State Bar Association of North Dakota

State Bar Association of North Dakota Indigent Defense Task Force

Report of the Indigent Defense Task Force to the State Bar Association of North Dakota

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him…”
- Justice Hugo Black, writing for a unanimous Court in Gideon v. Wainwright
372 U.S. 335 [1963]

“As we now reflect upon Gideon, and our own state history we must keep in mind the right to counsel is empty rhetoric if the attorney provided is not reasonably competent or lacks the resources to do an adequate job. ‘The right to counsel includes the right to effective counsel; and ineffective, incompetent, or inadequate representation is the same as having no counsel at all.’ State v. Keller, 59 ND 645, 223 NW 698, at 699 [1929].”
- Gary Lee, President of the Sate Bar Association 2003

Introduction and Background

After several years of increasingly clamorous concerns being raised about inherent conflicts of interest, spiraling caseloads, and inadequate funding of the indigent defense system, the 2003 legislative session finally shone a spotlight on a system said to be in “full-blown crisis.” Legislators learned about defense lawyers bound by fixed-fee contracts being forced to handle three times the number of cases they bargained for when they signed their contracts, with no extra compensation. They heard about lawyers in the Northwest Judicial District so overburdened by overwork and low pay that they walked away from their contracts in despair. They listened to lawyers who told them the current fixed-fee contract system places not-so-subtle pressures on contractors to plead their cases. After all, the lawyer will be paid the same if he or she pleads out the case in three hours or spends forty hours preparing the case for trial. They learned that the average number of hours contract defense lawyers reportedly spend on each felony case in our state is only three hours. And they heard from lawyers and judges alike who admitted the potential for conflicts of interest exists when district judges decide which resources will be available to the defense contractors they appoint in the first place. The bottom line, they said: “our system is vulnerable to legal challenge.”

So-called “solutions” were floated, including one to move the contract administration out of the judicial branch and into the Office of Administrative Hearings. None of the solutions provided a remedy for the fundamental problems—inadequate state funding, lack of caseload management and lack of independent oversight and accountability. In response, the State Bar Association asked the Legislature to pass House Concurrent Resolution 3004, which called for a Legislative Council study of the state’s method of providing legal services to indigent criminal defendants and of the “feasibility and desirability of establishing a public defender system.”

It was not the first time the issue had been studied. Legislative Council committees recommended proposals for state-wide public defender programs and introduced bills that would have created programs in 1973 and 1975. Both bills failed to pass. In the 1977-78 interim, a Legislative Council Committee proposed creation of a full-time prosecution and defense system, but the system was deemed too costly, and no bill draft was submitted.

The 2001-02 Legislative Council interim study committee received extensive testimony from judges and attorneys identifying critical problems: (1) Our current system of having trial judges appoint contract attorneys causes conflicts of interest; (2) crushing caseloads and inadequate compensation are making it difficult to find attorneys who are willing to contract with the state; and (3) flat-fee contracts without caseload caps create incentives to plead or shortchange indigent cases. That study resulted in the proposal to transfer the administration of the contract system from the judiciary to the Office of Administrative Hearings. It was the specter that this transfer might actually happen that set off the alarm that caught the attention of North Dakota’s lawyers. It provided the impetus for the Association to lend its support to yet another interim study in the 2003-04 biennium, in the form of HCR 3004. This time, however, the State Bar Association promised to support the Legislative Council committee with its own Blue-Ribbon task force.

In June 2003, the Board of Governors passed a resolution authorizing the Association, under the leadership of Past President Gary Lee and President Maureen Holman, to establish and fund the SBAND Indigent Defense Task Force. The resolution charged the Task Force with studying the feasibility of establishing a public defender system in this state, and called for a report and recommendations to the Board of Governors and the membership at the June 2004 Annual Meeting.

The Indigent Defense Task Force

President Holman appointed members to the Task Force with demonstrated interest in and knowledge of the complicated issues surrounding indigent defense. The Task Force is composed of judges, legislators, private and contract defense counsel, states attorneys and representatives of the federal defense and prosecutorial bar. The Task Force held its organizational meeting in September, 2003.

Before the initial meeting in September, each member was provided with extensive study materials on indigent defense counsel issues, including background information on other states’ systems and reports and recommendations of national entities with expertise on public defender systems, including the American Bar Association, The National Legal Aid and Defender Association and The Spangenberg Group. Thereafter, the Task Force convened in face-to-face meetings in November, December, February, March and April. Chief Justice Gerald W. VandeWalle attended most of the meetings and offered his wisdom, his insight and his intimate familiarity with the criminal justice system, all of which guided the Task Force throughout the process.

