S.C. indigent defenders have dropped the ball
By continuing to disburse the limited funds to public defender offices and by announcing that no payments will be made to the Rule 608 appointed attorneys, the SCCID has conveniently laid the burden of demanding funding from the legislature on the shoulders of the private bar. The Commission has not said if or when they will resume payments to appointed attorneys, only that there is no funding, they will review the policy after 90 days, and that payments would be made if funds are available in the future.
The issue here is not that private appointed attorneys will lose money on these cases. The issue is the effect that the attorney's loss will have on his appointed clients. The problem is that, if indigent defense is not funded, then indigent clients will not receive effective assistance of counsel. Unlike public defenders, prosecutors, or judges, private attorneys have businesses to run, bills to pay, and mouths to feed. Time spent on appointed cases is time that is not spent on paying cases, and when attorneys have to make a choice between working on an appointed client's case for free, or taking on a paying case that will pay the rent and the light bill, who is going to lose?
By forcing any attorney to work without any compensation on an appointed case, an unavoidable conflict of interest is created which will result in ineffective assistance of counsel. The private bar, I hope, will fight for relief for the indigent clients that have been foisted on them. But the responsibility lies with our state's indigent defenders, who are failing miserably.
Why stop payment of Rule 608 vouchers, rather than say to the legislature, look - you have to fund indigent defense, if you don't you will not only not have appointed attorneys but you will not have public defenders? The Commission should have continued to disburse funds where they are needed, until the funds are gone, at which point the legislature will have no choice but to take action. These are not discretionary funds that can be done away with when times are tough economically. The criminal justice system cannot operate without funding for indigent defense. By putting the burden on the private bar's shoulders, you are avoiding the showdown that needs to happen to make this point to the legislature and the public.
I can only assume that our public defenders and members of the Commission are not taking on this fight because they are daunted by the politics involved. The (justified) fear is that, if I am a rank and file public defender and I refuse to take on new cases, I will be fired. If I am a circuit defender and I refuse to take on cases, I will also lose my job. Anyone who dares to speak out about the necessity of satisfying the Sixth Amendment and Gideon and providing effective counsel to indigents will suffer political fallout. But - this is a fight that the people charged with the responsibility of indigent defense should be taking on vigorously, politics or no.
We should be demanding not only payment for the private appointed attorneys, but public defenders should be refusing unethical case loads that prevent them from properly investigating and testing their cases. If you feel that you don't have time to meet with your client outside the presence of the solicitor or to contact potential witnesses in your case; if you are forcing clients to plead guilty because you know that you do not have time to prepare your case for trial, your case load is too high.
Public defenders should be insisting on sufficient office staff to provide an effective defense for indigents, and should be in a position to encourage their staff attorneys to take cases to trial, and train them as to how. If we are going to prosecute more and more people under an ever increasing number of criminal statutes with ever increasing penalties, we have to fund indigent defense accordingly - and we have to stop making excuses and stop settling for what passes for effective assistance of counsel in this state.
Related posts:
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?
