Newsom signs two laws to address weaknesses in California’s public defense

Two new laws will force California counties to improve their public defender systems by limiting their use of low-pay contracts with private attorneys, mandating funding for defense investigations and requiring reporting on attorney caseloads and other critical data. 

The Fair Representation Act, signed last week by Gov. Gavin Newsom, bans the use of flat-fee contracts when a defendant is facing the death penalty or life without parole. Under these contracts, counties pay private lawyers and firms a fixed amount, regardless of how many cases they have or much work they do on a case. That arrangement disincentivizes litigating and investigating cases.

Sponsored by Assemblymember Nick Schultz of Burbank, the law also increases access to defense investigators by mandating that counties create a separate fund for these services. The goal, Schultz said, is to prevent lawyers and firms from having to choose between their take-home pay and hiring an investigator who can turn up mitigating or exonerating evidence.

The bill’s passage follows CalMatters investigations showing that poor people accused of crimes are routinely convicted in California without anyone investigating the charges against them, and that lawyers working in flat-fee systems have astronomical caseloads and are less likely than other defense attorneys to challenge the prosecutor’s case.

“AB690 places basic guardrails on California’s privatized public defense system for the first time,” said Josh Schwartz of The Wren Collective, a nonprofit criminal justice reform group that has been advocating for ending flatfee contracts in California. “Flat-fee systems have long been empirically shown to produce worse outcomes for people charged with crimes. When applied to life and death cases the impact is especially disturbing.” 

About two  dozen California counties use flat-fee contracts as their primary method for providing public defense. The other counties oversee public defense offices with government lawyers, but most still rely on flat-fee contracts in cases where the public defender has a conflict, like those in which there are multiple defendants. In these cases, the government office represents one defendant, and the conflicts office — often a private firm or lawyer working under a flat fee — represents the other. 

The new law will impact all flat-fee contracts, requiring most California counties to change the way they provide public defender services.

“It’s a big first step to really bolster our public defense infrastructure and ensure the constitutional guarantee of a right to counsel is something that Californians actually have access to,” Schultz said. “We want to make sure we are not just giving people the appearance of a robust defense.”

California has a constitutional obligation to provide effective representation for poor people accused of crimes, but the state has left that responsibility entirely in the hands of its 58 counties. It’s one of just two states that don’t provide any funding or oversight of basic public defense.

Schultz initially sought to ban flat-fee contracts altogether, as several other states have done, but limited the scope of the bill in response to opposition from rural counties.

That opposition caused the bill to stall last year in the Senate Appropriations Committee, when then-Chair Anna Caballero, whose district includes counties that rely on flat-fee contracts, said the rural areas she represents would not be able to afford to meet its requirements.

In order to get the bill out of committee, legislators narrowed its reach, applying the flat-fee ban only in the most serious cases. But the bill’s other provisions remained intact, and apply to all the cases handled in these privatized systems.

A second law seeking to improve public defense, introduced by Assemblymember Joaquin Arambula of Fresno and signed by the governor on Sunday, requires counties to report attorney caseloads and other basic information about their public defender systems to the state. 

Schultz, who co-sponsored the legislation, said the data will allow lawmakers to craft additional bills to address the problem. But ultimately, he said, “California needs to explore how we would go about funding a public defense infrastructure, the way most other states do.”