Indigent defense in Iowa

The Sixth Amendment of the U.S. Constitution guarantees several rights to those accused of a crime, including the right to a speedy trial with an impartial jury, the right to know who their accusers are, and the nature of the accusations against them. The Sixth Amendment also guarantees a defendant’s right to legal counsel, whether or not the individual is financially able to afford it, and was reinforced by Gideon v. Wainwright.
To ensure this right, the Office of the State Public Defender employs 235 full-time staff members including 170 attorneys in 18 local offices throughout the state together with the State Appellate Defender’s Office in Des Moines, to provide representation for poor and low-income people in all of Iowa’s 99 counties.
The quantity of cases exceeds the capacity of the State Public Defender’s Office, so it is necessary for the state to hire attorneys in private practice on a contract basis to take court-appointed (indigent defense) cases. Contract attorneys receive payment directly from the state as compensation for representing indigent defendants.
Unfortunately, there are not enough attorneys willing to take court-appointments to handle the volume of cases. For example, Scott County is experiencing a crisis which was communicated to judges and attorneys in the district on Oct. 6, 2022, by Judge Henry Latham. Judge Latham sent a letter to all lawyers in the Seventh District informing them that there were not enough public defenders in Davenport to represent defendants in Class C and D felonies. With only four contract attorneys in the county, the judge urged additional bar members to accept such appointments.
There are over 5,000 active, full-time Iowa attorneys eligible to represent indigent defense clients. As of Feb. 6, there are only 561 attorneys registered as contract lawyers with the State Public Defender’s Office. More startling, less than 100 contract attorneys are signed up to represent clients on appeal. This means that in 2023, slightly less than 12% of active, full-time attorneys in Iowa are serving the public by representing indigent defendants.
The number of contract attorneys has been steadily decreasing for the past 10 years. In 2015, there were approximately 1,018 contract attorneys in Iowa. Since then, Iowa has experienced nearly a 50% decrease in contract attorneys.
The contract attorney shortage poses obvious problems. The state of Iowa risks not meeting the constitutional rights of its citizens. There are likely to be right to speedy-trial violations in Iowa counties where supply does not meet demand. Also, there could be potential increases in incarceration and prosecution costs. Quality of representation is another consideration. In her Condition of the Judiciary address, Iowa Supreme Court Chief Justice Susan Christensen shared that the state is now approaching a crisis-level shortage of contract attorneys who accept these court-appointed cases. Chief Justice Christensen quoted Judge James Daane from western Iowa who said: “As the appointment list gets shorter and shorter, judges have less and less ability to force criminal cases to move. We cannot afford to offend the few remaining court-appointed lawyers by pushing their cases because they can simply quit taking appointments. And they do. Sadly, this results in our pending docket growing larger and larger over time, turning our motion days into marathons. This is a significant waste of judicial resources.”
So why are attorneys not taking contracts for indigent defense? There are multiple reasons: the pay is well below the average attorney rate, there is currently no payment for ‘windshield time’ spent traveling to county courthouses or client visits, mileage reimbursement is well below the federal mileage allotment, and the cases and clients can prove to be extremely challenging.
According to attorneyatwork.com, the average hourly rate for a solo or small firm lawyer in Iowa in 2020 was $175 per hour. Contract attorneys representing clients charged with misdemeanors up to Class C and D felonies receive $68 per hour, those representing Class B felonies are paid $73 per hour, and attorneys handling Class A felony cases receive $78 per hour. Court-appointed attorneys at the time of this article are paid 39 cents per mile for travel. The Internal Revenue Service’s standard mileage rate is 62.5 cents per mile.
Representative Brian Lohse currently serves as chair of the House Justice Systems Budget Subcommittee, which is responsible for setting the budget for the Office of the State Public Defender. He is a lawyer-legislator who previously served as a contract attorney. Rep. Lohse notes that the chief justice dedicating 20% of her speech to the contract attorney shortage “impresses that legislators may not be familiar or fully understanding of how important it is and impresses upon many when it is addressed in such a significant way.”
Rep. Lohse says that his responsibility as a legislator regarding indigent defense involves: 1) funding and 2) attorneys’ willingness to participate. “It is a supply and demand issue,” he says. Criminal defendants need representation, and attorneys in Iowa are the other part of the equation and are needed to meet demand.
“If you think about the number of hours spent in a car between hearings, the mileage and lost time is significant, with attorneys traveling further distances between county courthouses,” states Lohse. When taking court-appointed cases earlier in his career, Lohse was able to travel to three hearings within a very short timeframe. Attorneys are now being asked to travel further and cover multiple counties.
