Indigent determination and cost recovery : action has been taken to ensure state funds are used to serve indigent defendants

Follow-Up Review Report No. 13-03

May 2013

Georgia Department of Audits and Accounts
Performance Audit Division
Greg S. Griffin, State Auditor Leslie McGuire, Director

Why we did this review
This follow-up review was conducted to determine the extent to which the Georgia Public Defender Standards Council has addressed the recommendations presented in our June 2011 Performance Audit.
The purpose of the original audit was to examine processes for ensuring resources are properly directed to defendants who are truly indigent. Specifically, the audit determined the effectiveness of: 1) practices used to screen criminal defendants for indigent defense services, 2) efforts to ensure the accuracy of defendant's self-reported information, and 3) efforts to recover costs associated with defending indigent defendants.
About GPDSC
The Georgia Public Defender Standards Council (GDPSC) is charged with ensuring that adequate and effective legal representation is provided to indigent persons. State law defines an indigent defendant as a person who earns--or, in the case of a juvenile, whose parents earn--less than a percentage of the federal poverty level determined by the charge of misdemeanor or felony.
GPDSC has legal offices in nearly all of the state's 49 judicial circuits. Each office has an appointed circuit public defender. In fiscal year 2010, public defenders and indigent defense administrators opened approximately 174,000 cases and closed approximately 182,000 cases.

Follow-Up Review Indigent
Determination and Cost Recovery
Action has been taken to ensure state
funds are used to serve indigent
defendants
What we found The Georgia Public Defender Standards Council (GPDSC) has taken numerous steps to address recommendations in the original audit. In particular, GPDSC has created a new application and policies for circuits to utilize in determining whether a defendant qualifies for the services of the circuit public defender.
The original report noted that decisions to provide public defender services were not always adequately supported by documentation in defendants' files. In addition, we found that circuits were using different methods for calculating income, evaluating assets, and considering expenses. Without proper GPDSC guidance and a critical review of information, there was a risk of improperly categorizing defendants as indigent, which would increase public defenders' caseloads and allow less time and resources for cases that truly qualified.
As recommended in the original audit, GPDSC created comprehensive guidance that addresses many of the issues highlighted in the audit. GPDSC's guidance defines net income, how it should be calculated, and the adults who should be included in household size and income. GPDSC also developed a standard application that requests information necessary to determine a defendant's indigence. For example, the application specifies sources of income to be considered, such as child support and retirement benefits. All circuits must utilize the application and its corresponding procedures. Of the ten circuits we reviewed, nine had incorporated the application.

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When the application is submitted, it is first reviewed for completeness by a representative of the public defender's office. The application is then submitted to a trained designated reviewer to critically evaluate for consistency (by comparing reported income with reported assets, expenses, and child support payments). If deemed necessary, the reviewer may also verify the applicant's self-reported information with pay stubs, tax returns, credit card bills, and public databases. At the time of our review, representatives from approximately half of the 49 circuits had received training on GPDSC's new policies and procedures. GPDSC plans to conclude training in the remaining circuits by June 2013 and evaluate all circuits' implementation beginning in October 2013.
GPDSC's standard application and guidance have helped ensure all circuits follow state law in determining indigence; however, further improvements could be made. For example, GPDSC includes "unusual but necessary living expenses" in its net income calculation yet does not provide guidance as to what constitutes a reasonable unusual expense. The circuits we reviewed most commonly accepted high medical expenses, but at least one circuit also considers high credit card debt, which, according to GPDSC staff, would not be an acceptable expense. In addition, variation may still exist in how circuits assess the liquidity of assets for obtaining an attorney, though circuits we reviewed indicated that applicants rarely have any assets to evaluate.
The original audit also found weaknesses in circuits' cost recovery practices. Although state law requires any person applying for legal defense services to pay a $50 application fee, our review had found that virtually no defendants paid the fee when applying for a public defender, and courts were often unable or unwilling to order payment at the end of the case. New standard sentencing forms issued by the Council of Superior Court Judges include an option for the judge to order the application fee or waive it due to financial hardship, which should limit variation among the circuits. In addition, GPDSC continues to educate judges about the mandatory nature of the fee and the county's ability to retain the funds if the circuit has a GDPSC-approved verification system (i.e., adopting the new application and procedures). The number of cases eligible for cost recovery at sentencing continues to be limited by state law, which allows the judge to order the application fee only when the defendant is sentenced to probation.
Standard sentencing forms also prompt the judge to order or waive attorney fees. State law allows courts to impose attorney fees, but it also requires judges to consider whether the payment would impose a financial hardship on the defendant. In the circuits we reviewed, public defenders indicated that judges typically do not consider a defendant's finances in the decision; rather, judges either order fees be paid in virtually every case or not at all. As such, variation still exists among the circuits.
GPDSC Response: GPDSC stated that it has made great progress in the last two years. It noted that it had implemented, or is in the process of implementing, all of the findings related to GPDSC. It specifically responded to three findings categorized as "partially implemented" and one categorized as "not implemented," and those comments are in the table on the following pages. GPDSC noted that, in some cases, changes to the indigent determination and cost recovery processes are outside of its authority.

