So you’ve been arrested.
And worse, you could be facing jail time.
As the officer arresting you should have said, you have a right to an attorney, and if you don’t have the money to hire one on your own, one will be provided for you.
But in
“Once the case is resolved, (the attorney will) submit a fee to the clerk’s office, and we check it out to see if the defendant is ordered to pay,” said Patricia Pierce of the Lenoir County Clerk’s Office. “If they’re ordered to pay, get on probation, we do a civil judgment and they pay that way as a complaint against them.”
Under the Sixth Amendment to the U.S. Constitution, the accused has a right to counsel. Initially only applicable in federal cases, the U.S. Supreme Court extended that right to state capital crimes in the matter of the Scottsboro Boys trial in Alabama in 1932. By 1963, the court ruled in Gideon v. Wainwright that right to counsel is essential to a fair trial and due process, and should extend to most state criminal cases.
What the court ruling, and the Constitution, do not guarantee is the right to free counsel. As a result, states handle the matter differently. In
In Lenoir County, if you ask for a court-appointed attorney and granted one, you’re given a name and business card of what IDS calls private assigned counsel — a local attorney in private practice who agrees to accept indigent defense cases.
Lawyers in the program are assigned to defendants on a revolving basis, so neither counsel nor the accused is treated differently than any other.
And you’re probably going to need a court-appointed attorney.
In its report to the N.C. General Assembly on March 1, the IDS commission reported its share of the overall state caseload rose from 34.3 percent in 2002 to a high of 54.4 percent in 2011. The amount dropped to 51.1 percent in 2012, but acutely stresses a program the commission called underfunded and under-staffed. From fiscal year 2001-2002 to fiscal year 2011-2012, criminal, non-traffic cases in state courts dropped 4.7 percent, but indigent cases ballooned 42 percent.
Mark Herring, an attorney at White & Allen, participates in the private assigned counsel program.
“For me, I feel it’s the right thing to do,” Herring said. “I’ve practiced going on 13 years now. I started out as a prosecutor, and I’ve always done a lot of criminal work. I enjoy helping people, and I think it helps the court system. I just think it’s the right thing to do. But, definitely, it’s a significant reduction in pay if you compare it to a retained client. That’s the case in every state and with the federal government.”
Hence, the attorney you’re assigned is a public servant by definition. IDS estimates in DWI cases, retained counsel may collect $1,000 to $3,000. PAC, as IDS acronymed private assigned counsel, can only bill the state for the rate set by law. For district court cases, that’s $55 an hour. For superior court cases, it’s $60 an hour, and $70 an hour for when the defendant is accused of a Class A-D felony.
Removing the necessary business costs associated with putting on a defense, that’s not a lot of take-home pay for the attorney. And, the General Assembly cut those rates two years ago, leading to some attorneys leaving the program entirely.
“The May 2011 rate reductions were the deepest for the vast majority of cases in district court, where the rate was reduced by almost 27 percent to $55 per hour, which is less than the hourly overhead of many small law firms in
If you’re fortunate enough to have your case dismissed or be judged not guilty, you don’t have to pay the attorney’s fees. But, chances are if convicted or plead guilty, paying back the state for services rendered won’t be an easy matter.
“I think the whole nature of the appointed system, for someone to be in a position to have appointed counsel available to them probably mean’s they’re in a position they can’t pay it back,” Herring said. “I think requiring defendants to pay it back is setting many of them up for failure, because they just can’t do it.”
Non-payment of court costs can result in a probation violation, resulting in the defendant serving an active prison sentence. Under state law, if the convict made a good-faith attempt to pay, the court can take the individual’s circumstances into account, and give them more time, reduce the fees or revoke them altogether.
Each ruling is on a case-by-case basis.
Going forward, the situation’s unlikely to change. The IDS commission asked the General Assembly for one-time funding of $7.5 million to eradicate its debt and an additional, recurring $2.5 million to fund the PAC program at a level the agency deems appropriate.
“Budget priorities on both the federal and state levels make it unlikely that any imminent influx of new resources will be available for public defense, although in some places they are desperately needed,” the American Bar Association said in a report on indigent defense reform in 2012.
Gov. Pat McCrory’s budget appropriated $5 million exclusively to relieve the debt, but enhanced funding for private attorneys is unlikely.
Wes Wolfe can be reached at 252-559-1075 or wes.wolfe@kinston.com. Follow him on Twitter @WolfeReports.
Breakout Box
Percent of state criminal, non-traffic cases handled by indigent defense services
- FY 2002: 34.3 percent
- FY 2004: 37.8 percent
- FY 2006: 41.8 percent
- FY 2008: 44.9 percent
- FY 2012: 51.1 percent