reasoning that the Oklahoma Supreme Court’s “constitutional responsibilities” and “inherent power” compelled the con- elusion that the practice of compulsory appointment of attorneys without providing adequate compensation amounted to an unconstitutional taking of private property
How later courts described this case
- reasoning that the Oklahoma Supreme Court’s “constitutional responsibilities” and “inherent power” compelled the con- elusion that the practice of compulsory appointment of attorneys without providing adequate compensation amounted to an unconstitutional taking of private property
- applauding pro bono legal representation, court nevertheless holds that "voluntary services are insufficient to accommodate the right of indigent citizens to the effective assistance of counsel"
- involuntarily appointed counsel entitled to reasonable overhead and out-of-pocket expenses plus an hourly rate "tied to the salary range paid to assistant district attorneys and the district attorneys” within the state, depending "on the attorney’s qualifications”
- "most even handed approach in setting fees is to tie the hourly rate of the counsel appointed for the indigent defendant to the hourly rate of the prosecutor/district attorney and the public defenders"
Written by the judges who cited it.
The opinion
HODGES, Justice,
concurring specially.
I concur in today’s decision which holds that requiring lawyers to represent indigent defendants without a post-appointment hearing, and without providing adequate, speedy, and certain compensation, violates the Oklahoma Constitution. The present application of the compulsory court appointment system may also violate the due process and equal protection clauses of the United States Constitution.
I write specially to state that today’s decision is merely a stopgap measure to remedy constitutional infirmities in the present system. The Legislature is free to adopt any solution that is consistent with the Oklahoma and United States Constitutions.
For example, the Legislature may adopt the formula suggested by the majority opinion by tying the hourly rate of appointed counsel to that of district attorneys and public defenders while compensating for reasonable overhead and out-of-pocket expenses. Or, the Legislature may opt to develop a state-wide public defender system as suggested by the concurring in part and dissenting in part opinion. Another alternative would be to simply raise the *1165 statutory cap and codify the extraordinary circumstances doctrine applied in Bias v. State, 568 P.2d 1269 (Okla.1977).
Today’s pronouncement is another chapter in the judicial struggle across the nation “to find the appropriate balance between the ethical obligation of the legal profession to make services available and the rights of attorneys to just compensation.” State ex rel. Stephan v. Smith, 242 Kan. 336 , 747 P.2d 816, 841 (Kan.1987). Recent eases recognize “that the historical conditions from which the duty to provide free legal services evolved no longer exists [sic] in modern America.” Id.
Dramatic changes have impaired the traditional method of compensation and appointment of counsel to represent indigent defendants. Recent years have witnessed increased complexity, specialization, and costs in criminal defense work. Added to this, the “War on Drugs” is fueling a dramatic increase in the number of criminal cases heaped upon an already heavily burdened system. 1 These exacerbating factors have led to the emerging view “that the responsibility to provide the Sixth Amendment right to counsel is a public responsibility that is not to be borne entirely by the private bar.” Id. Although lawyers have an ethical obligation to provide services for indigents, the legal obligation rests on the state. It is up to the Legislature to fulfill that obligation.
. One statistic demonstrates this point. During the last ten years, the rate of incarceration has increased from 230 per 100,000 citizens to 407. The United States now has one of the highest incarceration rates in the world. This figure compares with a rate of 350 to 400 in the U.S. S.R., 100 in Britain, 92 in France and 47 in Norway. Tulsa World, July 9, 1990, at 1.