The challenging nature of the work is another reason there is an attorney shortage. State Public Defender Jeff Wright, also a previous contract attorney, says, “I think to focus solely on the rates would be an injustice to the people who are doing the work. One of the factors is that it is a very hard job. It is difficult work representing people who are frustrated that they are in the system, who may or may not have committed a criminal offense.” He mentions the high burn-out rate for contract attorneys due to the pressure from clients with the mindset that a good attorney will get them out of criminal charges, frustration from the prosecution, and difficulties imposed by judges who do not allow video hearings for uncontested matters.
Attorney DeShawne Bird-Sell has been part of indigent defense work since 2000 and shares that the work takes a toll on a lawyer’s mental health. “It’s important to know that you’re going to lose cases that you believe in. Losing a case that you put your heart and soul into is just devastating,” she says.
Increased crime by indigents raises the state’s budget needs. While Iowa’s rate of violent crime is lower than the national average, the state’s 303.5 violent crimes per 100,000 residents is now at its highest rate since 1998, per the FBI’s Uniform Crime Report. There may be a rise in crime happening in Iowa, however, the issue remains that there is a shortage of contract attorneys to represent defendants. The nation’s justice system is based on the belief that a person is ‘innocent until proven guilty.’ The right to a speedy trial is considered by many as one of the most important aspects of the Sixth Amendment, because without it, defendants could be held indefinitely under a cloud of unproven criminal accusations.
With contract attorneys currently not being paid for travel time, it is less likely that those incarcerated will receive a visit from their attorney in jail unless it is considered vital to their case. Many times, those visits mean a lot. Client contact makes counsel more effective. When court-appointed counsel is spread so thin, however, this may not happen as much as it should or could.
Contract attorneys also represent indigent clients in other areas of law. For example, post-conviction relief matters fall under civil law. If there is a child in need of assistance (CINA) case, that is a family law matter. The public defender’s office needs all different types of attorneys, not only those practicing criminal law.
So, what is the answer to the crisis? Some possible solutions include increasing contract attorney hourly pay, compensation for travel time, increasing the mileage reimbursement rate, and passing legislation expanding access to video hearings.
Chief Justice Christensen urges for the contract attorney hourly rate to be increased and travel time to be reimbursed: “One, the hourly rate should be raised if we expect attorneys to forego other work when they have significant student loans and living expenses to pay. And two, if we want attorneys to travel to represent clients in several different counties, they should be reimbursed for their travel time.”
If the contract attorney hourly compensation from the state increases, Rep. Lohse hopes that there will be ability to “offset costs by being efficient.” The opportunity to attract more contract attorneys may provide significant savings for the judicial system in the long-term.
Wright mentions that there is a planned increase in mileage reimbursement happening now. The rate will increase from 39 cents to 50 cents per mile in 2023. He also mentions that there is legislation needed for more consistent acceptance of video hearings for uncontested matters. This could save contract attorneys the time spent traveling to courthouses across different counties and mileage costs as well.
Who can help? The requirement for an attorney to contract with the state is simply that they pass the Iowa bar. Attorneys right out of law school can register with the public defender’s office and receive free CLE training. Less-experienced attorneys may be assigned misdemeanor and lower-level cases. As the charges increase in severity, there are additional requirements for attorneys to be eligible to take on those types of cases. 
Bird-Sell, a member of The Iowa State Bar Association Board of Governors, offers a creative solution - for law firms to get more involved. She describes how when she was a new attorney, she was encouraged by her mentor to take court-appointed cases as a service to the community. It was more of an expectation than a choice. “Foster that environment from the very beginning. People who are less fortunate are taken care of. It’s a win-win. The feeling of helping somebody is going to make your law firm better,” she says.
One fact that many decision makers may not be aware of is that 30% of the indigent defense cases involve juvenile defendants. Iowans who have not yet reached adulthood make up a third of the indigent defense cases in the state. This is the low-income, vulnerable population in Iowa who have rights to legal representation, and that can make a difference in their future and the future of the state.
Rep. Lohse explains, “This isn’t a need just for adults. That is the natural go-to thought process for criminal defendants. People don’t always think about the age of the criminal.” He adds, “It is important to get quality attorneys in there to get juveniles going in the right path. The Juvenile Court needs to have the right attorneys in place, providing good representation to defendants, giving them (juvenile defendants) a better chance in the long-term that they are on the right path.”
Wright summarizes, “This is important representation for people who don’t have the ability to help themselves, the underserved, and underrepresented. It is about access to justice.”
As of press time, the Governor has a $3 per hour increase written in the budget which equates to an additional $1.5 million in compensation to contract attorneys. Increasing the hourly rate for indigent defense is a top legislative priority of The Iowa State Bar Association. The rights of Iowans are at stake. It is a problem that will take lawmakers, attorneys, the judicial system, and government stakeholders working together to solve.
Above all, Wright states: “Lawyers have a duty, an obligation to help people who need help and can’t help themselves. Nowhere is that more prevalent than indigent defense.”