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Joint | March 11, 2015 | Committee Room | Public Safety Appropriations

Full MP3 Audio File

Okay. We have pages with us this morning. With the House we have Reshonda Blue. We have a mic, could you tell us a little bit about yourself please? [SPEAKER CHANGES] Good morning. My name is Reshonda Blue and I’m from Wake County. Representative Holley is my sponsor and I’m happy to be here. [SPEAKER CHANGES] Glad to have you with us, and Miles Hunt. [SPEAKER CHANGES] Good morning. My name is Miles Hunt. I have Representative Gill as my sponsor. I’m from Wake County. [SPEAKER CHANGES] Thank you. Good to have you. And Austin Johnson. [SPEAKER CHANGES] Good morning. My name is Austin Johnson and I’m from McDowell County and Josh Thompson is my sponsor and I’m happy to be here. [SPEAKER CHANGES] Glad to have you with us. Are you ROTC or JRTOC? [SPEAKER CHANGES] Yes, sir, Navy. [SPEAKER CHANGES] Good. Good to have you with us. And Sylvia Gregg, Senate Page. [SPEAKER CHANGES] Hi, I’m Sylvia Gregg. I’m from Brunswick County and my sponsor is Senator Bill Rabin. [SPEAKER CHANGES] Good to have you with us. And Carson Honeycutt. [SPEAKER CHANGES] Hi, I’m Carson Honeycutt. I’m from Warren County and Senator Tillman is my sponsor. [SPEAKER CHANGES] Thank you so much. Good to have you with us. I hope you’re having a good week and getting some things out of the meetings. Sergeant at Arms, our House Sergeant at Arms, DH Powell, David Linthicum, and our Senate Sergeant at Arms Marcus Kitts and Charles Marcalis, I believe, there he is at the door. Thank you very much and we’ve got again Mr. Charles is with us this morning to carry on with his report to us and I think he’s probably getting fairly close to the end of his task for this committee and he’s doing a good job and has responded to several of our requests for information, so with that unless there’s some comments from the committee members or the chairs we will move forward. Mr. Charles? [SPEAKER CHANGES] Thank you, Mr. Chair. I know you are excited to have me back. Today, today we’re gonna cover the, today will be the last day of talking about the Judicial Branch budget. Hold your applause to the end please. We will be talking about the office of indigent defense services today which is the other agency within the judicial branch of government and then I will go through some follow up questions about AOC from the last week and then the previous AOC discussion which I believe was, I don’t know, 2 years ago? I don’t remember. It was a long time ago. There was snow on the ground. It was very odd. So the office of indigent defense services, this slide appeared in the JTS overview. This shows that the breakdown of personal services and purchase services for IDS. Unlike most agencies in JTS the IDS has a very large purchase services component, mostly because IDS runs a fund that pays for private appointed counsel attorneys and we’ll get into this as we go, but the personal services side of IDS is the smallest of any of the agencies that you will hear about in this committee. We’re going to turn to the 14th amendment to the US Constitution which is part of the reason that we have an office of indigent defense services and this goes through the Supreme Court case on Gideon versus Wainwright, basically the point here is that no person can be denied equal protection of the laws which is echoed in the North Carolina Constitution. The agency itself came into being in 2000. The General Assembly passed a bill that created a new agency to run the indigent defense services. Before that there was a contract that was at AOC, the pack fund was run by AOC but there were some concerns about its administration and so IBS was off, it, AOC does remain responsible for some IDS functions. The purchasing, so the purchasing division that we heard about when we talked about AOC administration, personnel, so their HR

and some IT, although there's been more of a sharing role in recent years. And I think as we go forward it seems that there may be more sharing there. I don't think I mentioned that the head of IDS is Mr. Tom Maher. You all heard from him the other day, and he is here today. IDS responsibilities. Overseeing the provision of legal representation to indigent defendants. There are three ways that IDS currently does this, mainly through the Private Appointed Counsel Fund. This is where the Court appoints defense attorneys from a list that they will have at First Appearance. This fund is active all throughout the state. There are areas that have Public Defender offices. But even in those areas there will be private appointed counsel. The Public Defender can take some cases. Some cases there will be a conflict and the private appointed counsel will be assigned. There is this newer kind of hybrid contract defenders where IDS is offering a contract to certain private appointed counsel attorneys for a set number of cases. We'll talk about this a little bit as we go forward. I've got a couple of slides on it. And then there are state Public Defender offices. These are in 16 of 41 District Court districts. These are attorneys who are employees of the state to provide defense to indigent defendants. This is how IDS's program budget breaks down. A big chunk of it goes to the PAC Fund, the Private Appointed Counsel Fund. A smaller piece of it to the Public Defenders. And a less than 2% slice for administration. That is $2.4 million. Out of the PAC Fund, currently the way it's set up, 51% of that is going to compensate PAC attorneys. 