By The ACLU of Northern California
California was once the nation’s leader in public defense. Long before the U.S. Supreme Court ruled that the state must provide a lawyer to poor people charged with crimes, many counties in California already did so. Yet today, after years of neglect by the state, California is in the midst of a decades-long public defense crisis. A main cause is the reliance on “flat-fee” contracts with for-profit private attorneys and firms, where lawyers are paid a set amount for a limitless number of cases. These agreements lock attorneys and their clients in a financial conflict of interest where the lawyers’ fees are pitted against quality, zealous representation for those accused of crimes. Flat-fee systems have a well-documented history of providing worse representation and fueling mass incarceration and California has been called out, decade after decade, for allowing them to flourish.
This report examines the actual contracts California counties use and finds that they are woefully deficient in providing necessary resources to private contractors in order for them to adequately represent their clients, they uniformly fail to limit the number of cases attorneys can handle at once, and they provide little to not oversight or supervision for the lawyers who defend people when their lives are on the line. We synthesize the decades of research from within the state and around the country that show these systems should be eliminated and recommend that California finally do just that
San Francisco: ACLU of Northern California, 2025. 27p.
