States Create Special Commissions to Study Flat-Fee Indigent Defense

By Joe Watson

Some states may soon be doing more to guarantee the Sixth Amendment right to counsel for indigent criminal defend-ants.

Special commissions have been convened in Nevada, Idaho, Michigan and Pennsylvania to investigate how flat-fee contracts with private defense attorneys are failing defendants who can’t afford to hire counsel. Meanwhile, some courts are weighing whether the practice of flat-fee indigent defense is unconstitutional.

According to Stateline, the news service of The Pew Center on the States, more than a dozen states use flat-fee contract attorneys to represent indigent defendants in order to save money and provide relief to swamped public defenders’ offices. However, critics argue that such “contract counsel” tend to be young, inexperienced, penurious and overwhelmed by their own caseloads; thus, the supposed savings effectively subsidize backlogged appellate courts and state prisons filled with poorly-represented defendants.

“This type of contract creates a direct financial conflict of interest between the attorney and the client,” said David Carroll, research director at the National Legal Aid and Defender Association. “Because the lawyer will be paid the same amount, no matter how much or how little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case.”

In Jackson County, Michigan, for example, contract attorneys are paid a paltry $600 flat fee per case to defend indigent clients accused of second-degree and Class A through D felonies, and only $350 per case for lesser felonies. In Lyon County, Nevada, 200 indigent defense felony cases and 400 misdemeanor cases were contracted out to a first-year lawyer who had passed his bar exam only a few weeks earlier.

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