 |
|||
| A
publication of the Justice Center |
Alaska Justice Statistical Analysis Center |
||
 |
|||
|
Two agencies in Alaska constitute the primary sources of legal services for individuals of low income: the Alaska Public Defender Agency and Alaska Legal Services. The Public Defender Agency, which provides criminal representation, is a state agency with a statutory basis. Alaska Legal Services, which handles civil law matters, is a private, non-profit corporation with funding from federal, state and private sources. While not the only channels for legal assistance for those of limited economic means, these two entities provide the major portion of such aid in the state.
Criminal Defense Services
The Alaska Public Defender Agency
was established by the state legislature in 1969, under Alaska
Statute 18.85.010, to provide indigent parties with legal representation
in criminal proceedings and in some civil matters. The agency
provides representation for indigent individuals in felony and
misdemeanor cases; appeals; probation and parole revocations;
extradition cases; post-conviction relief matters; child support
prosecutions; mental health commitments; contempt proceedings;
juvenile delinquency cases; and parents in child-in-need-of-aid
matters.
Under the statute an indigent party
is entitled to be represented by an attorney to the same extent
as a person having his or her own attorney and to be provided
with services and facilities necessary for representation, including
investigation, access to expert witnesses, and other support.
In fiscal year 1996 the Public
Defender Agency opened 17,623 new cases statewide. (See Table
1 for types of cases. The total FY96 number is over 40 per cent
higher than the number of cases opened in FY88.) The agency's
current staff comprises 65 attorneys, 13 investigators, 2 paralegals,
22 legal secretaries and 7 administrative personnel. Estimated
expenditures for fiscal year 1996 were $8,510,100 (Table 2).
This figure includes salaries, travel, contractual expenses,
commodities and equipment. (The estimated FY96 expenditures for
the criminal division of the Department of Law were $11,780,000.)
 |
 |
Alaska is one of the twenty-eight states in the country in which indigent defense is handled completely by the Public Defender Agency, with no use of outside attorneys under contract as in some other states. (If a case presents a conflict of interest for the agency, it is handled by the Office of Public Advocacy.) The contractual budget provides primarily for the services of expert witnesses -- forensic, medical, psychological -- and for interpreters, who must assist non-English speaking individuals involved in the state justice process. (Interpreters are necessary for a wide variety of languages: Alaska Native languages; Korean; Southeast Asian languages; Spanish; Russian and others.)
The agency operates thirteen offices in communities throughout the state (see Figures 1 and 2), which provide services to that town and surrounding smaller communities. For most individuals in Alaska's smaller communities -- particularly the rural villages -- and even in such places as Barrow and Dutch Harbor, the agency is the main, or sole, source for criminal defense services. Not only do Alaska residents often lack the economic resources to pay for their own representation in criminal or other legal matters, but also in many communities there are few, or no, lawyers handling criminal defense cases.
Civil Representation
The Alaska Legal Services Corporation
is a private, nonprofit corporation established in 1966 to provide
civil legal assistance to low income individuals. It is administered
by a board of directors and an executive director and funded
by grants from the Federal Legal Services Corporation, state
and local governments and other agencies. In the past, Alaska
Legal Services has handled family law cases, housing issues,
public benefits cases, and cases for the elderly as well as undertaking
a number of class action suits which have had far-reaching effects
in the state.
Recent budget reductions from both
state and federal funding sources have cut the areas in which
the agency can now provide civil legal aid to individuals with
low incomes, with priority currently being given to family cases
which involve custody of children. Moreover, federal legislation
now also prohibits the agency from undertaking class action cases
or assisting the incarcerated.
In calendar year 1995 Alaska Legal
Services closed a total 4,227 cases throughout the state. (This
includes 1,193 cases handled by the pro bono program. See below.)
Of the 708 open cases being handled by Alaska Legal Services
at the end of January 1996, family law cases constituted 29.3
percent; Native allotments formed 21.9 per cent; public entitlements,
16.9 per cent; limited entry, 11.3 per cent; housing, 6.6 per
cent; wills and probate matters, 5.1 per cent; subsistence, 1.8
per cent; Native law issues, 1.6 per cent; consumer issues, 1.3
per cent; individual rights, 0.7 per cent; property and land
cases, 0.7 per cent; and other, 2.8 per cent.
As criteria for accepting clients,
Alaska Legal Services uses the federal poverty guidelines: an
individual's income cannot exceed 125 per cent of the poverty
level; that is, at present it cannot exceed $11,500 for one person,
with an increment of $3,875 allowable for each family member.
The current budget for Alaska Legal
Services is approximately $2.2 million. It has diminished from
over $3 million two years ago, as a result of cuts in both federal
and state funding. Recent federal legislation prevents state
Legal Services Corporations from collecting attorney's fees in
successful cases. In Alaska, under Court Rule 82, this practice
had been a significant source of agency income.
The agency now operates offices
with staff attorneys in Anchorage, Juneau, Fairbanks, Bethel
and Barrow, with another office staffed by a part-time paralegal
in Ketchikan. Within the last four years the agency has closed
offices in Dillingham, Kodiak, Nome and Kotzebue. Legal Services
staff attorneys now number fifteen, while in the mid-1980s the
agency employed almost fifty attorneys.
