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March 1, 2009
Senate plan would reduce public defender caseloads

By Gary Blankenship
Senior Editor

Florida lawmakers will be taking a serious look at reducing the caseload of the state’s public defenders as one way of saving money in what could be an even more restrictive state budget next year.

Sen. Crist Sen. Victor Crist, R-Tampa, chair of the Senate Criminal and Civil Justice Appropriations Committee, painted a stark economic picture at the start of that panel’s February 11 meeting to review budget priorities of the courts, state attorneys, public defenders, guardians ad litem, Justice Administrative Commission, capital collateral regional counsels, and criminal and civil regional counsels. (See story here for details.)

“I look at this as steering a deep draft ship through a very narrow channel of rocks at low tide,” Crist said. “Every hand is going to be on deck looking close to make sure we don’t have a puncture.”

He said the committee will work closely with the various entities, adding, “This committee is not your enemy. There is not a single program we don’t believe in.”

One change Crist mentioned in his opening comments was with the $40 fee paid by defendants to public defenders for help filling out a form saying they qualify for public defenders’ services. He said the committee will look at taking $10 of that and giving it to court clerks who would be charged with verifying that the defendants actually qualify for public defender representation.

Clerks currently review those applications, Crist said, but accept as factual all the information in them and do no checking.

Eighth Circuit Public Defender Rick Parker, in presenting the legislative priorities for the Florida Public Defender Association, noted that public defenders do not control their caseloads, as they accept clients only after a judge signs an order.

Even with the application, by statute they are limited to helping defendants fill it out, and it is clerks who make the final determination, he said.

As for the clerks getting part of that application fee, Parker said, “Any money you take out of our stream of revenue is a cut.”

He added, “No public defender wants to represent anyone who can afford to hire their own attorney. We’re with you on trying to identify anyone who doesn’t need public defender services. . . . As usual, it’s the details of implementation.”

Parker noted in 1996, the Legislature created indigency examiners as part of court administration with the goal of weeding out those who didn’t qualify for public defender services. But it had almost no impact on caseloads and was abandoned as not worth the time and effort.

The work was turned over to the clerks in 2004, he said, but the clerks’ approval rate has been higher than that from the judges, although in some cases judges have approved defendants rejected by the clerks.

“Most of the people who are represented are really, really poor,” Parker said, adding many of those with jobs still can’t afford private counsel. “The reality in Florida and probably everywhere is if you come to an attorney for representation in a criminal case, the attorney will ask for a fee up front and those fees are prohibitive, even for working people.”

He also said that, “The estimates [provided to the committee] that effective screening can reduce the workload 50 to 70 percent seem excessive.”

Even if it did manage to cut 10 percent of the cases, Parker said that wouldn’t solve public defenders’ workload problems, only get them closer to where they need to be.

But Crist said he wasn’t as sure screening couldn’t solve a lot of the public defenders’ problems.

“We have [private] defense attorneys who come forward each year and express concerns there are individuals being represented by public defenders who can afford counsel, and the clerks have come forward and said they can reduce your workload,” he said. “Whether it’s 10 percent or 20 percent or 70 percent has yet to be seen.”

Giving up $10 of the $40 application fee would be a small price if it produces a significant reduction in clients, Crist said. He also argued the current application system lacks credibility.

“Right now the way this system is you fill out an affidavit saying you are indigent and we believe you,” he said. “No bank will make a loan on that standard. Why are we as a state taking someone’s word for it, especially someone who is being prosecuted for a crime?”

He noted that Parker said the application fee is being spent to hire assistant public defenders to appear in court, and hence isn’t directly related to the work of helping defendants fill out the paperwork.

Aside from looking at the screening process, Crist said the committee would look at the indigency standard and whether that needs to be adjusted on who qualifies for a public defender. He also said the panel may look at a sliding scale that would have the most indigent get free representation but might charge others some portion of the cost of their public defenders.

Crist emphasized that he agreed with Parker about the conditions in public defender offices, but only disagreed about solutions.

“You do need more resources and your people are grossly underpaid,” he said. “The climate under which your rank and file has to work in is outrageous at best. You’re probably one of the least appreciated in this [criminal justice] process.”