The following table summarizes the findings and recommendations in our 2011 report and actions taken to address them. A copy of the 2011 performance audit report 10-08 may be accessed at http://www.audits.ga.gov/rsaAudits.

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Indigent Determination and Cost Recovery Follow-Up Review, May 2013

Original Findings/Recommendations

Current Status

Georgia's indigent determination process has deficiencies that undermine its effectiveness at identifying defendants eligible for public defender service.

No Recommendation

Screeners do not critically review defendantprovided information and infrequently conduct verification procedures to confirm indigent status.

Fully Implemented To increase the likelihood that defendantprovided information is critically reviewed, GPDSC's new policies and procedures require circuits to designate a trained representative to evaluate applications for consistency. These reviewers are encouraged to compare whether reported income is consistent with reported assets, expenses, and court-ordered child support payments and request additional information or documentation from the defendant when necessary.
Additionally, though GPDSC's procedures do not address whether applications should be completed with the assistance of a screener, public defenders in most circuits we reviewed indicated this is common practice since most defendants apply while in jail. Each application is reviewed for completeness before it is submitted to the reviewer.

GPDSC guidance does not adequately address the issues faced by those charged with determining eligibility.

Partially Implemented GPDSC's new guidance for determining qualification addresses many of the issues noted in the original audit. In particular, GPDSC guidance now specifies how net income should be calculated, defines household size, specifies the sources of income, and outlines when the income of a supporting person should be considered.
However, we noted that improvements could be made to further ensure consistency across the circuits. In particular, GPDSC has not defined the "unusual but necessary living expenses" that may be factored into income calculations. Public defenders from many circuits we reviewed indicated medical expenses were the primary expenses considered, but one circuit also included high credit card bills. In addition, variation may still exist in how circuits assess the liquidity of assets for obtaining an attorney, though circuits we reviewed indicated that applicants rarely have any assets.

GPDSC Response: GPDSC stated that it is inherently difficult to define unusual expenses. In addition, "noting the type of expense provides sufficient information to determine if an applicant is eligible." In addition, public defenders must "collect any information that the applicant believes is relevant," since the court must "consider such information...if the circuit public defender does not determine the applicant to be eligible."

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Indigent Determination and Cost Recovery Follow-Up Review, May 2013

Original Findings/Recommendations

Current Status

Applications for indigent defense services do not always capture information necessary for eligibility determination.

Fully Implemented GPDSC created a standard application for all circuits to use beginning June 2012. The application includes more specific sources of income, including child support and retirement benefits, as well as questions about whether the applicant is considered a dependent for tax purposes. In addition, GPDSC has created a form to clearly compare calculated net income to the appropriate federal poverty level, which, as noted in the original audit, provides transparency to eligibility determination. All but one of the ten circuits we reviewed had begun utilizing the application. GPDSC will begin evaluating circuits' implementation beginning in October 2013.
The application does not include expense information to verify reported income, as recommended in the original audit. However, GPDSC policies suggest obtaining the information during the review, and circuits report using expenses if follow-up is necessary, particularly if the defendant was able to pay bond.

Circuits are inappropriately using factors other than income and assets to determine whether a defendant qualifies for a public defender.

