Pay for court-appointed lawyers remains stagnant

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Pay for court-appointed lawyers remains stagnant

Under the Sixth Amendment every criminal defendant has a constitutional right to legal representation — and if you can’t afford a lawyer, you have the right to have one provided by the state.

Seems cut and dry on paper, but it’s never that simple in practice. As the North Carolina General Assembly continues to look for ways to save money, it’s often the judicial branch and indigent defense that quietly absorbs budget cuts.

Communities are now starting to feel the brunt of budget cuts made by legislators back in 2011. One of those cuts included rolling back the hourly rate for court-appointed lawyers contracted through the state to represent indigent defendants. While those lawyers were once making $75 an hour for district court cases, now they are only making $55 an hour, and that rate has not increased. Meanwhile the cost of living and caseloads for public defenders have increased substantially during that time.

According to data from the Indigent Defense 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.

Looking for another way to stabilize the volatile costs of indigent defense, the legislature implemented a pilot program in mid-2017 requiring six counties — including Macon — to operate on a flat-fee schedule for public defenders instead of the hourly rate schedule. Instead of the average state reimbursement of $543 for lawyers defending Class A-D felonies, the flat fee would be $400 no matter how many hours the lawyer spends on the case. DWI cases were paid $300 and child welfare cases paid $500.

Macon County lawyers warned that the pilot program would not save money and would also cause lawyers to remove their names from the court-appointed lists, which is what has happened.

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Tom Maher, executive director of the state Office of Indigent Defense Services, said Chief District Court Judge Richard Walker requested to opt Macon County out of the program and a final decision should be made soon. Maher said the main reason was that lawyers did drop off the court-appointed lists in Macon, particularly those willing to take on child welfare cases that tend to take more time.

Being a court-appointed lawyer in the 30th Judicial District, which includes the seven most western counties in the state, comes with its unique challenges because of its sparse and rural geographic location.

Public service

Unlike many judicial districts that have full-time public defenders that are paid salaries by the state, the 30th Judicial relies on private attorneys making time to participate on the court-appointed list. They can choose which types of cases they want to take and what counties they want to serve.

So what lawyers are likely to volunteer working District Court cases for $55 an hour when the typical hourly rate for a lawyer in the region is $150 to $300 an hour? Well, it could be a lawyer who just passed the bar looking to gain some court experience. It could also be a lawyer looking to scale back their practice toward retirement. But most will tell you that they see it as part of their job as a lawyer — sort of like community service that everyone is expected to perform during their career.

Jim Moore of Waynesville has done three different stints on the court-appointed list since he first started practicing law in 1986 in between working in private practice and as a prosecutor in the District Attorney’s Office.

“It’s not necessarily for the money. With private practice, I can make a lot more doing that, but it’s not cheap either — it’s still a paycheck,” Moore said. “But my wife (also a lawyer) and I are socially conscious people, and it’s important for us to give back to the community. Every person in the court system, even if they can’t afford one, it’s important for them to get as good representation as they can.”

His latest stint started up again in 2015. He chooses to take on misdemeanors, traffic and most felonies in Haywood, Jackson and Swain counties and the Qualla Boundary.

“Currently I take all kinds of criminal cases except murder — I’m qualified to do it but choose not to because murder cases take on a life of their own and it can be so intensive that it could hinder my private practice in other areas,” he said.

Danya Vanhook, who took over as the 30th District Judicial Bar Association president on Tuesday, has spent nine of her 15 years as a lawyer on the court-appointed list. She’s also spent six years in public service law as a District Court judge, a child welfare attorney for Buncombe and Graham County DSS, domestic violence and poverty law attorney for Legal Aid of N.C., and law clerk to a U.S. magistrate judge.

She is currently signed up to take on criminal felony, misdemeanor and traffic matters, child welfare cases, juvenile criminal cases, child support matters and matters before the clerk of court such as legitimations and guardianships in Haywood, Jackson and Swain counties.

“I have a strong commitment to public service as you can see in the ways I’ve chosen to give back to my local community with my law degree,” she said.

Challenges

Managing the volume of people moving through the court system right now is probably the biggest challenge lawyers have, whether they’re on the prosecution or the defense side.

“I was in the DA’s office not long ago talking to prosecutors and we were both lamenting about how we had as many cases already in 2018 as we did in all of 2017 with three months to go in the year — it’s difficult,” Moore said. “I try as hard as I can to represent all my clients to the best of my ability and there’s a lot of them. Recently more people are being charged with multiple crimes and I’m confident it’s mostly drug-related.”

Indeed, an increase in drug-related crime has been on the rise, causing overcrowded jails and a backlogged court system. People who can’t afford to make bond can sit in jail for weeks or months waiting for a court date only to have the case continued for another month.

Aside from high volumes, court-appointed lawyers have to find time to go visit their clients in jail if they weren’t able to get released on bail before their court date. IDS recommends that court-appointed lawyers meet with their clients within two days of being assigned, particularly if they are in jail. Finding time to go visit clients in jail during the day can be difficult when a lawyer might be stuck in court all day in another county.

Moore said he is often at the jail early in the morning before court starts at 9 a.m. or there after 5 p.m. visiting his clients to make sure he stays in touch with them. He could call them on the phone but doesn’t feel comfortable doing so since all phone calls coming through the jail are recorded and monitored.

“I try to get to people within 48 hours in jail to give them idea of how cases are handled — I don’t want them to have to wait for weeks,” Moore said. “The issue I have with going to the jail — because I have so many cases in so many different courts I can have three to four courts to get to in one day in four counties — so I can’t see them during the day. I go see them at night or early morning or even holidays because you have to make the time.”

