Justice on the Cheap
It's right after lunch in Greene County, Georgia, about an hour east of Atlanta, and the old courtroom, with its still ceiling fans and creaky floors, is full to bursting. More than 100 people, mostly African-Americans, have packed the dark wooden benches, and the corridor outside is overflowing with those who didn't land a seat. Judge Hulane George calls for a woman who has been knocking at her chambers to complain about her lawyer.
Tasha McDonald, 30, freely admits her crime--a credit-card fraud of $1,895.35--but refuses to plead, she says, until she gets a lawyer she can talk to for more than two minutes. But even two minutes is hard to get from Robert Surrency, the attorney who has been handed her case. Surrency meets his clients, almost always for the first time, on the courthouse stairs or in the hallway with a dozen others surrounding him like frustrated fans outside a stage door. "Everybody back up. Back up," he says. "I'll talk to you all individually before you go to the judge." Representation means checking a list of plea offers from the district attorney and appearing before the judge, who clinches the deal by ticking off some rights.
"You have a right to a lawyer--not the lawyer of your choice," the judge says primly to Tasha McDonald, ordering the case revisited in another three months. Outside the courtroom, McDonald, in a neat white blouse and a black leather blazer, puts her face in her hands and begins to sob inconsolably. "They don't even know me," she says.
Tasha McDonald's problem is a common one. It's no secret that public defender services are desperately underfunded, especially in poor Southern states. But thanks to a growing breed of "contract attorneys" who win the right to represent all of a county's defendants by offering the least costly bid, the minimum standard for legal assistance has sunk to new lows. As if on a conveyor belt, defendants are uniformly processed to plead guilty. The lawyers representing them often don't know their names, let alone any facts that would affect the outcome of their cases. Frequently, Surrency is not even in court when his clients plead. Another lawyer who knows even less stands in. In a country where little is expected of attorneys for the poor--where it is a matter of debate as to whether a lawyer who falls asleep during his client's death-penalty trial provides effective assistance--contract lawyers are a cheap way for counties to acknowledge their obligation under the Constitution. In reality, their work renders the equal protection clause and the Sixth Amendment right to counsel virtually meaningless.
Contract defenders were born more than a decade after the Supreme Court's landmark 1963 ruling in Gideon v. Wainwright, which declared that poor defendants are entitled to lawyers but left it up to the states to decide how they would be provided. At first, states used one of two systems. Some places, like Washington, DC, and Kentucky, established highly esteemed public defender systems staffed by investigators, social workers, secretaries and veteran lawyers capable of training new ones. But many states, like Georgia, Alabama, Mississippi, Texas and New York, never developed statewide indigent defense systems with the structure, resources and independence to do the job. Most used court-appointed counsel, a system with its own set of problems. At best, judges are able to choose from a list of lawyers with expertise in criminal defense. But often, inexperienced lawyers sign up. Since rates are low, they tend to accept more cases than they can handle.
Beginning in the late 1970s, Congress and state legislatures criminalized more behavior and increased sanctions for crimes, creating mandatory minimum sentences and life imprisonment without parole. They also extended the death penalty to more crimes and provided for the prosecution of children as adults. As the number of indigent defendants soared, so did costs to the counties, since most used court-appointed lawyers paid by the case or by the hour. Local governments, looking for a way to cap expenses, began to replace court-appointed lawyer systems with contract systems. They held auctions where lawyers or firms could offer to do all the work for a period of years--no matter how many cases or how difficult, including death penalty cases--for the lowest lump sum. "It's part of the privatization movement," says Scott Wallace, director of defender legal services at the National Legal Aid & Defender Association in Washington, DC. "Counties like the concept of flat fees. It's a way of controlling costs."
Nobody knows exactly how many counties employ contract defenders, but 21 percent of the nation's 100 largest counties use them, according to a 1999 report by the Bureau of Justice Statistics. Last December Texas Appleseed, a nonpartisan group that works on issues of legal representation for poor people and minorities, reported "a slow but sure movement" to replace assigned counsel systems with contract lawyer systems. The largest increases in the past ten years have occurred in rural states like South Dakota, North Dakota, Oklahoma, Nebraska, Idaho and Georgia, according to Robert Spangenberg, president of the Spangenberg Group, an indigent-defense consulting firm in West Newton, Massachusetts. A few major metropolitan areas have instituted contract systems, Spangenberg explains, but most look to factors other than cost, such as experience, in awarding contracts, and put a cap on the number of cases an agency can perform without obtaining additional funds--as in New York City. "[New York's] is one of the best ones," Spangenberg says of the contract system Mayor Rudolph Giuliani created in 1995, which shoulders 18 percent of the city's caseload. (The Legal Aid Society of New York carries an additional 50 percent, while the rest must endure court-appointed lawyers paid at the second-lowest rate in the country.)
In Greene County, Surrency's winning bid was $40,000 to represent as many poor people as the sheriff can charge (others bid between $60,000 and $70,000), making the county pay out in 1999 an average of $75.38 per case in a state that spent $242.34 per case on average. From 1997 to 1999, Surrency served as a lawyer in 1,455 cases, nearly twice as many per year as the American Bar Association recommends. In the past four years, only thirteen of his clients refused to take the state's plea offer and go to trial.