The Injustice in New Jersey’s Public Defense System

Overview

New Jersey’s Office of the State Public Defender is housed in the state executive branch. Chief Public Defender Joseph Krakora is appointed by Governor Phil Murphy to a five-year term in office. There are two tiers of public defense, at the state and municipal level. All of state funding goes to the state level, which handles felonies and juvenile delinquency cases. As of 2013, there are 520 public defenders employed as full-time litigating attorneys in a state with a population of 8.9 million people (BJS Statistics). There is also a pool of private criminal defense attorneys who are contracted by the state to represent indigent defendants. In addition to lawyers, New Jersey boasts 174 investigators, no social workers, and only six paralegals.

The municipal level deals with “non-indictable” misdemeanor cases and receives 100 percent of its funds locally (6th Amendment Center). Municipal public defenders are appointed to part-time, one year positions which allow them time to conduct private criminal defense work (Justia, L.1997,c.256,s.4). These part-time public defenders are also beholden to their private defense responsibilities.

The New Jersey statute understands an indigent defendant as “a person who is formally charged with the commission of an indictable offense, and who does not have the present financial ability to secure competent legal representation, and to provide all other necessary expenses of representation” (2A:158A-2). An indigent defendant is a person of little means who does not have the funds to pay for a private lawyer.

Public defense is not free in the state of New Jersey. To receive a public defender, the indigent person must submit an application, accompanied by a fee of 200 to 250 dollars. This fee can be waived if the court determines that there is a preponderance of evidence that the filing fee presents a burden to the individual (A.4435). Some are able to have the initial court filing fee waived. But that is not the only cost they need to worry about. It is also the responsibility of the client to pay the public defender a reasonable fee for their services.

The client is required to pay the public defender a flat fee which is based on the services rendered and the seriousness of the charges. The flat fee schedule would have an indigent client charged with 3rd and 4th degree crimes pay 250 dollars for a post-indictment plea, or 500 dollars for a trial which lasts up to five days. The defendant can look at the flat fee schedule and determine the charges that will be incurred based on their decision whether to plead guilty or pursue a trial. It is the responsibility of the client to determine whether to pursue legal action which corresponds with a fee that they are able to pay. All indigent defendants are required to pay for the services rendered, even if they cannot afford it.

First, the defendant is informed of the reimbursement fees for their lawyer. If a person is unable to pay the total cost of representation, with at least 150 dollars due, a lien will be taken out on their house or whatever property assets are available (2A:158A-17). In some situations, the government can take out a lien on the property of the defendant for less than 150 dollars. In six months, if the payment is not made in full, the indigent defendant becomes in debt to the state of New Jersey.

What Is Just

If the indigent defendant cannot afford to pay the flat fee, they do not have the full range of defense available to them. This is problematic because the quality of defense stems from the willingness of the client to pay the fee or go into debt. The New Jersey public defense structure depends on these reasonable fees that the state collects from the poor. It is a head scratcher that for public defenders to gain money, they have to take it from the poorest in our society. There is the argument that since the defendants are the users or beneficiaries of the public defense system, they should be the ones to contribute their personal funds. However, it is dubious what we can expect to receive from the indigent. When the New Jersey Office of the Public Defender asks for a reasonable fee from their clients, they impose an undue burden. According to a Federal Reserve 2015 Report on the Economic Well-Being of U.S. Households, “Forty-six percent of adults say they either could not cover an emergency expense costing $400, or would cover it by selling something or borrowing money” (Federal Reserve). This data offers the perspective that it is not possible for a significant portion of households to pay an emergency fee without the need to borrow money or sell something in order to make the surprise payment. If households that are not considered poor have difficulty scraping together 400 dollars for emergency expenses, how can we expect the poorest among us to fund their own defense?

In New Jersey, the indigent defendant reimburses their public defender for their expenses. But is this fair and just? The New Jersey method is dissimilar to the New York plan. In New York, public defenders are free for their indigent defendants. There is no fee for clients to pay. Instead of funding the public defense system with reasonable fees from their indigent clients, New York state has established an indigent legal services fund to pay for public defenders (NY State Fin L § 98-B (2016). The fund was created by state legislators to ensure that individuals receive quality defense, and public defenders have the resources and time to work on their cases. The New York state financial code for public defense dictates:

“The purpose of such fund shall be to (i) assist counties . . .  in providing legal representation

for persons who are financially unable to afford counsel . . .; (ii) assist the state, in improving the quality of public defense services and funding representation provided by assigned counsel . . .; and (iii) provide support for the operations, duties, responsibilities and expenses of the office of indigent legal services and the indigent legal services board . . .”

