Federal and state constitutions afford destitute Hoosiers accused of crimes the right to public defense. Photo by Whitney Downard for Indiana Capital Chronicle.

By Leslie Bonilla Muñiz
Indiana Capital Chronicle

INDIANA — 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.

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.

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.

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, a Democrat, has gone years without any takers. The state’s attorney shortage hurts.

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.”

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

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.

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.

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

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.

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.

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.