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.

1 comment:

Serene said...

In Oklahoma County, if one manages to make bail, (as low as 5% and up to 10% of the actual bail,) he is deemed able to afford counsel and is foreclosed from receiving free counsel. I've never heard of this anywhere else, and am trying to find out if this extreme position is within the scope of the constitution.