The members of our staff are national experts on the right to counsel, not only in helping states and counties understand the minimum requirements of the Constitution, but also in guiding policymakers in crafting sustainable solutions that promote public safety and fiscal responsibility.
At the Sixth Amendment Center, we believe in using the most effective means – most efficient, cost-effective, time-effective means that will yield a workable solution – to address the particular issue faced by the particular jurisdiction that seeks our help. Just as there is no one-size-fits-all model that states and counties must use to deliver effective defense services, so too there is no single method or approach that is the only way to help a jurisdiction, nor is there a rigid sequence of steps that must be followed. We are flexible, tailoring our assistance and support to meet each jurisdiction’s individualized needs, while the assistance we provide is at all times rooted in Sixth Amendment case law and the minimum national standards for right to counsel systems.
Here is an overview of some of our work helping jurisdictions fulfill their constitutional obligation to provide effective assistance of counsel, listed alphabetically by state.
Read about the Sixth Amendment Center’s work in a particular state by clicking on the name of that state. Or [Expand All] to see and print from one location our work in states throughout the country, then [Collapse All] to get back to the list of states.
The Office of the Public Defender for the State of Delaware was established in 1964. However, a traditional public defender system cannot handle every single case that comes down the road on its own. For example, an attorney cannot ethically represent co-defendants whose interests may be at odds with one another. Historically, the Delaware courts oversaw the provision of counsel in conflict cases, using private attorneys to provide representation. When Delaware consolidated both primary and conflict services under its Office of the Public Defender, at their request 6AC Deputy Director Jon Mosher led a statewide assessment of conflict services to help them meet national standards of justice.
The report of 6AC’s findings and recommendations, The Crucible of Adversarial Testing: Access to Counsel in Delaware’s Criminal Courts, was released in February 2014. The work was funded through a grant from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Assistance.
The majority of reforms recommended by the 6AC report have been adopted. For example, 2015 legislation created the Office of Defense Services (ODS) composed of three branches: Central Administration, The Public Defender’s Office, and the Office of Conflicts Counsel. The Central Administration branch includes the management team, training and development, fiscal and human resources, intake and IT, and the branch handles all the non-case related business matters for the entire ODS. The Chief Defender is now appointed for an 8-year term. The primary public defender office now provides continuous representation by the same attorney in all felony cases in all counties. New funding has allowed ODS to increase assigned counsel rates to $90/hour.
In the 2013, Idaho was one of only seven states in the country that required their counties to carry the full financial burden of providing trial level representation (other than in capital cases) – a situation it has since remedied. That year, the Idaho legislature passed concurrent resolution HCR 026, acknowledging numerous systemic deficiencies in the delivery of the right to counsel and creating a legislative study commission to determine how best to move to state oversight of right to counsel services. The commission held its initial meeting in August 2013, where 6AC executive director David Carroll explained the state of indigent defense nationwide and Idaho’s systemic deficiencies specifically.
At the request of the commission, the 6AC provided ongoing technical assistance as the commission continued its work toward the 2014 legislative session. 6AC’s assistance to Idaho was supported by a generous grant of the U.S. Department of Justice, Bureau of Justice Assistance. In 2014, Idaho created the independent Idaho State Public Defense Commission (ISPDC) to provide training, promulgate performance standards, and initiate uniform data collection, and importantly the Idaho legislature also prohibited all flat fee contracting. At the same time, the legislature appropriated $300,000 for the commission to begin their work, including hiring an executive director.
The 6AC’s work did not stop there. With the Idaho legislature still unsure about how best to enforce the ISPDC standards, the legislative commission was reconvened and the 6AC was again retained to provide technical assistance. In 2016, Idaho took the next giant step forward in providing effective right to counsel services. Legislation passed that year for the expressed legislative purpose of “improving the delivery of trial-level indigent defense services by providing funding to counties and creating standards with which counties must comply.” The ISPDC has authority to both promulgate and enforce standards that all of the courts in all Idaho counties must meet in providing representation to the indigent. All counties must comply with the ISPDC standards, with significant financial penalties for the failure to do so, but the state is providing funding to help them through general appropriations of $5.4 million. Read about the 2016 reform legislation here. The 6AC continues to work with the ISPDC as they draft standards and implement the legislative reforms.
