Iowa’s indigent defense crisis will harm all of us

Even prosecutors agree: Pay court-appointed attorneys more

The wheels of justice may grind slowly, but they only turn at all if every cog works well. Iowa’s court system sits on the brink of a major breakdown.

The lack of court-appointed attorneys is a constitutional crisis, undermining the right to counsel for criminal defendants. The result leads to people sitting in jail longer than they should, certainly. It also represents a threat to public safety and justice for all of us.

The good news is that we can solve this problem, or at least make it less dire. The Iowa Legislature can increase the hourly rates for contract attorneys, as well as create a fund to recruit lawyers to rural areas. This will take money and political will to support what many people see as unsympathetic actors: defense attorneys and poor criminal defendants.

The lack of indigent defense is a national crisis, but it is particularly acute in Iowa in part because of demographics. Only six states have fewer attorneys per capita than Iowa.

In Iowa, the number of private attorneys who take court-appointed cases has fallen by more than half in 11 years, from 1,018 in 2015 to 492 this year.

Legal representation is especially rare in rural areas. More than a quarter of all Iowa counties have fewer than 10 licensed attorneys in any type of practice. Indigent clients must wait for a lawyer from an urban area to travel to see them.

Even in metro counties such as Scott, however, court-appointed attorneys carry huge caseloads.

The Iowa State Bar Association has taken the lead in spotlighting this problem in the March and April issues of The Iowa Lawyer magazine. Defense attorney Daniel Herting lays out the consequences of the problem:

“Behind the statistics and systemic challenges lie real human stories. A parent unable to see their children because their court-appointed attorney has such a heavy caseload they can't schedule a hearing for weeks. A defendant sitting in jail for months awaiting trial because their public defender's calendar is so full they can't adequately prepare the case. A troubled teenager facing serious charges without the benefit of a timely investigation because their attorney lacks resources to get to their case.”

If you think it’s odd that I, as someone on the prosecution side, would argue to strengthen the defense, check out this article in The Iowa Lawyer from my colleague, Assistant Polk County Attorney Bryanna Walton.

As she explains, overburdened defense attorneys can make a prosecutor’s job more difficult. It can result in cases not being handled correctly the first time, which can ultimately lead to more issues to appeal and more cases sent back to lower courts, exacerbating the burdens on the system.

Bryanna works in a high-volume docket that has the potential to touch anyone who ever drives or rides in a vehicle in Polk County: OWIs. She spells out the impact, as well as why public safety could be at risk:

“Individual defendants are saddled with overworked and underpaid court-appointed defense counsel, courtrooms are bogged down by the mere inability of court-appointed attorneys to have adequate time to review discovery and reach a resolution, and prosecutors are juggling dockets that grow by the day yet are slow to shrink. Coupled with logistical issues regarding which defendants have waived their speedy trial rights, growing jail populations, and the number of courtrooms available to hold trials, county attorneys must make tough decisions regarding which cases to continue prosecuting. Is this how the people of Iowa truly wish for our justice system to operate?”

The answer should be no, says Iowa Supreme Court Chief Justice Susan Christensen. She has repeatedly warned legislators about this crisis, but they have not done enough.

Iowa Supreme Court Chief Justice Susan Christensen speaks to legislators in January. “Well, this marks the third time I’ve raised the topic of indigent defense in my Condition of the Judiciary address,” she said. “Some might suggest that I should stay in my lane and not talk about it so much. I respectfully disagree.” (Photo courtesy of KCCI)

This year, Christensen acknowledged that talking about criminal defendants may not “move the sympathy needle with some folks.” So she talked about the impact on juvenile cases.

“Every child in a child welfare or delinquency proceeding is entitled to court-appointed counsel. So is every parent or guardian of a child within the child welfare system if they are unable to afford private counsel. And unlike criminal proceedings, these cases are rarely one and done. Juvenile cases often span months or even years and require frequent hearings, demanding significant judicial resources,” she explained.

“Without a healthy stable of contract attorneys, we cannot adequately protect the fundamental rights, well being, and safety of our most vulnerable population.”

The bar association advocates increasing the hourly contract rate from $86 to $100 for Class A felonies and by $14 for other felony and misdemeanor cases, as well as periodic cost-of-living adjustments. Another bill, HF 1001, would create a fund to recruit attorneys to practice in rural areas.

This year’s session is in the home stretch, but legislators have time to make progress in solving this problem. Urge them to do so.

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