The purpose of the indigent legal services fund is to support legal representation for those who cannot afford it, to provide public defense services, to fund representation, and to offer monies for administrative and nonlegal services. The New York plan is more effective than the New Jersey plan because it does not deduct a reasonable fee from their indigent clients. An indigent defendant in New Jersey must concern themselves with a fee schedule which corresponds with the services they received from their public defender. If the same defendant had been charged with the same offense in New York, they would not have to worry about the cost of their lawyer. The defendant would not feel discouraged whether to take a plea deal or go to trial, because in New Jersey, a trial will cost them twice the amount of a plea. In New York, all public defense legal services rendered cost nothing to the indigent defendant. Depending on what state the indigent client lives in, they can keep their monies or go into debt.

The New Jersey plan for public defense is fueled by the indigent. But how do these flat fees compare to that of a private criminal defense attorney? The law offices of Jonathan F. Marshall are a large firm based in Red Bank, New Jersey. The attorneys charge a flat fee of 3,500 dollars to 6,000 dollars for an indictable crime of the third or fourth degree (John F. Marshall). Their hourly rate is typically 395 dollars. A trial that lasts up to five days for third- and fourth-degree charges will cost 3,500 dollars with a private defense attorney, compared to 500 dollars plus extra expenses with a public defender. The cost of a public defender pales in comparison to the cost of a private attorney. The indigent cannot shop around and choose from a pool of attorneys. Rather, they are assigned one and must pay the flat fee that is owed.

The super indigent who cannot pay their fees have a lien taken out on their house and become in debt to the state. A lien can be put on a property for a period of 10 years (2A:158A-17). Further, the office of the public defender can do all things necessary and proper to collect any fees and can “enter into arrangements with one or more agencies of the State or of the counties to handle said collections on a cost basis” (2A:158A-19). A person who is simply looking for defense can easily become in debt to the state if they cannot pay the reasonable fees assigned to them. There is no solution for the super indigent to resolve these fees. They can contest the fees, but likely, they will have to pay them over time. Interest accrues, and the reasonable fees become larger. The extremely poor defendant becomes in debt to the state and is one of the many indigent funders of the New Jersey public defense system.

Ideas for Reform

The New Jersey public defender system requires the indigent to pay a flat fee for all the services rendered. This flat fee is unaffordable for some of the indigent and can lead to them being in debt to the state. New York is an example of a public defender system which does not require funds from the indigent to pay for their defense. In the case of New Jersey, a person may only be able to afford a plea deal and cannot afford the expenses associated with a full trial. This can lead to the client not receiving quality defense. Reforms should be made to bolster the funding of the New Jersey public defender’s office, so they do not need to take funds from indigent clients.

There is a myriad of reasons not to support funding for public defenders. Some may ask, “Why would I want my tax dollars paying for the representation of criminals?” If you harbor some reservations about public defense, you are not alone. Beyond the idea that public defenders represent people who are accused of crimes, many are concerned about the safety of their community. Why would they support a program which works to defend people who are convicted of crimes? If a public defender is successful at their job, some may wonder that there may be more people convicted of crimes wandering the community.

Do not make the indigent pay public defenders. One reason to support funding for public defense, is so that we do not drive the poor into abject poverty. The fee schedule is restrictive and limits indigent clients in their access to justice. If a client cannot afford a more expensive trial, they have limited options. They can plead and save money, they can go forward with a trial and rack up debt, or they can waive their right to a defender and try to represent themselves before the court. None of the options are favorable, and the indigent client is put in between a rock and a hard place. Imagine if the indigent did not need to pay for the services of a public defender. If the office of the public defender could find funds through different avenues, the poor would not need to decide based on personal finances what legal action they should take. Instead, their choices would be wholly dependent on the circumstances of their case and the advice of their public defender.

