In Indiana, federal and state constitutions entitle all adults or children found to be indigent and facing the possibility of incarceration on misdemeanors or felonies, the right to public counsel. Local governments in Indiana are responsible for providing counsel to indigent people and are permitted to levy taxes on real and personal property, and others, to raise the revenue required to provide counsel. To offset costs, in 1997, the Indiana state government began reimbursing counties 40% of all of their indigent defense costs associated with non-capital felony cases (and excluding all misdemeanor cases) if the county chose to comply with its standards in providing counsel for indigent people. This report assesses Indiana’s compliance with right to counsel requirements, concluding that the state’s indigent representation reimbursement program legitimizes the choice of counties to not fulfill the minimum requirements of effective representation and ultimately results in the denial of counsel for indigent defendants.
You can access the full report here.
Findings:
- Indiana has no mechanism to ensure compliance with constitutional indigent representation requirements in misdemeanor cases, because misdemeanor cases are not reimbursable.
- The state has no mechanism to ensure compliance with constitutional indigent representation requirements in counties that do not participate in the reimbursement program.
- The state has no mechanism to ensure compliance with constitutional indigent representation requirements in a case where a county does not seek reimbursement.
- Where counties participate in the reimbursement program, Indiana only has limited capacity to ensure compliance with constitutional indigent representation requirements due to the state’s failure to properly fund the Indiana Public Defender Commission.
- The state’s constitutional obligation to provide counsel at all critical stages is not consistently met when counties encourage attorneys to deny counsel through the acceptance of uncounseled pleas and inconsistent indigency standards that result in denial of counsel in one county where they would qualify in another.
- The state does not have consistent requirements or training for indigent defense attorneys, and those who do not participate in the reimbursement program do not have to comply.
- Judicial interference, political interference and flat fee contracts create conflicts between the lawyer’s self interest and the defendant right to effective representation.
Recommendations:
- Require all courts in all counties to meet the standards of effective indigent counsel, set forth in United States v. Cronic including presence at all critical stages of a criminal proceeding, indigency determination, attorney performance, qualification and workload.
- Create and mandate that all indigent defense providers undergo training and supervision based on those standards.
- Create an indigent system to evaluate compliance and enforce standards.
- Prohibit contracts that create disincentives for attorneys to provide effective representation.
- Create a statewide appellate defender office.