The challenges of making sure indigent criminal defendants receive adequate representation is one that has been studied and considered and committeed (at the Legislature) for as long as I’ve been practicing criminal law in this state, and no doubt much longer. There have been a lot of steps in the right direction, along with a few misfires here and there.
During the two sessions I lobbied on behalf of the Washoe County public defender’s office, I’d often joke that it was hard to convince politicians of anything when the group of people you were speaking for were, by definition, both without any money to throw around and not allowed to vote. In spite of that, though, I found most legislators willing and interested to make changes to the law to better balance the rights and humanity of the accused (and even convicted) with their crucial responsibility to public safety. Unexpectedly, I often found my strongest allies were conservative Republicans for whom the underlying constitutional considerations and healthy skepticism of government power really resonated.
But while various criminal justice reform efforts have gotten more attention in the last few years, and in this session in particular, there is a disturbing change in the attitude and approach of lawmakers. First, there is too much appetite for huge, reckless changes in vast portions of our criminal statutes, relying on bad science and relegating public safety to an afterthought. Second, there is a tendency to take a good idea and stretch it out to be a really terrible one – reducing penalties a little may be a good idea, but reducing them too much may not be, as an example. Third, there is the ironic tendency to believe more government is the answer to potential abuse of government power.
This is perhaps exemplified best by one of the criminal justice “reform” efforts that so far hasn’t made much of a media splash, but if passed, will leave the state of indigent criminal defense in ruins, especially in rural counties.
The bill is AB81, and it purports to address alleged inadequacies with the way appointed defense attorneys in Nevada are representing their clients. The solution? More state level bureaucrats and paperwork – hooray!
The bill is a response of sorts to a particularly vapid lawsuit filed by the ACLU a year and a half ago. I can’t find any evidence the lawsuit ever actually went anywhere, which isn’t surprising, because it was about as shoddy and counter-productive a legal product as I’ve ever seen.
Nevertheless, there are real problems in the rurals, mostly involving a dearth of qualified and/or willing lawyers living in those areas to take on these challenging cases, and worse, the inability (or unwillingness) of some of those counties to pay appointed attorneys even a fraction of what they’re worth. That isn’t to say those doing the work aren’t good - most of them are - but there are only ever so many billable hours in a day.
Every rural county handles their indigent defense contracts differently. We have a state public defender’s office, but they only operate in Carson and Storey counties. Most counties (and cities with separate municipal courts) have some sort of contract system private attorneys can bid for individually. The disparity in the value of those contracts among counties can be vast.
Inevitably, the regular contract attorneys or full-time public defenders aren’t enough, because conflicts arise that require outside lawyers to be appointed. When that happens, appointed counsel is paid at an hourly rate set by statute in NRS 7.125 at $100 per hour. Unless a judge decides good cause has been shown to pay more because of the complexity of the case, total compensation is capped at $750 for a misdemeanor and $2,500 for any felony that doesn’t involve life in prison. Those caps, by the way, haven’t changed since 1985. The hourly rate was last adjusted up in 2003. Often, counties set their own contract rates even lower, which the statute allows. In Washoe County, for example, non-life felony cases only pay $700 total if they don’t go to trial.
In the private sector, most attorneys bill at two or three times that rate, or command flat fees which far exceed the 34 year old pay ceilings. The result is inevitable – fewer lawyers are interested in doing appointed criminal work, and it’s hard to keep experienced attorneys who used the contract cases to build their own practices to the point they don’t need those government appointments at all any more.
AB81 doesn’t address any of this. Instead, it creates a new government department and a board consisting of a dozen or so political appointees. It would be led by an executive director appointed by the governor and at least two deputy directors. These folks would spend their days thinking up improvements in the delivery of legal services and “supervising” all of the hundreds of attorneys throughout the state who are actually in the trenches providing those services, including the state public defender and her staff. They would also collect the huge amount of new data reporting and other paperwork AB81 wants those attorneys to complete and create “corrective action plans” for attorneys or whole counties if these unaccountable bureaucrats deem it necessary. If these inspectors think a county can’t handle things, responsibility will be transferred to the state public defender’s office, and the state PD will apparently be expected to conjure new and competent lawyers out of thin air to handle things in the meantime.
The bill is aimed at the rurals, but doesn’t exclude Clark and Washoe counties from this extra oversight. The idea that a handful of state employees “supervising” these professionals (who already have multiple layers of leadership and accountability) is as ridiculous as it is insulting to this former Washoe County deputy public defender.
The fiscal note attached to the bill indicates a cost to the state of nearly a million dollars per year, just for the new personnel. Not one thin dime of that goes to actual lawyers defending actual clients in actual cases.
As a private defense attorney, I appreciate the opportunity to take conflict appointments. It’s steady money while I build my new practice and vigorously defending those who can’t defend themselves is rewarding beyond description - it’s that Atticus Finch moment most law students only dream of. But altruism has its limits when the rent and payroll comes due.
Besides, I’m in private practice with my own firm because I don’t care to work for career government bureaucrats or politicians, most of whom aren’t qualified to supervise me, thank you very much. Most attorneys with their own shingle relish their freedom and independence and understand that quality work for appointed clients leads to referrals for paying customers.
How many of us have left jobs where we felt micromanaged or unappreciated, or where we felt our time was wasted with pointless administrative busywork so some extra layer of management could justify their own existence? If we want to attract and retain quality lawyers to zealously advocate for poor folks accused of crimes, I can’t think of any approach more foolish or counterproductive.
This independence isn’t just important for morale. Defense attorneys must be free to represent their clients zealously, without conflicting political considerations chilling their advocacy. It’s bad enough that county commissioners can award or take away contracts if they believe a public defender or appointed attorney is doing too effective a job in the eyes of a tough-on-crime public. Having yet another set of political appointees to answer to only makes it that much harder to put one’s client first.
And if an appointed lawyer is doing a poor job, what possible difference will a few site visits per year by a political appointee in Carson City make? The only two people really in a position to evaluate the effectiveness of an attorney is a) the client him or herself, and b) the judges who see those lawyers practicing every day. If sitting judges are ignoring or are blissfully unaware of systemic incompetence in their courtrooms, a monthly board meeting hundreds of miles away probably isn’t going to move the needle much.
AB81 is perfect if all you want to do is pay lip service to indigent defense reform, without having to spend the cash necessary to actually make things better. In the end, the entire approach wastes money to get a worse outcome for the indigent defendants who can least afford it.
If the Legislature wants to show it truly values quality indigent criminal defense, then our laws must directly reflect that value. We get what we pay for, after all. But if lawmakers pass AB81 or some version of it with the same fundamentally flawed philosophical foundation, then you can know for certain where the actual protection of constitutional rights falls on their list of priorities.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected]