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When the responsibility for funding the criminal justice system shifts from the counties to the state on July 1, a potential crisis is looming in death penalty cases.
According to the fee schedule established under state law, private criminal defense attorneys assigned to represent capital defendants by the state will be paid a maximum of only $3,500. The amount is so small relative to the amount of work required to defend a typical capital murder case that it could work out to less than a few dollars per hour. Under those circumstances, it is unlikely that any defense attorney in the state will accept these appointments, meaning that some death penalty cases could be prevented from going forward.
Typically, local public defenders' offices are charged with representing low-income criminal defendants. But when a conflict arises, attorneys not associated with a public defender's office are tapped. For example, "conflict counsel" would be necessary when there are several defendants charged with offenses arising out of the same crime or when the public defender's office has represented a witness before.
Thirty-five hundred dollars doesn't come close to the fees conflict counsel have been receiving in capital murder cases. In Broward County, for example, defense attorneys can bill up to $30,000 at $100 per hour in these cases. In the 6th Judicial Circuit, covering Pinellas and Pasco counties, the local Indigent Services Advisory Board has set the fee at $90 per hour.
Stephen Presnell, general counsel for the Justice Administrative Commission, the agency charged with disbursements to attorneys appointed to represent indigent clients, has indicated he will work with local advisory committees to determine how to pay attorneys in capital murder cases, but he hasn't said whether he is willing to pay beyond the cap. The Florida Supreme Court has ruled in the past that unreasonable limits on fees paid to appointed counsel in criminal cases violate due process, which could give the state some legal cover for ignoring the cap. But trying to pay for these services on the cheap will result in less than adequate counsel in cases that are usually highly scrutinized on appeal.
A spokesman for Gov. Jeb Bush says he is aware of the problem and is planning to "look at some innovative ways to address it." That is reassuring. The point of shifting the financial responsibility of running the criminal justice system to the state was to unify the provision of services, not slash them. Indigent people charged with capital crimes should be afforded an adequate and effective defense, not just an attorney in name only.