Public Defender Services provides publicly funded legal representation for indigent clients. These are clients who meet certain income guidelines and cannot afford legal representation. There are 15 Public Defender Corporations (PDC's) representing 15 of the 31 circuit courts in the state (see Appendix A). There are approximately 102 public defenders employed by the state in these PDC's. Sixteen circuit courts do not have a PDC (see Appendix A). Since these circuits are without public defenders, private attorneys are assigned to indigent clients. Private attorneys bill Public Defender Services for these cases. Even in circuits that have public defenders, there is still a need to assign private attorneys either because a PDC would have a conflict of interest if it takes a case, or public defenders cannot take on additional cases because of excessive caseloads.
Rising Costs of the Public Defender Program
A major concern in the Public Defender Program is the significant growth of its budget. Since 1984, Public Defenders Services appropriation has increased from $3.8 million to $24.6 million in 1998 (see Figure 1). The average annual growth rate of the budget over this time period is 17.2%. The cost of the program began to rise around fiscal year 1991, which happens to be the year in which the hourly rates paid to private attorneys were increased by a court ruling.
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Funds Often Exhausted Before End of Fiscal Year
As a result of rising costs, it is not uncommon for the agency to require additional funding before the fiscal year ends to avoid exhausting the initial appropriation. Consequently, to avoid exhausting the budget, the agency often has to withhold paying some private attorneys for legal services rendered until additional funding is received. Table 1 provides a history of the agency's initial and supplemental appropriations. Since 1984, there has been eight years in which a supplemental appropriation was needed. The last four have been significant increases, averaging around $4 million or 28% of the initial appropriation.
Initial & Supplemental Appropriations
|Supplemental Appropriation||Total |
Rising Costs Caused by Rising Cases & Higher Rates for Private Attorneys
The Legislative Auditor's Office performed a regression
analysis on actual expenditures of
the Public Defender Services to determine what major factors are responsible for the rise in costs. Table 1 shows the results. The TOTAL CASES variable represents all closed cases for public defenders and all private attorney cases in which the agency made payments. The COURT CASE variable measures the effects of a 1989 Supreme Court ruling that effectively raised the hourly rate at which private attorneys are presently paid. Prior to the ruling, the hourly rate for out-of-court work was $20, and the hourly rate for in-court work was $25. The ruling raised the rates to $45 and $65 respectively, effective at the start of fiscal year 1991. However, the full impact on expenditures did not materialize substantially until FY 1992.
The COURT CASE variable measures the difference between expenditures before and after the court case. The results indicate that on average, expenditures for the 1992-1997 period are $4.1 million higher than the 1984-1991 period. Furthermore, the TOTAL CASES variable indicates that on average, each case adds about $414 to total expenditures. These two variables account for nearly 97% of the variation in total expenditures, suggesting that they are the primary factors in the rise in costs.
Regression Analysis on Public Defender Total Expenditures
1984 - 1997
|R-Squared = 0.968|
*Both variables are significant at the 95% confidence interval.
Caseload Increases Correspond With Rising Appropriation
There has been a significant rise in the number of cases that
Public Defender Services has represented. Figure 2 shows the
growth in the number of cases that public defenders have closed
and cases for which payments have been made to private attorneys.
The pattern of caseload growth follows closely to the growth in
the state appropriation. For example, in 1984 and 1988 caseloads
were at the lowest levels which corresponds with the lowest
appropriation amounts for those same years. Cases dropped in 1995
as did the state appropriation. Furthermore, Figure 2 clearly
shows that cases began to rise significantly around 1989, which is
close to when the state appropriation began to rise.
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Table 3 compares the average annual growth rates for the periods of 1984-97 and 1993-97. From 1984 to 1997 cases grew on average by 9.2% a year, compared to 15.7% in appropriations for the same period. The higher growth rate in appropriations is largely explained by the change to higher private attorney hourly rates in the middle of the period. The period of 1993-97 are years in which the hourly rate for private attorneys was unchanged. In this period, growth in cases and appropriations was considerably closer. Growth in costs is also influenced by changes other than caseload, such as changes in the composition of certain cases that may be more or less expensive to represent, or the number of hours to represent cases may change. In any case, caseload is a major factor in rising costs.