In 1989, Indiana began developing its current system for providing representation to indigent people who are facing the potential loss of liberty in felonies, misdemeanors, juvenile delinquency cases, and mental health commitments. That system — which has come to be known as “ the Indiana model” — allows for the state to reimburse counties for part of their expenses in providing representation to the poor in these cases, excluding misdemeanors (counties and cities must bear the full cost of providing misdemeanor representation), in exchange for complying with state standards. Counties can choose to seek reimbursement and comply with standards, or counties can choose to bear the full cost of providing indigent representation but not have to comply with standards. At the invitation of the Indiana Indigent Defense Study Advisory Group, composed of judges, legislators, prosecutors, defense attorneys, and other state criminal justice stakeholders, the 6AC conducted the first-ever statewide assessment of public defense services in Indiana under that system.
The 6AC’s report, The Right to Counsel in Indiana: An Assessment of Trial Level Indigent Defense Services, released October 24, 2016, is the culmination of a year-long study in which 6AC conducted courtroom observations, interviewed criminal justice stakeholders, and reviewed data in eight representative counties and from the state’s three state-level agencies related to the provision of indigent defense. The National Association of Criminal Defense Lawyers (NACDL) commissioned this report as a part of its public defense reform program, which is supported in part by both Koch Industries and the Foundation for Criminal Justice (FCJ).
The model Indiana created to provide for the constitutional right to counsel simply does not work. The hybrid system for right to counsel services in the state, where lawyers for some indigent defendants are required to meet standards conducive to constitutional effectiveness while lawyers for other defendants are not, both institutionalizes and legitimizes counties’ choices to not fulfill the minimum parameters of effective representation required by the U.S. and Indiana constitutions. Further, the state of Indiana has no mechanism to ensure that its constitutional obligation to provide effective counsel to the indigent accused is met:
- in misdemeanor cases in any of its courts;
- in felony and juvenile delinquency cases, at trial and on appeal, in counties and courts that do not participate in the state reimbursement program; and
- in those capital cases for which counties do not seek state reimbursement.
Even in those counties that participate in the state reimbursement programs and are subject to state standards, Indiana has only limited capacity to ensure that its constitutional obligations are met. This report is poised to have far-reaching effects, as at least five other states have indigent defense structures fashioned after or similar to the failed “ Indiana Model.”
The 6AC continues to work with the Advisory Group as they join with other Indiana stakeholders and policymakers to build on consensus about current deficiencies in right to counsel services and move forward to protect and fulfill the right to counsel. In September 2017, the Indiana Task Force on Public Defense was created to study the right to counsel in Indiana, validate the 6AC report, and make recommendations for reform. Former Seventh Circuit Court of Appeals Judge John Tinder chairs the 16-member Task Force appointed from all three branches of government and criminal justice stakeholder groups. The Task Force plans to meet monthly through the late spring of 2018 in anticipation of proposing legislative reforms in advance of the 2019 session. 6AC Executive Director David Carroll addresses the Task Force at the November 2017 meeting to explain the 6AC’s findings and recommendations and to provide guidance about how other states’ indigent representation systems.
Before 2013, Michigan was one of only seven states in the country that required their counties to carry the full financial burden of providing trial level representation (other than in capital cases). Today it has an independent statewide commission with authority to enforce mandatory standards for the provision of indigent defense in every county and with state funding to assist in doing so.
The 6AC was instrumental in helping Michigan policymakers achieve this victory, by providing technical assistance to the Michigan Governor’s Advisory Commission on Indigent Defense under a grant from the Michigan Bar Association. That commission issued a report defining the state’s indigent defense system as an “uncoordinated, 83-county patchwork quilt,” with each county “dependent on its own interpretation of what is adequate” given limited local funding. The commission, with help from the 6AC, determined that “Michigan’s current system of providing representation for indigent criminal defendants lacks procedural safeguards to ensure effective public criminal defense services.”
The 6AC provided more technical assistance to a subsequent legislative advisory committee, discussing what has succeeded and what has failed in other states, as the committee worked to develop consensus legislation to solve the state’s deficiencies in providing the right to counsel. In 2013, Michigan enacted a comprehensive legislative package transforming the way right to counsel services are provided. The newly created Michigan Indigent Defense Commission (MIDC) has the power to develop and oversee the “implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are consistently delivered to all indigent adults in this state.” MIDC has authority to assure that all courts throughout the state comply with statewide standards, and it is authorized to take over the provision of indigent criminal defense services in any jurisdiction that fails to do so, while the lion’s share of the funding to meet the MIDC standards comes from the state and not from the counties. For a more detailed analysis of the reform package, click here.