The Task Force began its work with lengthy discussions about North Dakota’s current system and the rules and statutes that govern delivery of indigent defense services in our state. The Task Force invited Marea Beeman, Vice-President of The Spangenberg Group (TSG), a nationally-renowned criminal justice research and consulting firm that specializes in studying indigent defense, to attend the November, 2003 meeting. Ms. Beeman explained her firm’s services in the field of indigent defense and gave the Task Force an overview of key policies to guide them in crafting a defense delivery system for North Dakota. Ms. Beeman noted that North Dakota ranks dead last among the fifty states in its per capita expenditures for indigent defense.

The Task Force members voted to recommend hiring The Spangenberg Group to help the Task Force with its goal of developing an acceptable legislative package to present to the Legislative Council Interim Criminal Justice Committee and the Association’s Board of Governors for consideration in the 2005 legislative session. The Task Force authorized the Task Force staff to negotiate a joint contract between the State Bar Association, the Supreme Court and the Legislative Council to retain the consulting services of TSG.

Ms. Beeman and Jennifer Riggs of TSG conducted site work in North Dakota in December, 2003. They reviewed extensive data and interviewed contract attorneys, judges, state’s attorneys and court administrators in Dickinson, Bismarck, Jamestown and Fargo.

The Spangenberg Group’s Findings and Recommendations

Ms. Beeman presented TSG’s findings and recommendations to the Task Force at the February, 2004 meeting. TSG’s bottom line was stark:

“We feel the North Dakota system is wrought with many serious problems. The current system is in danger of failing to fulfill its constitutional mandate of providing indigent defendants with effective assistance of counsel. We recommend that North Dakota shift to a statewide public defender program to better serve indigent defendants.” (Emphasis in the original)

A summary TSG’s findings:

Lack of independence

North Dakota is the only state in the Union where attorneys contract with judges on a flat-fee basis. This results in a decided lack of independence from the judiciary and in the lack of an effective mechanism for defense lawyers to get relief from excessive caseloads. All key decisions about which attorneys will receive the contracts, how much they will be paid, and what individual case resources will be allocated to them are made by the judges.

“One county’s attorney selection process raised strong concerns about the level of independence of indigent defense contract attorneys from the judiciary. In Cass County, there are eight judges and the judges decide as a group who will be awarded contracts. Contracts are not awarded on the basis of a majority vote; it is all or nothing. If a single judge feels that an attorney should not be awarded the contract, no contract will go to that attorney.”

“One contract attorney told us: ‘an unwritten rule is: if you (exercise your right to) bump judges, you won’t get your contract renewed. You’re working for the judges.’ ”

“Some judges subtly let contractors know that they do not want them to file too many motions or seek too many trials. (One) attorney was explicitly told not to file unnecessary motions or go to trial unnecessarily. He said if he would not have this sort of pressure from the judges, he would have gone to trial more often.”

Funding

North Dakota has some of the lowest rankings among all states in the nation for overall indigent defense expenditures and in cost-per-capita. The TSG report provides comparative information for nine states: five with populations below 900,000, including North Dakota, and four that have greater populations, but also have large rural areas similar to North Dakota. Among these nine states, North Dakota ranks last in both cost per capita and overall expenditure on indigent defense. The average cost per capita among the nine states was $8.54, while in North Dakota it was $3.23.

In terms of overall indigent defense expenditures, North Dakota spent 43% less then the state with the second-lowest expenditure (Wyoming). In terms of cost per capita, North Dakota spent 49% less then the state with the second-lowest rank (Idaho). Contractors are not paid uniformly throughout the state. None of the attorneys TSG interviewed reported earning the target contract rate of $65 per hour. In some areas they are paid only $40.00 an hour.

High Caseloads

High caseloads were cited by most of the contract attorneys TSG interviewed. All contracts in North Dakota are flat-fee amounts for an unspecified number of cases. While some contract attorneys contract to handle only a certain percentage of indigent cases in a given jurisdiction, there is still no specified caseload cap. This means that an attorney must take as many assignments as he or she is given, absent a conflict of interest. Although the judges and attorneys make an effort to determine the number of cases that will be assigned in a coming year, there is no way at the time the contract is entered to predict the number of cases with certainty. In recent years caseloads have steadily exceeded predictions.

