Bill Text: DE SB28 | 2015-2016 | 148th General Assembly | Draft
Bill Title: An Act To Amend Title 29 Of The Delaware Code Relating To Criminal Defense For Indigent Persons.
Spectrum: Partisan Bill (Democrat 15-0)
Status: (Introduced - Dead) 2015-05-06 - Stricken [SB28 Detail]
Download: Delaware-2015-SB28-Draft.html
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SPONSOR: |
Sen. Townsend & Rep. J. Johnson & Rep. Keeley |
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Sens. Blevins, Bushweller, Ennis, Henry, Peterson; Reps. Barbieri, Baumbach, Bolden, Brady, Carson, Lynn, M. Smith |
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DELAWARE STATE SENATE 148th GENERAL ASSEMBLY |
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SENATE BILL NO. 28 |
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AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO CRIMINAL DEFENSE FOR INDIGENT PERSONS. |
Section 1. Amend Chapter 46 of Title 29 by making deletions as shown by strike through and insertions as shown by underline as follows:
§4601. Office
of Public Defender Defense Services.
There is created
the office of Public Defender. Office of Defense Services, comprised
of three branches: Central
Administration, the Public Defender's Office and the Office of Conflicts Counsel.
§4602. Appointment; representation of defendants
(a)The Public Defender Office of
Defense Services shall be headed by the Chief Defender.The Chief Defender shall be a qualified
attorney licensed to practice in this State selected appointed by the Governor.
The Public Defender Office of Defense Services shall represent,
without charge, each indigent person who is under arrest or charged with a
crime, if:
(1)The defendant requests it; or
(2)The court, on its own motion or otherwise, so orders and the defendant does not affirmatively reject of record the opportunity to be so represented.
(b)
Before arraignment the determination of indigency may be made by the Public
Defender.Office of Defense
Services. At or after arraignment the determination shall be made by the
court.
§4603. Term of office; compensation; assistants
(a)
The Public Defender shall serve for a term of 6 years from the date of
appointment. The Public Defender shall receive $10,000 per year as
compensation.
(b)
The Public Defender may appoint as many assistant attorneys, clerks, investigators,
stenographers and other employees as the Public Defender considers necessary to
enable the Public Defender to carry out the responsibilities of the office. An
assistant attorney must be a qualified attorney licensed to practice in this
State.
(c)
The compensation of persons appointed under subsection (b) of this section
shall be fixed by the Public Defender.
(d)
Effective January 1, 2000, the Public Defender and Chief Deputy Public Defender
shall be prohibited from engaging in the practice of law outside the duties of
the Office of the Public Defender.
(a) For appointments made after July 1, 2015, the Chief Defender shall serve for a term of 12 years from the date of appointment.The Chief Defender's annual salary shall be established in each fiscal year's Budget Bill, but cannot be less than the Chief Defender's annual salary for the previous fiscal year. However, the Chief Defender's salary is subject to reduction to the extent the Governor or the General Assembly imposes salary reductions for all state employees in all state agencies throughout the state.
(b) The Chief Defender may appoint as many assistant attorneys, clerks, investigators, stenographers and other employees as the Chief Defender considers necessary to enable the Office of Defense Services to carry out the responsibilities of the office. Assistant Public Defenders and attorneys contracting with the Office of Conflicts Counsel must be licensed to practice in this State.
(c) The compensation of persons appointed under subsection (b) of this section shall be fixed by the Chief Defender.
(d) Salaried attorneys employed by the Office of Defense Services are prohibited from engaging in the practice of law outside the duties of the Office of Defense Services.Salaried attorneys who have already established private practices as of January 1, 2015 are exempt from the prohibition for a period of 10 years from the effective date of this statute. After 10 years from the effective date of this statute, all salaried attorneys employed by the Office of Defense Services are prohibited from engaging in private law practice.
§4604. Representation of indigent persons
When
representing an indigent person, the Public Defender Office of
Defense Services shall:
(1) Counsel and defend the indigent person, whether held in custody without commitment or charged with a criminal offense, at every stage of the proceedings following arrest; and
(2) Prosecute any appeals or other remedies before or after conviction
that the Public Chief Defender considers to be in the interest of
justice.
