This Isn’t “Law & Order”

December 05, 2015   |   Bradley Bannon

“If you cannot afford to hire an attorney, one will be appointed for you.”

Fans of “Law & Order” have heard that phrase hundreds of times, just before the mid-episode commercial break, when detectives are escorting the criminally accused into custody and advising them of their constitutional rights.

But what does that particular constitutional right actually mean in the real world to citizens who are entitled to legal representation yet unable to hire a lawyer?

For many years in North Carolina’s state courts, it only depended on where they were. Customs of the local judicial districts prevailed, resulting in inconsistent standards across the state for appointment of counsel, quality of representation, and payment of costs associated with that representation. The quality of representation–and funding for it–often depended on little more than the local appointing judge’s personal affinity for the local appointed lawyer or how the lawyer handled or quickly disposed of cases before the court.

North Carolina Becomes A National Model

In 2000, the state legislature established the Office of Indigent Defense Services (IDS) as an independent statewide agency charged with overseeing the provision of legal services to the indigent, whether by Public Defenders or Private Assigned Counsel.

Since then, IDS has served that constitutional mandate by developing training, qualification, and performance standards for those services; determining the most appropriate methods of delivering them in each judicial district; and making sure they are provided in the most cost-effective manner possible.

Over the last 15 years, IDS has become a model for the nation regarding the provision of independent, quality, and cost-effective indigent defense services. It has been cited in the Congressional Record as such. 108 Cong. Rec. S11613 (Nov. 19, 2004)(Statement of Sen. Leahy regarding the Justice for All Act).

Independence & Oversight

Independence has been key to the mission of IDS. All national standards and studies stress the importance of keeping indigent defense independent from the judiciary function and budget. For example:

  • “The public defense function, including the selection, funding, and payment of defense counsel, is independent.” Principle One of the ABA’s Ten Principles of a Public Defense Delivery System.
  • “The [legal representation] plan and the lawyers serving under it should be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. … An effective means of securing professional independence for defender organizations is to place responsibility for governance in a board of trustees.” Standard 5-1.3(a) of the ABA Standards for Criminal Justice: Providing Defense Services.
  • “The agency responsible for ensuring that capital defendants receive high quality legal representation “should be independent of the judiciary and it, and not the judiciary or elected officials, should select lawyers for specific cases.” Guideline 3.1B of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.
  • “Thou shalt … [a]ssure that the public defense function, including the selection, funding, and payment of appointed counsel, is independent. The indigent defense function should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel. To safeguard independence, and to promote efficiency and quality of services, a nonpartisan board should oversee defender, assigned counsel, or contract systems.” First of NLADA’s Ten Commandments of Public Defense Delivery Systems.
  • “Ideally, an indigent defense oversight body should be an independent agency of state government. This allows the [governing] commission to retain decision-making authority and advocate for adequate indigent defense funding. If a state’s indigent defense system is financed primarily by the state, it is especially important that its budget remain separate from those of other agencies, including the courts, so that resources directed towards indigent defense are not seen as having a negative impact on other worthwhile spending.” Justice Denied–America’s Continuing Neglect of Our Constitutional Right To Counsel: Report of the National Right To Counsel Committee, 160 (The Constitution Project Apr. 2009).

Of course, independence does not mean a lack of oversight.

IDS is governed by a bipartisan group of 13 Commissioners appointed by the Governor and leaders of the legislature, court system, State Bar, and various other professional legal services organizations. In addition to that oversight, IDS is routinely required to report to legislative oversight committees, and its biennial budgets are established by the legislature. IDS also holds regular meetings that are open to the legal community and public at large for scrutiny, comment, and participation.

The Model Threatened

During the 2015 General Assembly Session, without public debate or explanation, North Carolina’s legislature eliminated IDS’s independence, putting its budget back into the overall judiciary budget. For the first time in 15 years, lawyers for poor people accused of crime may once again have to compete for diminishing court resources with prosecutors, judges, clerks, and others. It’s not hard to predict who will probably win that battle.

At the same time, we have seen costs of living and running small businesses rise, while compensation of Public Defenders and Private Assigned Counsel (many of whom run small-business law firms) has remained stagnant or fallen.

A November 2015 survey of the impact of budget constraints on North Carolina’s public defenders reflects that they are working second and third jobs, fending off bill collectors, worrying about feeding their children, and facing daunting caseloads–while the indigent accused suffer.

A study of Private Assigned Counsel in May 2011 found the same plight facing appointed lawyers and their indigent clients: “North Carolina is in danger of joining those jurisdictions in which the right to effective assistance of counsel is honored in word but not in deed. While the reductions in compensation have strongly impacted the lawyers, the survey results make it clear that they are also impacting the clients who depend on those lawyers to receive quality representation.”

The Future

In “Law & Order,” the accused are usually guilty scumbags, so it’s easy to care little about their freedom or the Constitutionally-deficient nature of their legal representation. The defense lawyers are usually “technicality”-invoking scumbags, so it’s easy to care little about threats to their livelihood or professional dignity.

But in the real world, accused people are often overcharged and sometimes completely innocent. Their lawyers are earnest professionals with deep commitments to the Constitution and the fairness of our criminal justice system to all of the accused–not just those who can afford to finance a proper defense.

The quality of indigent defense is inversely proportional to the government’s power to destroy people’s lives by mere accusation. Over the last 15 years, IDS has made great strides toward leveling the playing field, improving both the quality and cost-effectiveness of representing the indigent. We still have a way to go, and we certainly shouldn’t be going backward. We should seize every opportunity we have–in conversations with friends, colleagues, and legislators–to advocate for justice by restoring and preserving IDS’s independence and adequate funding.

Because the stakes are high: from losing the ability to drive as a result of a traffic charge, to suffering incarceration or some other life-altering consequence as a result of a criminal conviction, to facing execution as a result of a capital murder charge. This is real life.

It’s not a television show.

Bradley Bannon is a Raleigh criminal defense and civil rights lawyer. He has served NCAJ as President of the organization, Chair of the Criminal Defense Section, and member of the Executive Committee since 2013.