7% of it is being used for these contract defenders that we'll talk about in a minute. And about 2% of it goes to Prisoner Legal Services, which I've got a slide on that, too. From the Public Defender side, about 32% of the whole budget goes for the 16 local Public Defender offices. And then there's another 6% for statewide specialty Public Defenders. Again, we'll get into that as we go. I just wanted to show you how these things break down. This is kind of a complicated slide but this shows the budget history for Indigent Defense. This goes back to the last five years and includes the current year as authorized. This shows that the Public Defender section of the budget has been growing, while the PAC section of the budget has been shrinking a little bit. The amount for administration is that very tiny little blue-black slice up at the top. I even had to move the numbers to the side so that you could see it. That has stayed about the same. It's grown very slightly but it's stayed roughly the same. And then there's a section at the very top that's kind of set off in gray. This is a shortfall that IDS has been running historically for the last five years. I'm sorry, I meant to do the shortfall slide next. I'll explain the shortfall in just a second. Part of the PAC Fund is paid through Recoupment 2, which is collected here, as you see at the top, probationary collections, civil judgments. About 30% of it comes through state income tax refunds that are captured at the state before they're sent to the refunder and sent to back to IDS if they're owed to Indigent Defense. And then through Lottery proceeds. IDS does have some concerns, even though recoupment has been fairly stable for the last few years, that under the new tax code, since there will be fewer state income tax refunds they are worried that there will be less money coming back to IDS through recoupment. There's also some concern that as IDS shifts to this new contract system that it will be harder to track the individual hours that an attorney is spending on a case. So it will be harder to recoup the hours that the defendant owes for compensating the attorney upon losing the case or getting a judgment against him. IDS's caseload is growing. As you see at the top, this is all noncriminal, nontraffic

dispositions and that number is going down, and this tracks the dispositions that we looked at when we talked about AFC. However, the percentage that Indigent Defense Services takes of that has grown in recent years. And then over a ten year period, it's grown significantly. Okay, the private appointed counsel fund. This is the fund that is used to compensate private attorneys for indigent defense services. This is the the short fall I mentioned. In recent years, it's been started off at 9.9 million that was readjusted to 9.2 million for fisical year 10-11. Through some extra non recurring funds, it dropped to 3.2 million in 13-14. And currently, in the current ficial year it's estimated to be at about 5 million dollar shortfall. So, what happens? The fact fund runs out of money. And then attorneys submit their claim to get recomponsated and then the last month or two, sometimes, maybe sometimes a little more of that, of the physical year, IDS does not have money to pay them. So, the attorneys have to wait until the new fisical year to get compensated for their fee applications. Basically, the amount, the work that they have done that has been approved by a judge sent to IBS. They can't be compensated until the money comes back in at the beginning of the fisical year. And some of the X factors here are the contract defenders. The contract defenders are going to get paid. They have a contract so IDS has to pull aside money to make sure they are going to be paid, even as the pact fund is running out of money. Current rates for private assigned counsel to help meet some of the strains on the systems. The Indigent Defense Services Commission, cut the rates in 2011. They are currently at $55.00 an hour for most district court cases. $60.00 and hour for most superior court cases, because of the 70 for serious felonies, 85 for Capital cases, unless they've been declared non capital, at which point the rate drops to $75.00. The commision has stated JPS Everside, and I think most of y'all have been to JPS Everside and hear this. Their concern that this rate is too low. It's hard for attorneys to meet their overhead at $55.00 an hour. And, so this is a concern that the commissioners brought forward. Contract Defenders System. This is a system that the general assembly directed IDS to pursue in 2011. And it is expect to cut cost in the long term. The idea here is that IDS is collecting cases into what they call units, which is estimated to be at about 20% of the time that an attorney can work in a given year. So for the units themselves very in difficulty. There will be a unit for adult misdemeanor, a unit for low level felonies, high level felonies, and IDS has regional defenders that they have hired to oversee this system, and to make sure that there are quality controls are in place. So, IDS puts these units out to bid, attorneys in the district will bid on these units, and if they win the unit, they have secured payments, secured work for the given time that they have this contact. There's some benifits too with having a regional defender overseeing these unit, in that traditionally the pact attorneys, their out of the district. They are kind of on their own. And with having these attorneys under contact with IDS gives IDS a level of oversight that they did not have before. They can go on and talk to the attorneys, in a way that they did not have access to them before they can provide them with educational materials. They can make sure that the units are working. It's an interesting hybrid system right now. [SPEAKER CHANGE] Question. [SPEAKER CHANGE] Representive Jackson. [SPEAKER CHANGE] Thank you. Is this the appropriate time? [SPEAKER CHANGE] Sure. [SPEAKER CHANGE] You mentions earlier about the dificulties with billing clients. I mean billing the defendant when they plea guilty or found guilty on the court appointed time. Has there been any analysis done on that? By IDS as far as what the contract attornies are submitting to the courts. Defendant are paying by? [SPEAKER CHANGE] Repersentitave Jackson, we actully have the experts here today from

