Economic woes hitting state’s public defense

Years ago, those working in the Porter County Public Defender Office reported seeing a bright blue Post-it note tagged to their caseload reports that said, “HELP!” in huge hand-written print. That was a common occurrence at a time when the local public defender’s office faced a critical overload point because of skyrocketing caseloads and too few attorneys.

Hiring enough people to prevent those handwritten notes from appearing in the files was a task in itself, and the county’s limited resources wouldn’t allow for the staff increase that would be necessary to qualify for state reimbursement for some of its local indigent defense costs.

Porter County remains one of the largest of about three dozen Indiana counties that has not yet taken advantage of a state system that reimburses counties for up to 40 percent of regular, non-capital case defense costs. That budget-strained storyline is a trend playing out throughout Indiana, where counties are being hit by economic woes that limit their ability to provide the best possible public defense to indigent citizens.

Many report that the quality of public defense has progressed through the years as counties are able to receive money from the state, but the latest annual report released Aug. 9 shows that new counties still battle with cost restrictions to enter the system while those participating struggle to meet the standards necessary to do what’s required.

Essentially, the economy and limited local resources are impacting public defense in both large and small counties throughout Indiana.

“Our opinion is that the economy and lack of full reimbursement has influenced counties’ decisions not to join, and we’ve been told the economy has been the reason they don’t ask for money because they know they can’t comply,” said Indianapolis attorney Mark Rutherford, chair of the Indiana Public Defender Commission. “This is a hybrid system that tries to make sure counties can provide good or better public defense services, but it’s opt in and we have a long way to go.”

Established in 1989, the Indiana Public Defender Commission recommends certain standards for determining who can access indigent defense, how many cases a public defender handles, and the qualifications of those attorneys practicing in that area. That can mean attorneys having enough support staff for no more than 120 felony cases in a calendar year, or 60 cases if they work part-time. Attorneys using paralegals and investigators can handle more cases, and the IPDC rules require certain pay standards in order to be eligible for state reimbursement.

Participating counties have risen from just a handful back in the 1990s to dozens today, though the number fluctuates based on how the jurisdictions comply with the requirements and what money might be available. The Indiana General Assembly has increased the amount of state money given to the commission gradually during the past decade, beginning in the early 2000s when the number of participating counties and amount of claims for reimbursement grew so much that the commission couldn’t meet the demand. For 2010-2011, an annual report shows that more than $16 million was given back to Indiana counties – but some say the reimbursement isn’t worth the extra resources devoted to public defense at the local levels.

Since reimbursement began in 1995, $116 million has been returned to counties, according to the commission.

But even those 60 counties that have submitted plans to participate struggle to meet the minimum standards required for state reimbursement, and economic woes in recent years have led more counties to stop participating because they’ve been unable to comply. In the past year, 52 of the 60 participating counties are eligible for reimbursement because they comply with state standards – representing 67 percent of the state’s caseloads.

Scott and Henry counties refused to pass a budget that would support the county public defender agency’s compliance with state standards and they’ve yet to beef up their local defense adequately. Whitley County refused to hire more attorneys to handle the public defense caseload, and the IPDC says it was a local decision to have one attorney handle the caseload rather than hiring more lawyers and dividing it up between four in order to meet the standards.

IPDC staff attorney Deborah Neal says those counties dropped out specifically because of the economy, finding that it was cheaper to overwork and underpay a smaller number of local attorneys rather than hire more and try to comply with the state requirements. Crawford, Newton, and Wells counties are examples of counties that have submitted comprehensive plans but have never asked for the money because they know they couldn’t meet the caseload standards, Neal said.

“That’s a problem with smaller counties, and it may get worse because it’s usually attorneys in private practice taking these issues up on a case-by-case basis,” said Larry Landis, executive director of the Indiana Public Defender Council and a member of the public defense commission. “More are grappling with this issue, and it looks like more are going to be struggling with this as they try to figure out budgets locally.”

For example, larger areas like Lake and Marion counties have been discussing local budget-cutting moves across the board that might impact the ability to meet standards, he said.

“It’s politically safe to cut public defense rather than a prosecutor or police and fire, but you might be slashing a few hundred thousand dollars at the expense of a larger amount in reimbursement,” he said. “All chief public defenders say budgets are being cut, but so far none of those cuts in larger counties are throwing out of compliance. Yet is the operative word, and they’re struggling just to comply without having money left for training.”

As more counties face economic challenges and see their local resources drying up for public defense, Rutherford says the state might need to more seriously look at the idea of centralized indigent defense funding or even making the standards mandatory. The Indiana Commission on Local Government Reform issued a report in 2007 – known as the Kernan-Shepard Report because former Gov. Joe Kernan and Chief Justice Randall Shepard served as chairs – that outlined the need for state-funded defense, and Rutherford said that might be an option.

“That’s the big debate about how to make this system better,” Rutherford said. “A centralized system might take some of the inequities out of this process, and that would lead to more reasonable responses from counties and give them the ability to spend more time on cases. I think our indigent defense is getting better, not because the lawyers are any better but because caseloads are better managed and the resources are available. The challenge is making sure that continues happening and we don’t step too far back.”•