In Depth Look at the Law: Florida's System of Insuring Legal Representation for the Indigent Must Be Changed

In our new series, we'll be looking at Florida's indigent defense system, particularly as it applies to cases where capital punishment is being sought. How are attorneys chosen and compensated for representing the criminal defendant who is without funds to pay for his own defense, especially those facing the death penalty? How is Florida's current indigent defense system critically flawed?

The Florida Legislature Provides for Compensation of Attorneys Who Represent Poor (Indigent) Criminal Defendants in State Matters

First, let's review the action of the Florida Legislature in the past few years. Before the current system was put in place, Florida provided for indigent criminal defense through Chapter 27 of the Florida Statutes. There, a collection of private criminal defense attorneys offered themselves for appointment by the courts in the defense of impoverished defendants in criminal cases under Judicial Administrative Commission (JAC) contracts. The attorneys worked on behalf of their clients, who were entitled to representation by an attorney under the law. In return, these attorneys were compensated by the government.

The 2007 Changes by the Florida Legislature Made Appointments Financially Not Viable for Most Criminal Defense Attorneys

The Chapter 27 system was changed, however. Under the new statutes, Chapter 2007-62, Florida indigent criminal defense effectively discouraged attorneys from placing their names on the list for court appointments and JAC contracts. This occurred in several ways:

1. It set up a lower flat fee system, cutting the rates that had been established under the prior statute and ignoring how costly in time and money some of the criminal defense cases - even routine ones - can become for the defense lawyer.

2. In complex cases, it continued to allow an avenue for attorneys to apply for the right to bill real time at an hourly rate, but it did so in such a way that was complicated, time-intensive, and quite frankly, frustrating in its bureaucracy. (The attorney had to go through many more procedural hoops to get a case approved as "extraordinary and unusual," under what has become known as the "Makemson standard." Makemson v. Martin County, 491 So.2 1109 (Fla. 1986). )

3. It ended periodic billing. Under the old system, appointed attorneys could present invoices for payment by the government periodically (every six months) in those "extraordinary and unusual" cases, as the case went along (and sometimes, criminal cases can go on for years). The new system under 27.5304(3), Florida Statutes (2007), makes the appointed attorney wait until the end of the case before being paid anything - and before he can be sure that the case will indeed be approved as "extraordinary and unusual." Easy to see how an attorney might be wary at undertaking a complicated criminal defense matter when she could expect to invest time and money for years, only to end up being paid a low, flat rate and having to write off a significant amount of money from the books.

With this one alteration by the Florida Legislature (27.5304(3)), many excellent criminal defense attorneys were forced to take their names out of consideration for criminal appointments because they simply could not afford to essentially work for nothing on huge, time-consuming cases for months, and years, at a time. To do so would put them out of business.

As a result, judges had indigent criminal defendants in their courtrooms, and no criminal defense attorneys available to take the judicial appointment to represent the defendant. The defendant has a constitution right to counsel, and the judge had been placed in an untenable position by 27.5304(3), just as the criminal defense bar had been. What to do?

Next week, in part two of the series:
Involuntary appointments begin after criminal defense attorneys are forced to stop voluntarily taking on indigent defense cases, without consideration of the lawyer's budgetary needs (to pay salaries, expenses, etc.).

 
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