From the agency. I think they could probably tell you a little bit more about the controls in place than I could. [SPEAKER CHANGES] Please identify yourself. [SPEAKER CHANGES] [??] We do have a control in place though I can’t tell you, sorry, specifically how much the drop may be partly because we don’t, often don’t collect recoupment until a year or two or three in the future through tax refunds and things of that nature. The way the system works is when a contract attorney disposes of a case we have an online reporting system where they report information about the disposition and there is a built in function that makes them print out a recoupment form which is provided to the judge to order recoupment in a case that’s recoupment eligible. We are able to track whether they printed that so we’re able to know the attorneys who have recoupment eligible cases in fact printing the form and hopefully providing it to the judge. What we have not analyzed, at least as of now is the extent to which we are, judges are ordering less recoupment than they might have had those cases been handled through the hourly roster system. That’s something at some point we may be able to look into but it’s a difficult analysis. Not impossible but difficult. [SPEAKER CHANGES] Follow up. [SPEAKER CHANGES] Follow up. [SPEAKER CHANGES] [??] just asking how this is a [??] in the House contract system is working. [SPEAKER CHANGES] It’s mixed to be honest. I think there’s a real concern that people are not being paid enough for the work they’re taking on and because of that there’s pressure to cut corners. They’re not paid by the hour so to the extent they can spend fewer hours they make more per hour and any system that depends on that just inherently has some pressure and efficiency can be good but it can also involve cutting corners. We have a built in system that in a particularly difficult case people can come to us and get exceptional pay. That is intended to relieve that pressure. We don’t see very many requests for that so we have a concern about that. I know from talking to attorneys that they feel overpressured by the work and underpaid. We have gone through the renewal period for the first six counties and the vast majority of people getting contract renewed. It may be because they don’t have another alternative, but most of the people who are doing the contract work continue to want to do it but I think they have real concerns in the long term about whether the pay is sufficient for the work they’re doing. [SPEAKER CHANGES] Thank you. [SPEAKER CHANGES] Senator McNeill. [SPEAKER CHANGES] Yes while he’s standing I just wanna take off on something he said. My question is this, I know you said it’s sometimes 2-3 years before you’re able to collect these fees from people. Has the fact that we don’t report probationers back now for failure to pay their fines and fees and everything like that, do you think that’s attributable to your drop or has there been a drop in collections? [SPEAKER CHANGES] There has been a drop, my understanding is the primary, Thomas Matter, IDS, for this year I think the primary driver of the drop is the change in tax withholding. We’ve seen a significant drop in set off debt which is money that we collect from tax refunds. More of a drop than we expected. We expected somewhat of a drop. I’m not aware that we are collecting less significantly from probation. It is my understanding, and I’m not in court on a daily basis, but while you can’t be revoked for not paying that you can be brought back in if you haven’t paid to determine why you’re not paying and I guess in theory face a CRB or something, so I don’t think we’ve seen it in probation. It’s certainly something we can look at, it’s something I haven’t looked at, and see if that in fact is affecting it. [SPEAKER CHANGES] That would be great. Thank you. Provide that to the committee if you think there’s been a drop, a significant drop off attributable to the fact that they’re not revoked now for failure to pay those fines and fees. [SPEAKER CHANGES] We will do that. [SPEAKER CHANGES] Thank you, Mr. Chair. I just wanted to [??] [SPEAKER CHANGES] They’re, I’m sorry, go ahead. [SPEAKER CHANGES] Thank you, Mr. Chair. They’re paid monthly and the next slide I talk a little bit about their compensation. [SPEAKER CHANGES] [??] Mr. Chairman, Mr. [??] apparently at some point IDS was [??] is that right? [SPEAKER CHANGES] Well, Thomas Maher, Director of IDS. The function that IDS performs up until the year 2000-2001 was part of the Administrative Office of the Courts, so there wasn’t an IDS at all basically. [SPEAKER CHANGES] Why did it split off? [SPEAKER CHANGES] There was a study done, a legislative study done and the report I think was in the year 2000 and I think there are a couple concerns that led to the creation of IDS. One was that having an independent agency that was focused on managing the resources

[SPEAKER CHANGES] Would lead to better management and control of the costs associated with indigent defense. And then secondly on a quality and policy basis, that the defense function should be controlled by an independent agency and should not be overseen primarily by judges who are making decisions that there is a potential conflict when a judge is deciding how much the defense attorney in front of them is being paid. So it was a cost control and a quality concern. [SPEAKER CHANGES] Follow up. So you're saying that IDS is running cheaper if it's independent than the AOC could run it as part of an agency. [SPEAKER CHANGES] We believe so. In fact in our annual report, we report what the cost per disposition is over the years, and it's been remarkably flat, despite tremendous pressures and of course our entire budget is for an indigent defense. When we don't control it we face shortfalls, and we face shortfalls even with controlling it. So we are acutely aware of the need to try to use resources we're given as efficiently as we can. [SPEAKER CHANGES] Further questions. [SPEAKER CHANGES] Mr. Chair. [SPEAKER CHANGES] Senator Bingham. [SPEAKER CHANGES] Thank you Mr. Chairman. I know there's been a lot of studies done, et cetera and from what I gather, the public defender's offices are growing and, in your opinion, would the state be better off to have two public defender's offices? I know that's been discussed et cetera. Have there been any studies comparing the two? [SPEAKER CHANGES] Thomas Maher, Director of IDS. Senator Bingham, in terms of the actual cost of providing representation compared to the current low hourly rates we pay to the private lawyers, the honest answer is the public defenders wouldn't save money. We already have public defenders in the larger metropolitan