Pleading the Sixth: On the heels of Utah’s comprehensive reform, the Idaho legislature steps up and empowers the state indigent defense commission created in 2014 to promulgate and enforce binding standards. The carrot for counties to comply comes in the form of significant new state funding ($5.4 million) to help local systems meet standards. Importantly, Idaho also created a new hammer to ensure standards are met.
On March 15, 2016, the Idaho Senate unanimously voted (34-0-1) to enact HB 504 – a bill with 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 bill had previously passed the House (68-2-0) and authorizes the Idaho State Public Defense Commission (ISPDC) to promulgate and enforce standards, collect uniform data, enforce a ban on flat fee contracting, and grant state monies to counties.
And, on March 22, 2016, a $5.4 million appropriations bill was passed authorizing the ISPDC, in part, to disseminate $4,266,500 in grants to counties to offset the cost of compliance with indigent defense standards. This bill passed both chambers unanimously (Senate: 34-0-1; House: 68-0-2). Another $550,000 was appropriated to encourage counties to merge trial-level services into regional systems, and $250,000 is available to assist counties with extraordinary litigation costs. The balance of $416,300 funds an expansion of ISPDC staff and associated overhead costs.
Governor C.L. “Butch” Otter (R) is expected to sign both bills into law on March 24, 2016 at a signing ceremony at 3:00 PM (MDT).
What HB504 accomplishes
In 2014, the Idaho legislature created the ISPDC within the Department of Self-Governing Agencies – a constitutional provision in Idaho which, though technically still in the Executive Branch, means the commission does not have to answer directly to the Governor. The seven members of the ISPDC are appointed by diverse appointing authorities to ensure that no one branch of government has undue influence over the actions of the commission. The commission consists of: a member of the state senate; a member of the house of representatives; an appointee of the chief justice; three members appointed by the governor, and confirmed by the senate, from names submitted by the Idaho Association of Counties, the State Appellate Defender and the Idaho Juvenile Justice Commission; and a fourth gubernatorial appointee who must be an experienced criminal defense attorney. None of the appointees may be a prosecuting attorney or a current employee of a law enforcement agency.
Because of the depth and breadth of indigent defense problems in Idaho, there was a conscious recognition on the part of the 2014 legislature that it would take considerable time to unify the practices of 44 county-based “non-systems” into a statewide whole. It was anticipated that, during the first year of reform efforts, the most that could be hoped for was for the various appointing authorities to name the members of the commission, and the commission to then set a meeting schedule, advertise for and hire an executive director, and instruct the director to begin hiring additional staff to accomplish the immediate goal of training lawyers.
HB504 now requires the ISPDC to promulgate standards, which are consistent with many of the American Bar Association’s Ten Principles of a Public Defense Delivery System, including:
- “The delivery of indigent defense services should be independent of political and judicial influence, though the judiciary is encouraged to contribute information and advice concerning the delivery of indigent defense services.” (Principle 1)
- “Defending attorneys should have sufficient time and private physical space so that attorney-client confidentiality is safeguarded during meetings with clients.” (Principle 4)
- “Defending attorneys’ workloads should permit effective representation.” (Principle 5)
- “Economic disincentives or incentives that impair defending attorneys’ ability to provide effective representation should be avoided.” (Principle 8, in part)
- “Defending attorneys’ abilities, training and experience should match the nature and complexity of the cases in which they provide services including, but not limited to, cases involving complex felonies, juveniles and child protection.” (Principle 6)
- “The defending attorney assigned to a particular case should, to the extent reasonably practicable, continuously oversee the representation of that case and personally appear at every substantive court hearing.” (Principle 7)
- “There should be reasonable equity between defending attorneys and prosecuting attorneys with respect to resources, staff and facilities.” (Principle 8, in part)
- “Defending attorneys should obtain continuing legal education relevant to their indigent defense cases.” (Principle 9)
- “Defending attorneys should be regularly reviewed and supervised for compliance with indigent defense standards and, if applicable, compliance with indigent defense standards as set forth in contractual provisions.” (Principle 10)
- “Defending attorneys should identify and resolve conflicts of interest in conformance with the Idaho rules of professional conduct and other applicable constitutional standards.”