Alaska Legal Services also administers
the Alaska Pro Bono Program, a volunteer program for attorneys
and other professionals, which was created in 1983 to assist
in meeting the legal needs of low income individuals. Over 900
attorneys throughout the state are registered to participate
in the program. In calendar year 1995, Alaska Legal Services
referred 394 cases to private attorneys under the pro bono program.
Table 3, derived from the 1990
national census, presents information on incomes throughout the
state, including figures for individuals and families below the
federal poverty threshold. These figures provide some indication
of the number of Alaska residents possibly unable to afford private
legal counsel whether in civil or criminal matters. In some census
areas, such as the Bethel area and the Wade Hampton area, the
numbers of families with incomes below the federal poverty level
is well over 20 per cent. It should also be noted that these
figures provide low estimates of the number of residents and
families who must depend on indigent legal services because the
federal poverty level is applied nationally and not adjusted
for regional variations in the cost of living . In reality, because
of the high cost of living in Alaska, even more individuals than
these figures indicate would be dependent on indigent legal services.
At present the Alaska Court
System has no uniform, articulated criteria for determining indigency
when assigning public counsel. In late spring 1996, Chief Justice
Allen Compton appointed a committee to study the present situation
and to make recommendations for standards.
Alaska Statute 18.85.170 defines
an indigent person as one "who, at the time need is determined,
does not have sufficient assets, credit or the means to provide
for payment of an attorney and all other necessary expenses of
representation without depriving the party or party's dependents
of food, clothing or shelter and who has not disposed of any
assets since the commission of the offense with the intent or
for the purpose of establishing assistance under this chapter.
. . ." The statute (18.85.120) requires the court to consider
such factors as income, property, debts and the status of dependents.
It also allows the court upon the defendant's conviction to enter
a judgment against the defendant for the costs of representation.
While the statute and Criminal
Rule 39 set the basis for decisions concerning the inability
to retain counsel, the actual processes of assigning public counsel
vary from place to place throughout the state. In Anchorage the
Pretrial Services office evaluates the financial status of defendants
who wish to be assigned public counsel and makes recommendation
to the judge handling the case; in Fairbanks the office itself
makes the appointment. Pretrial Services personnel use a financial
statement form and other information on the defendant derived
from an interview and submission of documentation such as pay
stubs to arrive at their recommendation. In other areas of the
state, the judge makes the decision alone, using information
derived from a financial statement or from questioning the defendant.
Some judges refer informally to the federal indigency criteria
employed by Alaska Legal Services ($11,500 for an individual,
with an increment of $3,875 for each additional family member).
The Alaska courts are able to enter
judgment for the recovery of the costs of appointed counsel upon
conviction and are responsible for forwarding the judgment to
the Department of Law Collections Unit or to a municipal collections
unit.
The Alaska Court System committee
studying the situation with regard to the appointment of public
counsel is assembling information from judges and attorneys throughout
the state in order to devise more precise state guidelines. The
group, which is chaired by District Court Judge Peter Ashman
(Third Judicial District, Palmer), is examining the issue not
just to determine what constitutes indigency but also to ascertain
more clearly what is required to retain private counsel and the
other services necessary for an adequate criminal defense. An
inability to retain counsel can also involve considerations other
than basic financial need, including, particularly in Alaska,
geographical constraints. A confidential questionnaire addressed
to members of the Alaska Bar is requesting information on such
issues as the following: What are your fees for a criminal defense
on a particular charge? How much do you require as a retainer?
Where do you normally practice? Do you accept cases elsewhere?
What extra charges are incurred on a case you handle outside
your normal area?
The committee is also using information
derived from two earlier studies: a 1991 report on public counsel
in Alaska prepared by the National Center for State Courts and
a Alaska Division of Legislative Audit.
The 1991 study by the National
Center for State Courts, Study of the Appointment of Indigent
Defense Counsel in the State of Alaska, recommended that
the state adopt standards which would clearly delineate the circumstances
in which the appointment of public counsel is appropriate. The
report, which was undertaken at the request of the Alaska Court
System, presented formula for determining indigency and partial
indigency, a status under which a defendant would be responsible
for paying part of the costs of representation. These formula
were devised after research within the Alaska system and examination
of the practices of other states. (At the time of the report,
only twenty states had uniform guidelines for the appointment
of indigent defense counsel.)
The legislative audit (Audit Control
Number: 02-4507-95) also examined the processes involving the
appointment of public counsel within the court system, the Office
of the Public Defender and the Office of Public Advocacy. The
audit recommended the development of eligibility standards which
can be uniformly and consistently applied.
The court system committee expects
to submit its findings and recommendations to the Alaska Supreme
Court by the end of the year.
HB 370, enacted by the Alaska legislature during the 1995-96 session and signed by the governor, amends the Public Defender Act (18.85.010) by restricting the agency to accepting only those clients first determined by the court to meet the criteria for indigent legal assistance. Heretofore, the agency has been able to exercise its own discretion in accepting as clients individuals who contact it in search of legal assistance or advice without, or before, having been formally charged or detained. Hence, the amendment more narrowly limits access to legal services for those not able to afford a private attorney. Only when indigent individuals have formally entered the system of arrest, detention and judicial procedure will they be assigned attorneys, while those with sufficient personal economic resources can obtain the protection afforded by an attorney before they are charged, arrested or appear in court. The new legislation goes into effect in September 1996.