areas, even some smaller areas, and they just, on a cost basis, it's hard to compete to $55 an hour because it's hard for our lawyers, who are paid $55 an hour quite frankly, to make a living. If the rates were raised to a more sustainable rate, and we urge that to happen, then the public defenders are a cost-effective alternative to that. There are other benefits to having a public defender's office. Quite often, for example, they do a very good job of handling cases up front, so jail populations are lower. I've gotten calls from county commissioners who don't have a public defender saying, "Can we have a public defender here, it will help with the jail." I've talked to DAs who think that there's a real benefit to having an institutional defense voice to deal with to make the courts more efficient. Their lawyers are often in court when they need to be in court, they're not covering other counties. So there's quality both in terms of the lawyering, the training of young lawyers, and operating the system to having a public defender. But the honest answer right now is it would not save money at the rate we're currently paying private lawyers. There's also some very rural counties where having a public defender is-or having any system is a struggle. We have a public defender in the First District, they cover the Second District because of the difficulty of finding private assigned counsel. But covering a lot of counties with the big geography and very little case load is just a struggle to be cost-effective no matter how you do it. [SPEAKER CHANGES] Representative ?? [SPEAKER CHANGES] Yes, this question is also for Mr. Maher. I noticed going back and looking at this chart at the shortfalls in the private and assigned counsel. I've noticed 2013-14 saw a significant drop to the prior year of 7.9 to 3.2, and now this year it's projected to be five million. I guess I have a two-pronged question then. Why is it projected to be five this year, is that because of where we're at at this point of the year? And also what did we do right in 2013 and 14 to get this decrease that now it's going back up? [SPEAKER CHANGES] Thomas Maher, Executive Director of IDS. The answer is the five million is projected based on our current payments and the history of what we would expect. We're not quite three-quarters of the way through the year, so it's an estimate and things could change but probably not radically. In terms of why it had been going down and now it's turned, there are a number of factors. One is, I think William mentioned this, there was, I think a $3.7 million non-recurring appropriation that helped reduce it to 3.2. There was an offsetting $2 million recurring reduction based on the expected savings from Class 3 misdemeanors. We were, to be honest, skeptical that we would save that much, and I don't believe we've saved that much. So the 3.7 was not, it was offset by a cut that didn't produce savings. In addition, for a period of time when we reduced the rates, we were still paying some fee applications at the old rate, and it's

Highlight and then updated in-the best way we live by the same for the knights and animated centers and that the system starting and file an action that eight of the biggest factor for dialing up between 3.2 and five of the reduction in the feats of dust into the changes and tax to get out of the funds, we don't get setup that all for only seven of the 2:00 AM I won the battle in the name of the bad cache of the asp that the contraption cap of the status of women and others that judges have different often forget about how much time they would compensate(SPEAKER CHANGES) are sitting quietly into the case to be hurt because of that nature guide time offender economic as the economy prior to the judge identified, and the worst they believe are reachable from home when you get into that have led the study looked at the none part of the presentation of the creek bed for the cost of one of you out of four are many more are acknowledged as one of your money.(SPEAKER CHANGES) The park Hyatt in the creation of 11 hold the one at a long way in the air when here's one U.S. cent of the rejected that idea and in the fashion the CM ot he product of the rest of the type a to hand over his project haven't begun to take the test of the cream of the jailers and pentagon's office and sent me to jail for across the street from other survivors left you add them to Federal a cop-prodded the helicopters with a climate that basically going to the jail on hand and other types of offenders ever had a lot behalf after season tracking the system can take a look at that and the using the audit a display up a modest cost of the servers that person riding a term to get a discounted rate add a much less than private lawyers of the child, meditation to see how much to a 50 feet in fact we haven't yet begun a study on that the contents against Data Data to Gould fever-high office in a sense of not prod years in time to make that kind of occasions, if any of the data which is not cost-benefit in a container plants were often, given the pressures of the caseload band had to take a nap delayed the launch of the deep in debt and persist that only apply to men on and have detected for shorty and update them a look at me than half the money to the family guy enters a quality improvement private lawyers in an effort application to use the same system be allowed into the lead of the expense because of better than a minute and talk to jail of all of the often been one of the creators of the great(SPEAKER CHANGES) Gatsby rain all of my estimation of one world 11 percent at one o'clock and three great and of the record seven feet 10 and lifetime on and their investors waited and end the day Lunch about a few others like a fist and in the same product on the compare the Moor park and that kind of move the data as a prime example of the late into the value to the detailer signal a 2-8 man-eaters any other time in clever talking to clients were confined that even considering the church and at the hand that patient one can believe that this to another study which of them in the lab indefinitely that factors of the studies of the allegations that I and in and ................