Comparison of Average Annual Growth Rates
Cases vs. Appropriation
|1984-1997 Growth Rates||9.2%||15.7%||6.5|
|1993-1997 Growth Rates||11.6%||14.0%||2.4|
Total Represented Cases (Closed, Paid, and Ongoing Cases)
|FY 1994||FY 1995||FY 1996||FY 1997|
|Paid & Closed Cases||38,802||35,786||40,374||40,662|
|Total Represented Cases||45,091||45,349||52,358||56,713|
West Virginia has the distinction of having the lowest crime rate in the nation. It would seem that a low crime rate would be associated with declining caseloads for Public Defender Services. However, the crime rate index is misleading with respect to Public Defender caseloads for several reasons.
Offenses vs. Arrests
The crime rate, as reported to the Federal Bureau of Investigation through Uniform Crime Reports, is an index that is based on reported "offenses" as opposed to "arrest." The large majority of offenses do not result in an arrest. Public Defender caseloads are impacted by the number of arrests, not reported offenses.
Furthermore, the growth rates between offenses and arrests can be significantly higher or lower between the two categories, as Table 5 indicates. In addition, the crime index represents only "Part I" offenses which are the following seven categories of "serious" offenses: Criminal Homicide; Forcible Rape; Robbery; Felonious Assault; Breaking and Entering; Larceny Theft; and Motor Vehicle Theft. There are "Part II" offenses that are seldom heard about which comprise 20 categories of offenses, such as Minor Assaults; Forgery; Vandalism; Receiving or Possessing Stolen Property; Gambling; Carrying a Weapon; Driving Under the Influence; Disorderly Conduct; etc. For 1995 and 1996, arrests for all crime offenses grew by eight to nine percent, whereas offenses dropped in 1995 and increased slightly in 1996.
It should also be noted that although arrests may decline in
some years, certain types of arrests could be increasing that may
result in a court case. For example, a Part II offense is
Narcotic Drug arrests. These arrests have nearly tripled between
1984 and 1996, going from 1,699 arrests in 1984 to 4,376 in 1996.
Moreover, narcotic drug arrests have increased each year between
1989 and 1996. A steady rise in these types of cases that could
result in a court cases would cause caseloads for Public Defender
Services to rise.
West Virginia Criminal Offenses & Arrests
|Part I |
|Part I & Part
|Source: Crime In West Virginia, Uniform Crime Reporting, West Virginia State Police|
At least 30% of Public Defender cases do not result from arrests, therefore they are unrelated to the crime rate. These types of cases are shown in Table 6. Mental hygiene cases involve issues of competency. Most juvenile cases do not result from arrests. These cases have doubled since 1984. Paternity issues deal with establishing the paternity of a child to determine child support. Parole or probation revocation occurs because of violations to parole or probation. Most abuse cases do not result from arrests. In some cases termination of parental rights may be involved. Cases in the "other" category include appeals, habeas corpus, extradition, and contempt. Habeas corpus cases result after individuals have been convicted of a crime and they challenge the validity of their conviction or sentence. Since 1984, cases that are unrelated to the crime rate have risen by 82%. These cases represented 31% of the total caseload in 1997.
Furthermore, many misdemeanor cases do not result from arrests. In many cases a summons is issued requiring a person to appear in court. When these types of misdemeanor cases are added to those of Table 6, the percentage of cases that have no direct correlation to current crime statistics exceeds 30%.
Public Defender Caseload Unrelated to the Crime Rate
In addition, arrests could involve multiple offenses. West Virginia's crime report currently includes only one offense per incident. If more than one offense occurred in an incident, the offense with the highest penalty is reported, the others are excluded. However, an incident with multiple offenses could result in multiple cases for Public Defender Services. A new crime reporting system is being implemented called the National Incident-Based Reporting System (NIBRS) which is intended to capture more information on each incident, such as the number of victims, the number of offenders and the number of offenses. Only nine states have completely implemented NIBRS. A study on these nine states, and individual state studies suggest that multiple offenses in a single incident is not a large percent of total incidents. For all nine states, only 5% of incidents involved multiple offenses. Although multiple offenses in single incidents may explain some of the lack of correlation between the crime rate and Public Defender caseloads, it is not likely a significant factor.
Under Reporting of Crime Statistics
Finally, crime statistics may be under reported. This is a distinct possibility, however, it is not known to what extent under reporting exists. If crime statistics are under reported, then public defender caseload would be higher than the crime rate suggests, depending on the extent of under reporting.
Causes for the Rise in Public Defender Caseloads
In examining the causes of the high growth in public defender caseloads, the Legislative Auditor found several factors. The most important of these factors are as follows:
Criminalization and Creation of New Misdemeanor Offenses.
Increases in Arrests Correlates with Increases in Public Defender Caseload.