All counties must comply with standards, without regard to whether they apply to the ISPDC for assistance. However, HB 504 authorizes the ISPDC to create grant policies and procedures to assist counties in meeting those standards. HB504 allows ISPDC to make grants of $25,000 or 15% of the average the county spent on indigent defense services in the prior three years – whichever is greater. That is, if a small rural county spends on average $50,000 annually on right to counsel services, that county could get a grant for $25,000 (or 50% of its spending). Meanwhile, a large county that spends $3 million annually on indigent defense can receive up to $450,000 from the state (15% of its three-year average spending). Importantly, state grants can only augment, and may not supplant, existing local funding. (See for example, the August 23, 2016 Idaho Statesman article on anticipated funding for Canyon County).
The hammer to compel compliance with standards is significant. If the ISPDC determines that a county “willfully and materially” fails to comply with ISPDC standards, and if the ISPDC and county are unable to resolve the issue through mediation, the ISPDC is authorized to step in and remedy the specific deficiencies, including taking over all services, and charge the county for the cost. And, if the cost is not paid within 60 days, “the state treasurer shall immediately intercept any payments from sales tax moneys that would be distributed to the county,” and the intercepted funds will go to reimburse the commission. As stated in HB 504, the “foregoing intercept and transfer provisions shall operate by force of law.”
Idaho was able to reach a near unanimous consensus through the work of the Idaho Legislative Interim Committee on Indigent Defense. When the ISPDC was first created, the Idaho Legislature also passed a 2014 concurrent resolution, HCR 40, reconstituting a pre-existing Legislative Interim Committee to continue the work of determining how best to fund a coordinated state system and to enforce commission standards. The Committee led an effort to decriminalize low-level, non-violent offenses and/or reclassify certain crimes to violations (requiring only the payment of a fine rather than a threat of jail), the idea being that the amount of state money needed to fund indigent defense is less if the legislature could decrease the number of people requiring a public lawyer. Several pieces of legislation passed on this front in 2015.
Now, HB 504 seeks to remedy remaining systemic deficiencies. Over the summer and fall of 2015, the Interim Committee worked with the assistance of the 6AC in conjunction with Seattle University School of Law, under a grant from the U.S. Department of Justice, Bureau of Justice Assistance to develop recommendations suited specifically to Idaho. (Click here for information on requesting technical assistance for your state)
Upon the passage of the legislation, Interim Committee co-chair, Senator Todd Lakey (R), stated: “The process of developing this legislation is a strong example of what we can accomplish when we work together. Almost every section of the bill was an effort to find common ground among the various groups involved and the members of the interim committee. In the end we had strong legislation that establishes the foundation for a constitutional system of public defense in Idaho and that received the support of the Governor and 98% of the Idaho Legislature.”
Others joined in support. Daniel Chadwick, Executive Director and General Counsel of the Idaho Association of Counties commented: “We now have a sound approach along with the money to begin the repair of a stressed system of public defense in Idaho. The Legislature was thoughtful and measured; sometimes frustratingly so; but we are now on the way to a constitutional public defense system.”
State Appellate Defender and ISPDC member Sara Thomas stated: “This legislation is meaningful step toward providing Idaho’s public defenders with the resources they need to defend the indigent accused in Idaho. It reaffirms Idaho’s historical commitment to providing counsel to all whose liberty is at stake. As a member of the State Public Defense Commission, I look forward to working with Idaho’s dedicated public defenders and counties to make the right to counsel a reality.”
Finally, Representative Christy Perry (R), co-chair of the Interim Committee, ISPDC member and House sponsor stated:”The public defense reform legislation passed this year by a wide margin in the Idaho legislature should prove to be an integral step in documenting and highlighting the importance of providing constitutional defense to all Idahoans, not just to those who are indigent. The decision making process brought together various stakeholders to craft the design of the new public defense system. In doing so, it raised awareness to both the need and the importance of setting high standards in our courtrooms, prosecutor and public defense offices benefitting all who use them.”
(Click here to watch Rep. Perry talk passionately about the need for reform and the complexities of issues legislatures face on Idaho Reports from Idaho Public Television in November 2015)