According to national standards applicable to full-time public defenders, the caseload of a public defender attorney should not exceed more then 150 felonies a year. North Dakota’s contract attorneys consistently reported much higher caseloads. In Cass County, where there are separate contracts for juvenile and criminal cases, one criminal case contract attorney estimated he had 170 to 180 open, active cases at the time of the interview. In early December 2003, he had received over 550 new cases for the year and expected for finish with about 570. With a caseload this high the attorney admitted “it’s impossible to do everything for your client.” Despite this, however, the number of criminal contract attorneys in Cass County has been reduced from five to four.

Low Pay

Pay for a contract attorney is problematic. As previously mentioned, there is no uniformity. Although the goal is to pay the attorneys $65.00 per hour, this amount is less than the $75 per hour the North Dakota Indigent Defense Commission recommended several years ago. In reality, the average payment to contract attorneys was $55.00 per hour, not enough to cover overhead. The 2% administrative fee currently included in the contracts does not begin to cover administrative costs. Overall, TSG said, pay is not adequate.

In homicide cases, insufficient pay is a particularly significant problem. Although there is some ability to return to the judge to seek additional resources in a homicide case, requests are not always made, and not always granted. Contract attorneys reported to TSG that one major homicide case can cripple a solo practitioner. Termination of a contract is often not an option. The attorneys noted they felt unable to withdraw from their contracts because they are required to carry all cases that are open at the end of a contract period. This means that the attorneys are obligated to represent the clients until the cases are closed, without pay, often well after the contract has expired. Some attorneys interviewed said they had given notice they wanted to terminate the contract, only to be appointed to a homicide in the months between the notice and the end of the contract.

Administrative and Quality Problems

Complaints of lack of communication among contract attorneys and judges were noted. There is no formal process for overseeing performance and no accountability or quality control. The most frequent client complaint is that there was not enough contact from the contract attorney or the attorney did not interview witnesses or file appropriate motions. The system has no formal process to address these client complaints. The North Dakota Counsel on Indigents Commission does not serve this function. The TSG report states: “if any monitoring is to be done it is by judges, primarily through refusal to renew a contract.”

Inherent Problems with the Flat-Free Contract

The flat-fee contract system discourages attorneys from spending time visiting indigent clients, preparing motions, performing research and taking cases to trial. Many of the defense contractors reported feeling subconscious pressures to plead the cases and, as a result, some have not re-enlisted after contracts have expired.

One contract attorney said the flat-fee system “doesn’t induce an attorney to do the best job possible.” Another said “you are cautious of how much time you should spend …there is a tendency to not do what you would normally do on private cases, and that bothers me. If I were paid more I would put in more time because I wouldn’t have to supplement with private practice so much.” Yet another attorney candidly spoke of the financial conflict in contract cases: “If you settle cases you get paid more per hour. I tried to forget it was a contract case, but it’s hard to do.”

Constitutuonal Shortcoming

Perhaps the most critical finding set forth in TSG’s report is that North Dakota contract attorneys are not always meeting or able to meet the requirements of the U.S. Constitution and State Constitution as well as our state’s rules of professional responsibility.

As past SBAND president Gary Lee stated in his message to the Bar marking the 40th anniversary of the United States Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963) :

We must keep in mind the right to counsel is empty rhetoric if the attorney provided is not reasonably competent, or lacks the resources to do an adequate job. ‘The right to counsel includes the right to effective counsel and ineffective, incompetent, or inadequate representation is the same as having no counsel at all.’ State v. Keller, 57 ND 645, 223 NW 698, at 699 (1929). The lawyers I know who are providing indigent criminal defense are diligent, hardworking, and dedicated. Sadly, I believe they’re also poorly paid, under- staffed, under- appreciated and on their own.”

The Spangenberg Group as well noted that due to inadequate funding and resources, North Dakota contract attorneys are not always able to meet the national defense counsel standards that give meaning to the Sixth Amendment Right to Counsel. This inability, according to the report: “places indigent defendants in the position where neither the courts nor the government can assure their rights are being protected as required under federal and state law.”