Federal cases not prosecuted at the Federal Level are tried at the State Level.
Cause #1: Growth in Misdemeanor Cases is a Factor
In 1984, Public Defender Services closed 16,998 cases. By
1997, that number has grown to 40,662, for an increase of 23,664
cases. Of these 23,664 cases, 14,915 (or 63%) were misdemeanor
cases (see Figure 3). These cases by far had the largest growth
during this time. The second highest are felony cases. An
analysis of the growth in misdemeanor cases by county indicates
that it has been uniform statewide, no particular area of the
state has experienced significantly more growth than other areas
of the state.
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Table 7 shows the number of misdemeanor and felony cases for private attorneys and public defenders from 1984 to 1997. Misdemeanors have increased nearly four-fold. In 1984 misdemeanor cases were 30% of the total caseload. By 1997, they were 50% of total caseload. Felony cases have risen from 5,000 to approximately 8,000. Juvenile cases have risen from around 2,400 in 1984 to about 5,000 in 1997. Abuse cases have gone from about 500 in 1984 to about 2,000 in 1997.
The average cost for private attorneys to represent those cases assigned to them has risen significantly in large part because of the higher hourly rate. In 1984, the average cost and number of hours to close a misdemeanor case was $137 and 6 hours, respectively. The cost began to rise in 1991 after the higher rates became effective. Compared to the old rates, average costs for misdemeanors nearly tripled, while the average number of hours has remained fairly constant. The average cost for felony cases has nearly tripled, rising from a little more than $400 a case in 1984 to over $1,100 a case. The number of hours to work these cases has remained about the same.
Total Misdemeanors & Felony Cases
Average Costs & Hours Worked For Private Attorneys
|*Data not available|
A large percentage of misdemeanor cases are traffic-related. The Legislative Auditor's Office examined all 1997 affidavits used by circuits 1, 5 and 30. Affidavits contain income information for defendants to determine if they are eligible for a public defender. They also include the offense the defendant is charged with. In cases involving misdemeanor charges in circuits 5 and 30, 42% were for driving under the influence of alcohol or a narcotic drug (DUI's), driving with a suspended driver's license, and other traffic violations. In circuit 1, these types of traffic violations were 39% of all misdemeanors. In addition, circuit 1 affidavits for felony cases showed that 21% were for third-offense DUI's.
Cause #2: Increases in Arrests are Associated with Increases in Public Defender Cases
There is a correlation between the agency's caseload and the total number of arrests in the state. The correlation coefficient between these two variables is 0.557, which indicates that increases in arrests statewide are associated with increases in the agency's caseload. The correlation is moderate, nevertheless arrests are a factor. Figure 4 shows the trends of arrests and Public Defender caseload. Arrests declined between 1984 and 1988 which corresponds with the drop in the agency's cases over the same period. Arrests increased from 1989 to 1991 which again corresponded to increases in caseload for the same years. In 1992, arrests dropped as did the caseload. However, arrests declined in 1993 and 1994, while cases increased in those years. Arrests increased significantly in 1995 and 1996 which was consistent with the higher caseload for 1995 through 1997. It is possible that there is some amount of lag time between these variables, however, there is an obvious relationship that should be expected.
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Drug Arrests & DUI's are Rising
Another cause for the increase in misdemeanor cases is the growth in drug and DUI arrests, which in most cases would result in misdemeanor offenses. Figure 5 shows that from 1984 to 1988 drug arrests were on a downward trend, going from about 1,700 arrests in 1984 to 1,130 in 1988. However, from 1989 to 1996 drug arrests have increased each year. The largest increase was 44% in 1989, while increases of 20% in 1994, 35% in 1995, and 22% in 1996 have occurred. DUI arrests grew by 12% in 1990, however, since then the trend has been upward but not as great as drug arrests.
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Cause #3 Cases not Prosecuted at the Federal Level May be Prosecuted at the State Level
Criminal arrests occurring in West Virginia that involve offenses that violate federal law can in most cases be tried in state or federal courts. The federal government has U.S. Attorney offices located in each state to determine whether or not to prosecute a case in federal court. West Virginia has two U.S. Attorney offices, one located in Charleston and the other located in Wheeling. The Charleston office represents counties in the Southern District, and the Wheeling office represents counties in the Northern District.
