Fair representation: A California bill aims to improve public defense funding | Opinion

Public defenders are the first and often only line of defense when people are wrongfully arrested, face life-altering immigration consequences for minor offenses or are in situations where children are removed from their care for accusations related to abuse or neglect. Yet California’s public defense system is woefully outdated and under-resourced.

Here in the Central Valley, Fresno was sued over its public defense system in 2015, leading to a settlement. Kern County was sued by the United Farm Workers in 2023 for having a “guilty plea mill.” Kings County, at one point home to the state’s highest incarceration rate, recently received a scathing review by the Office of the State Public Defender, and was highlighted last month for rarely using defense investigators, a frequent issue in flat-fee systems.

Fortunately, there is an opportunity for California to start reversing course by passing Assembly Bill 690, the Fair Representation Act.

Everyone who is accused of a crime receives an attorney if they cannot afford one. While most are familiar with that concept, many people might also be unaware of California’s outlier scheme for providing these lawyers and how it drives mass incarceration.

California is one of only two states that places the entire financial burden on counties to fund trial-level public defense and then provides no road map for how counties should do so. As a result, many counties have opted to privatize the system via flat-fee contracts with for-profit attorneys or law firms (“flat fees” mean lawyers are paid a fixed amount for a limitless number of cases, no matter how much work they actually do).

The result? A clear financial conflict of interest between a lawyer and their client, because the less they work, the more profitable the fee.

The California legislature is on the verge of passing AB 690, authored by Assemblymember Nick Schultz, D-Burbank, which would finally ban these agreements. This would bring California in line with a slew of other states, including Michigan, Washington, South Dakota, Idaho, Utah and Nevada.

While there are undoubtedly dedicated and committed flat-fee contractors, there are also decades of empirical research that unequivocally tie flat-fee contracts to worse outcomes: People needlessly stay in jail longer, they are convicted at higher rates and they are sentenced to more time when represented by flat-fee lawyers. This is incredibly costly for a state that spends over $23 billion a year on incarceration, including over $7 billion from county budgets.

The numbers are striking: Eight of the 10 counties with the highest incarceration rates use flat-fee contracts exclusively, as do all of the counties in the top five. Seventy percent of counties that exclusively use flat-fee systems have seen a rise in incarceration over the last 10 years — in sharp contrast to the rest of the state. California, as a whole, spends 70-80% more on prosecution than public defense, but in flat-fee counties that disparity is 159%.

There is no one-size-fits-all approach to public defense, but this bill should not be controversial. It merely follows the decades-old recommendations of the State Bar, American Bar Association, National Legal Aid & Defender Association and the California Commission on the Fair Administration of Justice. It would also help with the recruitment of lawyers to do this difficult work, knowing that their time and efforts on individual cases would be valued over speed and volume.

Now more than ever we must ensure that our public defense system is up to code.