In an attempt to save money, the Florida legislature recently approved a law altering the fashion in which private court-appointed defense attorneys for the poor were compensated. Unfortunately, now that the law is being implemented, its unintended consequences have become clear – indigent defendants are losing access to adequate legal representation:
A growing number of local criminal defense attorneys say new flat state fees for cases as complicated as rape and second-degree murder are so low that they either can no longer afford to take them or would have to cut drastically the number of the hours they work.
Both choices, these lawyers say, raise an issue that goes to the core of the nation’s legal system: the quality of defense the accused receive in court.
Joe Walsh is one of those attorneys. He spent about 40 hours on the aggravated battery case of Marcus Griffin after his court-appointed defender fell ill. He got Griffin a time-served sentence after discovering there was little evidence tying him to a convenience store stabbing because workers cleaned and poured bleach over potentially crucial evidence.
Normally, Walsh would have charged a fee for his work as a private attorney who takes court-appointed cases when other lawyers cannot. But now, because Florida this year created a small registry of court-appointed attorneys who will be paid flat fees, Walsh must split $1,000 with the previous attorney assigned to the case — taking home less than a third of what he would normally make.
The problem with the Florida legislation isn’t just that defense attorneys are paid less. The new law creates a “flat fee” model for attorney compensation that, according to a Palm Beach Post report, sets a cap on the amount of money that a defense lawyer may be paid with only very limited opportunities for special consideration in uncommonly difficult cases. The problem, as per the Post account, is that the caps are so low that defense attorneys will likely break even or lose money on any given case if they attempt a meaningful defense, giving lawyers a strong incentive to either refuse to take poor clients facing serious charges or end the cases as quickly as possible regardless of the consequences for defendants.
In essence, poor defendants accused of heinous crimes will be represented by lawyers who are losing money by defending them.
Similar laws around the country have had disastrous consequences. As the National Legal Aid and Defender Association (NLADA) notes, “Because the lawyer will be paid the same amount, no matter how much or little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case, leaving more time for the lawyer to do other more lucrative work.” Indeed, both the Iowa and Washington Supreme Court have struck down state flat fee laws as destroying poor citizens’ rights to a fair trial. NLADA researchers have found serious problems with the use of flat fees in some Utah counties and Tennessee’s move towards flat fee compensation last year sparked a public outcry. The Sixth Amendment requires lawyers present more than a token defense for their clients at trail, but flat fees make it extremely unlikely that lawyers will be able to do anything but that.