New Jersey voters just legalized the use of recreational marijuana. The government should set aside a portion of tax revenue from recreational marijuana and put it towards public defense. The legislature is already proposing that we do the same for specialized police officers. In a recent WHYY article, Joe Hernandez shares that legislation regarding the marijuana market has consistently included stipulations that police trained to spot drugged driving get part of the spoils. Why not allocate a portion of the tax proceeds to the NJ office of the public defender? This would be an act of justice which supports the indigent and forgotten. The public defender’s office represents so many individuals who are charged with possession of marijuana or a nonviolent drug crime. It is fitting to channel monies to public defenders, who represent the have-nots of society.

Social workers are valuable members of the public defender team. Add social workers to the Chief Office of the Public Defender. Social workers have skills like making defendants comfortable, bonding and connecting with clients, and handling other necessary duties. Importantly, the time of a social worker is worth less than that of a lawyer, so hiring more social workers is financially savvy. Social workers can connect with clients and encourage them to have confidence in their lawyer and believe that they are being fought for. Their exceptional perspective makes them an asset to a team of public defenders.

Tax the ultra-wealthy and have a portion of those funds go towards public defenders. The poorest should not have to pay fees for their defense that will lead to them going in debt. Instead, it should be considered that the ultra-rich are taxed and a portion of those tax dollars go towards funding for public defense and related resources.

A public defender is advertised as affordable legal counsel. In New Jersey, there is a price that comes with indigent defense. For those who are eligible, there is a flat fee associated with the costs of hiring a public defender, differing according to what kind of legal services are needed. A plea deal cost less than a trial, and the indigent defendant may not be able to afford the cost of their defense or make a less favorable legal decision because of what money is not in their wallet. When it comes to public defense, the indigent in New Jersey are shortchanged. Compared to New York, the Garden State is not impressive in terms of its public defender system. New York state does not issue a fee to their clients who receive a public defender. That alone puts New York far ahead in terms of justice. In New Jersey, even the super indigent have to pay the flat fee associated with public defense. If they cannot afford it, the government will have to take out a lien on their property. These individuals become in debt to the state. The Chief Office of the Public Defender must receive funding from somewhere else. The public defender’s office should stop asking indigent clients to pay a “reasonable” flat fee. What is reasonable to some is subjective, and this fee can be detrimental to someone’s financial situation. Some other ideas for reform are to appropriate some of the legal marijuana taxes to the public defender’s office, to add social workers, and to tax the ultra-wealthy. Public defenders need proper funding to do their jobs effectively. The system cannot succeed when it preys on the indigent and demands funding from the poorest among us.

 

 

 

Works Cited

“Chapter 158A: PUBLIC DEFENDER.” Office of the Public Defender, www.state.nj.us/defender/home/opdstatute.shtml.

Dancer, Ronald S. “Statement.” A4435, 2018, www.njleg.state.nj.us/2018/Bills/A4500/4435_I1.HTM.

Flat Fee Billing , Treasury , 2014, www.state.nj.us/defender/documents/Flat%20Fee%20Billing.pdf.

Hernandez, Joe. “Cops Trained to Spot Drugged Drivers Could Get a Cut of Tax Revenue from N.J. Weed Sales.” WHYY, WHYY, 29 Nov. 2020, whyy.org/articles/cops-trained-to-spot-drugged-drivers-could-get-a-cut-of-tax-revenue-from-n-j-weed-sales/.

“The Common Questions Regarding NJ Criminal Defense Attorneys.” The Law Offices of Jonathan F. Marshall, 24 June 2020, www.newjerseycriminallawattorney.com/criminal-process/common-questions-regarding-new-jersey-criminal-defense-lawyers/.

U.S. Department of Justice. “State-Administered Indigent Defense Systems, 2013.” Bureau of Justice Statistics , 2017, www.bjs.gov/content/pub/pdf/saids13.pdf.

“2013 New Jersey Revised Statutes :: Title 2B – COURT ORGANIZATION AND CIVIL CODE :: Section 2B:24-4 – Requirements for Municipal Public Defenders.” Justia Law, 2013, law.justia.com/codes/new-jersey/2013/title-2b/section-2b-24-4/.

 

https://www.njleg.state.nj.us/2018/Bills/A4500/4435_I1.HTM#:~:text=While%20the%20Office%20of%20the,without%20support%20from%20State%20funds.

 

 

 

 

 

 

 

 

 

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