The 6AC, in partnership with the Defender Initiative of the Seattle University School of Law, continues to provide technical assistance to the MIDC, reviewing proposed standards and working to implement the full statutory changes, under a grant of the U.S. Department of Justice, Bureau of Justice Assistance.
In anticipation of drafting Wayne County (Detroit)’s plan to meet MIDC standards, the county retained the services of the 6AC, in partnership with the Seattle University School of Law, to conduct an evaluation of the State Defender Office – a non-profit public defender agency required under Michigan Supreme Court administrative rule to provide services in 25% of felony cases in the county. The 6AC conducted a site visit in September 2017 consisting of court observations, criminal justice and county administration interviews, and data collection and analysis. The report is anticipated to be released in early 2018.
The state of Mississippi delegates the entire burden of funding and administering the right to counsel to its counties and municipalities. Prior to 2011, the state did not have any governmental body that collected information about how local governments were carrying out this constitutional obligation. That year, Mississippi established the Office of the Public Defender (OPD). Among the OPD’s duties are to “coordinate the collection and dissemination of statistical data” to guide the state in future planning about the right to counsel, but Mississippi did not provide staff or resources to accomplish this important task.
Since 2012, the 6AC has assisted the OPD in carrying out its statutory duty to collect and disseminate information about the existing state of indigent defense in Mississippi. Work was conducted under a grant of the American Bar Association. Early results were released in a September 2014 report, The State of the Right to Counsel in Mississippi: Report and Recommendations.
In 2015, the Mississippi Public Defender Task Force authorized the 6AC to conduct a statewide evaluation of felony indigent defense services in Mississippi, In partnership with the Defender Initiative of the Seattle University School of Law. The work began in Harrison County and continues in Adams, Clarke, DeSoto, Forrest, George, Hinds, Leflore, Lowndes, and Pearl River counties, as the 6Ac conducts court observations, interviews criminal justice stakeholders, and reviews and analyzes data. Funding for the evaluation is provided by the U.S. Department of Justice, Bureau of Justice Assistance, so that no additional burden is placed on Mississippi taxpayers to gather this critical information. The report of 6AC’s findings and recommendations is anticipated in 2017.
In 2007, the Nevada Supreme Court established an Indigent Defense Commission (“Commission”) to examine and make recommendations regarding the delivery of constitutionally required indigent defense services in Nevada. The following year, the Commission’s Rural Subcommittee went on record that “rural counties are in crisis in terms of indigent defense.” Since 2008, numerous Nevada Supreme Court administrative orders have advanced the right to counsel in the state’s urban centers, but fixing the crisis in rural Nevada has proven to be more difficult.
In August 2012, Chair of the Commission and then-Chief Justice of the Nevada Supreme Court Michael Cherry asked the Sixth Amendment Center to prepare a report offering a consensus approach toward improving the provision of the constitutional right to counsel throughout the state and in the rural counties specifically. The report, Reclaiming Justice, was published in March 2013, and it contributed to the Nevada Supreme Court issuing an order declaring that any interference with a public defender’s constitutionally protected independence might henceforth be considered an actual or constructive denial of assistance of counsel that is legally presumed to result in prejudice (see more here). The 6AC work was also instrumental in a July 2015 court order banning the use of flat fee contracts (see more here).
On June 8, 2017, Nevada Governor Brian Sandoval signed into law Senate Bill 377 establishing the Nevada Right to Counsel Commission (NRTCC) after the bill passed both chambers of the legislature (Senate: 18-3; Assembly: 36-6). The NRTCC is a 13-member commission appointed by diverse factions, including all three branches of government, the Nevada Association of Counties, and the State Bar Association. SB 377 requires the NRTCC to conduct a study of how services are provided in the state’s non-urban counties. The commission must then “make recommendations to the Legislature to improve the provision of indigent defense services and to ensure that those services” meet the state’s obligation to provide effective representation, including proposing standards for defense counsel workloads. The commission must report its findings to the legislature by September 1, 2018, along with recommendations about the creation of a statewide system and standards, to allow for legislation in the 2019 session. To assist the NRTCC, the Nevada Supreme Court has contracted with the 6AC to evaluate services in the states’ 14 non-urban counties and one independent city. The report is anticipated by autumn 2018.
The 6AC is engaged on many fronts in helping Tennessee policymakers and criminal justice stakeholders improve the delivery of right to counsel services within the state.
