Saturday, May 28, 2005

Back To Those Comments

Gideon comments on how eligibility for state paid counsel is determined and suggests the federalgovernment's poverty level as a starting point. He said:

"It seems to me that the current level ($9,570) is woefully inadequate, given debt levels, soperhaps that should be taken into consideration.

"To decide the actual level should perhaps be the job of individual legislatures, taking into accountcost of living in their respective states."

Which is very perceptive of him. In fact, if you look at that Ohio Public Defender manual I linkedto a couple of post ago, on page 2 (numbered page 2, page 5 as displayed in Acrobat Reader) atsub-head B-1 you will find this language:

"An applicant's indigency or eligibility for a reimbursement, recoupment, contribution,or partial payment program shall be determined by the courts. [. . . .] [T]he court shallrequire the applicant to complete a financial disclosure form, and shall follow rulespromulgated by the Ohio Public Defender Commission pursuant to section120.03(b)(1) of the Ohio Revised Code.

Section 120.03(b)(1) of the Ohio Revised Code provides:

"Standards of indigency and minimum qualifications for legal representation by a public defenderor appointed counsel. In establishing standards of indigency and determining who is eligible forlegal representation by a public defender or appointed counsel, the commission shall consider anindigent person to be an individual who at the time his need is determined is unable to provide forthe payment of an attorney and all other necessary expenses of representation. Release on bailshall not prevent a person from being determined to be indigent."

Still kind of vague, if you ask me. Ah, ha! If we look in the Ohio Administrative Code section onthe Ohio Public Defender, we find (at last) some detailed guidelines on how we are supposed touse/evaluate the information from that financial disclosure form. Section 120-1-03 of the Codeprovides, in sub-section (B):

(B) Income standards.

(1) Presumptive eligibility. Without other substantial assets, individuals whose income is notgreater than 125 per cent of the current poverty threshold established by the United States officeof management and budget may be presumed to require the appointment of counsel. An individualwhose income is between 125 percent and 187.5 per cent of the federal poverty guidelines maystill be presumed to require the appointment of counsel if any of the following apply:

(a) Applicant's household income, minus allowable expenses, yields no more than 125per cent of the federal poverty income guidelines.

(b) Allowable expenses are the cost of medical care, childcare, transportation, andother costs required for work, or the cost associated with the infirmity of a resident familymember incurred during the preceding twelve months and child support actually paid fromhousehold income.

(c) The applicant has liabilities and or expenses, including unpaid taxes, the total ofwhich exceeds the applicant's income.

(2) Presumptive ineligibility. Applicants having liquid assets that exceed one thousand dollarsfor misdemeanor cases and five thousand dollars in felony cases shall be presumed to be notindigent. For purposes of this rule, "liquid assets" are defined as those resources that are in cashor payable upon demand. The most common types of liquid assets are cash on hand, savingsaccounts, checking accounts, trusts, stocks, and mortgages. Applicants with an income over187.5 per cent of the federal poverty level shall be deemed not indigent.

(3) The poverty income thresholds (125 per cent-187.5 per cent) are updated annually by theUnited States office of management and budget and may be found in the federal register. Theseincome thresholds are based on gross income. They will be available, on request, from the Ohiopublic defender commission.

(4) Applicants being detained in a state institution shall have only their own income and assetsconsidered, as they have no "household" for purposes of this rule.

Now notice something here. The figures used are the OMB's poverty threshold figures, despitethe sloppy drafting where later reference is repeatedly made to the federal guidelines, which arenot the same thing at all. The poverty guidelines are statical averages of the threshold numbersissued by the Department of HHS.. "In August 1969, the U.S. Bureau of the Budget (thepredecessor of the U.S. Office of Management and Budget) designated the Census Bureaupoverty thresholds as the federal government''s official statistical definition of poverty."
So what's the difference? See this site for all the details, including a nice chart. In short, the thresholds are the original, statisticalmeasure of poverty in the US, developed by the Census Bureau, based on the work of MollieOrshansky, an economist with the Social Security Administration in the mid to late 1950's. The essentialdifference is that the thresholds are based on a more detailed calculation of the actual cost ofkeeping body and soul together with as little impact on the health and fitness of the individuals aspossible. They also are adjusted based on the age of the individuals, in broad, general terms.

