Instead of the state picking “up to 50 percent” of the indigent defense costs and the counties paying the rest, the split will rise to 70-30 this year and creep up to 90-10 next year. Total state funding for the two-year budget will be $275-million, up from $121-million in the previous two-year state budget.
“Easily, it’s the singular greatest impact since we created the public defender system in 1976. It’s going to start to bring balance to an adversarial system,” Young said.
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Public defenders and appointed counsel represent indigent Ohioans in 422,000 criminal cases across Ohio each year. Nearly 75 percent of adult defendants and all juveniles qualify for court appointed counsel.
Young added that he wouldn’t want a loved one facing criminal charges to rely on an attorney being paid $40 an hour, which barely covers an attorney’s overhead expenses. “They simply cannot provide a constitutionally sound defense at $40 an hour.”
Gov. Mike DeWine, a former Greene County prosecutor, said local officials brought the funding issues to his attention after he took office.
“You can make a very good argument that it’s a state responsibility that people have lawyers. The state had not kept up its share at all. So that’s why indigent defense funding was an areas we decided to put some real money,” the governor said. DeWine added that it’s up to the counties to set the rates paid to appointed attorneys.
At least 26 counties have bumped up rates for appointed counsel since January 2019 while several have kept rates the same since the 1980s, according to the Ohio Public Defender’s office.
The right to counsel is guaranteed in the Ohio and U.S. constitutions. Gideon versus Wainwright, a landmark case decided in 1963, held that the right to counsel applies even to those who cannot afford an attorney.
The Ohio Public Defender Commission in July recommended that counties update the hourly rates, establish pay parity between public defenders and prosecutors and abide by caseload limits to ensure that the constitutional right to counsel is protected. The commission is recommending that the minimum hourly rate move to $75, up from the $60 recommended minimum rate set in 2002.
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Several counties in the Miami Valley – Darke, Mercer, Montgomery — pay $75 an hour for most appointed counsel work. Preble, Miami, and Greene pay $40 to $50 an hour while Clark and Warren counties pay $60 an hour. Counties also set limits on how much appointed attorneys can bill for types of cases. (In death penalty cases the rate is $125 an hour with no cap on costs.)
Mary Amos Augsburger of the Ohio State Bar Association said $75 an hour is adequate, though well below the $259 an hour average rate charged by private practice attorneys that focus on criminal defense work.
Montgomery County Public Defender Theresa G. Haire said the increased funds will have a positive impact on the justice system.
“It’s incremental but it is going to help us be better lawyers and do a better job,” Haire said, adding “It helps the courts, it helps the prosecutors. When you have a well-funded defense system everything moves smoother. There is a less likelihood of people sitting in jail and wasting those resources.”
Haire said shehopes to hire more attorneys.
“We believe in the rule of law and we believe in the criminal justice system. We have to have a system that works,” DeWine said. “The system depends upon an adversarial system where people have the right to be competently defended and the public has the right to see the case competently prosecuted. It’s an essential function of government. It is a constitutional right, as prescribed by the United States Supreme Court.”
Separate from the additional funding, Young’s office is building a centralized case management system and is collecting data on indigent defense, including total money spent on appointed counsel, expert witnesses, investigators, transcripts, support personnel, travel and other expenses. The data will be broken down by felony, misdemeanor, traffic and juvenile cases. Twenty nine counties are already using OPD Online.
Young will send an initial report to the General Assembly later this year and expects to produce a full, robust report at the end of 2021.
Augsburger said the new system will reveal patterns in sentencing, charging, demographics and more across the state — data that can be used to guide public policy questions.
Ohio has a hybrid approach to providing lawyers for indigent defendants: 35 counties have public defender offices, plus appointed attorneys; 53 counties rely on appointed attorneys. Lawyers in the state public defender’s office largely handle appellate work.
Local judges make appointments, but state and county governments pay the bills.
In 2010, a Dayton Daily News story exposed that local attorney Ben Swift billed area courts for indigent defense work an average of nine hours a day, seven days a week for 365 days straight. State records from 2008 and 2009 showed that Swift ranked No. 1 in the state for representing people who cannot afford to hire a lawyer on their own.
Young said the new OPD Online system, once rolled out statewide, will allow for data tracking and auditing so such situations can be flagged.
Improving the quality of counsel provided to indigent clients makes for a fair justice system, Young said in a July memo. “A failure to pay reasonable rates ultimately undermines the right to counsel and has a disastrous impact both in individual cases and for the downstream social service costs that are borne by the county taxpayers,” he wrote. “Multiple studies have found that when appointed counsel rates are too low, qualified attorneys stop taking appointed cases.”
Staff writer Parker Perry contributed to this report.
Hourly rate paid for public defenders
Clark: $60
Darke: $75
Greene: $50
Montgomery: $75
Miami: $50
Warren: $60
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