Talkin' 'bout money
Yesterday I told you about a friend of mine who made $77,000
from the county last year for representing indigent defendants. That sounds like a lot of money -- hell, it is a lot of money -- but what I didn't
tell you is what he did for that: he was
assigned 71 cases, and he spent 1,377 hours working on them. That comes to an hourly rate of just under
$56, or a good bit less than what you'd pay a plumber to come out to fix your
toilet.
The rates for assigned counsel cases are bad enough: $50 for out-of-court work, $60 for
in-court. What kills you, though, is the
caps. There are maximum fees for each
level of felony, ranging from $1,000 for a first degree felony to$500 for fourth
and fifth degree felonies. Only two counties
in Ohio which use an assigned counsel system, Scioto and Seneca, have lower
caps. Actually, my friend makes out
better than average, because he does some death penalty work, which pays at $95
an hour. Overall, the effect of the caps
is to reduce the average hourly fee in Cuyahoga County to $38.87, which places
us 80th out of the 88 counties.
The caps here haven't changed since President Bush's first
year in office. The father, not the
son. You read that right: next year, it'll
be a quarter of a century since the caps were increased. That the situation had been allowed to exist
that long certainly isn't to the credit of the Cuyahoga Criminal Defense
Lawyers Association, the local criminal bar, but this year it finally got its
act together and put together a proposal outlining the disparity between what attorneys
get here for assigned counsel work and what they get in other urban
counties. The proposal argued for
adopting the caps suggested by the Ohio Public Defender Commission: $3,000 for 1st, 2nd, and 3rd degree felonies,
and $2,500 for 4th and 5th degree felonies.
I've spent a couple days (yesterday and last Thursday)
talking about the report commissioned by County Prosecutor Tim McGinty (known
as the Steelman Report), which proposes numerous changes in the way the
assigned counsel system works here. One
of the subjects it tackles is compensation, and the report wholeheartedly
endorses the CCDLA proposal. In fact, in
the discussions at the meetings with judges, lawyers, and prosecutors on the
report, that's the one thing everybody agrees on: the fees have to be raised.
If you're doing assigned counsel work, though, before you
run out and put down a deposit on that vacation home you've always dreamed
about, a reality check: it's not up to
the judges, the prosecutors, or the defense lawyers as to whether that
happens. The county council holds the
purse strings, and voting to spend more tax dollars on lawyers who represent criminals
isn't exactly a winning public relations ploy for a politician. (Imagine full-page ad, picture of me with
solitary tear coursing down my cheek, with caption, "You can increase the cap Russ
gets paid for a 3rd degree felony. Or
you can turn the page.") In fact, just before
the Steelman Report came out in June, the judges had offered to raise the
rates, but contended that the proposed increases went too far.
That contention was based on the court's number-crunchers
assuming that everybody would max out on the fees, and to be sure, if the
county was now paying five times what it used to for every fourth and fifth degree
felony, that would blow up the budget. The
court spends about $6 million a year on assigned counsel, and if you make the
assumption the number-crunchers did, that goes up by more than 100%.
The assumption doesn't hold up, though. It's based on the fact that just about
everybody maxes out their fee now, but that's because the caps are so low, you
can hardly avoid doing so. Two
pretrials, a plea, and a sentencing, to say nothing of meeting with the client
and reviewing discovery, will easily use up the 8 - 10 hours needed to hit the
cap on a low-level felony. You're not
going to come close putting in the 40 or 50 hours needed to max out a $2,500
cap. That's borne out by looking at the
counties which do use the OPD guidelines, like Mahoning, Montgomery, and
Franklin: the average payment for 4th
and 5th degree felonies for those three counties is $649. If you plug in the numbers from the counties
that use the OPD guidelines, the likely increase here is a lot closer to one million
dollars than to six.
That's still one million more than the people who appropriate
the money probably want to spend, but there's another aspect here which keeps
getting left out of the equation: the overriding
goal here is to achieve quality representation of indigent defendants. The present compensation system for assigned
counsel doesn't do that. Not only does
it chase good lawyers away, but it affects the choices you make as a lawyer,
and how you present those choices to your client. I don't care how conscientious you are, if
you know that you're going to be trying the case for free -- and with the
current caps, that's precisely what happens -- it's going to affect how you
talk with your client about a plea bargain.
To be sure, you don't want to spend more money for bad representation,
and while the quality of representation provided by assigned counsel is good,
it could be better. The Steelman Report
addresses that, too: what qualifications
should someone who's assigned to represent a criminal defendant have? We'll talk about that next week.
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