SC Lawyer, September 2007, #4. Legislation Reforms South Carolina's Public Defender System.

• Author: By T. Patton Adams

South Carolina Lawyer

2007.

SC Lawyer, September 2007, #4.

Legislation Reforms South Carolina's Public Defender System

South Carolina LawyerSeptember 2007Legislation Reforms South Carolina's Public Defender SystemBy T. Patton AdamsIt's official. South Carolina has a new statewide unified indigent defense system which became law on June 21, 2007.

The new law, Act No. 108, is the result of a series of hearings held in the summer and fall of 2006 before a Senate Task Force on Criminal Justice chaired by Sen. Gerald Malloy of Hartsville. The statewide indigent defense system was a key recommendation made to the task force by the S.C. Commission on Indigent Defense.

The new legislation completely reforms the existing public defender system in South Carolina and provides a means to eliminate the negative impact of Rule 608, SCACR, criminal appointments. The act creates a circuit public defender position for each of the state's 16 judicial circuits with compensation and benefits equal to that of circuit solicitors. Circuit Public Defender Selection Panels, made up of attorneys from each county within each circuit, will advertise and seek applications and select a nominee whose name will be submitted to the S.C. Commission on Indigent Defense. The commission will accept or reject the nominee, but cannot substitute a nominee. Each circuit public defender will serve for a term of four years and may be re-nominated. They will be classified as state employees.

Total implementation of the new system is expected to take about two years. New funding provided by the legislature this year will allow for the creation of eight to 10 circuit public defenders in the current fiscal year, with the remainder of the circuit defenders becoming operational effective July 1, 2008. The commission is developing an implementation plan.

All assistant public defenders and staff working for the circuit defender will become employees of the county that the circuit public defender designates as the "administering county," with eligibility to the state's retirement system and health care plans. The legislation provides that all current employees of a public defender office are grandfathered for one year.

Under the new system, the commission is authorized to establish standards of operation for every circuit defender office. The standards will provide better accountability, quality assurance and cost effectiveness. Additionally, the standards will allow for human resource flexibility within each circuit.

Currently, the public defender system in South Carolina operates through 39 separate non-profit Section 501(c)(3) corporations, which were authorized by state law many years ago to be the recipients of state and county funds. For public defenders, compensation and benefits have varied widely from county to county, and there has been a material disparity when compared with compensation and benefits for solicitors and assistant solicitors. There is also a wide disparity in caseload. In preparing the financial impact statement for the bill, the State Budget Office determined that approximately 62 new assistant public defenders will be needed in the state to achieve caseload parity. It is clear that the new law will greatly enhance the ability to recruit and retain quality circuit and assistant public defenders throughout the state.

The commission will have the authority to approve and implement a wide range of programs, services, rules, policies, procedures, regulations and standards to fulfill the purposes and provisions of the act and to ensure that indigents accused of crimes in South Carolina receive competent legal representation. The commission will also implement procedures to govern the representation of indigent clients in post conviction relief proceedings, as well as family and probate court proceedings (see sidebar).

The commission also will have the authority to enter into contracts with members of the private bar to handle criminal conflict cases and all other types of cases to which Rule 608 applies. This means that those who truly wish to handle cases and are willing to do so within the applicable rate and fee cap constraints, and subject to published guidelines and performance standards, can enter into a contract with the commission for direct referral of cases under Rule 608. When fully implemented, this new procedure anticipates that the rotation system under Rule 608 will consist only of attorneys who have agreed to work on a contract basis.

The new legislation increases the hourly rate for family court and probate court cases from $40 per hour to $50 per hour, effective July 1, 2007. Additionally, the legislation increases the fee cap from $1750 to $2000 and provides, for the first time, reimbursement for expenses.

Much work lies ahead in implementing the new act, and the legislature recognizes that the new system comes with a price - appropriating $7.3 million new dollars for indigent defense for fiscal year 2007-08. This amount includes funds to begin the circuit public defender system and $2.5 million for the civil appointment fund. This more than doubles the prior statewide appropriated funding for indigent defense. In addition to a new indigent defense system and tremendous funding increases, the legislature also approved a student loan forgiveness program, valued at up to $5,000 per individual, for all assistant solicitors and assistant public defenders.

The Senate Task Force recognized that the criminal justice system is akin to a three-legged stool. The three legs represent the judiciary, the prosecution and the defense. The system only functions properly when all legs are funded equally. The legislature agreed and took corrective action. All attorneys in South Carolina should take pride in this tremendous legislative accomplishment and the long sought after balance that it brings to our state's criminal justice system.

T. Patton Adams is the executive director of the S.C. Commission on Indigent Defense.

Sidebar:

The FY2007-08 General Appropriations Act provided for funding and other changes related to the reimbursement for and disposition of civil case court appointments in South Carolina. Included among the provisions were:

- $2.5 million in nonrecurring funding for civil case court appointments, to be disbursed from Unobligated FY2006-07 General Fund Revenue and made available after September 1, 2007

- the reinstatement of a dedicated Civil Appointment Fund in the Commission on Indigent Defense with provisions preventing the commingling or transfer of any dedicated civil funds with other funds administered by the commission

- an increase in the reimbursement rate authorized for civil case court appointments from $40 per hour to $50 per hour, with authority to exceed the hourly rate under certain conditions

- an increase in the per case reimbursement cap from $1750 to $2000, with authority to exceed the cap under certain conditions

- reimbursement of up to $500 in expenses for investigative, expert or other services considered reasonable and necessary for the civil representation, with authority to exceed the $500 limit under certain conditions

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authorization for the Commission on Indigent Defense to implement a contract system for the retention, on an annual contractual basis, of the services of attorneys qualified to handle civil court appointments, whose services shall be engaged on the basis of bids submitted, and approved payment of no more than an hourly rate of $50 per hour, not to exceed $2000 per case for the services to be rendered

- establishment of a Court Appointment Deferral Fund for FY2007-08 to be maintained by the S.C. Supreme Court for the purpose of allowing attorneys a one-year optional exemption from court appointments. Exemption would be contingent upon the payment of a set fee established by the Court of no less than $1000, the promulgation of Court rules in accordance with §14-3-950 and the establishment of guidelines for use of the fees collected for the defense of indigent persons (pursuant to §14-3-950, the rule cannot be in place before May 1, 2008).