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<strong>Justice</strong> Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel Court-appointed attorneys in rural areas of Kansas and West Virginia have successfully argued that they were unfairly burdened with cases, whereas their urban counterparts were not, thus violating the equal protection of the laws. In Stephan v. Smith, 7 the Kansas Supreme Court ruled that, because some areas of the state had public defender offices and did not require participation from the private bar while other, usually rural areas, mandated private attorney representation, the system violated the state’s equal protection clause because it treated private attorneys differently based on geographic location. Following this decision, the legislature made service by private attorneys on behalf of indigent defendants voluntary and increased compensation rates for assigned counsel. 8 In Jewell v. Maynard, 9 the West Virginia Supreme Court found that the indigent defense system violated the equal protection rights of rural and younger attorneys. Due to low rates of compensation for court-appointed counsel, a cap on the amount of fees that could be earned, and the state’s failure to reimburse attorneys for expenses in a timely manner, many attorneys were unwilling to accept court-appointed cases, forcing trial courts to assign more cases to those attorneys still willing to accept cases and causing them to be overworked. The court held that this situation imposed a financial hardship on the remaining attorneys serving indigent defendants, concluding that attorneys in rural areas without public defender offices and younger attorneys were disproportionately burdened, in violation of their rights to equal protection. 10 v. Rush led to a revamping of the New Jersey system…. Similar restructuring followed decisions in Kentucky, West Virginia, and Iowa.” 7 747 P.2d 816 (Kan. 1987). 8 The Kansas State Board of Indigents’ Defense Services reports that public defender offices became a more cost effective approach to providing indigent defense services as a result of this ruling. Consequently, the Board has focused on instituting a coordinated statewide approach to providing indigent defense services, including expanded use of contracts and public defender offices. See http://www.ksbids.state.ks.us/au_hi.html. 9 383 S.E.2d 536 (W. Va. 1989). 10 “[T]he evidence demonstrates that the current system inequitably distributes its burden depending upon location and age. Those lawyers who live in rural circuits without public defender systems bear a much greater burden than do their peers elsewhere, and, in general, younger lawyers bear a greater burden than older lawyers. Indeed, there are many lawyers in rural West Virginia who are required to devote an unreasonable percentage of their time to indigent representation.” Id. at 541. While the case was pending, the West Virginia Supreme Court of Appeals named the West Virginia State Bar as a party to the lawsuit. The State Bar contacted the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID) for information about indigent defense and how West Virginia compared to other states. Subsequently, in cooperation with the ABA SCLAID and the State Bar, The Spangenberg Group conducted a study of the state’s indigent defense system. See The Spangenberg Group, Analysis of Data on the Indigent Defense System in West Virginia: How West Virginia Compares with the Rest of the Nation (1988). After the ruling in this case and completion of the study, the legislature modified West Virginia’s indigent defense system and established a state-funded program, i.e., the West Virginia Public Defender Services, 106 | The Constitution Project
Chapter 3—How to Achive Reform: Litigation The court increased the hourly compensation rates from $20 to $45 for out-of-court work and from $25 to $65 for in-court work, effective one year after the date of the opinion. In addition, the court ordered the legislature to establish a method for attorneys to receive cash advances for out-of-pocket expenses and limited the appointments that an attorney could be required to accept to no more than 10% of annual workload. More than 15 years after this decision was rendered, the compensation rates for court-appointed counsel remain unchanged. 11 Additional illustrative cases are Makemson v. Martin County 12 and DeLisio v. Alaska Superior Court. 13 In Makemson, the Florida Supreme Court held that maximum fee limitations enacted by the legislature to reimburse attorneys for defense services were unconstitutional as applied to the cases before the court because they interfered with the judiciary’s inherent authority to ensure that defendants receive adequate legal representation consistent with the Sixth Amendment. In DeLisio, the Alaska Supreme Court held that court-appointed attorneys’ services are property under the state constitution’s “takings clause,” for which they must be fairly compensated. 14 Accordingly, the court ruled that attorneys could not be required to accept cases pro bono and ordered that compensation should reflect that which is “received by the average competent attorney operating in the open market.” 15 Even when courts have been unwilling to declare statutory schemes of compensation unconstitutional, they have effectively increased compensation through alternative means. In May v. State, 16 an Alabama appellate court declined to declare a fee cap of $1000 unconstitutional, but held that attorneys were entitled to reimbursement an executive branch agency responsible for the administration, coordination, and evaluation of indigent defense programs across the state. For the agency’s website, see http://www.wvpds.org/ 11 See ABA/TSG Compensation in Non-Capital Felony Cases, supra note 5. 12 491 So.2d 1109 (Fla. 1986). 13 740 P.2d 437 (Alaska 1987). 14 “Private property shall not be taken or damaged for public use without just compensation.” Alaska Const. art. I, sec. 18. The Fifth Amendment to the U.S. Constitution provides, in part: “… nor shall private property be taken for public use, without just compensation.” The Supreme Court applied the takings clause of the Fifth Amendment to the states through the Fourteenth Amendment Due Process Clause in Chicago Burlington and Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897). 15 DeLisio, 740 P.2d at 443. In reality, within Alaska and other states, fees paid to assigned counsel are not comparable to “open market” fees for legal services. In Alaska, as of June 2007, attorneys appointed on a case-by-case basis earned $60 an hour for in-court work, and $50 an hour for outof-court work. See ABA/TSG, Compensation in Non-Capital Felony Cases, supra note 5, at 8. Alaska has a state Public Defender Agency, which provides defense representation in indigent cases. See http://www.state.ak.us/admin/pd/; there also is the Alaskan Office of Public Advocacy which, in addition to other duties, provides representation in cases in which the Public Defender Agency has a conflict. See http://www.state.ak.us/admin/opa/. 16 672 So.2d 1307 (Ala. App. 1993). The Constitution Project | 107
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Justice DenieD AmericA’s continui
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Copyright © 2009 by the Constituti
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Justice Denied: America’s Continu
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Table of Contents National Right to
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Table of Contents Pretrial Litigati
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Preface The National Right to Couns
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Preface public defense in the Unite
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executive suMMARy AnD RecOMMenDAtiO
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Executive Summary and Recommendatio
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Chapter Summaries Executive Summary
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cHAPteR 2 indigent Defense today: A
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APPenDices The Constitution Project
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Lavallee v. Justices in Hampden Sup
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Appendix C: State Statutes Establis
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Justice DenieD

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