For more than you ever wanted to know about how the poverty thresholds were first calculatedsee this article.

So what's the number? What does this mean in real world numbers? The following is based on the2004 figures for both the Guidelines and the Thresholds:

2004 Poverty Guidelines Family of Four = $18,850 (lower 48 States)
2004 Poverty Threshold Family of Four:
four adults = $19,484
three adults - one child under 18 = $19,803
two adults, two children under 18 = $19,157
one adult - three children under 18 = $19,223

The difference is not really all that significant. Look at that family of four with two kids under 18.The basic threshold figure is $19,157 (set aside for the moment the question whether this isbefore or after taxes) a range of 125% to 187.5% of that number is $23, 946 to $35, 919. Usingthe guidelines figure of $18, 850 the range is $23, 563 to $35,344.

Is this reasonable? And why do we have the multipliers? 125%, 187.5% -- what's that all about?Let's look at that two adults, two kids under 18 number. $19,157. That's not a lot of money for a family of four to live on. But consider - if both the adults are working full-time, at minimum wage jobs (currently that's $5.15/hr) and put in a full 2080 hours a year, their gross income will be$21,242. Whoa! If we only used the threshold or guidelines numbers, these folks wouldn't qualifyfor appointed counsel. And that's just plain silly. But when we apply the 125% multiplier we find they do qualify. So if Dad has a couple of beers after work on Friday, and rolls through a stop sign on his way home, he'll be eligible for appointed counsel to fight the drunk driving charge Officer Friendly dropped on him.

So what's with that 187.5% multipler for the top of the range? What's that all about? I'll be addressing that in my next post.

Friday, May 27, 2005

If You Read This

You Won't Have To Read My Comment To Gideon's Comment To The Previous Post

Clear as mud, right? I just thought better of leaving this burried in the comments section. Based on my own Blog reading habits, the odds are pretty good almost everyone will miss it if I leave it just in the comments. So, here's what I told Gideon:
Hopefully, over this three day weekend, I'll be able to get some rightous posting done. No online class until Tuesday. No family obligations until a week from Sunday. The weather forecast says cool and rainy, so no burning desire to run around doing vigerous things. (I should, but "should" and "want to" are very different thing.) Unfortunately, I did pick up Season One of Quantum Leap, but it was a mid-season replacement show its first season, so there are only eight episodes - the double length pilot and seven regular lenght shows. And I've already knocked off the pilot and the first reqular episode.[-)By the way, the first regular episode? Teri Hatcher guest stars as a college student and, my God! Was she a beauty! At 25, easily playing 18-19, she is just stunning.
I may have to reconsider my decision not to bother with the soon-to-be-reoeased first season of Lois And Clark: The New Adventures Of Superman.

By the way, the "block quote" function here on Blogger is just about the most un-intutive "feature" I have ever run across.

Wednesday, May 25, 2005

No, I Didn't Forget The Comments

To Gideon and Tom McKenna -- I haven't forgotten you guys. Next post will be comments on your comments! I Promise!

Indigent Defense - Who Does It?

Is It Always Three Ways?

There are, when you come right down to it, three ways to provide counsel for indigent defendants. The most comprehensive is the Public Defender. Think of this as a sort of parallel to the prosecuting attorney. In an ideal situation the offices will be of similar size (although prosecutors offices tend to be a bit larger because they have additional responsibilities a PD office doesn't) with similar pay. (Note - I said an ideal situation.) A PD office is usually considered a department of the supervising governmental unit and works under a budget from that entity, just like the prosecutors office or the fire department. Sometimes there is a semi-independent board or authority that is charged with supervising the PD office. It may be a State or a local agency, depending on where your are.

