By Thomas K. Maher

On Dec. 2, 2016, the North Carolina Commission on the Administration of Law and Justice, which was the result of work by Chief Justice Martin, met for the final time. The commission worked through five committees, including the Criminal Investigation and Adjudication Committee. The Criminal Investigation and Adjudication Committee worked on several subjects, including the age of juvenile jurisdiction, pre-trial release, case management and indigent defense.  The work on indigent defense was done through a subcommittee, which included members with a wide range of experience, including two Chief Public Defenders, an elected District Attorney, a Sheriff, Magistrate, as well as District and Superior Court judges.  Professor Jessica Smith, from the School of Government, served as the reporter, and was instrumental in the production of the final report.

The 51-page report provides an in-depth discussion of the many challenges that any indigent defense system faces. The report also makes specific recommendations for improving North Carolina’s indigent defense system, some of which can be implemented without legislative action, and some of which will require legislation. These recommendations are a long-term blueprint for strengthening indigent defense. All of the recommendations are geared toward achieving a criminal justice system in which the quality of justice does not depend on the wealth of the defendant. The report emphasizes the importance of providing effective assistance of counsel to all who find themselves in the criminal justice system, observing that the cost of not providing effective representation includes not only wrongful convictions, but also excessive pre-trial detention, increased pressure on innocent persons to plead guilty, excessive sentences, and the dramatic collateral consequences that often accompany a criminal conviction. Indeed, the opening paragraph of the report states:

As the United States Supreme Court recently declared: “No one doubts the fundamental character of a criminal defendant’s Sixth Amendment right to the ‘Assistance of Counsel.’ ” This right is so critical that the high Court has deemed its wrongful deprivation to constitute “structural” error, affecting the very “framework within which the trial proceeds.” For indigent defendants, this fundamental right to effective assistance of counsel must be provided at state expense. When the system fails to provide this right, it denies indigent defendants justice. That denial has very real consequences for defendants, including excessive pretrial detention, increased pressure on innocent persons to plead guilty, wrongful convictions, and excessive sentences

There is no doubt that indigent defense throughout much of the United States is in a state of crisis, and that North Carolina is beginning to see the impact of lessened resources for indigent defense. The eroding quality of  indigent defense is an issue that concerns not only the usual liberal supporters of providing adequate counsel for those too poor to hire a lawyer, but also conservatives, such as Charles Koch, chairman and CEO of Koch Industries. The bi-partisan recognition of the importance of a healthy indigent defense system should provide hope that positive change is possible.

In examining how to improve indigent defense in North Carolina, the subcommittee on indigent defense began with an examination of a basic issue: what are the characteristics of an effective indigent defense system? As noted in the report, if the goal of our indigent defense system is “to ensure fair proceedings by providing effective representation in a cost-effective manner,” what characteristics should the system have? The short answer is that the system must provide meaningful access to counsel for those eligible for court-appointed representation.

Providing meaningful access to counsel is far simpler to say than to do. The subcommittee recognized that access to counsel should be provided not only in cases in which the representation is constitutionally required, but also in other cases in which the defendant faces serious consequences.

North Carolina’s lawmakers, however, have long recognized that there are good reasons to provide indigent defense services in additional case types above the constitutional floor, such as promoting efficient case management and ensuring fairness and confidence in the court system. In addition to constitutionally required services, an effective indigent defense program provides services in proceedings arising from or connected with a criminal action in which the defendant may be deprived of liberty or otherwise subjected to serious deprivations or resulting in significant collateral consequences.

Clients seeking appointed counsel should be screened for indigency based on clear and easily implemented uniform standards, something that is not really done in North Carolina. Although District Court judges, who do most the eligibility determinations and must make their decisions quickly, often are well versed in the cost of retaining a member of the local bar to handle a matter, the sub-committee recommended that IDS create written standards to guide judges in the determination of indigency. IDS will begin work on this project, recognizing that crafting standards that identify those who cannot afford counsel without undue hardship is difficult. Many jurisdictions have turned to federal poverty guidelines as a default measure of indigency, but those guidelines were developed based on assumptions about the percent of a person’s income that is required to pay for food, and not with an eye toward assessing the ability to hire a lawyer to handle a criminal case. As IDS moves forward on this issue, we will consult with the judges who make the determination, and with members of the bar who work with these clients, to try to develop a meaningful set of guidelines that will assist judges in exercising their informed judgment in determining eligibility for appointed counsel. The report does not recommend investment in a system that verifies the information provided by defendants, as many studies – and prior experience in North Carolina – show that any savings from the system detecting unqualified defendants are more than offset by the cost of the verification process.

The appointment process must provide counsel in a timely manner. While many defendants appear before a district court judge by the day after they have been arrested, and are able to request counsel, North Carolina law does not always require timely appearance before a district court judge. As recognized by the sub-committee, defendants charged with a misdemeanor are not entitled to a first appearance, and in some counties may remain in pre-trial detention without a lawyer for some period of time. Even short periods of pre-trial detention can be damaging to defendants, who may lose a job or housing. The report recommends that the law be amended to require a first appearance for all detained defendants, and that the appearance occur with 48 hours or the next day that court is open.

Identifying clients in need of counsel, who cannot afford counsel, and doing so in a timely manner only works if the counsel who are appointed are able to provide effective representation. The discussion and recommendations contained in the report on this issue will be covered in a future blog post.