Cases involving a federal violation are generally referred to an U.S. Attorney's office by law enforcement agencies. The U.S. Attorney's office reviews cases it receives to determine if it will prosecute. The decision to prosecute may be based on the evidence or it may be based on whether the case fits the types of cases the U.S. Attorney wants to pursue. Cases that do go to federal court may also have a federal public defender assigned. If the U.S. Attorney's office decides not to prosecute a case, it may be prosecuted in state court or it may not be prosecuted at all if there is a lack of evidence. If the case is prosecuted in a state court, a state public defender may be assigned.
The state Public Defender Services caseload is influenced to some extent by the U.S. Attorney's decision whether to prosecute a case or not. The current U.S. Attorney for the Southern District, who was appointed in the beginning of 1994, has stated publicly that her office has a different approach with respect to drug-related offenses than her predecessor, whose tenure was from 1987 to 1993. Small, street-level drug offenses are not prosecuted by her office to the same magnitude as her predecessor. This could result in more drug-related cases being tried in state courts that could also result in the need for state public defenders.
The Legislative Auditor examined the extent to which the Southern District U.S. Attorney's approach has affected the caseload of the state's public defender program. Table 8 shows the number of cases referred to the Northern and Southern U.S. Attorneys' offices.
Caseload of U.S. Attorneys' Offices
and Federal Public Defenders
|Year||Northern District||Sout hern District|
|Cases Referred||Cases Prosecuted||Cases Referred||Cases Prosecuted||Federal Public Defender Cases|
|Source: U.S. Department of Justice, Bureau of Justice Statistics|
Table 9 shows the number of drug cases referred and prosecuted for the Northern and Southern Districts. Referrals to the current Southern U.S. Attorney are down compared to her predecessor. The annual average referrals was 549 between 1988 and 1993, compared to 241 for the 1994-96 period. This could suggest that law enforcement agencies do not refer certain drug cases to the Southern U.S. Attorney if it is understood that they will not likely be prosecuted. Drug cases prosecuted were 236 cases, on average, between 1988 and 1993, and 157 between 1994 and 1996.
Drug Cases of U.S. Attorneys' Offices
|Year||Northern District||Southern District|
|Drug Cases Referred||Drug Cases Prosecuted||Drug Cases Referred||Drug Cases Prosecuted|
|Source: U.S. Department of Justice, Bureau of
* Cases prosecuted may exceed cases referred because of cases carried over from a previous year.
Maximized Use of Public Defender Corporations Needed to Control Costs
Growth in caseload has greatly influenced the growth in Public Defender expenditures. However, the 1989 Supreme Court ruling which increased the hourly reimbursement rate for appointed counsels has also impacted costs substantially. As a result of this court ruling, it is more expensive to provide legal representation to indigent clients using appointed counsels as opposed to using state employed public defenders. Table 7 of this report showed that when the higher reimbursement rates became effective, private attorney costs to represent misdemeanor and felony cases nearly tripled. The average cost to close a case by appointed counsel was $546 in FY 1997, while the average cost to close a case by public defenders ranges from $200 to $300.
The Legislature has addressed the higher costs for private
attorneys by expanding the use of state employed public defenders.
Table 10 shows the growth in the number of public defender
corporations and budgeted positions since 1989.
Public Defender Corporations
closed exclusively by PDC's, the cost would have been about $13.8 million. The difference
between an exclusive system of PA's and PDC's would be about $8 million annually.
It is not likely that the state can go to a system that uses
PDC's exclusively. The West Virginia Code §29-21-9(b) states that
in circuits where a public defender office operates, the Public
Defender Corporation will be appointed as legal defense:
...unless such appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation.
After contacting Chief Public Defenders (heads of PDC's), the Legislative Auditor concluded that these indeed are the primary reasons that PA's receive cases. Some PDC's cited conflict as the only reason that PA's in their respective circuit receive cases, while others included excessive caseload as well as conflict as the main reasons that PA's receive cases.
Also, six of the 15 judicial circuits that have PDC's do not handle mental hygiene cases and three PDC's do not handle abuse/neglect cases. These types of cases are largely assigned to private attorneys for various reasons. One reason for a PDC not taking these cases is because it could cause a conflict within a corporation with criminal cases such as sexual assault and domestic battery that stem from an abuse/neglect case. One Chief Public Defender indicated that another reason is that these cases take up a lot of court time and a smaller office needs to be free to work on the heavy criminal caseload. Another reason is that in some areas of the state, private attorneys who handle these types of cases have more experience than public defenders, so judges assign them to private counsel. In some instances where a PDC does not handle abuse/neglect cases or mental hygiene cases, the Chief Public Defender or Court Administrator simply do not know the reason.
