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County spends more on lawyers

Heroin a factor as Champaign caseload and costs nearly double in decade.Bill would change how state pays for attorneys for poor.

Champaign County is spending nearly twice as much to provide legal defense for its poor in the last decade, consuming more of the county’s budget.

Local officials and attorneys attributed the increase to several factors, including increased heroin use that’s driving up the number of felony criminal cases, an increase in fees paid to local attorneys who handle indigent defense and a bad economy.

The county paid about $173,000 to provide indigent defense to residents in 2003, but that rose about 94 percent, to $336,000, last year. Champaign County’s total caseload increased as well, from 676 cases in 2008 to 1,184 cases in 2012, according to information from the Ohio Public Defender’s Office. By comparison, caseloads in Clark, Logan and Madison counties have fluctuated during that same time.

A decades-old debate has resumed statewide about how best to provide indigent defense and who should be responsible for those costs. Legislation proposed in Ohio Senate Bill 139 this month would shift the cost of indigent defense from the counties to the state over five years and allow the Ohio Public Defender’s Office to provide oversight of counties statewide.

Under the current system, counties pay for indigent defense, then get partial state reimbursement. The state reimbursement has varied over the last decade, from as little as 27 percent in 2008 to as much as 35 percent over the last several years.

“When you have 88 counties, each choosing their own budget, each choosing their own delivery system, each administering it in a different way, each setting their own rate system, you get a huge variation in cost, quality and efficiency. And you have very little transparency” said Tim Young, Ohio’s Public Defender who helped work with several other state organizations to develop the proposal.

However, some local officials were skeptical that more state control would be beneficial in Champaign County.

The issue of how best to provide legal defense to those who can’t afford it is more important than just funding, said Nick Selvaggio, Champaign County Common Pleas Court judge. Providing quality defense is important to make sure justice is applied fairly for those who cannot afford legal assistance on their own.

“The last thing anyone wants to see is a case reversed on appeal,” Selvaggio said. “Nor do we want to see a miscarriage of justice.”

Heroin, other factors lead to rising costs

The constitution requires states to provide legal defense for residents who cannot afford their own attorney in criminal cases in which jail or prison are a possibility. In Ohio, each county can select its own method of delivering indigent defense, from contracting with the state, setting up its own public defender’s office or contracting with a non-profit, among other options.

Clark County, which has more people and a higher caseload than Champaign County, has its own public defender’s office that provides legal assistance to indigent clients. Clark County also occasionally hires private attorneys to handle cases in which there might be a conflict of interest, said Nathan Kennedy, county administrator. In smaller counties like Champaign, Madison and Logan, judges appoint private attorneys who are paid by the county.

In Champaign County, a rise in heroin use has led to an increasing caseload for criminal felony complaints, said Selvaggio, a former Champaign County prosecutor and now judge. Heroin leads not just to charges of drug possession and use, but also theft, burglary and other felony counts as residents commit crimes to help fuel their addiction. Heroin is cheap, and the withdrawal symptoms are more severe than other drugs such as cocaine, Selvaggio said.

Janice Rhoades is director of clinical services at Consolidated Care Inc., which provides outpatient mental health and substance abuse services to residents in Champaign and Logan counties. “It’s not a life-threatening withdrawal like alcohol could be. This just makes people so sick within a relatively quick period of time. If someone doesn’t use for a few hours, they’re already starting to get sick.”

Local officials also pointed to a resolution approved in 2007 by Champaign County commissioners to increase public defender fees. Prior to 2007, the county paid $35 per hour for out-of-court work and $50 per hour for in-court fees. The resolution raised those fees to $50 per hour for out-of-court costs and $60 per hour in court. Selvaggio said that change was made because it had not been increased for more than a decade and to make sure the county’s rates were fair compared to other counties.

Other attorneys pointed to the economy for the rising caseload, noting that as more residents lost work during the recession, fewer residents were able to afford their own attorney.

Todd Brecount, an attorney who has handled indigent defense cases since about 2000, said it’s hard to point a finger at a single reason.

“I think there may be more prosecutions of drugs like heroin, but I also think the economic factor is there as more people are qualifying for public defenders or in this case court-appointed counsel,” Brecount said.

