Indigent Legal Services in Alaska

Indigent Legal Services in Alaska

"Indigent Legal Services in Alaska" by Justice Center, University of Alaska Anchorage. Alaska Justice Forum 13(2): 1, 6-8 (Summer 1996). An overview of the legal resources, both criminal and civil, available to Alaskans with low incomes. The article focuses primarily on the Public Defender's office and Alaska Legal Services.

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.)

Table 1. New Cases Filed, Alaska Public Defender Agency, FY96 Table 2. Caseload Summary, Alaska Public Defender Agency, FY88-FY96

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.)

Figure 1. Alaska Court Locations
Figure 2. Alaska Public Defender and Alaska Legal Services Offices

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.

Table 3. Alaska Incomes, 1989

Indigency Criteria

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.