A newly-released report, “Contracted to Fail: How Flat-Fee Contracts Undermine the Right to Counsel in California,” exposes deep systemic flaws in California’s indigent defense system, focusing on the use of flat-fee contracts that financially incentivize lawyers to spend as little time as possible defending people who cannot afford an attorney.
The report, authored by The Wren Collective, the ACLU, and UC Berkeley’s Criminal Law & Justice Center, highlights how these contracts fuel mass incarceration, disproportionately harm communities of color, and undermine the constitutional right to effective counsel.
Candace Mitchell of The Wren Collective summarized the report’s findings starkly: “Our research joins a chorus of voices that warn about the dangers of these contracts — namely, that they can discourage zealous lawyering. Far too often, flat-fee contracts translate into less time spent with clients, fewer motions filed, not a lot of investigation, and ultimately, more and longer prison sentences. The costs — human and financial — are tremendous.”
Under these flat-fee contracts, which 24 counties in California use as their primary public defense system, private attorneys are paid a set amount—regardless of how many cases they handle or the time spent on each.
The result is a perverse incentive to do the bare minimum: plead cases quickly and avoid time-consuming tasks like investigation, motions, or trial preparation. Attorneys who take these contracts often balance their heavy public caseloads with their own private practice clients, further exacerbating divided loyalties and conflicts of interest.
The consequences of this system are devastating. The report found that “eight of the ten counties with the highest incarceration rates in the state rely on flat-fee contracts, including all of the top five.” Those counties also spend 159% more on prosecution than on defense—nearly double the statewide disparity.
The human cost is most heavily borne by California’s Black and brown residents, who are consistently detained, charged, and incarcerated at disproportionate rates.
“Flat-fee contracts incentivize quick pleas and deny a robust defense to the accused, disproportionately harming people of color, poor people, and other vulnerable communities,” warned Yoel Haile, Criminal Justice Program Director at the ACLU of Northern California, and Summer Lacey, Criminal Justice Director at ACLU of Southern California.
The history of California’s indigent defense system stands in stark contrast to its current failures. In 1913, California became a national leader when Clara Foltz established the country’s first public defender’s office in Los Angeles. However, decades of neglect and disinvestment have created a fractured system with no statewide funding or oversight for trial-level defense.
“California is one of four states that has never provided state-wide trial-level defense funding and oversight, leaving the system at the whims of county politics and budgets,” the report explains.
Today, the consequences of that neglect have become clear.
“California spends roughly 70 to 80% more on prosecution than public defense,” the report continues.
Counties with flat-fee systems often fail to limit attorney caseloads, providing inadequate funding for investigators or expert witnesses, and lack any meaningful oversight or supervision of attorneys. This failure translates directly into people staying in jail longer, pleading guilty to crimes they did not commit, or receiving unnecessarily harsh sentences.
Recognizing the scale of the problem, Assemblymember Nick Schultz (D-Burbank) introduced the Fair Representation Act (AB 690) this week.
The bill, which is supported by Silicon Valley De-Bug, Smart Justice California, and ACLU California Action, would prohibit flat-fee contracts and establish statewide standards for indigent defense.
“Every person deserves competent legal representation, regardless of their zip code or how much they earn,” said Schultz. “AB 690 ensures that contracted attorneys have the resources, time, and compensation necessary to provide quality legal services for the most vulnerable in our state.”
The legislation aims to address the systemic failures detailed in the report by requiring indigent defense contracts to explicitly connect payment to caseloads, ban flat fees, and mandate adequate funding for necessary defense services such as investigators, experts, and social workers. Importantly, it would also require oversight and supervision of contract attorneys—critical safeguards missing in most of the current contracts.
Mitchell called the legislation a necessary investment in justice: “The Fair Representation Act is one step in the right direction towards ensuring that all Californians receive the quality legal representation that they deserve. At its core, this bill is about investment: properly paying attorneys for the work that they do, giving them the resources that they need to fight on behalf of their clients, and offering them much-needed support and guidance. That kind of investment can make a huge difference in so many lives and the justice system itself.”
Flat-fee contracts have long been condemned by legal experts, the State Bar of California, and the American Bar Association.
“Flat-fee contracts fundamentally undermine the constitutional right to effective counsel. Ensuring quality representation for all isn’t just a constitutional obligation — it’s the bedrock of a fair and equitable justice system,” said Chesa Boudin, Executive Director of UC Berkeley Law’s Criminal Law & Justice Center.
Yet, despite years of warnings, California has failed to act. The state continues to rely on these contracts, even as other states have banned them. The report details how counties like San Benito and Kings have attorneys juggling hundreds of open cases at once, often while simultaneously handling private clients. In San Benito, only “0.6% of felony cases saw standard legal motions filed” — an essential tool to challenge constitutional violations or improper evidence. Meanwhile, “53 percent of clients reported that they spoke with their attorneys for less than five minutes during the entire case.”
These findings are not isolated. Decades of studies show that flat-fee systems result in worse outcomes for clients. People represented by contract lawyers are more likely to be convicted, face more serious charges, and serve longer prison sentences than those represented by institutional public defenders. A study of juvenile court in Los Angeles found that flat-fee lawyers were “consistently associated with higher rates of delinquency, for more serious charges, with higher sentences — and were more than twice as likely to have their clients transferred to adult court.”
The report also raises alarm about the lack of investigative resources available to contract attorneys. Most counties provide no funding for investigators, social workers, or expert witnesses. Without these basic resources, lawyers are unable to build a strong defense—a fact that disproportionately affects poor clients. “Attorneys who have high caseloads, no supervision and are not paid sufficiently may spend less time than is needed on cases because the more time they spend on their appointed cases, the less time they have for their retained clients,” Mitchell added.
The cycle is vicious and costly. California’s carceral system is among the most expensive in the nation, spending nearly “$133,000 per person in state prison per year” —a figure that has nearly doubled over the last decade. With a combined jail and prison population of around 150,000 people, the state spends an estimated “$23 billion a year” on incarceration.
The report’s authors argue that moving away from flat-fee contracts would save taxpayer money in the long run by reducing needless incarceration, cutting appeals and post-conviction litigation costs, and improving overall efficiency in the justice system.
“Flat-fees have long been shown to fuel needless, costly, higher rates of incarceration, and put lawyers in a system designed to cut corners and discourage zealous advocacy,” said Cyn Yamashiro, a principal at The Wren Collective and longtime public defense leader. “It is time that California finally follows the decades of calls to move away from this system.”
Indeed, California has ignored warning after warning. For over 40 years, the State Bar, ABA, U.S. Department of Justice, and countless legal experts have urged the state to abandon flat-fee contracts. “With this report, we hope to shed light on one of the many problems plaguing California’s systemically flawed indigent defense system,” said Haile and Lacey of the ACLU. “Until California takes responsibility for guaranteeing that all people charged with crimes in our state are afforded their Sixth Amendment right to the effective assistance of counsel, the integrity and legitimacy of our criminal legal system will continue to crumble.”
As California faces the implementation of Proposition 36—which increases sentences for many crimes—the demand on the indigent defense system will only grow. Without immediate reform, advocates warn that the system is at risk of collapse.
AB 690 offers a clear path forward, aligning California with national best practices and finally addressing a broken system that has harmed too many for too long. As Mitchell put it, “This system doesn’t work — it’s designed not to work.”