Vanhook says she makes every effort to meet with her clients in jail within the two-day period so she can find out what kind of bond they can make and ask the DA for a bond reduction, but what she’s found is that a vast majority can’t make any bond.

“If they can make bond, they are out well before we can get there to speak to them. Once a client is out on bond, we may not hear from them until their court date, if they appear for their court date,” she said. “Of course, there are some conscientious clients who do want to remain in touch and involved with their cases even when they are not incarcerated, but this is rare. We hear the most complaints from clients who cannot make their bond because they have a lot of time on their hands while incarcerated.”

As Moore mentioned, the volume of indigent clients is way up and it’s creating a backlogged court system. With an increase in drug addiction and a lack of mental health and rehabilitation resources in the region, many of the same people are cycling in and out of the jails. These same people are being labeled as habitual felons for drug-related crimes and serving longer sentences.

“Habitual felons charged with trafficking and drugs and sex offenses — they don’t move that quickly through the system and most of the time are in jail so they can’t come see you. You have to go see them to effectively represent them and that’s getting harder and harder to do under the current system,” Moore said.

Vanhook said the challenges of a retained case versus a court-appointed case are much the same.

“I’m representing someone through quite possibly the worst experience of their life. I’m not only a lawyer, I’m a counselor, advocate, therapist, cheerleader and often a friend,” she said. “I’m the one they are looking to to tell them what decision is best for them based on my legal experience and life experience. It can be a tough burden for me to bear for so many folks, but I was born to do this.”

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Better system?

There’s a lot of talk about criminal justice reform among legislators of both parties — and bipartisan reform has been accomplished in other states, including New Jersey and Georgia.

One question many people have asked is why the 30th Judicial District doesn’t have full-time public defenders like larger, urban areas. And if we did have a public defender’s office, would it improve the situation? Vanhook says it wouldn’t work in the rural district.

“Geographically speaking, a public defender’s office is not feasible, nor would it be a wise use of our tax dollars. Our private, court-appointed attorney system is working well,” she said. “The 30th Judicial District Bar has excellent court-appointed lawyers. We’ve always had the ethic as a Bar that the best and brightest of our attorneys should serve on the court-appointed list at some point in their careers. The wiser and more experienced attorneys do a wonderful job of mentoring the younger attorneys. We don’t have a shortage in this district, but we are overworked and underpaid.”

“I don’t think having a public defender system in our county would change that — the numbers would still be there,” Moore agreed. “We don’t stop crime — we can only represent them once they’ve committed a crime. Prosecutors have the same problem — they’re overworked and understaffed as well.”

There’s hope that another state pilot program may ease some of the burden for court-appointed lawyers in the district and create a more fair and efficient judicial system. Superior Court Judge Brad Letts is heading up a pretrial release program that will focus on granting more unsecured bonds for low-level, non-violent offenders.

“I certainly hope the program is successful. We had a pretrial release program prior to this and it worked well,” Moore said. “It’s not in existence anymore because the legislature decided to defund it. But we’re paying for it either way — it was a state funded program before and now counties are having to pay for it.”

The program is aimed at reducing the amount of time people are incarcerated pretrial and moving people more quickly through the court system. The program will need a small group of private lawyers in Haywood and Jackson counties willing to serve as first appearance representation for defendants. While they have to dedicate at least one day a week to preparing clients for first appearances, it doesn’t require them to represent those same clients throughout the entire court process.

“The court-appointed lawyer that would be appearing for the inmates on that day would be on a special contract to represent all inmates that day only as to bond, not as to the underlying case. The client would get their own court-appointed lawyer for his or her individual case,” Vanhook said. “It’s a new program and I’m confident Judge Letts knows what our District needs and will adapt and improve the program as we go.”

Through IDS, Maher said first appearance lawyers would be contracted for the program and paid $60 an hour with a minimum of two hours of pay for the day they are assigned.

“Five lawyers would be ideal to cover every day of court in Haywood — maybe two or three in Jackson,” he said. “If we get enough time to collect data during the program, we might be able to work out a non-hourly monthly payment, which might be more appealing to lawyers.”

Maher is also working to get the legislature to increase the hourly rate for court-appointed lawyers, but even returning to $75 an hour would barely cover the rate of inflation.

“These rates of pay are woefully inadequate,” Vanhook said. “NC Office of Indigent Defense Services did a study where they examined all of our expenses and overhead as a court-appointed attorney. After taking out what it takes to run our businesses, we make about $8 an hour — just above minimum wage.”

Judicial budget

In 2015, North Carolina Supreme Court Chief Justice Mark Martin warned the General Assembly about the potential consequences of continued cuts to the judicial branch of government. During his State of the Judiciary speech, Martin pointed out that the state’s $464 million judicial system budget represented less than a third of Wake County public schools’ budget.

The 2016-17 appropriated judiciary budget was $485 million and expenditures have already surpassed $487 million. Appropriations for IDS in 2016 was $116 million and expenditures are already over $126 million.

The National Center for State Courts completed a state-by-state court comparison in 2013 that showed North Carolina had decreased court funding 1 to 4 percent in the past couple of years while a majority of other state budgets remained the same or increased.

While half of the states reported that recent budget challenges had no impact on the delivery of court services, the other half reported that reductions had resulted in reduced service to the public; limited access to court services; and delays and backlogs in the system. North Carolina’s report specifically said that the 2013 budget did not enable the courts to provide and enhance necessary technology to meet the demands of the public.

“The North Carolina courts are in a worse position than in Fiscal Year 2009 to provide access and timely justice,” the report stated.

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