Gideon Alert: North Carolina prosecutors cry foul over disparate funding

BY David Carroll on Tuesday, April 5, 2011 at 9:35 AM

On March 30, 2011, North Carolina prosecutors made a PowerPoint presentation to the state legislature claiming to be out-resourced by the Office of Indigent Defense Services (IDS).  Asserting that IDS attorneys only handle half of the total criminal caseload handled by prosecutors yet outspend the district attorneys by nearly 43.5% ($132 million to $92 million), one district attorney was quoted in the Progressive Pulse as saying, “We’re outspent and outgunned every day in the courtroom.” (Full PowerPoint presentation is available here. Please note the presentation contains autopsy photos some may find inappropriate).

This is the second time we have seen state prosecutors make such dubious claims, as the Massachusetts Committee for Public Counsel Services (CPCS) is still defending itself from similar charges made by elected prosecutors there in the fall of 2010.  To help policy-makers better understand such “parity” claims, NLADA’s Phyllis Mann wrote an issue paper in February 2011 entitled Understanding the Comparison of Budgets for Prosecutors and Budgets for Public Defense. The paper delineates three areas of concern that need to be explained beyond just total budgets in any true comparison: a) case types handled by prosecutors and defense providers; b) how evidence is acquired; and, c) funding availability beyond state general funds.

Before analyzing these topic points in regards to North Carolina, it is necessary to understand how the right to counsel is delivered in the state.  In accordance with the first of the American Bar Association (ABA) Ten Principles of a Public Defense Delivery System, the state-funded IDS is overseen by a 13-member commission selected by diverse appointing authorities so that no one branch of government has undue influence.  The Commission is statutorily required to develop standards related to, among others: attorney qualification; attorney caseloads; attorney performance; conflicts of interests; compensation for experts; and eligibility.  The Commission maintains responsibility for determining the method by which right to counsel services are provided in each judicial district, choosing among a combination of “appointed counsel, contract counsel, part-time public defenders, public defender offices, appellate defender services, or any combination of these services.” However, a legislative act is required to establish or abolish a public defender office.  There are three statewide defender offices (capital, appellate and juvenile).  At the trial-level, there are just 16 staffed public defender offices serving 26 of North Carolina’s 100 counties.

On April 4th, 2011 North Carolina IDS released A Comparison of Prosecution and Indigent Defense Resources, a report that echoes much of the methodology set-out in the NLADA paper.  The IDS report makes clear that the prosecutors were not making an apples-to-apples comparison in regards to caseload.  For example, IDS “provides representation in a number of case types that are not handled by DAs. This includes direct appeals and most capital post‐conviction litigation; the majority of civil cases that are funded by IDS, such as abuse, neglect, or dependency, termination of parental rights, civil commitment, competency, and child support contempt; and specialized programs like Prisoner Legal Services and the Office of Sentencing Services. In FY10, 22.3% (or approximately $29.8 million) of IDS’ budget was expended on non‐DA‐related cases.”

One of the reasons why Gideon v. Wainwright determined that defense lawyers were “necessities” rather than “luxuries” was the simple acknowledgement that states “quite properly spend vast sums of money” to establish  a “machinery” to prosecute offenders.  This “machinery” – including federal, state and local law enforcement (FBI, state police, sheriffs, local police), federal and state crime labs, state retained experts, etc. – can overwhelm a defendant unless she is equipped with analogous resources.  So, whereas the North Carolina prosecutor budget does not take into account all of the available investigatory resources of law enforcement, the IDS budget must account for this on the defense side. On top of this, prosecutor offices often receive significant federal grants and are able to generate additional funding for their offices through distinct programs. For example, a prosecutor’s office can establish a diversion program that requires a defendant to pay a fee to the prosecutor’s office in exchange for being placed on pretrial supervision that may result in charges being dismissed. Prosecutor’s offices gain additional resources through the sale of assets seized in forfeiture proceedings.  Somehow, this additional funding never makes it into the prosecutors’ side of the ledger in these types of presentations.  As shown in the IDS report, “a very conservative estimate of the additional prosecution resources that are available to DA offices but not contained in their office budgets is more than $230 million.”

IDS also argues that the “amount of time that a DA has to spend prosecuting an individual case is not comparable to the amount of time that a defense attorney has to spend defending it.”  Using a recent workload study of district attorneys, IDS states that “DAs, on average, spend 6.5 minutes prosecuting a traffic case, 19 minutes prosecuting a misdemeanor case (other than DWI or drug offense), 43 minutes prosecuting a DWI, and 55 minutes prosecuting a drug offense other than trafficking. It simply is not possible to provide a competent defense in such a short time period, in part because defense attorneys have to conduct an independent investigation and because the DAs control the calendaring of cases.”

Though the prosecutors told the state legislature to cut IDS when making difficult budget decisions, it should be noted that IDS has for years been presenting the legislature with ways (as required under statute) to “[d]eliver services in the most efficient and cost-effective manner without sacrificing quality representation.”  Just last month, IDS produced a report entitled FY11 Reclassification Impact Study that concludes that “approximately 1.03 million individuals or 11% of North Carolina’s population had criminal matters before a court in FY09” suggesting  that “North Carolina may be treating too much conduct as criminal.”  The report stated that North Carolina could save over $2.25 million per year on indigent defense costs alone (and even more on the cost of prosecution, courts, corrections, etc.) if the 31 identified criminal statutes were made infractions.

In conclusion, the greatest savings to the state might come from the expansion of staffed public defender offices to certain regions of the state. National standards do not proclaim one delivery model more effective than the others with respect to attorney performance. But national standards – including ABA Principle 2 – recommend establishing a public defender office where caseload is sufficiently high to merit the greatest fiscal efficiency.  Almost every year since its inception, IDS has produced a report comparing the costs of public defenders versus private assigned counsel.  The FY10 North Carolina Public Defender and Private Assigned Counsel Cost Analysis concludes that in fiscal year 2010 public defender offices handled 35.3% of the total number of indigent disposed cases while accounting for only 25.9% of the total trial-level expenditures.  Unfortunately, despite IDS’s desire to spend North Carolina taxpayer dollars in the most efficient manner possible, the statutory language requiring legislative approval for each new public defender office makes this difficult, at best.