Multiple PDC's Should be Considered
Undoubtedly, conflicts of interest will continue to be an issue. Therefore, private attorneys are necessary to handle the conflict cases under the current system. However, there are PDC's that currently have excessive caseloads according to some Chief Public Defenders. Therefore, greater use of existing PDC's is possible through expansion of public defenders. For example, the 13th Circuit, which is located in Kanawha County, had a total of 6,379 cases that were closed in FY 1997. Of these, 45% were handled by private attorneys. This could be the result of conflict of interest or excessive caseload. In this case, the Legislature should consider establishing a second PDC to minimize conflict of interest and to reduce excessive caseloads. A legal opinion from Legislative Services states that Public Defender Services has the authority to create multiple PDC's in circuits that warrant them. The purpose in this is to reduce the reliance on PA's in order to realize cost savings.
Furthermore, there are 16 circuits without PDC's. These circuits use private attorneys exclusively. In 1997, there were nearly 10,000 cases in these circuits that cost $5.5 million to close. The Legislative Auditor estimates that a cost savings could be realized by expanding the number of public defenders and corporations into all 31 judicial circuits. This expansion could result in a cost savings between $2.2 million to close to $8 million annually. The upper range is based on the exclusive use of PDC's, while the lower range is based on the assumption that PA's would be assigned the same average ratio (28%) of cases that are assigned in circuits that have PDC's. Given that the exclusive use of PDC's is not possible, the cost savings will be less than $8 million. The exact amount obviously depends on the use of private attorneys. If PA's are used for the same percentage of cases as circuits that have PDC's, then the cost savings will be closer to $2 million.
Other Reasons for Disparity of Costs
The Legislative Auditor conducted a survey of all 14 Public Defender Corporations (PDC's). The survey consisted of contacting the 14 chief defenders and one senior attorney in the 15 judicial circuits that comprise the 14 PDC's. The public defenders were asked to give their reasons why there is such a disparity of costs between the private attorneys and the PDC's. After analyzing the results of the survey, some of the reasons for the disparity became quite apparent. The chief defenders were all in agreement that the public defenders have more familiarity, are more specialized, and do not spend nearly as much time doing out-of-court research. The public defenders do not have to "re-invent the wheel", therefore they are more cost effective and are more efficient.
The Legislative Auditor also hypothesized that one reason for the disparity could be that private attorneys received the more difficult and lengthier cases, such as murder cases. According to the Public Defender Corporations, this is not true. Several of the Chief Defenders stated that Public Defender Corporations handle the more difficult cases. Public Defender Services' data also supports this assertion. Thus, private attorneys are spending significantly more time than the public defenders, while costing more. The private attorneys spend an average of 19.7 hours per felony case at an average cost of $56 per hour, while the public defenders spend an average of 6.81 hours at an average cost of $44 per hour. Also, the private attorneys spend an average of 7.01 hours per misdemeanor case at an average cost of about $50 an hour, and the public defenders spend an average of 2.12 hours per misdemeanor case at an average cost of $44 an hour.
The total appropriation for Public Defender Services has reached approximately $24,000,000 in FY98. The rising costs can be attributed to rising caseload and the higher reimbursement rate for private attorneys. The rise in caseload can be partially attributed to an increase in arrests for a few years. However, the higher reimbursement rate for private attorneys has made it more costly to have cases represented by private attorneys than public defenders. Thus, the Legislative Auditor recommends that the Legislature maximize the use of Public Defender Corporations. The Legislative Auditor contends that additional public defenders and Public Defender Corporations could reduce the costs of Public Defender Services.
In order to control rising costs, the Legislature should consider hiring additional public defenders in existing PDC's and create full-time or part- time PDC's in every judicial circuit.
The Legislature should also consider establishing multiple PDC's in circuits that warrant them.
Issue Area 2: Public Defender Services Does Not Adequately Monitor Improvement Needs, Compliance, and Quality of Legal Services as Required by Statute
A primary purpose of Public Defender Services is to "provide high quality legal assistance to indigent persons" (§29-21-1). Achieving this purpose would provide "rights and privileges guaranteed to all citizens" by the U.S. and state constitutions, and it "reaffirms the faith of our citizens in our government of laws." The agency's principal charge is "the development and improvement of programs by which the state provides legal representation to indigent persons" (§29-21-4). To accomplish this purpose, the agency's statute requires it to monitor the delivery of legal services to ensure for quality, compliance and improvement (§29-21, sections 3, 4, 6 and 13a). This issue examines the extent to which the agency collects data to monitor the delivery of legal services.
