Macon wants out of flat fee defense program
While the North Carolina Legislature included Macon County in a pilot program to change the way court-appointed lawyers are paid, Chief District Court Judge Richard Walker requested to opt out of the program.
Macon was one of six counties mandated to participate in the pilot program launched June 1, 2017, to pay court-appointed lawyers a flat fee for cases instead of an hourly rate. The program was put in place in an attempt to curb the state’s cost for indigent defense services. According to data from the Indigent Defense Services Office of North Carolina, indigent defense costs increased 168 percent between 1989 and 1999 while caseloads increased by 90 percent. Capital defense costs rose 338 percent during the same time period.
Lawyers were skeptical about the pilot program from the beginning and warned that there would be a shortage of court-appointed attorneys to cover Macin County if it proceeded. While IDS couldn’t stop the program from being implemented, Executive Director Tom Maher said IDS was able to recommend a piece of accompanying legislation that would provide a way for participating counties to opt out of the program. The legislature did pass the legislation and so far Maher said Macon and Watauga counties have requested to opt out. Judge Marion Warren, director of the North Carolina Administrative Office of the Courts, is expected to make a final decision on those requests in the next couple of weeks.
“Both Watauga and Macon are smaller counties so it’s hard for the flat fee system to work when there’s not much in the way of volume,” Maher said. “The idea is if lawyers do enough cases it will average out but that’s not happening in the smaller counties.”
The other issue is that in the 30th Judicial District, which Macon County is a part of, indigent defense relies on private practice lawyers willingly volunteering to provide those services. When the pilot program went into effect, many lawyers throughout the district took their name off the court-appointed lawyer lists in Macon County.
“Attorneys didn’t think it was a viable system to provide effective assistance and so they dropped of the list,” Maher said. “Lawyers willing to take on DSS cases in particular came off the list and it was severe enough for the Chief District Court judge to want to opt out.”
DSS cases dealing with child abuse and neglect tend to be more involved and take way more time — making the $500 flat fee unrealistic for most cases. Under the hourly rate, lawyers would make $55 an hour for a child welfare case.
The flat-fee schedule is only placing more pressure on a judicial system that is already struggling to keep enough lawyers on the lists for criminal defense and child custody cases. Many lawyers already took their names off the court-appointed list back in 2011 when the state cut the hourly rates for indigent defense from $75 an hour to $55 an hour.
Maher said $55 an hour on paper seems like a decent rate, but it’s really not when you consider the cost of overhead most private lawyers have operating their practices. IDS has been pushing the North Carolina General Assembly to increase the rates to at least keep up with the cost of living.
“It’s not saving money and we pay the private counsel too little to begin with,” he said. “Mainly cases in District Court are paid $55 an hour and that barely covers overhead.”
At the end of the day, Maher said the pilot program doesn’t appear to be saving any money. It’s also not helping to ensure indigent defendants are receiving their constitutional right to adequate and effective defense in court.
The other four counties included in the flat-fee program were Burke, Davidson, Iredell and Lincoln counties, which are all larger counties that haven’t requested to be removed from the program.