...and the people actually need to spend more time on their cases because they're not investigating them, they're not spending enough time, so we certainly don't want to waste time. We certainly don't want to be inefficient. But the reality is our lawyers are already very efficient in terms of the number of hours. They may not be as efficient in how they use those hours. [SPEAKER CHANGES] Any further follow-up? [SPEAKER CHANGES] ?? [SPEAKER CHANGES] Thomas Maher, Executive Director of Ingine Defense Services. It's an issue, and that's a quality component in addition to an efficiency component. We have begun what we call the systems evaluation project. We've been fortunate to get a grant to work on it that will allow us to analyze these kind of outcomes. We have not yet done that. We are in the process of doing that. It's a big data project, but we're working on it. I can tell you without a data study that I know for example in New Hanover, which is a relatively new public defender office, when they first got set up, and shortly after they started there was a reduction in the jail population which I think was a result of at least handling the front end of the cases more efficiently. We used to have a county funded position in Durham that was an assistant public defender who covered first appearances and it was because the county saw value in at least getting people out of jail and if the case can be resolved, being resolved. That position went away. We're certainly looking at that issue but I don't have a study to report back to you. [SPEAKER CHANGES] Follow Up? Representative Turner? [SPEAKER CHANGES] Thank you, Mr. Chair. Thank you, Mr. Maher for being here. I was wondering.. I heard two years ago, I heard the the county was being considered for public defender and ?? was gathering information about that and I had several complaints that what ?? ?? accused him ?? and then we'll have to pay double ?? appointed and then the public defender gets paid for their time anyway. Do you have any comment on that, and has there been an improvement in that situation? ?? [SPEAKER CHANGES] Thomas Maher, Executive Director of IDS. The issue of conflicts is obviously an ongoing one and under the law in North Carolina and I think every state, a public defender's office is treated like a law firm which means if one lawyer has a conflict, nobody in the office can represent the client. And that's true for private lawyers. They may have a conflict. We expect that public defenders have a certain percentage of case-specfic conflicts. They can't represent that client. They are usually pretty good at identifying that up front. For example, if two defendents are arrested for the same crime, they're in a good position to identify that fact and make sure that one of those defendents is farmed out. It is invariable though, that as the case progresses you may learn of a new witness, which turns out you represented in the past, or something comes up where you have to withdraw although you've already started the work. That is also true for the private lawyers. In fact, we built this contract system. One of the things we looked at is, "Okay, not every case that we give to a lawyer gets resolved by that lawyer because of this issue", and built in the fact that we're gonna have certain number of withdrawals and we're gonna have to have new lawyers assigned. I have not heard that the public defenders are worse at that than the private lawyers. I think in general when the system's set up they're probably better at identifying those because they are able at the intake to look through their case management system, identify conflicts, and farm them out if it exists at the beginning of the case. [SPEAKER CHANGES] Follow up? Representative Dave Jackson and then Representative Stephens. [SPEAKER CHANGES] I believe ?? expected this year's backlog to be $5 million dollars? Is that? [SPEAKER CHANGES] Thomas Maher, Director of IDS. Yes. [SPEAKER CHANGES] And how much have you requested that we freeze the tax break? [SPEAKER CHANGES] Thomas Maher, Director of IDS. To begin we store the rates at $5 increments so for each of the various rates that you've seen we've asked for funding for those to go up by $5 an hour. [SPEAKER CHANGES] And how much would a $5 increase affect the budget? [SPEAKER CHANGES] Thomas Maher, Director of IDS. Our estimate is for a fully annualized cost. I think it's about $6.5 million. The first year would not, I believe, be fully annualized, depending upon when it came into effect. [SPEAKER CHANGES] And so your numbers are close and so maybe you know what I'm getting at. Given the choice would you prefer to get rid of your backlog and start the year fresh and pay people all the time, do you think attorneys would rather have $5 an hour or would they rather know come May and June, they're gonna get paid...

should not have to wait 'til July and August to get for--to get more space. SPEAKER CHANGES Thomas Maher, Director of IDS, I've actually thought about that issue, if I was given a choice. And the answer depends upon whether it is a sustainable backlog that doesn't grow. If the backlog continued to grow because of kind of built-in underfunding, then I think we need to deal with the backlog because at some point that just becomes unsustainable and probably not responsible budgeting. I suspect for most of the attorneys who are struggling to pay--and we've just done a survey and we're going to--of the pack--we're going to release a report--we have a significant number of lawyers, for example, who don't have health insurance, can't make payments, can't have an office. They would probably prefer the $5 an hour, recognizing that, come May or June, they may not get paid 'til July because they can build that in. Not paying them enough, but doing it more timely, still leaves them underpaid. Paying them slightly better with a two-month delay, assuming it didn't grow and it wasn't kind of a structural problem, is not great, but it's better in terms of their willingness to continue staying in the system and doing the work. SPEAKER CHANGES Representative Stevens? SPEAKER CHANGES Thank you. Mr. Maher, is there a study that's been done comparing private-assigned counsel previously to current public defender's office? For example, New Hanover County's got a public defender. What were we paying private-assigned counsel before? What are we paying public defender, and any conflict private attorneys? Do we have those numbers in terms of what it results in savings? SPEAKER CHANGES Thomas Maher, Director of IDS. The short answer is we haven't done a specific cost-effectiveness between the current public defender pay structure and what the private-assigned counsel would be at the old $75-an-hour rate. I would be shocked if most of them were not cost effective, because last time I