Being an Indigent Criminal Defendant Just Got a Lot Harder in Alabama

This summer, the Alabama Legislature passed a comprehensive revision of the laws which provide indigent criminal defendants with legal representation in the courts of this State.* On June 14, 2011, Governor Robert Bentley signed that legislation into law. The Indigent Defense Services Act was touted as a way of insuring that each indigent defendant in this State received quality legal representation by improving the system of delivering those services and the lawyers who provided those services. In reality this legislation was an attempt to control the amount of money that the State of Alabama paid for indigent defense services, an annual expense that most in the legislature found to be excessive and more than a few found to be unnecessary.

The Act establishes the Office of Indigent Defense Services, as a separate office within the Alabama Department of Finance. The Office of Indigent Defense Services will be headed up by a director who will be appointed by the Governor. The director will have ultimate decision making authority over how indigent defendants receive legal representation and how the attorneys who do the work get paid. His initial task will be to create rules and regulations that will cover a wide variety of topics, including the very important process of who is considered an indigent defendant in the State of Alabama.

The Act permits the creation of a contract lawyer system, a public defender office, or a court appointed system in each judicial circuit. These systems are all currently being used in different judicial circuits throughout the State, with the most widely used system being the court appointment system. The system of delivering indigent defense services chosen by each judicial circuit will significantly impact those individual indigent defendants seeking legal representation.

However, the biggest impact on how those services are delivered may not necessarily be the system chosen in any given judicial circuit. The biggest impact may come in the manner in which a person is determined to be indigent and entitled to legal representation funded by the State of Alabama. The Director is required to develop policies and procedures for determining whether a person is an indigent defendant and for those policies and procedures to be implemented across the State. To make things more difficult, the Act provides the Director with a rather complicated template to determine who is indigent and therefore entitled to State funded legal representation. The Act defines an indigent defendant based on a formula that compares that person's income to the most recent United State poverty level, whether the offense is a felony or misdemeanor, whether the person is entitled to a lawyer in their case, and whether it would be a substantial hardship if the person was required to pay for their own lawyer.

Once those policies and procedures have been established by the Director, each and every Judge in the State of Alabama who sits in a criminal court must begin using the new system to determine who is indigent and who is entitled to state funded criminal defense representation.

It has been routine practice in most judicial circuit to provide an attorney to anyone who simply said that they could not afford to hire a lawyer. There were seldom any questions asked about employment and income. The Court did not ask about your bills and how much money you had left over at the end of the month. They simply provided you with a lawyer. Those days will soon be a thing of the past.

After the Act is fully implemented, each Judge will be required to look into the person's income and ability to pay. This will require the indigent defendant to complete and sign an affidavit of substantial hardship and provide the court with documentation to support their indigent status. Those documents may include, but are not limited to, tax returns, pay stubs, W-2 forms, utility bills, mortgage statements, etc. The Judge may also require the District Attorney, the Public Defender, the Sheriff's Office or the Probation Officer to conduct an investigation into that person's indigent status and report back to the Court. The decision on whether a person is an indigent defendant will no longer take 2-3 minutes, but instead may require multiple court appearances over a 4-6 week period of time.

The old system of handing out state funded lawyers to every person who claimed they could not afford to hire a lawyer are over. Indigent defendants in this state better prepare for a long and drawn out process that is sure to limit the number of people who will be granted access to state funded criminal defense representation. Only time will tell if the true savings to the State of Alabama comes at the expense of justice being denied to the poor and indigent of this State.

* The Act also applies to indigent defendants in the Juvenile Courts of Alabama, however, my practice is limited to criminal defense and that will be my focus in this blog post.