Fifty years after a landmark U.S. Supreme Court ruling required that the government provide attorneys to criminal defendants who can’t afford them, Ohio has an inefficient and costly system badly in need of reform, according to Ohio Public Defender Tim Young.
“It is beyond time to fix it,” Young said. “In this 50th year of the right to counsel, it’s time we actually did fix it and address the known problems.”
Young said the problems include costly appeals, longer prison sentences and attorney fees that are so low in some counties many good lawyers refuse to take the cases. Young and the County Commissioners Association of Ohio are backing bills that would centralize oversight of the system in Columbus and shift payment responsibility entirely to the state over a six-year period. The Ohio Public Defender Commission would also be authorized to adopt and enforce minimum performance standards for attorneys hired to handle indigent defense work.
Currently, each county sets up the public defender system its own way: either through in-house lawyers, appointed counsel or contracts with a non-profit legal clinic. It’s a hybrid approach that is inefficient and expensive. In all, state and local governments spend $140 million to $150 million a year for legal defense, a burden that has grown tremendously in the last 15 years.
In 1997 the indigent caseload was 269,000 cases. By last year the caseload had grown to 407,000.
Under the proposed reforms, local judges would still appoint local attorneys to individual cases, Young said, but the state would provide a centralized case management system, make available investigators and experts such as forensic auditors and other shared services.
“Every state that has gone through reform has gone to a statewide delivery model,” Young said.
Opposition is expected from judges and the attorneys they appoint to these cases, said Young and other supporters of the bills. Lawrence County Common Pleas Judge Charles Cooper told the Huntington, W.Va., Herald-Dispatch that he feared a loss of local control from the proposed changes.
“I’ve never been in favor of counties giving up local control to the state,” he said. “This system has been in place for years, and it works.”
Counties, which pick up 65 percent of the costs of the public defender system, have long lobbied for changes.
“We just don’t feel we’re the right government agency to be responsible for providing indigent defense,” said John Leutz, lobbyist for the County Commissioners Association of Ohio. “The constitutional mandate is on the state of Ohio.”
In 1963, the U.S. Supreme Court ruled in Gideon versus Wainwright that indigent defendants have a right to appointed counsel in state courts. Clarence Earl Gideon was a middle school dropout and a drifter who asked for an attorney when he was facing a felony charge in Florida. The judge denied the request so Gideon represented himself and ended up with a conviction and a five-year prison sentence. Gideon later appealed to the U.S. Supreme Court and won and his conviction was overturned.
Ohio law initially said the state would provide half the funding for indigent defense but in 1979 the law changed to say the state would pay for “up to 50 percent.” Since then, the state’s share has dropped to as low as 26 percent but has hovered around 35 percent in recent years.
Thirty states fund their public defender systems entirely with state funds, according to the County Commissioners Association of Ohio.
Reform advocates say the system is woefully underfunded, which in turn creates more expenses down the road. “If you don’t do it right from the beginning you have appeals, you have post-conviction, you have longer prison sentences,” Young said. “You have a much higher risk of innocent people ending up in your prison system.”
Young said some of the county-set fees for attorneys haven’t changed in decades.
Statewide, the average is $54 an hour for in-court time and $45 for out-of-court work. But in some counties, the hourly rates and the maximum-per-case caps are so low that good lawyers won’t take the cases and defendants’ freedom hinges on how much work a lawyer can do for a maximum payment of $1,000, Young said. In Champaign County, an attorney defending someone facing the death penalty would be paid a maximum of $5,000.
It amounts to an incentive to settle the case or do slipshod work and the system retains a large portion of “very young or very poor performing” lawyers, Young said. “That’s not to say all lawyers doing this work are bad. There are a lot of really good, dedicated lawyers but the system is not designed to keep them.”
State Sen. Joe Uecker, R-Loveland, who is sponsoring the bill in the Ohio Senate, said the current system is terribly inefficient.
“It needs to be uniform throughout the entire state so what’s fair for a person in Cuyahoga (County) is fair for the person in Hamilton County,” he said.
Database: Look up information on local public defense cases and fees paid out to local attorneys at myDaytonDailyNews.com