He also said that some public defenders could do more to help their finances. He noted the Legislature last year imposed a $50 cost of defense fee on misdemeanor cases and $100 on felonies, but attempts to collect the fees have been spotty. He noted that Hillsborough and Pinellas counties, through efforts of the public defenders there, have collected around $1.1 million from that charge, while Miami-Dade County, twice the size of the other two combined, has collected about only a third as much.

“What we’ve identified in the areas of efficiencies is, one, determine who truly deserves your services and how we go about making a determination, and the other way is the collection of fees,” Crist said.

He agreed with Parker’s call for a review of how those fees are distributed. Parker noted there is an identical cost of prosecution fee imposed in misdemeanors and felonies, but state attorneys, after the state takes a small handling fee, get 100 percent of the money raised. Public defenders, he said, get only 25 percent.

The exchange between Parker and Crist was the most extensive on a day that generally saw the courts and related agencies make modest pitches to the committee that will have a major say in their budgets for the 2009-10 fiscal year. No one made any specific, bottom-line request for a fixed figure for next year’s spending plan, but stuck to generalities or talked about specific items they felt needed legislative attention.

Jackson Flyte, representing the five criminal conflict and civil regional counsels, noted the counsels are having fiscal difficulties because of an ongoing lawsuit with counties contesting the state law requiring them to provide offices for the CCCRCs.

Other than that, he had two specific requests. The first was over a $50 fee the Legislature imposed on indigent parents represented by the CCCRCs in dependency cases. Flyte said that had been expected to raise $250,000 for his office alone, but in reality it has raised about $10,000 statewide because judges have been reluctant to impose the levy on poor parents.

He said the conflict counsels would gladly give $10 of the fee to clerks if they would improve the collection rate.

The other problem, Flyte said, is the CCCRCs don’t have enough lawyers qualified to handle capital cases, or the money to pay them. He said he has one death penalty qualified lawyer in Pinellas County, and 16 cases for him, six of which have already been death qualified.

The CCCRCs either need more money for lawyers or a decreased use of the death penalty, he said. “I need more death penalty lawyers to keep the death penalty constitutional,” Flyte said. “We are not trying to do away with the death penalty.” (Public defenders, in January presentations to two other committees, called for a death penalty moratorium to save money.)

Thirteenth Circuit State Attorney Mark Ober said state attorneys need help because they have rising caseloads, lower budgets, and increasing turnover rates. He said 55 percent of prosecutors’ budgets go to prosecute felonies; 26 percent are for juveniles; and 9.5 percent for child support. The rest is divided among misdemeanors, civil cases, and other matters.

State attorneys are experiencing a 27 percent turnover because of workload and low pay, he said, adding, “We need to cling to the positions that we have.”

Ober concluded, “We want to help [with the state’s budget crisis], but we want to live up to our constitutional obligations.”

In response to a question from Sen. Arthenia Joyner, D-Tampa, Ober reiterated a request made before other committees that the Legislature not enact any new criminal laws or increase any penalties, as that could lead to even more work for prosecutors.

Bill Jennings, the capital collateral regional counsel for the middle region, asked that the Legislature consider returning fees paid by the U.S. government for collateral counsels’ appearances in federal court to the counsels’ offices. A few years ago, that money was moved to the state’s general revenue.

Combined with the 11 percent cuts because of the budget crisis, the loss of the federal fees has meant a 25 percent overall reduction for the CCRCs, Jennings said.

He noted those offices operate at a cost to the state of about $40 an hour, but the collateral counsels are paid $160 an hour for their federal court work. That amounts to about $400,000 a year, Jennings said.

Crist said the committee will be looking at legislation to create a direct-service organization (DSO) to support the state’s Guardian ad Litem Program. The DSO would be allowed to raise private money in addition to its state funds; Crist specifically mentioned that law firms might be funding sources for the agency.

Theresa Flury, director of the Guardian ad Litem Program, said 87.9 percent of its $32.8 million budget goes directly into the representation of children.

[Revised: 08-20-2014]