A look at North Dakota’s hybrid public defender system

North Dakota’s “statewide” public defender system is piecing together a public/private defense bar to meet the increased demands for indigent defense arising from the State’s oil boom. In the sidebar of a two-part package, the Grand Forks Daily Herald describes the state’s indigent defense system as a hybrid with 16 full-time public defenders supplemented by private attorneys who contract with the North Dakota Commission on Legal Counsel for Indigents on an hourly billing basis to fill in the gaps. The main article provides various perspectives on how this system, which replaced a low-bidder contract system in 2005, is working around the state.

According to the articles, this system was created to reduce the profit incentives lawyers previously had to just “meet and plead” clients. Those incentives are inherent in systems where the lowest bidder wins a contract to represent all indigent defendants in a county or area for one flat fee; the less time you spend per case, the more profit you make on it.

However, North Dakota’s reliance on private contract attorneys appears to do little to remove those incentives. To control costs, the Commission has decided that “A misdemeanor case should take four hours of legal work, or $300 total: a felony seven hours or $525. An appeal is presumed to take 30 hours, or $2,250.” Those are interesting numbers by themselves, but they still encourage greedy and unscrupulous private attorneys to spend the least amount of time possible on each case to maximize their profit-per-case.

Although North Dakota’s system might be an improvement on the past, the only real way to remove the perverse profit incentives in an indigent defense system is to rely on full-time public defenders with reasonable caseloads. That’s not easy to do, but in a state like North Dakota that’s flush with cash from an oil boom, it’s definitely possible.