A somewhat similar operation is the contract defender organization. This is where a law firm or, more likely, an ad hoc collection of attorneys enter into a contract with the governmental funding unit to provide counsel for indigent defendants. The contract systems I have looked at all involved a flat fee arrangement based on an annual projection with some provisions for exceptional expenses. There are also provisions for conflict of interest situations (e.g. co-defendants with conflicting defenses should not be represented by the same attorney or organization.) Note: PD offices will have similar arrangements with outside attorneys, often on an hourly rate contract.

Finally, there is the assigned or appointed counsel system where private attorneys are assigned cases (or appointed to represent indigent clients - the usage varies from court to court, even within a state), generally by the local court, and are paid after the case is concluded and they submit a bill. (In a long, complicated case there may be provisions to make partial payment before the case is over) Payment is either based on an hourly rate or a flat fee schedule or a combined system where some events are flat fee and others are hourly rated. For an example of the State regulated fee system for assigned counsel, check out this publication from the Ohio Public Defender. Take a look at page 13, in particular. That is, page number 13 - it's about page 16 the way Acrobat Reader numbers pages. For examples of flat fee systems, take a look at this compilation of appointed counsel fees in Michigan, where apparently the counties set both the compensation for indigent trial defense and the systme used. This report is for 2004. Look particularly at the 3rd Circuit, Wayne, the most populous county, and the 6th Circuit, Oakland (which is the second most populous county according the the Census Bureau), and then the 40th Circuit, Lapeer (which is a rural[?] county of moderate population, again according the the Census Bureau.)

So, what's the best system? Damnifino. Speculation and anecdotes to come.

Sunday, May 15, 2005

Indigent Defense

Neither Simple Nor Easy

You know, a while back I imposed on Gideon, the Connecticut. PD who runs "a Public Defender" blog (here) with a huge quasi comment (see here. Scroll down, you'll find it.) on the sad state of indigent defense (that is, the provision of same, not the quality) everywhere you look, and it occurred to me, Why am I not posting this on my own blog? What the heck is wrong with me? So, here are some of Mr. DA’s thoughts on indigent defense and related topics.

First off, what the heck is "indigent?" Well, so far it’s primarily an adjective, but the noun form seems to be gaining acceptance, especially in legal circles. Most dictionaries I’ve looked at tag "indigent" as an adjective, (see, for example, the listings at the Onelook: General Dictionary Sites page) but a few add the noun form as a second definition. One example: "adj. 1. Experiencing want or need; impoverished. See Synonyms at poor. . . n. A needy or destitute person." American Heritage Dictionary of the English Language (3d Ed). Some add the qualifiers ‘very’ or ‘extremely’ to poor and/or needy.

So, in law speak, indigent defense is the defense of very/extremely poor/needy people. Seems clear enough at first blush. But. . .
  • What is ‘indigent?’ That is, how poor is very/extremely poor?
  • Once we know that, how do we determine if a given defendant is, in fact, indigent?
  • And who decides if a particular defendant is indigent?
  • Who represents the indigent defendant? Obviously, an attorney, but which attorney?
  • How does that attorney get compensated? Or do we impose the duty to represent indigent defendants on the members of the bar as a mandatory pro bono publico activity. Sort of an "in kind" element of their bar dues. Abraham Lincoln said an attorney’s time and advice are his stock in trade. Is it fair to take that time and advice without compensation? Is there a Fifth Amendment problem here?
  • If we are going to pay attorneys to defend the indigent, how much are we going to pay them?
  • And who, exactly, is ‘we’ in this context?

The place to really start is the Supreme Court's 1963 decision in a case called Gideon v Wainwright, 372 U.S. 335 (1963). For a detailed review of this opinion take a look at the entry at for a copy of the opinion itself and lots and lots of additional material. The site is designed for teachers, primarily at the high school/junior college level, so there is a wealth of detail that isn't normally presented in discussions of Gideon. I particularly like the "Evolution of a Decision" activity. It takes you from Powell v Alabama to Betts v Brady to Gideon to Argersinger v Hamlin that considered whether the Sixth Amendment right to counsel applied to misdemeanors as well as felonies.

Well, that should keep you busy for a while. More, later.