argues such contractual arrangements disserve indigent defendants. “What many Indiana counties have realized is that they can contract with private counsel on a flat fee basis for an unlimited number of cases for less money than it would cost to comply with state standards (even factoring in the state reimbursement)."
“With little to no state oversight, Indiana’s counties do not consistently require indigent defense attorneys to have specific qualifications necessary to handle cases of varying severity or to have the training needed to handle specific types of cases (other than for capital cases),” the center said in a statement.
The report, “The Right to Counsel in Indiana: Evaluation of Trial Level Indigent Defense Services,” was prepared for the Indiana Indigent Defense Study Advisory Committee. That committee is comprised of representatives of the Indiana Supreme Court, Indiana General Assembly, Indiana State Bar Association, Indiana Public Defender Commission, Indiana Public Defender Council, Indiana Prosecuting Attorneys Council, Indiana Judges Association and the Indiana Association of Criminal Defense Attorneys.