California Assembly Bill 690 seeks to reform the the criminal justice system in the state by banning flat fees and per case compensation contracts for indigent public defense. Under the current flat fee system, the government may contract with a private for-profit attorney or firm and pay them a lump sum in exchange for their representation of indigent defendants. The practice of contracting for a flat fee has been criticized for various shortcomings.
These problems were highlighted in a very recent report published by the Wren Foundation, the ACLU, and the UC Berkley Criminal Law and Justice Center earlier this March. Per the report, the major problem with the flat fee system is that contracted attorneys do not stand to make additional money for putting more time or investing more money into indigent cases. This, in turn, creates an incentive for contracted attorneys to spend as little time possible on these cases.
This problem is compounded by the fact that most counties that utilize the flat fee system do no require contracted attorneys to focus solely on the indigent cases they are assigned. This means these attorneys can take on private clients who are paying normal rates based on the time that their case is being worked on. This provides further incentive for attorneys to spend less time on indigent defense, and prioritize those clients from which they stand to gain the most financially. Add the fact that most contracted attorneys have to pay out of pocket for investigative services in the indigent cases they handle and the fact that contracted attorneys are subject to very little, if any, oversight and you have recipe for some very questionable representation.
The incentives created by the flat fee system undercut the right to zealous and competent representation, which the report backs up with some rather alarming statistical findings. For example, eight of the ten counties with the highest incarceration rates, including all of the top five, currently utilize a flat fee system. Additionally, only four counties required some sort of attorney supervision while only seven required independent county oversight. It is abundantly clear that something needs to be changed, and AB 690 is the solution be offered.
However, some organizations, like the California District Attorney Association, have opposed AB 690. They argue that it threatens to create a two-tiered criminal justice system that will disadvantage public defenders and district attorneys. This view is likely based on the fact that the new system, which would require contracted indigent defense attorneys to be paid in a way that truly accounts for the caseload and resources they need to adequately represent their clients, would be more expensive. This would, presumably, draw funding away from both prosecutorial and defense institutions in places where there is a mixed system. This seems to ring true when one considers the caseload contracted attorneys and public defenders currently have. (More on case caps and other criminal justice reform and its impact on rural areas here.)
This is further complicated by the fact that the 25 counties that do not have institutional public defense services in California are virtually all rural. (More on the issues the rural counties in California are facing with regards to lawyer shortages here.) Rural areas already struggle with with attracting attorneys to provide legal services. (More on legal deserts here.) Additionally, because rural counties have less population, they inherently have smaller tax bases. If AB 690 passes, it means a larger portion of budgets will need to be allocated to providing indigent defense while other aspects of the budget will have to be cut back.
To be sure, the findings of the Wren Foundation are alarming and indigent defendants should be afforded adequate representation. However, it appears that the new law is aiming to address the current problem with a solution that doesn't have adequate infrastructure to support it, especially when considering how it will likely disproportionately impact rural counties. This affords another opportunity to step back and consider whether these issues are being addressed with the unique issues rural places face in mind. Just because you can dictate a solution on paper does not mean its workable or affordable for the impacted communities in practice.