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Improving legal representation for the indigent

September 19, 2018

Nearly two years after a national organization released a report that was highly critical of Indiana’s public defense system, a statewide task force has issued a report of its own that lays out the issues hindering Hoosier defendants’ access to counsel and makes recommendations for improvement.

The Indiana Task Force on Public Defense, created in August 2017 in response to the October 2016 Sixth Amendment Center analysis, released a 150-page report late last month after spending a year researching public defense systems across Indiana and the United States. The task force engaged in an extensive research process that included meetings with national consultants, interviews with stakeholders and a statewide listening tour designed to get varied perspectives on the shortcomings in Indiana’s county-based indigent defense.

landis-larry-mug Landis

The result of those efforts manifested in an overarching goal, retired Public Defender Council executive director Larry Landis said: bringing each of Indiana’s 92 counties into compliance with minimum public defense standards. Right now, only 62 counties are part of the Public Defender Commission’s reimbursement program, which requires compliance with those standards, Landis said.

Reaching that goal requires achieving smaller goals along the way, said Landis, who served on the task force, and those smaller goals are where the work will begin. As the commission prepares its priorities for the upcoming legislative session, it is looking to the task force’s final report for guidance on the most pressing issues that must be resolved to ensure the constitutional right to effective representation is available to all Hoosiers.

“The commission recognizes that it’s not realistic to ask for everything that we want right out of the gate, because that would be a $40 or $50 million ask,” Landis said. “So we’re going to start with things that are achievable and where we’ve got the most consensus on the issues. … These are building blocks.”

Expanding reimbursements

Though the task force report lists several recommendations, three main issues have been flagged for immediate action. The first is enabling the commission to authorize reimbursement for misdemeanor representation, which it has not been able to do since reimbursement laws were drafted in the 1990s.

Currently, noncapital felony cases are authorized for 40 percent reimbursement, while capital felony cases are authorized for 50 percent. But according to the report, “The statutory prohibition of misdemeanor reimbursements has led to an unequal application of standards across the counties, and even within the Commission’s participating counties.”

Mark Rutherford, an Indianapolis attorney who leads the PDC, said people often underestimate the implications of a misdemeanor. While misdemeanors may seem like a small offense, they can lead to significant collateral consequences that could negatively impact an offender’s life.

Further, Rutherford said public defenders are in the unique position of advocating for the appropriate sentence for misdemeanants, which, in many cases, means rehabilitation instead of punishment. But in order for a public defender to provide that quality of representation, the attorney must have the time and resources to devote to cases. Allowing the commission to reimburse counties for misdemeanor representation can help provide those resources, Rutherford said.

“It needs to be a sentence … that is going to stop them from being a repeat offender and return them into the work force and being productive in society,” he said.

Centralized appeals

Schumm Schumm

The second immediate action item listed in the report is the creation of a statewide appellate defense office that can provide services, oversight and support to appellate defense attorneys. Joel Schumm, a clinical professor of law at the Indiana University Robert H. McKinney School of Law, said the use of a centralized appellate office is a common in other states.

In practice, the statewide appellate defense office would function similarly to the Attorney General’s Office, but from the opposite perspective, Schumm said. The attorneys working within the office would be skilled in appellate practice and would be able to work with trial lawyers on issues such as deciding which issues should be preserved for appeal.

Currently, only Marion County has a centralized appellate defense office, Schumm said, while attorneys in other counties are required to undergo minimal training to do appellate work. But appellate practice is complex and requires experience and expertise, he said.

defense-box.pngTo that end, Rutherford contrasted Marion County with Ohio County in southeast Indiana, which is among the state’s smallest counties in size and population. Attorneys in that county likely don’t have as many opportunities to do appellate work and gain that expertise, Rutherford said. That means there is unevenness between the quality of appellate work in small counties such as Ohio and larger counties such as Marion, he said — an unevenness that could be leveled through a statewide appellate defense office.

Further, Schumm said the appellate office could include attorneys who are skilled in specific areas of the law, such as children in need of services or termination of parental rights cases, lending an additional level of expertise to appointed appellate work.

Multi-county cooperation

Finally, the task force report recommends allowing counties to enter into agreements that create regional public defense offices operating under a regional chief public defender. Smaller law enforcement offices often engage in such agreements, Rutherford said, so the idea could easily transition to public defender offices.

Small counties often don’t have significant resources to devote to public defense, Landis said, noting indigent defense funding is generally secondary to public safety funding. But through a regional cost-sharing agreement, those counties could share public defense services, thus enabling them to, ideally, come into compliance with commission standards, he said.

Further, retired federal judge John Tinder, who led the task force, said regional public defense offices could provide access to additional resources aside from lawyers. This could include investigators, social workers, paralegals, etc. — resources Tinder said are crucial to effective representation, but are not always available in small counties.

Additional needs

Aside from the three immediate action items, the task force’s final report lists several other recommendations at the state, county and commission levels. Another overarching issue that has emerged in those recommendations, Landis said, is the need for the state to take more responsibility for its role in providing indigent defense.

“The Sixth Amendment applies to the states. … It’s an unavoidable acceptance of responsibility,” Landis said. “If you’ve got that responsibility, you can either choose to design the system at the state level as a state-funded system, or you could still delegate it to the counties. But the state should accept the responsibility for oversight and adequate quality and be a funding partner to help the counties provide this service.”

From Landis’ perspective, Indiana can continue with its county-based system, but build on that system by making improvements. One way to make those improvements is by equipping the commission with additional staffers to help develop new standards and implement quality control measures, Rutherford said.

Finally, the report calls for additional study into issues such as city and town court compliance and representation in civil commitments. The commission will discuss the final report at its meeting at 2 p.m. Sept. 19.•

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