looked at it, which is maybe about a year or so ago, most of them become cost effective at less then $75 an hour. A lot of the work is done in district court, where currently we're paying $55 an hour. That's the biggest drop. So it would not take full restoration of the rates, in my opinion, though I haven't looked at it--done the math--to make most of the larger or mid-sized public defender offices cost effective. There are some smaller ones that exist for reasons that have nothing to do with cost effectiveness, like the First District, where they’re just not going to be, because there's not an effective roster system to compare them to. SPEAKER CHANGES Follow up. The answer is there really hasn't been a study? SPEAKER CHANGES There's not a current study. We have old studies at the $75-an-hour rate. Those public defenders were cost effective. There has been some increase in the cost for public defenders--for state employee raises, things of that nature--that reduce their ability to access the full allotment. Those increases, I don't think, would make up the difference between the $75 an hour at which they were cost effective and the current lower rates. But I haven't actually done the study. SPEAKER CHANGES A different question, please. On your contract rate--this is the first time I guess I've seen enough that I could start to make some questions--it appears that you've collected cases in units that you believe would be equivalent to 360 hours, 360 billable hours, and were paying basically $55 an hour for the 360 hours? How is it worked ?? SPEAKER CHANGES Thomas Maher, Director of IDS. They're actually paid--if they actually work 360 hours, they're paid about $5 an hour less. We designed these to be cost effective, we've got shortfalls. The other thing we took into account is that one benefit of a contract system is that attorneys are guaranteed a caseload. So for example, with the misdemeanor contract where they take one caseload unit, they get about ten cases a month. In some places, that's significantly more than they might get under roster, and our studies show that, at least up to a point, increasing the caseload reduces the amount of time per case. There's efficiencies to being in court on multiple cases instead of one case. So the expectation is that they will, in fact, under a contract system, spend less time per case than a larger number of attorneys would have spent under a roster system. And so the expected efficiencies are built into the rate in order to generate some savings from the contract system. SPEAKER CHANGES I can follow up on that. So based on the numbers I'm trying to put here together a little bit, they basically get about fifteen hundred a month to take to take ten cases a month, and those cases are just whatever the judge assigns? SPEAKER CHANGES Yes. Thomas Maher, Director of IDS. In essence, what had been with a--different districts have different lists for assigning counsel, but generally they break down to the less serious cases, misdemeanors, are district court, and the more serious. Contract attorneys are basically on--the contracts are basically three lists. One is misdemeanor, district court work; one is low-level felonies; and one is high-level felonies. And the appointment system uses those as a list. So as a client is given a court appoint

??either the public defender and public defender district or the judge in the non-public defender district will go through those lists and appoint and they then each month let us know through this online system what cases they have been appointed, so we actually make sure they are getting cases and not just sit there resolving them, so that each month tell how many cases, like that. [Speaker changes] And I understand the problem that you have been talking about this morning with low rates and everything like that. My question is this: based on the low rates you’d think that if the rates were that low then the attorney would not be bidding for this work. Are you saying any problem finding attorneys to be at this work? Is the competition still good for this. And if it is, what you would attribute that to, not just that much work out there for the attorneys, so this is basically the only game in the town? What’s the climate out there. [Speaker Changes] Thomas ?? ?? Directed by the … We’ll have the fuller report from our scrap form from our surveys from the private house council to find out how much, what changes are happening. I can tell you that we are losing experienced attorneys. Tons of warm bodies in many places we have enough attorneys, many of them are very young, they do not have much experience and there is nothing wrong with having them gain some experience, for example and just for record. But they are not in the level where they can handle more serious, complicated cases and that’s where I think we can see the most attrition. There are some, it is not uniform throughout the States, there are some counties where it is becoming more a problem to find attorneys who are willing to take cases at all. There are tends to be smaller counties where young attorneys may not be moving to and there are few attorneys to choose from. There is a mix of problems. There are some counties where we are beginning to have problem finding attorneys at all, other counties where there are attorneys willing to do the work but they often don’t have much experience and while most of the people who work on the contract system renewed, not all of them did. There was a percentage that said we have done this, it is too much work for what have been paid. We thought they were good attorneys, but they chose not to re-opt. In some counties, quite frankly, we make phone calls asking people to apply, convince them to apply. Probably brunt a few friendship for people I have talked in to doing this, who now are not so happy. It is a problem we’ll very much like to fix it before it becomes more of a problem because keeping a system going is, in my view, better than waiting till it is totally broken and having tried finding attorneys come back in to the system they already left. [Speaker changes] Thank you, Mr Michaux [Speaker changes] Thank you [Speaker changes] And Mr Charles we are going to move on [Speaker changes] Thank you, Mr Chair. The slide shows the role out of contract defender system. This is a slide, map of IDS Public Defender Contract System over laid on prosecutorial map so the counties that are in color here are counties that have a local public defender office, counties that are shaded are counties where the contract system has been rolled out to this point. We have talked about this to some extent at this point. But this is from the ?? contract defender report. This is how the compensation has been broken down. The annual compensation will be paid monthly broken down to, basically will be divided by twelve and per case compensation has a range on it too, based on the number of case that actually fell within the unit. This is IDA personnel. The specially defender and ?? defenders are both paid under the public defender budget which represents 95% of IDS employees, 5013 FTE. Administration is 23 FTE with 4% of the IDS FTE. Public defenders are split in to six districts. Public defender offices, we have talked about to some extent. And