Fully Implemented All circuits are required to follow GPDSC's new guidelines for determining whether a defendant qualifies as indigent. The guidelines state the factors that should be considered in the decision (net income and assets). As of March 2013, GPDSC has trained representatives from 24 of the 49 circuits on the new standards and expects the remaining circuits to be trained by June.
While we did not evaluate circuits' decisions as part of our followup review, GPDSC's new guidance, standard application, and associated training should reduce the likelihood of circuits improperly considering factors other than income or assets in indigence determinations. As previously noted, GPDSC will begin evaluating circuits' qualification and verification practices in October 2013.
It should be noted that public defenders may still be required to represent a defendant even if he or she does not qualify based on income. GPDSC has created a form to document the court's decision to appoint a public defender when the defendant's income cannot be verified or is higher than the statutory maximum.

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Indigent Determination and Cost Recovery Follow-Up Review, May 2013

Original Findings/Recommendations

Current Status

Few defendants pay the indigent defense application fee when initially applying for a public defender, and courts do not consistently order defendants to pay unpaid application fees as required by state law.

Partially Implemented Some circuits we reviewed indicated increased efforts to collect the application fee, but most circuits continue to rely on orders from the judge to recover the fee rather than attempt to collect it prior to sentencing. GPDSC continues to educate judges about the mandatory nature of the fee, as well as the ability to retain the fee if the circuit has an approved verification system. In addition, a judge's decision to waive the fee is now better documented. The Council of Superior Court Judges has issued a new standard sentencing form for felony probation that requires judges to either order or waive the application fee.
State law has not changed to explicitly allow courts to order the fee be paid in violation of probation cases; thus, recovery is permitted only when a defendant is sentenced to probation on a new charge. During the original audit, approximately 15% of the cases we reviewed were for violations of probation, and the judge was unable to order the $50 fee from these defendants.

GPDSC Response: "The cost recovery of the application fee is only enforceable by the court. GPDSC will continue to work with the courts to facilitate recovery of the fee."

The prevalence of courts ordering defendants to repay defense costs varies significantly among the circuits.

Partially Implemented New standard sentencing forms discussed above also prompt the judge to order or waive attorney fees for indigent defendants. Although state law requires courts to consider financial hardship when determining cost recovery, this does not appear to be a factor in judges' decisions. Rather, according to public defenders in circuits we reviewed, judges typically order attorney fees in virtually all cases or not at all, irrespective of the defendant's financial situation.
In our original audit, we noted that orders were common in some circuits and rare in others. Public defenders in two of the three circuits we revisited indicated that courts' practices had not changed since the original audit.

GPDSC Response: "Only the court can facilitate repayment of defense costs."

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Indigent Determination and Cost Recovery Follow-Up Review, May 2013

Original Findings/Recommendations

Current Status

Alternate practices used in other states may improve indigent determination and cost recovery efforts.

Not Implemented State law has not changed to allow public defenders to presume eligibility when the defendant receives needs-based benefits. GPDSC staff indicated that the current practice of screening all applicants ensures current income and assets are considered rather than finances at the time that eligibility for needs-based benefits was determined.
GPDSC has not updated guidance to aid in identifying which defendants are "partially indigent" and likely to be able to contribute to their defense. According to GPDSC staff, it would be difficult to codify standard rules since the cost of defense varies depending on the circuit and the charges. GPDSC staff noted that, by ordering or waiving application and/or attorney fees, the judge is effectively making a determination about a defendant's ability to pay. However, as noted above, judges do not appear to consider a defendant's ability to pay in their decision.
Finally, GDPSC staff noted that providing the judge financial information obtained from the application may not be helpful in determining a defendant's ability to pay at sentencing. Defendants' financial situations often change by the time the case is resolved because they have returned to work.

GPDSC Response: GPDSC "will continue to work with the General Assembly in reviewing other states' practices that could serve as a template for future legislation and improvements at GDPSC."

7 Recommendations

3 Fully Implemented 3 Partially Implemented 1 Not Implemented

The Performance Audit Division was established in 1971 to conduct in-depth reviews of state-funded programs. Our reviews determine if programs are meeting goals and objectives; measure program results and effectiveness; identify alternate methods to meet goals; evaluate efficiency of resource allocation; assess compliance with laws and regulations; and provide credible management information to decision-makers. For more information, contact
us at (404)657-5220 or visit our website at www.audits.ga.gov.