Each year, Public Defender Services publishes an annual report with data summarizing the yearly workload of Public Defender Corporations, and the number of hours billed and claims paid to private attorneys. While these data are important and useful, the Legislative Auditor found that the State office lacks management information that monitors the quality of services, compliance with the Code, and improvement needs. Public Defender Services needs information that will allow comparisons of performance with private attorneys and between Public Defender Corporations. The latter comparison will allow evaluation of the performance of respective corporations and determination of improvements needed.
Monitoring of Private Attorney Expenses is Needed to
When a person is determined eligible for publicly funded legal representation, the circuit judge makes the decision whether to appoint a public defender or private counsel. When private attorneys are appointed, they submit a voucher for work performed to the appointing court. The court is required to review the voucher to determine if the expense claims are reasonable, necessary and valid. The voucher is then forwarded to Public Defender Services with an order approving payment. Currently, Public Defender Services relies completely on the courts to determine the reasonableness of the private attorney's expense claims. The executive director stated in a letter regarding this process:
determination is primarily a question for the circuit judge who orders this office to pay ... a certain level of judgment must be used to determine what seems reasonable. Only the circuit judge can exercise that judgment.
This statement places certain financial responsibilities entirely in the hands of circuit judges. Although the court is responsible for reviewing expense claims, the executive director also has a fiduciary responsibility by statute. According to WVC §29-21-13a(g):
The executive director shall refuse to requisition payment for any voucher which is not in conformity with record keeping, compensation or other provisions of this article and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
Also, WVC §29-21-6(d) states that:
The agency shall establish and the executive director or his designate shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency.
Therefore, the executive director has the overall responsibility to require and monitor compliance of anyone receiving compensation from the agency. When the agency was asked how it monitored the disparity in money received by private attorneys compared to public defenders, the executive director wrote:
You ask how we "monitor" whether the difference in costs between private counsel and public defenders are "justified". That question shows a fundamental misunderstanding of the limited authority vested with this agency. Since the appointment of counsel is a matter entirely in the hands of circuit judges, it does not matter whether I think a cost is "justified." Once appointment is made to a private attorney, that attorney continues with the case until relieved by the judge for good cause shown. No one in either the Public Defender offices nor this office has any say whatsoever over who represents whom in a given case. This questions assumes a management control which resides exclusively with the circuit judges.
The Legislative Auditor agrees that it would be difficult to verify attorney time, and the statutory authority may be limited in this area. Currently, Public Defender Services restricts monitoring to examining each voucher for duplication of time, errors in calculating total number of hours worked, and other types of errors in filling out the forms.
However, the Legislature and the agency should consider taking a broader approach to monitoring compliance to include comparisons of expense claims with statewide averages of private attorneys for similar cases. Courts do not have this information available in reviewing claim vouchers, therefore, Public Defender Services can assist them in their review by providing statewide averages. When private attorney expenses that are excessive and unjustified are not challenged, the agency becomes viewed by private attorneys as a "rubber stamp," which encourages abuse.
For example, assume an attorney claims $1,000 in expenses for a type of case that has a statewide average of $300. This should immediately send up a red flag that signals the possibility of a lack of compliance with accurate compensation. At this point, the executive director can do two things statutorily: 1) The attorney can be notified of the excessive amount compared to statewide averages, and documentation or explanations can be requested (§29-21-13a(e); or 2) the voucher can be returned to the court with notification of the excessive amount and a request for an explanation. If unjustified excessive expense claims persists, the executive director could suggest to the circuit judge that future use of the attorney be discontinued or limited.
Management controls of private attorney expenses should not reside exclusively with the courts. The effect of notifying attorneys and courts of excessive billing is to incorporate a system that will signal to all private attorneys that their billings are being monitored and compliance is being required. This in turn should discourage abuse, and lower costs. The agency can provide courts with statewide averages for each type of case to assist them in reviewing vouchers. If attorney explanations or circumstances satisfy the court, then the voucher may still be approved. However, challenging expense claims based on statewide averages is a vast improvement over the current system in which payment is made because it does not matter if a cost is justified or not.
The Legislative Auditor reviewed the bills of 35 attorneys
making over $50,000 from Public Defender Services in FY97. PERD
found that 10 of those attorneys had an average cost per case over
$900 (shown in Table 1). While these attorneys may not be
over-billing the agency, the possibility of abuse may be present,
and the agency should be concerned with these numbers. As a
note, some of these 35 attorneys did have per case averages well
below the statewide average of $546.
