As previously discussed, the state of Iowa has chosen to underfund the defense of impoverished people who it chooses to charge with crimes. This is a conscious decision on the part of the state, as it properly funds many other things such as prosecutors, judges, clerks of court, the roads, and the police. Acting Chief Judge Henry Latham’s solution to this is to force attorneys into involuntary servitude. The email he sent on March 27, 2023, and my response, are shown below:
Acting Chief Judge Henry Latham’s email on March 27, 2023:
While my March 9, 2023 letter to members of the Bar Associations focused on the urgent need to grow the number of contract attorneys from our base of active status attorneys, I was remiss not to once again acknowledge the efforts of the many of you who have stepped up to provide criminal defense for those who cannot afford counsel. Thank you. I realize it is a sacrifice of precious time outside of your regular workload for may of you. Our court system could not operate without your efforts. Even with those commitments, the need for more attorneys remains vital.
Our federal and state constitutions require that we provide a legal defense for indigent defendants in criminal cases when there is the possibility of imprisonment, Statutes guide the public defender’s office and judges on how to ensure those rights are protected. I take my responsibilities as acting chief judge very seriously. As an attorney and a judge my actions are governed by the constitution and the law. Iowa Code Sections 814.11(5) and 815.1(3) clearly state that if there are not enough public defenders or contract attorneys to handle the number of indigent criminal cases in the courts, a district court judge may appoint non-contract attorneys to cases. Unfortunately, that is where we are now. Our pending docket is growing and justice will inevitably be delayed for defendants, victims, and our community unless more attorneys contract with the public defender’s office.
If the current level of contract attorney’s fees has discouraged you from taking cases, please remember that the Iowa Legislature sets contract attorney fees, not the judicial branch. In her most recent condition of the judiciary speech, the chief justice stated that the judicial branch supports efforts to increase funding for indigent defense with both an increase in the hourly rate and reimbursement for travel time. Without the necessary indigent defense attorneys, there is the possibility of increased post-conviction relief actions and legal malpractice claims arising from ineffective assistance of counsel. More such actions will result in additional costs and a greater strain to our court system. If you have an opinion on the current situation and are inclined to share your position with your legislator, you can find your senator and representative on the Iowa Legislative website at https://www.legis.iowa.gov/legislators/find
My reply on March 28, 2023:
Dear Honorable Judge Latham:
I am writing this email in response to your email from yesterday:
In your email, Your Honor states that “we” have an obligation to provide indigent defense. I’m not entirely sure who you are referring to with the word “we,” but for the sake of clarity I would note that the State of Iowa has a legal obligation to provide a defense for indigent individuals that it chooses to prosecute. That obligation rests solely with the State, and not the private citizens who happen to be attorneys.
Nor is it the role of the private citizens who are attorneys in Scott County to fix the state’s conscious decision to underpay contract attorneys such that almost no attorney chooses to accept that pay. If the government wants a private individual to render a service, then the government needs to pay enough such that people will choose to render that service. Both Illinois and the Federal government pay at least twice as much per hour as Iowa pays for court appointed work, and it is no wonder that most attorneys who wish to do court appointed work instead choose to work in those jurisdictions. I’m sure that this is something both the legislature and Your Honor understand, as Iowa doesn’t try to pay below-market-wages for road, courthouse construction, judge salaries, prosecutor salaries, or anything else. The State of Iowa has plenty of money to spend on the matters it prioritizes. This funding issue is a political choice.
Since you did not respond to my previous email from weeks ago, I would again ask what your intentions are as to the salaries of all other individuals involved in the involuntary servitude scheme you have stated that you intend to implement. Will you also force the prosecutors, court reporters, court attendants, bailiffs, clerks, and other individuals working on such cases to give up a significant portion of their salary for the time spent working on such cases? Would Your Honor and the other judges give up significant portions of the salary you earn while handling such cases? Or, is it your plan to only impose the burden of fixing the State of Iowa’s broken indigent defense system upon local attorneys in private practice?
I also cannot help but conclude that the objective that Your Honor seeks to advance is not actually to help indigent defendants, but rather to ensure that the conviction machine that harms such defendants runs at full speed. I draw that conclusion because a shortage of attorneys to represent indigent defendants would be addressed by the dismissal of cases, which every defendant would of course prefer. It is only the goal of being able to convict defendants, and needing a warm body with a law license to participate on the side of the defendant, that drives this. Many of these convictions are for drug offenses and other victimless crimes, to include things like marijuana that are not even prosecuted 2 miles away in Illinois. Moreover, the marijuana arrest disparity in Iowa is among the worst in the nation, with Black people in Scott County arrested at 13 times the rate of White people for marijuana possession, despite Black and White people using marijuana at about the same rate. https://www.aclu-ia.org/en/press-releases/iowa-ranks-among-worst-states-racial-disparities-marijuana-arrests
I have no desire to be a part of such a conviction machine that has racial disparity at its heart, and which ruins people’s lives while locking them into generational poverty. Indeed, I have sincerely-held religious objections to both involuntary servitude and participation in such a broken-by-design system that wrongfully harms the most vulnerable members of society.
Recently, a privately-retained criminal defense client of mine expressed to me a worry that if I was forced into involuntary servitude that my ability to properly represent him would be diminished. So, it seems that Your Honor’s plan to force the local bar into involuntary servitude is even causing defendants who have privately retained counsel to fear for themselves.
Turning to a more substantive legal discussion, Iowa Code Sections 814.11(5) and 815.1(3) do not grant you the authority to force members of the bar into involuntary servitude. It is plainly apparent that those code sections are in place to allow for payment to be made to an attorney who accepts appointments from the court but does not have a contract with the state public defender. That makes sense as there are plenty of situations where an attorney is willing to take an appointment but doesn’t maintain a contract with the state public defender such that the code sections are needed to enable the payment of that attorney (otherwise the state public defender would deny payment on the grounds that there is no statutory authority to expend funds).
Moreover, as I am sure Your Honor is acutely aware, the Federal Constitution and Iowa Constitution do not yield to the Iowa Code, and so even if the portions of the code that you cite stood for the propositions that you assert, then the aforementioned portions of the Iowa Code would unconstitutional and unenforceable to the extent that they conflicted with the aforementioned Constitutions. I would remind you that, Section 23 of the Iowa Constitution provides “There shall be no slavery in this State; nor shall there be involuntary servitude, unless for the punishment of crime.” The Thirteenth Amendment to the United States Constitution, of course, similarly prohibits slavery and involuntary servitude. Due process and the takings clause are also implicated.
Furthermore, Iowa has a long history of opposing involuntary servitude. The very first case heard by the Supreme Court of the Territory of Iowa was In the Matter of Ralph. https://racingiowa.sites.grinnell.edu/in-the-matter-of-ralph/ In that case, an enslaved man from Missouri who had made his way to Iowa was set free by the Court in 1839. I would respectfully encourage Your Honor to review that ruling, and consider whether your proposed actions to press us into involuntary servitude are consistent with the law and the principles of our country and our state.
Finally, just so that there is no possible confusion: I do not consent to court appointments for myself, my firm, or employees of my firm of the nature tha you have threatened in your emails. Nor does Eric S. Mail. If you attempt to press me into involuntary servitude, I will fully litigate the matter in State and Federal court, where I expect I will prevail. I have discussed this matter with other members of the bar, who feel similarly and who will also litigate the matter. I did not go to law school to be enslaved so as to prop up a repugnant conviction machine that operates to the detriment of the defendants. Indeed, I am frankly aghast that a conversation about involuntary servitude is even taking place in the year 2023.