[SPEAKER CHANGES] Of specialty defenders. [SPEAKER CHANGES] Do you have a question? [SPEAKER CHANGES] Mr. Maher. If I could ask you a question. How many lawyers do you have in the Office of the Capital Defender? [SPEAKER CHANGES] Thomas Maher, Director of IDS. I think, and we're going from memory, I'll double check this, that between the various offices, we have 17 attorneys who are handling potentially capital cases within that office. [SPEAKER CHANGES] What kind of caseload, what kind of caseload do they have? [SPEAKER CHANGES] Each carries in the neighborhood of eight potentially capital cases at a time. We actually have a policy both for the ?? counsel and I think in theory applies to them that they shouldn't carry more without my specific permission. Now if somebody is in a position to take an additional case, I will take a look at what the nature of their cases are, if they've been, if a lot of them have been declared non-capital, or if they're close to being resolved, I will allow them to handle more than that, but the target is eight cases becauses a number of them are death penalty cases. [SPEAKER CHANGES] How many cases-capital cases do they try a year? [SPEAKER CHANGES] Thomas Maher, Director of IDS. Within those particular lawyers working for the capital defender, in terms of capital trials, there'll only be a few actual capital trials a year that they would be involved in because there aren't that many capital trials within the state in a year, but they are involved. When there are capital trials, it's not uncommon to have one of them or both of them as counsel. I know there are-I kind of, when there actual capital trials, which I tend to know what's going on, as quite often either one or two of the assistant capital defenders is involved. I can't tell you a specific number of trials, though. off the top of the head. [SPEAKER CHANGES] And the last question, what are the 17 ?? lawyers paid? [SPEAKER CHANGES] There's a range. Thomas Maher, Director of IDS. The, there are some lawyers there who have in excess of 20 years experience, and they're paid substantially more. I would think when you include longevity some of them are making 90 or 100,00 or more. Now there's a significant number who are much younger. Although they're experienced, they've come from other places, they're making less than that. We could clearly get a list of the salaries for those, but there's a range, just like there's a range of experience within the office. [SPEAKER CHANGES] Any other questions? President Stevens? [SPEAKER CHANGES] Just, sort of following up on that one, they're potential capital cases, so at what point do these attorneys get involved? Is it when the district attorney indicates they're going to seek the death penalty? Or is it immediately when they're charged do they simply view it as potential capital? [SPEAKER CHANGES] Thomas Maher, Executive Director of IDS. The short answer is both. The capital defender makes appointment decisions. They have some information about a case at the time an appointment needs to be made. If, the way it works is in a potential capital case, the judge will determine that the defendant is indigent and then notify the capital defender's office that will make the appointment. They will take a look at availability of attorneys, where the case is, you can tell sometimes from the nature of the case off the bat, the likelihood that it will be capital and take that into account. But the defendant at that point is entitled to one attorney. If and when the district attorney in a Rule 24 motion declares that it's capital, then a second attorney would be appointed. And at that point obviously it's known that that is a capital case. [SPEAKER CHANGES] Follow up. There appear to be, if I'm doing my math correctly, and maybe it's done differently, there would be four capital attorneys in each of these regional offices? [SPEAKER CHANGES] Thomas Maher, Executive Director of IDS. The Durham office has more, and then we've got the Wilmington office that may only have three, Winston, Buncome I thought only had two and Forsyth may have three or four, I don't remember exactly. Certainly we have that information. [SPEAKER CHANGES] And follow up. [SPEAKER CHANGES] Follow up. [SPEAKER CHANGES] And then we also pay the cost of keeping up each of those offices? [SPEAKER CHANGES] Mr. ?? [SPEAKER CHANGES] Thank you Mr. Chair. So the five specialty defenders we've talked about the capital defender. The juvenile defenders have three FTE, the juvenile defender mostly does education for attorneys dealing with indigent, in cases dealing with indigent individuals. The appellate defender has 25 FTEs, that is both attorneys and staff in juveniles. The appellate defender has 25 FTE, that is both attorneys and staff. And there's an Office of Parent Representation that is part of the appellate defender's office. There's also the Office of Special Counsel, dealing with mental health issues with satellite offices at the major mental health hospitals around the state. IDS Administration

The total of 23 FTE, general fund funded FTE. This breaks down with most of the staff there being in financial, being financial staff dealing with paying of attorneys, the collection of set off debt that we talked about. [SPEAKER CHANGES] Okay. [SPEAKER CHANGES] The General Assembly directed IDS to create a fee transparency online web application last year and IDS has created this. This posed searchable information from fee apps with the information that’s listed below. It is now searchable from the IDS main page. There is a link for fee transparency and you can click on the applicant there. The repair line of prison or legal services, sustained, this is a pass through contract, that’s paid out of the hack fund section of IDS budget. Prison or legal services provides legal advice to inmates who have submitted a motion for appropriate release, they identified sentencing errors, they handle post-conviction litigation for legitimate claims and they explain legal status when there is no legitimate claim and this helps to cut down on per se filings. In the Court Commission there was some discussion about how these motions for appropriate relief do clog the aid offices. After the reduction in fiscal year 2013-14, POS no longer reviews civil claims. At this point they look at 14 attorneys total at this point or not