Public Defenders

Flat fees for contract public defenders are not unconstitutional, New Mexico Supreme Court says

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The Supreme Court of New Mexico ruled Thursday that the state is free to pay flat fees to attorneys contracted as public defenders, the Santa Fe New Mexican reported. But Chief Justice Barbara Vigil wrote a separate concurrence to emphasize that the public defender system needs adequate funding if it is to fulfill its constitutional duties.

The New Mexico Law Offices of the Public Defender asked the state legislature to double its funding in its most recent session, so it could pay contract attorneys $85 an hour. The legislature appropriated roughly a quarter of the amount of money requested—but also made a rule forbidding the state office from paying an hourly rate. The flat-fee structure the office is using instead tops out at $700 for a felony case.

That flat fee came out to about $3 an hour for Gary Mitchell, an attorney appointed to represent Santiago Carrillo against charges of criminal sexual penetration, voyeurism and drug charges. Carrillo moved in 2014 for an order compelling the state to pay his attorney enough to mount a constitutionally adequate defense. The district court issued such an order, but stayed it after the state public defender’s office objected that this would disrupt its operations.

After the legislature passed the flat-fee requirement, Carrillo moved for a declaration that the requirement contravened his right to effective counsel. The district court agreed, nullified the flat-fee ruling, ordered adequate funding and stayed Carrillo’s prosecution, releasing him from jail.

In Kerr v. Parsons (PDF), the state supreme court reversed all of those orders, saying the flat-fee requirement is not itself unconstitutional. That would be “a huge departure” from case law, Judge Judith Nakamura wrote for the majority. It declined to reach allegations that the flat-fee law violated the separation of powers. However, Nakamura noted that “some limitations … could be so severe as to create a presumption of ineffective assistance of counsel in particular cases.”

That theme was taken up in Vigil’s concurrence, which said low pay for contract counsel has been declared unconstitutional where the low pay has led to ineffective assistance or a shortage of attorneys willing to do the work. Failure to pay attorneys adequately has also been ruled an unconstitutional taking of the attorney’s property in violation of the Fifth Amendment, she noted.

New Mexico’s Chief Public Defender, Ben Baur, told the New Mexican that his office needs more money—or else it needs criminal justice reforms that would reduce the number of clients the office serves. Thomas Clear, a member of New Mexico’s Public Defender Commission, told the newspaper that pay rates for contract attorneys are “quite frankly, ludicrous” and have not been changed in 25 years.

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