Sample Attorneys with Average Cost Per Claim
|Total Amount||Number of Claims||Average Cost Per Claim|
Public Defender Services has six categories in which they classify types of cases. One category - felonies - includes murders, and all other types of felony crimes. The Legislative Auditor requested from Public Defender Services, the number of murder cases tried in FY97. The agency provided the number of murder cases assigned to private appointed counsel, but not for public defenders. The executive director stated that the Legislative Auditor "could obtain that information by contacting each Public Defender office." According to the information provided, there were 154 murder cases assigned to private attorneys, costing $716,011 or an average of $4,649 per case.
Since murder is a serious crime and such cases are lengthy and more complicated, they represent a good basis of comparison with private attorneys, in terms of time, costs, and conviction rates. This could also identify potential workload problems for Public Defender offices that may have a disproportionate number of murder cases.
The Legislative Auditor also requested from the agency the conviction rates of clients represented by the agency and private attorneys for felony cases. The Executive Director could not provide this information for the following reason:
Since this number does not measure either efficiency or effectiveness in any meaningful manner, it is not kept. The vast majority of clients are found guilty.
Conviction rates can measure effectiveness of Public Defender Corporations. A primary method of measuring the quality of service provided by public defenders is to compare their performance with private attorneys and with other public defenders. If private attorneys have a consistently lower conviction rate than public defenders that is statistically significant, this would suggest that private attorneys either provide better legal defense for their clients or receive a different type of case than public defenders. The use of monitoring conviction rates for outliers (extreme values) can be a benefit. Consequently, the State office of Public Defender Services does not know whether Public Defender Corporations provide as adequate, better, or worse a defense as private attorneys. Furthermore, conviction rates can be compared between Public Defender Corporations to determine performance. Ultimately, the purpose of collecting conviction rates would be to identify possible deficiencies and areas of improvement, as specified by statute (§29-21-4), which states:
The agency shall have as its principal purpose the
development and improvement of programs by which the state
provides legal representation to indigent persons.
Caseload Data and Caseload Standards are Needed
In order to maximize the use of public defenders, Public Defender Services needs to know why private attorneys are assigned by judges instead of public defenders. As Issue One indicated, Public Defender Corporations performed 54% of closed cases in fiscal year 1997. This percentage can be higher and it would lead to significant cost savings. There are two primary reasons that private attorneys are assigned cases: 1) conflicts; and 2) caseload. The executive director should know when caseload problems in a corporation inhibit cases from being assigned to it.
Public Defender Services indicated that it does not keep data showing what percent of cases are assigned to private attorneys due to caseload or conflict. A response to a request for that information was as follows:
...this number is not kept since it is meaningless. In Circuits where Public Defenders operate, virtually all assignment to private counsel are made because of conflicts.
This statement is inconsistent with statements made by some Chief Public Defenders and a Court Administrator. In discussions with Public Defender Corporations, seven of the responding 12 circuits stated that conflicts were the only reason that a case is assigned to private counsel. However, five circuits indicated that caseload is also a factor. Raleigh County's (10th Circuit) Chief Defender wrote that "excessive caseload is a problem in my office at the present time." In Raleigh County, mental hygiene cases are assigned to private attorneys for reasons other than conflict of interest. Logan County's Chief Defender (7th Circuit) responded that:
There are approximately 4,000 misdemeanors issued each year in Logan County. It is impossible for this office to handle that number of cases because of staff limitations and conflicts....The main reason private attorneys handle misdemeanors is because of the necessity for their participation because of the sheer number and our staff limitations to handle all those cases.
The Court Administrator for Kanawha County (13th Circuit) indicated that conflict and caseload are the two primary reasons. Kanawha County's Chief Defender also stated that excessive caseload was a factor. Also in Kanawha County, public defenders are not assigned mental hygiene or child abuse cases. The Chief Defender for Kanawha County has expressed his office's availability for those types of cases to the court, but to no avail and without explanation. Harrison county's (15th Circuit) Chief Defender stated that:
There have been other occasions when the number of cases that we were being assigned to exceeded the ability of the attorneys at the Public Defender's Office to adequately handle all the cases, and I have asked the court to assign a percentage of the cases to private counsel to alleviate the problem on a temporary basis.
Finally, in Wayne County (24th Circuit), mental hygiene cases and abuse and neglect cases are assigned exclusively to private counsels in part because of caseload reasons.