Other Problems

Other problems noted by the judges and attorneys who TSG interviewed:

Lack of competition for the contract positions
Contracts in the rural areas require some attorneys to do all kinds of cases, where separate contracts would better serve the court
Lack of prestige due to low pay
Difficulty in getting expenses approved for experts and investigators
State’s attorneys have more resources, more staffing, better pay
No voice in the system
No effective advocacy for additional resources or policies
No negotiating power
Inability to lobby the legislature dilutes the ability to advocate for change
All agreed the system is inadequately funded

A summary TSG’s recommendations:

While The Spangenberg Group concluded that a system of statewide full-time public defenders would be the most preferable mechanism to serving indigent defendants, the authors also noted that some of the attorneys they interviewed expressed a preference for keeping the current system, but increasing the funding. In their report, the authors set forth a series of specific recommendations for implementing a public defender system, but also set forth a series of recommendations for a more effective contract system.

First and foremost, the authors said the current system needs more funding. Compensation must be tied to actual work performed or number of cases accepted. Second, they said, the current system lacks strong infrastructure and administration to provide independence, uniformity and oversight.

Additional characteristics of effective contract systems include
Minimum attorney qualifications
Provisions for support costs such as paralegals, investigators, and social workers
Independent oversight and monitoring
Workload caps
Limitations of the practice of law outside the contract
Provisions for completing cases if the contract is completed, but breeched or not renewed
Caseload caps
Case management and tracking requirement
Guidelines on client contact and notification of appointment
A mechanism for oversight and attorney evaluation

Task Force Recommendations

After receiving the findings and recommendations of The Spangenberg Group in February, the Task Force engaged in extensive debate about the best method for improving the current system.

The Task Force was unanimous in its view that the indigent defense system should be taken out the judiciary, should be adequately funded, and should contain mechanisms for oversight and accountability. At the end of the February meeting, the members voted to work on draft legislation that would establish an oversight commission for the current contract system, with authority to propose establishment of public defender offices where appropriate.

The Task Force prepared a bill draft setting forth a proposed oversight commission structure that would embody the TSG recommendations for an effective contract counsel system. The Task Force reviewed, discussed and worked on draft legislation for an indigent defense oversight commission that incorporated elements from several other states. The bill draft incorporated the Task Force’s consensus points as well as the features recommended by The Spangenberg Group for an effective contract counsel system.

At the April meeting, the Task Force continued to rework and refine the bill draft creating a new oversight body entitled the “Commission on Legal Counsel for Indigents.” The members also reviewed and discussed supporting amendments to conform existing statutes to the Commission bill. Concurrently, the members worked extensively on developing an accurate cost estimate to support the indigent defense system embodied in the bill draft.

The legislative proposal is based on two central principles. First, delivery and management of indigent defense services should be removed from the judicial branch. There are several reasons for this, all of which have been identified in the report prepared by The Spangenberg Group. The second principle, directly related to the first, is that delivery of indigent defense services should be accomplished through an independent entity with general responsibility for funding, management, and oversight. The key importance for establishment of such an entity is, again, described in The Spangenberg Group report. The proposal differs from the report's final recommendation in that the proposal does not contemplate the establishment of institutional public defender system as the primary vehicle for providing indigent defense services.

The Task Force’s Draft Legislative Proposal

Section 1 contains the core features of the proposal. First, it would establish a 7 member commission on legal counsel for indigents. Two members each would be appointed by the Governor and the Chief Justice. Two of these four members must be appointed from counties with a population of ten thousand or less. Two members, one from each house of the Legislative Assembly, would be appointed by the chairman of the Legislative Council. One member would be appointed by the Board of Governors of the State Bar Association. Members would have staggered terms and should be those with experience in criminal defense or other appointed counsel cases or have demonstrated a commitment to quality indigent defense representation. Members would be reimbursed for expenses and would receive per diem.

The commission would have a variety of responsibilities regarding delivery, management, and oversight of indigent defense services. The two central responsibilities are to establish and implement a process for contracting for legal counsel services for indigents, and, if deemed necessary and appropriate, to establish public defender offices within the state. Derivative responsibilities include tracking and monitoring appointed counsel caseloads, developing standards regarding delivery of indigent defense services, and approving a biennial budget for submission to the Legislative Assembly. The commission could enter into an agreement with a city or county to provide indigent defense services that the city or county would otherwise be required to provide. The commission would be required to adopt rules for the exercise of its authority in a manner consistent with the notice and comment provisions under the Administrative Agencies Practices Act; however, as clarified in a subsequent amendment, the commission would not be considered an executive branch administrative agency for the general purposes of that Act.

The commission would appoint a director, who must be a licensed attorney and eligible to practice law at the time of appointment. The director may be removed for cause on a majority vote of commission members. The director would have several responsibilities concerning the administration of the indigent defense system. Those responsibilities include preparation of a proposed budget for consideration by the commission, preparation of an annual report on operation of the system, hiring staff (including attorneys as public defenders), and otherwise administering and implementing standards, rules, and policies adopted by the commission.

