Indiana to pilot return to misdemeanor defense reimbursement

Federal and state constitutions afford destitute Hoosiers accused of crimes the right to public defense. (Whitney Downard/Indiana Capital Chronicle)

A regional public defense office’s three part-time lawyers — and ad hoc help — stand between Fountain County and a constitutional violation: of the impoverished Hoosier’s right to a defense attorney.

The county’s misdemeanor cases “have gone through the roof” following neighbor Illinois’ legalization of marijuana, says Circuit Court Judge Stephanie Campbell.

“We just get inundated and then we get to the point where we’re out of attorneys,” said Campbell, a Republican. Officials pull help from elsewhere.

Fountain County, like the other 66 members of Indiana’s Public Defender Commission, receives partial state reimbursement for public defense on felony and child abuse cases. That’s in exchange for following standards on caseloads, pay, independence and more.

But the increasing cost of defense for misdemeanor cases is each county’s own problem. Indiana hasn’t reimbursed for those services in nearly three decades.

That’s about to change.

Legislators during the most recent session authorized a pilot for up to a dozen counties. The counties would comply with commission requirements and send in data; in return, they’d get back up to 40% of their spending on misdemeanor defense.

For the commission and supportive counties, the pilot is potentially a step toward statewide reimbursement and a healthier public defense system.

Some lawmakers, however, have been openly critical of the pilot as a slippery slope into a pricey long-term budget commitment.

“It’s always been the commission’s (goal) to get that misdemeanor funding authority back. We’re already convinced it’s important,” said Andrew Cullen, the commission’s public policy director. “But the Legislature asked us to show them — in bottom line dollars and cents, and clear data — why it’s important.”

Counties struggle

The U.S. and Indiana constitutions afford destitute Hoosiers accused of crimes the right to public defense.

While some states run central public defender agencies with regional offices, Indiana uses a county-based system. Only those that opt in to the commission must follow its quality requirements — to an extent.

“Our authority to convince counties not to overload their attorneys with cases, to underpay their attorneys, or to have unqualified attorneys stems wholly from our ability to reimburse,” Cullen said. “… However, since we cannot reimburse for misdemeanor cases, we have no authority over any of those attorneys.”

The commission as created in 1989 had the power to reimburse for all case types. Lawmakers removed misdemeanor authority in 1997, in a decision Cullen contends was a temporary cost-saving measure. But it’s persisted.

The commission recommends that defense attorneys without support staff max out at 300 misdemeanor cases annually, and at 400 for those with such support.

The average non-compliant attorney shoulders 557 misdemeanor cases per year, according to the commission’s most recent annual report, although Cullen said some are taking as many as 900 annually.

“That’s a high example. But if you’ve got nine hundred files on your desk … your clients are not receiving the proper representation,” he said.

Kendal Gulbrandsen

Marion County Misdemeanor Supervisor Kendal Gulbrandsen’s division is funded for 26 attorneys but is down to just 15 until the next wave of mostly law school graduates start working in May.

The division handles approximately 4,500 cases annually. When fully staffed, Gulbrandsen estimates his team approaches commission caseload guidelines but falls short on support staff.

Attorneys, according to Gulbrandsen, typically work 50-hour weeks, always on the go: in court, calling clients, visiting clients, negotiating pleas and so on.

For graduates in their first full-time jobs, “we really are throwing them very much in the deep end,” he said. Turnover, particularly after two to three years, is high.

Still, the county’s Public Defender Agency — an independent agency servicing the state’s busiest courts — is better off than most.

“We are in the unique and lucky position in that we can kind of survive without (misdemeanor) reimbursement,” said Gulbrandsen, who posited that small counties could stand to reap significant benefits.

Those outside the commission system also struggle.

Dubois County doesn’t have a dedicated public defender office. Instead, it uses contracts — except that Circuit Court Judge Nathan Verkamp has gone years without any takers. The state’s attorney shortage hurts.

Joel Schumm

He’s cobbled together a list of seven or eight attorneys willing to take cases on a rotating basis, but said, “We’re one or two attorneys away from not being able to cover.”

“The state needs to get serious about public defense. It’s the one thing that’s in the Constitution: a person has a constitutional right to be represented by an attorney,” said Verkamp, a Democrat, who outlined a state-led system as ideal.

Proponents of reimbursement for misdemeanor defense say asset inequalities between counties can lead to “justice by geography.”

“For people who value local control, they would say, ‘We know our county the best; we’re best equipped to do this,'” said Joel Schumm, a professor at Indiana University’s McKinney School of Law. “But if the funding is inadequate because it’s coming from the county, … if there’s not training, if there’s not supervision, it’s not an ideal situation.”

Balancing critiques in pilot construction

Senate Enrolled Act 179 establishes a four-year pilot program of up to 12 counties, selected according to “population and geographic diversity.”

Cullen said the commission hadn’t yet chosen criteria, but would generally choose some larger and smaller counties, along with counties nearly in compliance and some far from it.

The commission also wants counties that can deliver high-quality data so that it can put together statistically reliable results.

Counties must report data on:

• Attorney appointment rates

• Jail populations

• Trial rates

• Case outcomes

The commission must collect the above, plus reimbursement requests and actual amounts, in a 2029 report to lawmakers.

“We want (the pilot) to stand up to any scrutiny that it may receive, because we’re well aware that some legislators see a pilot as just the beginning of an ongoing spending process,” Cullen said. “And if we do ask for that at the end of the pilot, we want to make sure that we are justified in what we’re asking for. … It’s all about data for us right now.”

Several lawmakers were openly critical of that prospect.

“We’re starting down a path that’s going to look for full funding of public defenders with state dollars,” Sen. Travis Holdman, R-Markle, said during a January Appropriations Committee meeting, at the beginning of the legislative process. “We just need to be cautious to be able to say ‘no’ someday.”

Such concerns hadn’t waned by the end, despite myriad tweaks.

“We are incapable of taking something away. We are incapable of holding somebody accountable,” Sen. Aaron Freeman, R-Indianapolis, told the Senate in March, as the chamber voted to approve a compromise final draft of the legislation.

“If you think that pilot is a pilot, friends — again — in Arizona, I have beachfront property for you at a great price,” Freeman continued. “You will be back here next year, you will be back here two, three, four, five, six. It will never be enough. It will be more and more.”

Author Sen. Eric Koch, R-Bedford, said he’d worked to build guardrails, like a pilot end date, into the bill.

Sen. Eric Koch, R-Bedford, speaks on the Senate floor Monday, Jan. 22, 2024. (Leslie Bonilla Muñiz/Indiana Capital Chronicle)

In addition, the pilot is expected to pay for itself.

The commission is putting a pandemic-era surplus toward the effort, and the legislation doubles the fees — last raised in the 1990s — paid by some Hoosiers with assigned public defense. The money goes to the Public Defense Fund.

“If they reimburse less than 40%, it’s actually a revenue-positive,” Koch said of the measure.

The legislation also tasks the Office of Judicial Administration with creating a “uniform form” to courts to use in deciding whether an accused qualifies for public defense.

“There appears to be, or at least anecdotally, a wide range of standards used in different places around the state,” Koch said. “And so that was also a concern (f0r) many legislators, you know, about what those standards are, and are there some people getting public defense that perhaps should not be? Or, are those standards too variable?”

Koch, who’s one of four lawmakers serving on the Public Defender Commission, said the costs of public defense are a “growing financial burden” on counties.

“Any way that we can make that system more efficient and more cost effective, I think, is something that helps local government and helps those local judges,” he said.

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