On December 18, 2012, the United States Department of Justice (DOJ) announced a sweeping agreement with Shelby County, Tennessee (Memphis), as reported in the New York Times the same day, to cure extensive deficiencies in the provision of counsel to children in juvenile delinquency cases. The agreement requires that much of the American Bar Association’s Ten Principles of a Public Defense Delivery System be implemented in Shelby County’s juvenile courts. From 2014 through 2017,the 6AC served as an advisor to Shelby County on how best to establish independence of the defense function.
Meanwhile, the Tennessee legislature is attempting to gather objective data about the number and types of cases being handled by public defense attorneys statewide. Toward that end, the legislature dedicated funding to conduct a statewide “case-weighting study” – these studies identify the number and types of cases the public defense system provides counsel for and also determine the average amount of time needed to handle each type of case effectively. The state’s Administrative Office of the Courts (AOC) recognized that, without a uniform definition of a “case,” any new case-weighting study could not be successful. In July 2013, the AOC asked the U.S. Department of Justice (DOJ) for technical assistance. The DOJ, in turn, funded the 6AC to serve as technical advisor to the Tennessee AOC. Throughout the summer and fall of 2013, the 6AC led a series of AOC-convened meetings of criminal justice stakeholders, including district attorneys, court clerks, and public defenders, to form consensus on a uniform definition and worked throughout 2014 to get broader statewide consensus. In 2014, based on the 6AC work, the Tennessee Supreme Court amended its court rules to define case-counting procedures, clearing the path for Tennessee to fund the adjudicative components of its criminal justice system, including indigent defense, based on objective data.
In 2015, the Tennessee Supreme Court established a task force to review the state’s current indigent representation system, including indigency determinations, the delivery of services, and the administration of the indigent representation fund. Their charge is to guarantee that the system is addressing the needs of its recipients as well as benefiting the taxpayers of Tennessee. The Indigent Representation Task Force (IRTF) includes judges, legislators, private attorneys, a legal aid society representative, representative from the comptroller’s office and the governor’s office, and a law professor. The IRTF retained the 6AC, through a grant of the U.S. Department of Justice, to provide technical assistance throughout the process.
On April 10, 2017, the Task Force released its report, Liberty & Justice For All: Providing Right to Counsel Services in Tennessee, detailing a plan to revamp public counsel services. Recognizing that Tennessee has seen a “dramatic increase in the ratio of cases to the justice system’s capacity during the past twenty years,” the Task Force concludes that the current system for providing lawyers to the poor “is not sustainable without additional resources.” The Task Force recommended that “Tennessee (1) promote statewide uniformity in the programs providing legal assistance, (2) improve the quality of legal assistance being provided and (3) enhance the management and oversight of these programs,” by, among other actions: a) passing legislation to create a single statewide commission with authority to promulgate and enforce uniform standards over all indigent criminal, delinquency, and civil cases; b) creating a statewide appellate defender office; c) requiring the district defender system to provide primary representation in delinquency cases; d) increasing the numbers and types of support staff in the district defender offices; and e) significantly raising the compensation rates paid to private attorneys to handle indigent cases and setting expert compensation at market rates.
On October 3, 2017, the Tennessee Supreme Court released a press statement announcing its unanimous support for the comprehensive indigent defense reforms recommended, including the creation of a statewide indigent defense commission and a state appellate defender office. Significantly, the Court also announced its intention to raise assigned counsel compensation rates the court rule. Under the court’s current rule, in all but capital cases, a private attorney cannot be paid more than $40 per hour for case preparation outside of court and $50 per hour for their time in court. Tennessee currently ranks 49th of the 50 states in this regard. Additionally, no matter how many hours a case actually requires an attorney to work, the current court rules establish a maximum amount the attorney can be paid for each case. The court’s press statement signaled its desire to increase pay to private attorneys to $65 per hour for both in- and out-of-court work and to increase the maximum payment for felony cases to $2,000 (up from $1,500 per case) and for juvenile matters to $1,250 (up from $1,000).
The 6AC is currently providing technical assistance to the court and legislature to educate policymakers on how best to achieve the other reforms.