Changes in the court system itself also may have contributed to the county’s caseload rising, said Champaign County Municipal Court Judge Susan Fornof-Lippencott. Around 2008, the county created a family court and added a judge’s position to help manage a rising caseload in the juvenile, probate and domestic divisions in Champaign County Common Pleas Court. The number of indigent cases likely rose as the backlog of cases wound their way through the court, Fornof-Lippencott said.

Gil Weithman, Champaign County Municipal Court prosecutor, also pointed out that while the overall caseload has risen countywide, the cost per case has fallen over the past three years, indicating the court is more efficient with the cases it has.

While the figures from the Ohio Public Defender’s Office are likely accurate, they do not necessarily tell the whole story, Fornof-Lippencott said.

“You’ve got an additional court, increased fees. Those don’t show any of that,” Fornof-Lippencott said of the state’s figures.

A decades-old debate

Indigent defense caseloads statewide have slowly risen for two decades, said Tim Young, Ohio Public Defender. There are likely plenty of legitimate reasons for the spike in cases in Champaign County, but statewide, there is little oversight of how the system is provided, he said.

This year is the 50th anniversary of Gideon v. Wainwright, a landmark case in which the U.S. Supreme Court ruled states must provide attorneys to those charged with serious offenses who cannot afford it themselves. Decades ago, Ohio devised a system in which the state and counties split the cost of providing indigent defense, with each side picking up 50 percent. But John Leutz, a policy analyst for the County Commissioners Association of Ohio, said the state has never kept up its end of the bargain, meaning counties have been responsible for paying as much as 70 percent of the cost in some years.

Currently, each county determines what system works best to provide indigent defense, sets its own fees and pays the majority of the cost. But Young argued that system has led to a wide variation in both the cost and quality of the defense being provided to those who can’t afford their own attorney. That Ohio’s 88 counties each provide the service in a slightly different way is confusing enough, Young said, but within each county there are numerous courts operating independently.

“So you actually have far more than 88 systems and even less transparency,” Young said. “With that you get different justice, and justice shouldn’t differ. It should be the same.”

Ohio Senate Bill 139, which could be discussed in the state legislature this fall, would shift financial responsibility from the counties to the state over five years. Both entities would pay 50 percent initially, with the state picking up an additional 10 percent each year. Each county would be allowed to keep the system it currently has in place, with the Ohio Public Defender’s Office providing oversight. Little would change for the majority of counties, Young said, and it may mean more resources for small, rural counties. For example, the state might be able to provide investigators and other personnel who could serve several counties from a regional office. The state, however, would have the authority to make changes in counties it determines are not providing the service efficiently or effectively.

While it might benefit counties if the state picked up more of the cost, some local officials said giving more control to the state has its drawbacks. In order to have a say, that usually means putting some money on the table, said Steve Hess, Champaign County commissioner.

“That’s a double-edged sword,” Hess said. “On the one hand you do have the cost being picked up by the state, but on the other hand you lose a lot of authority of decision making on the local level.”

The state might be violating the Constitution under the current system because the quality of service varies so much statewide, Leutz said.

Young said local attorneys would still handle the cases assigned in each county, but as the number of indigent defense cases increases statewide, he argued there needs to be more oversight.

“Your greatest harm is innocence being missed. But even a variation of that is going to jail for too long,” Young said.

Local or state control

Much of the debate over cost likely could have been avoided if the state had maintained its obligation to the counties in recent years, said Clark County’s Kennedy. Clark County spends about $1 million annually to provide indigent defense to residents and has its own public defender’s office the handle the majority of local cases.

Mark Schweikert, director of the Ohio Judicial conference, described the debate as a civics lesson about what level of government should provide what service. Part of the confusion, he said, is that while county commissioners pay much of the cost, officials in the court system have different responsibilities in making sure justice is applied fairly and that defendants have adequate representation in court.

“So you’ve got these different interests, all of them valid, pulling in different directions,” Schweikert said. “I think the state public defender wants to do the right thing by providing the proper indigent defense in a uniform way throughout the state. I think we need to talk about how that’s going to work and whether it’s the best way to do it.”

One of the challenges for counties, Hess said, is the state has not paid its share of the costs over the years, and while county and court officials want to maintain some local control, it will likely continue to come at a cost.

“Usually oversight and authority and decision making means money,” Hess said. “It’s tied to the purse strings.”

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