attorneys, 14 staff, excuse me. And the same year there was the low level misdemeanor classification. Mr. Maher referred to this already. This led to a $2 million cut for IDS. At this point class 3 misdemeanors face intermediate punishment, the possibility of jail time only with 4 or more convictions, so with fewer than 4 prior convictions with no possibility of jail time there should be no state funded attorney assigned. There’s been some confusion out in the field about how to implement that. My understanding is that there is a report in CJ Leads that’s helped to ease some of these challenges. These are re. [SPEAKER CHANGES] [??] done with the [??] [SPEAKER CHANGES] If I could just make a comment on that. I could tell you that what I see in district court. I’m not in criminal district court, but I can tell you that our district court judges have really struggled with this change and I totally believe what IDS says about they haven’t seen this $2 million savings because what this requires, it requires the first court [??] a judge to actually go through and look at a criminal history record to make sure do you have the three or more previous convictions or not and there is oftentime the person is charged with, they’ve got a case in that court room, they’ve got a case in a different court room in a different day, maybe they’ve got a court appointed attorney on one case but not another and I think the fault of the judges is just let’s make sure these people’s constitutional rights are protected and so we’re just gonna appoint someone even if it turns out they’re not eligible for jail time. That appears to be my experience and anything that IDS or AOC could tell me, you know, tell us about [??] then I’d appreciate it if you’d [??] [SPEAKER CHANGES] I reckon this is my time to put in a shameless plug for the Courts Commission but it’s an issue that we’ve brought up in there and discussed and we’re willing to take on any studies you’d like us to do and some of the things we’ve looked at is are there sentences we could simply almost turn into infractions or are there classes that we could actually say no matter what your prior history they’re gonna come on down, so anything you’d like us to study or look at please let us know. We’ll take it on. [SPEAKER CHANGES] Question, Mr. Chairman. [SPEAKER CHANGES] The final site here discusses recent legislative actions to IDS. In 2013 there’s the reduction to prisoner legal services that I mentioned. There’s also a reduction related to the low level misdemeanor reclassification and there was a reduction to administrative staff of $250,000. The additional pack funds also appear here. That was the 3., I think it was just over 3.75, 3.76, something like that

3.8 is basically what it came out to in terms of non-recurring funds since the idea is to help manage the shortfall and in 2014 there was an administrative reduction of about a half a million dollars and salary and benefits reserve, this was the raises, about $800,000 so that totaled out to positive 335,000. This concludes my presentation. [SPEAKER CHANGES] Okay, we need to give Mr. Charles a few moments to respond to some questions. [SPEAKER CHANGES] [??] [SPEAKER CHANGES] [??] and I did [??] [SPEAKER CHANGES] Dear drivers. [SPEAKER CHANGES] [??] the lottery prices. Want to [??] [SPEAKER CHANGES] I believe this works a lot like the state income tax refunds, that this is money that is captured at, is it the Treasurer’s Office I would think catch it or no? [SPEAKER CHANGES] [??] I have the bill regarding that. That’s one of the concerns about my lottery confidentiality bill. Apparently when someone wins the lottery or a significant prize the lottery commission searches for these sorts of debts owed to the state just like the state income tax would and they would deduct that from their check and no, my bill would not change that. [??] [SPEAKER CHANGES] That’s my hesitation. [SPEAKER CHANGES] Thomas Farr, Executive Director of IDS. Would you pay for some interpreters? I’m not sure of the specific question. [SPEAKER CHANGES] [??] salaries. I mean, I’m sure that these people like that in terms of [??] [SPEAKER CHANGES] Yes. [SPEAKER CHANGES] Thomas Farr, Executive Director of IDS. There’s actually is, I think the best way to describe it, there’s kind of a split responsibility for this language access service. In court interpreting is generally born by the Administrative Office of the Courts. When we have interpreters, for example, helping the lawyer communicate with the client outside of court that’s our responsibility. [SPEAKER CHANGES] On that last slide, just an explanation of the $800,000 salary and benefits reserve. That seems like a large number. Is that? [SPEAKER CHANGES] That was the $1,000 raises, sir. I’m sorry. Thank you, Mr. Chair. That was the $1,000 raises I believe and the accompanying amount of salary and benefits that went out to other agencies. I believe there’s a part of that that could go to the retirement fund too. I’d have to go back and look at my budget from last year specifically to figure out how it breaks down. [SPEAKER CHANGES] That’s something you could provide then? [SPEAKER CHANGES] Oh, yes, sir. Very easily. [SPEAKER CHANGES] Mr. Chair. [SPEAKER CHANGES] [??] [SPEAKER CHANGES] [??] Every, in essence, last year when they did the salary increase and the benefit, associated benefit retirement changes, for the first time those were budgeted in the agency’s budget which was something you had not seen in the past and this could have been a bit [??] in the front of the budget and [??] see it. That’s maybe why they’re sticking out at you this year. For the first time they were budgeted at the agency level. [??] they had I think it was $600,000 in salary increases and then a health benefit increase and then a retirement increase in the retirement but in an amount that had to be appropriated for retirees. So you’ll see the same thing, I’ll have it on my DHHS slides tomorrow and then you’ll see it when we do DPF as well. The number in DPF’s much bigger. [SPEAKER CHANGES] Thank you. [SPEAKER CHANGES] Representative Stevens. [SPEAKER CHANGES] So the same level, we gave $1,000 per employee increase, salary increase, when did that come in to this to help insurance benefits and retirement cause that’s getting close to 2,000. Not quite. [SPEAKER CHANGES] Let me grab the phone. [SPEAKER CHANGES] Getting close to 2,000 per employee. [??] [SPEAKER CHANGES] If all else fails we go to the book. [SPEAKER CHANGES] There’s a book. [SPEAKER CHANGES] Is it, is in the $1,000 of the [??] included benefits. [SPEAKER CHANGES] It does include benefits, yeah, but the initial benefit, how much is the benefit per person then? [SPEAKER CHANGES] [??] [SPEAKER CHANGES] [??] $600 or $700 you have [??] employees

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