Section 2 would amend Section 27-20-49 of the Century Code to transfer responsibility for appointed counsel services in juvenile court cases from the Supreme Court to the new commission.

Section 3 would amend subsection 2 of section 28-32-01 to exclude the commission from the definition of an administrative agency.

Section 4 would amend subsection 1 of Section 29-07-01.1to identify the commission, rather than the court, as being responsible for determining the rate of compensation for appointed counsel.

Section 5would amend subsection 4 of Section 29-07-01.1 to appropriate moneys in the indigent defense administration fund to the commission, rather than to the judicial branch.

Section 6provides and appropriation of $1,135,285 for the establishment of the commission effective July 1, 2005. It is important to note that the remainder of the estimated budget related to the proposal would be included in the Supreme Court's biennial appropriation request.

Section 7 is a transitional provision and would require the Supreme Court to maintain contracts for indigent defense services through December 31, 2005, after which the commission would implement the new system.

Section 8 would provide an effective date of July 1, 2005, for establishment of the commission so the commission could begin the work of developing the new system. The section also provides an effective date of July 1, 2005, for Section 5 to ensure the commission would have access to the indigent defense administration fund to assist in defraying expenses.

Section 9would provide an effective date of January 1, 2006, for Sections 2 and 4, which would establish the commission's statutory responsibility for appointed counsel services.

Budget Estimate

The cost estimate appended to this report reflects the Task Force’s recommendations for improving North Dakota’s indigent defense delivery system and its best prediction of the cost of implementing the system. The estimate suggests a biennial price tag of $11,737,301 to fully and adequately implement the legislative proposal. This amount would include approximately $750,000 in special funds, leaving a general fund impact of $10,987,301. The current indigent defense budget for the 2003-2005 biennium is $4,312,397 from the general fund plus approximately $750,000 in special funds for a total biennial budget of $5,062,397. If the current indigent defense budget were to normally increase approximately 5% for the 2005-2007 biennium, it would result in a budget of about $5,278,017. The budget for the proposed legislation, then, would represent an increase in new dollars of approximately $6,449, 284.

North Dakota will have spent about $2.5 million dollars per year on indigent defense during the 2003-2005 biennium. By way of comparison, South Dakota spends about $6.3 million per year, Montana spends about $8 million per year, and Wyoming spends about $6.5 million per year.

The budget estimate contains two components: costs associated with contracting for indigent defense services and costs associated with establishment and operation of the commission on legal counsel for indigents. The estimate is based on three essential principles identified by the Task Force: 1) that contract counsel should be compensated at a "real" rate of $75 per hour, 2) that there should be sufficient funding to ensure case assignments for each contract counsel would not exceed reasonable levels, and 3) that there should be adequate support services provided in the form of, for example, access to investigative services and defraying of office expenses.

Conclusion

The Task Force started and ended its study with its commitment to address the most pressing issues identified by the judges, lawyers, contract counsel and legislators who participated in the study. All Task Force members unanimously agreed on the following core principles embodied in the draft legislation:

The system must be administered separately from the judiciary;
The system must be adequately funded to provide adequate compensation and supporting resources to defense attorneys; and
The system must be administered by an oversight commission charged with the responsibility of establishing standards that ensure accountability, competency, caseload management and statewide information and communication.
The Task Force believes its recommendations are embodied in the attached legislative draft, and, when coupled with adequate funding as set forth in the attached cost estimate, will address most of the concerns identified by The Spangenberg Group and by all the participants in the Task Force study.

Respectfully submitted by:

The members of the State Bar Association Indigent Defense Task Force:

Sharon Martens, Chair

Robert Thomas
Hon. John Greenwood
Hon. Debbie Kleven
David L. Peterson
Bruce Quick
Dennis Fisher
Steven Mottinger
Sandi Tabor
Kent Morrow
Lawrence Kropp
Senator Thomas Trenbeath
Senator Constance L. Triplett
Marvin Hager
Rebecca Heigaard McGurran
Rep. Lawrence Klemin
Senator Jack Traynor
Rep. William Kretschmar
Rep. Duane DeKrey
Rep. Ron Carlisle
Hon. Laurie Fontaine
Hon. Allan Schmalenberger
James Ganje
Chad Nodland
Birch Burdick
Christine Hogan, Staff

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