In 2009, the Utah Judicial Council – the state courts’ highest policymaking body – created the Study Committee on the Representation of Indigent Criminal Defendants (“Committee”) to examine the status of the provision of counsel to the indigent in appeals. The Committee determined that many of the issues affecting the quality of appellate representation were rooted in deficiencies at the trial level. As a result, in 2011 the Committee was charged with studying trial level indigent defense services. After a lengthy vetting process, the Committee asked the 6AC to help. The Department of Justice, Bureau of Justice Assistance provided funding for 6AC to address a January 22, 2013 joint hearing of the Utah Senate and House of Representatives to begin the process of educating them about their constitutional obligations under the Sixth Amendment and to serve as an ongoing consultant to the Committee.
On behalf of the Committee, 6AC, in partnership with the Defender Initiative of the Seattle University School of Law and through a grant of the DOJ-BJA, conducted a statewide evaluation of the provision of constitutionally required right to counsel services at the trial level. Released in October 2015, the Sixth Amendment Center’s report, The Right to Counsel in Utah: An Assessment of Trial-Level Indigent Defense Services shows that Utah’s trial courts do not uniformly provide counsel at all critical stages of criminal cases as required by the U.S. Supreme Court, with many defendants – particularly those facing misdemeanor charges in justice courts – never speaking to an attorney.
As the evaluation that led to this report was ongoing, the 6AC regularly updated the Committee on the complex issues we identified as the crux of many of Utah’s problems in effectively providing the right to counsel. This allowed the diverse stakeholder group to debate the underlying problems and begin thinking of solutions all throughout the evaluation process. Upon receipt of 6AC’s draft report, the Committee requested that they be allowed to work over the summer of 2015 to develop Utah specific answers to the problems. Because of the consensus approach that Utah took and the seriousness and respect with which the Committee did their work, the report and proposed solutions adopted by the Judicial Council Committee were released in tandem with 6AC’s report.
In March 2016,the Utah Governor signed into law a bill creating a statewide indigent defense commission after a near-unanimous vote in both chambers of the legislature (Senate: 26-0-3; House: 74-1-0). The principal duties of the Utah Indigent Defense Commission (UIDC) are to adopt guiding principles for the oversight and assessment of public criminal defense services to ensure that: a) indigent defense services providers have independent judgment without fear of retaliation; b) service providers provide conflict-free representation, including a separate contract for conflict counsel; c) the state does not interfere with the service provider’s access to clients and the service provider is free to defend the client based on the service provider’s own independent judgment; d) accused persons are provided counsel at all critical stages of the criminal process; and e) counsel is free to provide meaningful, adversarial testing of the evidence, including adequate access to defense resources and workloads that allow for time to meet with clients, investigate cases, and file appropriate motions. The UIDC is also responsible for granting the first-ever state funding to local governments to meet standards.
In 2017, the Utah legislature expanded the authority of the UIDC to include oversight of juvenile delinquency and dependency representation. The UIDC membership was expanded to include expertise in these two law practice areas.
In August 2013, the 6AC formed a partnership with the Defender Initiative of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law (SUSL). Our first joint project, carried out on behalf of the Wisconsin Association of Criminal Defense Lawyers, was to gather information about the compensation paid to Wisconsin private attorneys who are appointed on an hourly rate basis to represent indigent defendants — those attorneys who are not employees of the Wisconsin State Public Defenders Office and are referred to as assigned counsel. Wisconsin has the lowest compensation rate of all 50 states ($40/hour), a rate that has only climbed by $5 over the past 35 years. The 6AC/SUSL team reviewed case law to identify instances of ineffective assistance of counsel provided by assigned counsel and surveyed attorneys about how the low rates affect their ability to effectively represent clients. The report of our findings and recommendation, Justice Shortchanged: Assigned Counsel Compensation in Wisconsin, was released in May 2015.
In May 2017, a coalition of legal experts petitioned the Wisconsin Supreme Court to end financial conflicts of interest between private attorneys and the indigent clients they are appointed to represent. They asked the state’s high court to ban flat fee contracts and increase hourly rates for assigned counsel from the current $40 per hour that is the lowest in the nation. The coalition includes two former Supreme Court of Wisconsin justices, the entire leadership of the State Bar of Wisconsin, noted law professors, and numerous high profile leaders of the legal community from all ends of the political spectrum. 6AC Executive Director David Carroll spoke at the press conference announcing the petition.
The Wisconsin Supreme Court will hold a public hearing regarding the petition in 2018, giving the legislature time to raise the rates without a court order. The 6AC is providing technical assistance to the Wisconsin Criminal Defense Lawyers Association in both the legislative push to raise rates and to prepare for the court hearing.