The fact is that for some circuits, excessive caseloads are
experienced and they usually result in cases being assigned to
private counsel. The executive director's response that virtually
all assignments to private counsel are made because of conflicts
shows a lack of awareness of caseload issues at the local level.
When asked if the agency uses caseload standards, the executive
director stated that he strongly disagrees with the practice,
despite the establishment of caseload standards by national
groups. Caseload standards can be used to determine if Public
Defender offices need additional staffing. This is critical if
the agency has the goal of maximizing the use of public defenders
and improving the quality of legal services.
In summary, conflicts and caseload should be the only reasons that private attorneys receive cases. However, the executive director does not acknowledge that excessive caseload is a reason that private attorneys receive cases. According to some Chief Public Defenders, excessive caseload is indeed a problem and has yet to be addressed. Since certain case types are assigned to private attorneys for caseload reasons, it is important that caseload standards be established to help monitor the amount of cases that each Public Defender Corporation is handling and to help pinpoint which Corporations have an excessive amount of cases, which would dictate a need for additional staff.
Comparisons Between Public Defenders and Private Attorney are Inadequate
In order to evaluate the quality of legal services of public defenders, there is a need to compare public defenders with private attorneys. This type of comparison is required by WVC §29-21-6(d) which states:
The accounting and auditing division shall require each public defender corporation to periodically report on the billable and nonbillable time of its professional employees, including time utilized in administration of the respective offices, so as to compare such time to similar time expended in nonpublic law offices for like activities.
The Executive Director was asked how he complies with this statute. His response was stated that "A direct comparison with private lawyers is somewhat difficult to make." The agency collects aggregate data that combines billable, nonbillable and administrative time, for private attorneys and public defenders. However, these three segments of time are not collected separately, therefore, a detailed comparison cannot be made. Similarly, the agency was asked for what portion of time is spent in travel or conducting legal research. Again, the data are not collected in this type of detail. Essentially, the agency is not in compliance with WVC §29-21-6(d).
In addition, the agency does not adequately show an accurate comparison of average costs per case between private attorneys and public defenders. Average costs for private attorneys are based primarily on closed cases. However, the agency does not compile the same statistics for public defenders. In fact, the agency uses an inflated figure in its annual reports comparing private attorney claims (which are generally closed cases) to cases represented by public defenders, which includes closed cases, new cases, and carryover cases from the previous year. The lack of comparable data makes it difficult to formulate an accurate comparison of cost-effectiveness between private attorneys and public defenders.
The State office of Public Defender Services lacks management information to monitor the quality, compliance, and improvement of legal representation. In effect, the agency does not know if its public defenders are providing quality legal representation. The agency does not collect sufficient data that measure the effectiveness of public defenders, or to compare performance between Public Defender Corporations and private attorneys.
Also, there is risk of abuse in the payment system for private attorneys because of the limitation of monitoring expense claims to checking computation errors. The agency needs to challenge expense claims that are excessive compared to statewide averages. This practice is within the agency's statutory authority and it will discourage abuse and lower costs. Caseload standards are not used, nor are caseload data compiled. Caseload data is important to know in order to achieve the maximum use of public defenders and to ensure the quality of legal representation. The agency also needs to improve its data collection to provide comparisons between public defenders and private attorneys, as required by law.
Public Defender Services should begin gathering data that can be used to measure the quality of legal representation. Conviction rates, court and out-of-court time, research time, costs, etc., of felony cases should be collected for public defenders and private attorneys. Statistical analysis should be conducted to determine if differences between public defenders, private attorneys, and within Public Defender Corporations are statistically significant. The agency should also develop data on costs, billable and nonbillable time, and administrative time that is comparable for a meaningful and accurate comparison between public defenders and private attorneys. The agency should implement caseload standards for Public Defender Corporations to identify staffing needs and monitor threats to quality legal representation.
Public Defender Services should develop a system that uses statewide average private attorney expense claims for each case category to compare with individual private attorney expense claims for similar cases. The agency should consider providing each circuit court with these statewide averages to assist them in determining if private attorney expenses are reasonable or necessary. The agency should require additional documentation to justify an expense claim that exceeds the average by an established percentage. The agency should develop a dialogue with courts and private attorneys that intends to discourage any continuance of unjustified excessive expense claims of attorneys.
Public Defender Services should monitor the reasons for private attorneys being assigned cases rather than Public Defenders Corporations to assist in maximizing the use of public defenders.
The Legislature should consider a statutory amendment to give Public Defender Services the authority to challenge claim vouchers that exceed a certain percentage of statewide averages for each category of case type.