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NACDL News: NACDL Report Reveals Severe Underfunding of Assigned Counsel Systems
By Ivan J. Dominguez and Isaac Kramer
NACDL News columns.
A report recently released by NACDL reveals the woefully inadequate compensation rates received by assigned defense counsel across the 50 U.S. states. Prepared by NACDL Indigent Defense Counsel John Gross, Rationing Justice: The Underfunding of Assigned Counsel Systems documents the low rates paid to assigned counsel and how this practice results in defendants receiving inadequate representation. The nation marked the 50th anniversary of the Supreme Court’s decision in Gideon v. Wainwright on March 18, and this report serves as a stark reminder that much work remains to secure the meaningful protection of the Sixth Amendment right to counsel.
According to the report, assigned counsel compensation rates often fail to cover basic overhead costs. Because of this, attorneys who work on indigent defense cases often lose money in the process. On top of low hourly rates, more than half of all states have maximum compensation fees, with any additional hours of work going uncompensated.
NACDL President Steven D. Benjamin said: “When I talk to law students and young lawyers, many have a desire to practice criminal law. But when the rates barely cover the cost of overhead, not to mention student debt, young lawyers have no choice but to move away from criminal practice. Without adequate funding to the defense, the promise of Gideon rings hollow.”
The report reveals how many states use “flat fees,” which result in attorneys receiving the same compensation, regardless of how much work they perform. In some places, attorneys are even paid based on the outcome of the case. Wayne County, Michigan (Detroit), actually pays assigned counsel $200 more for a guilty plea than for a dismissal.
In this report, NACDL documents how this severe and chronic underfunding is dangerous to the criminal justice system as a whole. “The issue here is not just that assigned counsel deserves more money,” John Gross said. “When compensation rates are this low, private attorneys simply cannot afford to provide services to indigent defendants. Courts and the adversarial system cannot function without defense lawyers, and the American people and our Constitution are paying the price.”
Rationing Justice: The Underfunding of Assigned Counsel Systems is the first part of NACDL’s new study, Gideon at 50: A Three-Part Examination of Indigent Defense in America. A link to the report and an audio introduction by its author are available at www.nacdl.org/GideonAt50.