CalMatters does deep dive into flat-fee contracts for indigent defense

Anat Rubin reports today for CalMatters, the non-profit news service, under the headline, "The Walmart of Public Defense:  How Justice Gets Sold to the Lowest Bidder in Rural California."  Here's an excerpt: 

For three years, the fate of poor people accused of crimes in San Benito County lay in the hands of attorneys who barely spoke with their clients and seldom filed legal motions on their behalf.

While defendants asked them to contest the prosecution’s evidence, to interview witnesses, to do anything, really, to challenge law enforcement’s narrative of the crime, they ushered almost all of them to plea deals instead, averaging just one jury trial for every 1,500 cases.

The attorneys worked for Fitzgerald, Alvarez and Ciummo, the firm that San Benito paid to provide public defense. According to a 2024 state evaluation, they were not doing a good job. Two of the attorneys had inappropriate relationships with clients, another struggled with addiction.

The situation had deteriorated so dramatically that the San Benito district attorney, Joel Buckingham, found himself worrying about the people his office was trying to send to prison. Their attorneys didn’t contest the evidence Buckingham’s prosecutors presented, no matter how it was obtained. Each year, they filed an average of just 10 motions to suppress evidence based on violations of constitutional rights — including unjustified stops and searches, illegal interrogations, and arrests without probable cause.

“Police officers must make mistakes sometimes,” Buckingham told a researcher conducting the evaluation.

The sheriff, Eric Taylor, was also alarmed. If his deputies were never challenged in court, how would they know when they had crossed a line? What would stop them from doing it again?

In Taylor’s previous job, in Santa Cruz County, the courthouse was often packed with law enforcement officers who had been called to defend their actions.

“If we’re doing our job correctly, then we prevail on those motions,” he told San Benito county supervisors last year. “And if we’ve made a mistake, and we’re doing our job incorrectly, we’re held accountable for that.”

Nearly half of California counties pay private lawyers and firms to represent poor people in criminal cases, and most of them, like San Benito, do it through what’s known as a “flat-fee” contract, meaning they pay a fixed amount, regardless of how many cases the attorneys handle or how much time they spend on each case.

It’s a far cheaper alternative — at least in the short run — to operating a public defender office with government lawyers, and it’s created a second-tier justice system in rural stretches of the state: Seven of the eight counties with the state’s highest jail and prison incarceration rates have flat-fee contracts.

You can read the rest of this deeply reported story here.  Read my own scholarship about rural indigent defense delivery here (Yale Law Journal Forum, about how these issues play out in Washington State) and here (Arizona Law Review, about Arizona).