§4605. Appointment of additional counsel
For
cause, the court may, on its own motion or upon the application of the Public
Defender Office of Defense Services or the indigent person, appoint
an attorney other than the Public Defender Office of Conflicts Counsel,
or other qualified counsel, to represent the indigent person at any stage
of the proceedings or on appeal. The attorneys contracting with the Office
of Conflicts Counsel shall be awarded reasonable compensation and reimbursement
for expenses necessarily incurred, to be fixed by the court and paid
by the State Chief Defender and paid through the Office of Conflicts
Counsel.
Section VI. § 4606. Annual reports
The
Public Defender Office of Defense Services shall make an annual
report to the Governor and the General Assembly covering all cases handled by
the Public Defender's office Office of Defense Services during
the preceding year.
§4607. Administrative fee assessment
(a)
Each court of this State shall assess an administrative fee in the amount of
$100 against any defendant on whose behalf an appearance is made by the
Public Defender, one of the Public Defender's assistants the Office of
Defense Services, or any other attorney who has been appointed by a court
to represent the defendant in a criminal proceeding. This fee shall be payable
even though the criminal proceedings do not result in conviction but are
instead terminated by a guilty plea, nolle prosequi or order of the court.
(b)
Upon assessment of any administrative fee under this section, each defendant
shall be directed to pay such assessment forthwith to the clerk of the court in
which an entry of appearance by the Public Defender, one of the Public
Defender's assistants Office of Defense Services or any other
attorney who has been appointed by a court was entered.
(c) A defendant's present inability, failure or refusal to pay an assessment made under this section shall not operate to disqualify a defendant from legal representation.
(d) If a defendant is unable or fails to pay the administrative fee pursuant to this section, the court shall order the defendant to report to the Commissioner of the Department of Correction or a person designated by the Commissioner for work for a number and schedule of hours necessary to discharge the fine, pursuant to §4105(b) of Title 11.
(e) In the event that any portion of an administrative fee assessed under this section shall remain unpaid at the time of sentencing, the sentencing judge shall make payment of the administrative fee an express condition of any sentence imposed.
(f) All moneys received in satisfaction of assessments under this section shall revert to the General Fund and the clerk of each court shall regularly remit all moneys received to the State Treasurer.
(g) On or before the first day of November of each year, the courts of this State in which assessments are regularly made under this section shall provide the State Auditor with a written report detailing the dollar value of assessments made in the previous fiscal year, the amount collected in the previous fiscal year as well as the balance of unpaid assessments at the open and close of the previous fiscal year.
§4608. Short title
This chapter may
be cited as the Model Defender Act. Office of Defense Services Act.
SYNOPSIS
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Every indigent person accused of a crime has the Constitutional right to effective, conflict-free counsel funded by the state. In Delaware, the Public Defender's Office and the Office of Conflict Counsel are charged with the responsibility of providing counsel for indigent people accused of crimes. The Public Defender's Office is a publicly funded law firm representing about 83% of all indigent defendants in Delaware. The Office of Conflicts Counsel is comprised of a group of lawyers who are independent contractors. They represent clients who cannot be represented by the Public Defender's Office due to a legally recognized conflict of interest. This bill modernizes the business model of the Public Defender's Office and the Office of Conflicts Counsel by consolidating their administrative functions while not compromising the interests of any client. The non-case related functions of both the Public Defender's Office and the Office of Conflicts Counsel will be handled by a Central Administration, all beneath the umbrella of an Office of Defense Services. In particular, the changes implemented by this bill will enhance the quality of representation by the lawyers contracting with the Office of Conflicts Counsel in the areas of IT support, training, client intake, early contact with clients and bill payments. This bill will ensure that all indigent persons accused of crime will be well represented. In addition to the modernization of the business model for delivery of indigent defense services, this bill changes the term of future Chief Defenders from 6 to 12 years. |
Author:Senator Townsend
