This morning, the Georgia House of Representatives overwhelmingly voted in support of two important bills that will provide funds for the state’s public defender system, House Bill 648 and House Resolution 977. Thanks to all who took action and called their State Representative and asked them to vote in favor of these two pieces of legislation!
I’m including below some information about the legislation as well as a Guest Op Ed I was invited to contribute to Peach Pundit on the significance of the legislation.
We now move our advocacy to fulfill the constitutional promise of counsel to the Georgia State Senate. Thank you again for your support!
All the best,
Sara Totonchi, Executive Director
Southern Center for Human Rights
“If You Cannot Afford A Lawyer”
March 5, 2012 9:24 am
by Sara Totonchi
“You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” This statement is uttered so often in movies, television crime dramas and detective stories you’d be hard pressed to find someone who is unable to recite some portion of the rights guaranteed to us under the Miranda warning. The right to have an attorney represent you is such a fundamental tenet of the American justice system that it is included in the warning read at every arrest.
Over the past decade, Georgia has made significant strides in our ability to serve as a model for a fair and equitable justice system. The passage of the 2003 Indigent Defense Act and the creation of Georgia’s statewide public defender system helped ensure that every citizen accused of a crime had equal access to competent legal counsel. It was a system that at the time, positioned our state as an example that other states should strive to emulate.
However, though the Act provided much welcomed structural changes, its funding structure still needs work. The public defender system has never been funded at an adequate level. With this funding deficiency, we risk returning to a time when Georgia served not as a model of fairness and equality but as a shameful example of a neglected and broken down system that is vulnerable to litigation.
After passing the Indigent Defense Act, in 2004 the General Assembly created the Indigent Defense Fund by enacting a $15 civil filing fee and surcharges on criminal fines and bonds. The problem is that like many other fine-and-fee-based trust funds, including the teen driving education fund, the solid and hazardous waste funds, and the peace officer and prosecutor training fund, the monies generated have not been allocated to the purposes for which they were created.
To correct this problem, House Judiciary NonCivil Chairman Rich Golick, with strong bipartisan support, has proposed a constitutional amendment with enabling legislation that will be voted on by the House of Representatives on Monday. If adopted by the General Assembly and approved by voters in November, House Resolution 977 and House Bill 648 will guarantee that all fees collected for indigent defense can only be used for indigent defense.
It is important to realize that this is not a tax. It simply specifies the money already being collected by fines and fees created for funding indigent defense actually go to the state agency responsible for indigent defense.
When looking for a cautionary tale warning against the return to Georgia’s old broken and underfunded system, we need look no further than the case of Samuel Moore. In 2001, before Georgia’s structural reforms were implemented, Mr. Moore spent 13 months in the Crisp County jail on a loitering charge without access to legal counsel. The last four of these thirteen months he remained in jail despite the fact that all charges against him had been dismissed. He was never seen by a lawyer, so no one bothered to tell him he could go home.
Mr. Moore’s plight was not an isolated incident but one case among many that occurred during a period of neglect and mistakes under the Georgia’s old public defense system, which left defendants without an attorney or with shockingly inadequate counsel. It was stories like Mr. Moore’s and many others that compelled the Georgia General Assembly to create the statewide public defender system.
Today, Georgia’s justice system is at a crossroads. Without the level playing field created by effective legal counsel for the prosecution and the defense, our adversarial justice system breaks down and we simply cannot uphold the principles of fairness and equality that define our nation.
In 2003, lawmakers made the right decision in reforming our public defense system to make sure that it would be equitable for all. It is critical now, a decade later, we finish what we started and fix the public defender system’s funding issues by endorsing HR 977 and HB 648.
Sara Totonchi is the Executive Director of the Southern Center for Human Rights, an Atlanta-based nonprofit law firm.
INFORMATION & TALKING POINTS on HR 977 and HB 648
History: In 2003, the Georgia General Assembly passed the Georgia Indigent Defense Act which created a statewide public defender system and the Georgia Public Defenders Standards Council. In 2004, the General Assembly passed 1EX, a bill that created the Indigent Defense Fund by enacting a $15 civil filing fee as well as surcharges on criminal fines and bonds.
Since 2004, those filing fees have annually generated between $41 million and $44 million. However, the General Assembly has appropriated only $35 million to $38 million per year for the indigent defense program, some $4 million to $8 million less than the amount collected in fees each fiscal year. Governor Deal’s proposed budget is much better, allocating $40 million, but there is no assurance that future administrations would follow suit.
This funding gap has persisted, even though the indigent defense system was plagued by serious shortfalls that caused lengthy lawsuits and resulted in costly settlements. While the public was told the increased fee would be used for indigent defense, a sizeable chunk of the proceeds was actually spent on other state budget items.
To correct this problem, Chairman Rich Golick, with strong bipartisan support, has proposed a constitutional amendment (HR 977) and enabling legislation (HB 648) that, if adopted by the General Assembly and approved by a majority of voters in the next general election, will guarantee that all fees collected for indigent defense will be used for that purpose and will not be siphoned off to fund other programs and activities of state government.
House Resolution 977 – Sponsored by Chairman Rich Golick of the 34th, Chairman Wendell Willard of the 49th, Majority Whip Edward Lindsey of the 54th, Minority Leader Stacey Abrams of the 84th, Representative Matt Ramsey of the 72nd, and others.
This resolution amends the State Constitution to allow the General Assembly to earmark all funds that are collected for indigent defense so that they may only be spent on indigent defense. Amending the Constitution is the only way to earmark funds for a certain purpose. It would prevent the General Assembly from being able to skim from the funds collected and use the money for other purposes. This would guarantee a steady source and predictable amount of money for use for indigent defense. It would ease the burden on counties who are currently paying more than the State for indigent defense.
House Bill 648 -- Sponsored by the same legislators as HR 977
What it Does
The purpose of this bill is to dedicate funding collected through specified court costs to indigent defense by sending these funds to the Georgia Public Defender Standards Council (GPDSC).
Why it is Necessary
The reason why this bill is necessary is because not all funds collected by the designated fees are being appropriated to the GPDSC by the General Assembly. Here’s how the system currently works: the funds are collected in the General Fund and are then to be appropriated during the budget process to the GPDSC, but not all of the money collected for indigent defense is appropriated to fund indigent defense. Since funding began in 2005, more than $29 million have been skimmed from the fees collected and used for purposes other than indigent defense. This has left the agency and public defender offices around the state bootstrapped and barely getting by. The funding shortage has resulted in vacant positions not being filled; training programs for lawyers being gutted; use of low-bid, flat-fee contracts by private attorneys for representation of conflict cases. Under HB 648, all specified court costs designed to fund indigent defense will actually go to their stated purpose.
What it Isn’t
It is important to realize that this is not a tax. This bill will not increase anyone’s taxes. Rather, it specifies the money already collected by fines and fees created for funding indigent defense go to the state agency responsible for indigent defense, the GPDSC.