Of Counsel

Legal Notes on Georgia and The South

Opting Out

Posted by Maggie on February 11, 2008

Georgia’s Public Defender System doesn’t really cover the whole state. Counties are allowed to “opt-out” of the PD plan and provide their own public defense systems. Some counties do this, including Cobb and Gwinnett, the two large counties to the North of Atlanta which contain many of its suburbs. However, there is currently no opt-out provision for the death penalty. Georgia has those cases go through the Capital Defender office, based in Atlanta, which may work with local offices but generally handles the cases themselves. With the Nichols case throwing wrenches in other cases all over Georgia, it’s not surprising that there’s some thought being given to opting-out of the Capital Defender office, too.

The Daily Report today notes that Cobb and Gwinnett have proposals before GPDSC to do just that. It’s unclear at this point whether legislation may have to be changed (although I’m leaning towards yes) and GPDSC hasn’t yet considered the proposals. The article notes the circumstances in each county. Cobb seems to be ready to handle the system, the DA and the County are behind it and ready to bear the expense. Gwinnett… not so much. It looks like this is a reaction to Nichols, even though it hasn’t had a strong effect on any Gwinnett cases. And it’s unclear that Gwinnett can properly fund such cases, either. (I admit I was secretly pleased to see the Gwinnett DA basically say, “What’s the big deal? Just have the legislature fund capital defense.” Not usually the prosecutorial position we’re seeing these days.)

I think it’s very possible that legislation could change. Opting out of capital defense makes sense for Cobb, which already has its own appointment system outside the state for all other cases. In large, well-funded counties where you have qualified attorneys who know their judges, it may well be the best approach. However, this isn’t saying I’m anti-Capital Defender. In most of the state, they will provide the best defense anyone can get. We’ll see how the Council comes down.

One Response to “Opting Out”

  1. Jen said

    If counties had to bear the burden of funding capital trials, there would be a lot less DAs seeking the death penalty.

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