Pleading the Sixth: On October 24, 2016, the Sixth Amendment Center released its report detailing how the “Indiana Model” for defender services leads to the actual denial of counsel and/or the provision of a lawyer in name only throughout the state. (See Part I of this two-part series.) Here, the 6AC shows how predominant aspects of the Indiana indigent defense system prevail in other states – like Georgia, Ohio, New York, Texas, and Washington — and how the 6AC’s Indiana report should serve as a cautionary tale.
The Sixth Amendment right to counsel is an individual right, held by each and every defendant. It does not matter if a government provides effective representation to the first co-defendant, if not to the second; or to people charged with felony offenses, if not to those charged with misdemeanors; or to those charged in certain courts, if not to those charged in other courts. It does not matter even if government generally provides adequate counsel to most people. If indigent defense services are structured in a way that actually denies counsel to any defendants, or constructively gives the accused a lawyer in name only because the lawyer has too many cases or operates under too many financial conflicts to be effective, the system itself is constitutionally deficient.
This is not only an apt description of the right to counsel in Indiana today, but also in other states that have followed the Indiana model in creating their indigent defense systems.
States that follow the Indiana Model abdicate their Sixth Amendment responsibilities in many courts
All of the following states — Georgia, New York, Ohio, Texas, Washington — have in place some sort of state-level body responsible for sending some amount of state funding down to the counties, giving the appearance of a statewide system for providing indigent defense, but they allow a significant number of counties and courts to opt out of state oversight and compliance with standards.
Georgia: The Georgia Public Defender Council (GPDC) oversees a central state office that provides training, capital case support services, appellate representation, and mental health advocacy. At the trial level, GPDC appoints circuit public defenders to oversee indigent defense representation in felony and juvenile delinquency cases. The circuit public defender salaries and those of all personnel authorized to be hired by the circuit public defenders are paid for by the state. Counties are responsible for funding office space, utilities, and supplies and may, if so desired, augment state funding for personnel and salaries.
However, when the system was first formed, counties were allowed a one-time opportunity to opt out of the statewide indigent defense system. Six counties (Cherokee, Cobb, Douglas, Forsyth, Gwinnett, and Houston) encompass nearly 25% of the state’s population and chose to opt out. As a result, GPDC has no ability to ensure that effective representation is provided in any cases in these counties.
Additionally, GPDC’s authority in adult criminal cases is limited to overseeing the provision of counsel to the poor in superior courts. Some counties only have superior courts, and in these counties GPDC has oversight of both felonies and misdemeanors. But some counties have “state courts” that preside over misdemeanor cases but not felonies, and in these 70 state courts the GPDC does not have any authority over the right to counsel. Similarly, GPDC has no authority over the state’s 370 municipal courts that hear low-level cases, such as shoplifting and marijuana possession, that can result in a loss of liberty. And, the GPDC has no authority over the 159 magistrate courts that have jurisdiction over county ordinance offenses carrying up to 10 days in jail.
New York: The state of New York has delegated to its counties the responsibility to administer the provision of right to counsel services at the trial level, along with almost all of the obligation for funding those services. As a result, there is no consistency from one county to the next in the methods used to provide representation to the poor, the quality of services provided, or the amount of funding for those services.
The Office of Indigent Legal Services (OILS) is a state agency that has limited authority to assist the counties in improving the quality of their indigent defense systems. It does so primarily through funding assistance grants to counties.
Unlike other states on this list, New York is primed for significant reform through legislation requiring the state to take over responsibility for indigent representation services. On June 17, 2016, the New York State Assembly unanimously passed A10706 requiring the state to take over responsibility for all funding of the right to counsel for indigent people. The Senate unanimously passed a similar bill (S08144) the previous night. The legislation also gives the OILS full authority statewide to establish mandatory standards. The law is awaiting the signature of the Governor. However, as of this date Governor Cuomo has yet to sign or veto the law.
Ohio: Like Indiana, the state of Ohio requires its counties to carry out most all of the responsibility for funding and administering the provision of Sixth Amendment right to counsel services. The Ohio State Public Defender (OSPD) directly represents indigent adults and juveniles in appeals, post-conviction cases, and parole revocation hearings. Trial level services are the responsibility of the state’s 88 counties, though a county may opt to contract with the OSPD to provide these services. Only eleven counties have done so (Adams, Athens, Brown, Fayette, Jackson, Meigs, Pickaway, Pike, Ross, Trumbull, and Washington), and those eleven counties comprise less than 6% of the state’s population.
The other 77 of Ohio’s counties that have not opted in to representation by the OSPD can receive reimbursement from the state for a portion of their costs in providing trial level representation to the indigent. As originally conceived, the state would reimburse up to 50% of a county’s costs if the county met state standards, but, like Indiana, state funding never reached the promised 50% level, dropping in some years to as low as 25%. At the same time, for decades the commission failed to promulgate any standards whatsoever, and even after adopting some standards, state law requires the OSPD to reimburse each county an equal percentage of its total cost without regard to whether a county complies with standards. In short, like in Indiana, the state of Ohio has little if any ability to ensure that indigent defendants receive constitutionally required effective representation at the trial level.
Texas: Texas’ 254 counties are each responsible for funding and administering the right to counsel, with only limited support from the state. The great majority of counties rely on assigned counsel systems administered by the local judiciary, in which private attorneys are paid either an hourly rate or at a set amount per case to represent indigent people.
The state’s limited oversight and fiscal support is provided through the Texas Indigent Defense Commission (TIDC), which is authorized to adopt standards and policies related to, among others: attorney performance, attorney qualifications, training, caseload controls, indigence determinations, contracting, and attorney compensation. Each county can (but is not required to) apply annually for a grant of state funds through the TIDC, with the amount of the grant varying county by county based on population and defense expenses, in exchange for which the county must submit an annual plan for how it will provide indigent representation and comply with TIDC standards and counties with populations of 10,000 or more must not reduce the amount of their funding below what they spent on indigent defense in 2001. Counties can also apply to TIDC for specific discretionary grants.
However, the TIDC only has 11 staff to carry out all of its duties, covering 254 counties and a 2010 statewide population of 25.14 million and growing. With its limited staff size TIDC, like Indiana’s IPDC, is prevented from providing any regular oversight of services in all the courts of the 254 counties where indigent people are constitutionally entitled to receive counsel. And also like in Indiana, the amount of money the state of Texas provides is comparatively small to that expended by local governments. In 2015, TIDC distributed a total of $28.76 million collectively to its counties, while the statewide cost of indigent defense was estimated at $238.03 million. In other words, the state of Texas provided only approximately 12% of the cost of providing representation to indigent people, giving TIDC very little leverage to entice counties to comply with standards.
Washington: Indigent defense services in the state of Washington are, for the most part, entirely county funded. The state Office of Public Defense (OPD) manages contracts with private attorneys to represent indigent defendants in direct appeals and civil commitment cases, as well as in dependency and termination of parental rights in 31 of the state’s 39 counties. Counties and cities are responsible for administering all other trial level representation of indigent people, including in felony and misdemeanor cases. The Washington State Supreme Court has very limited “Standards for Indigent Defense,” and all courts must require any lawyer appointed to represent an indigent person to certify that he complies with those standards.
The Washington State Bar Association (WSBA) has promulgated far more extensive standards, and counties and cities are required to develop their own standards for the delivery of public defense services, with the suggestion that the WSBA standards should serve as guidelines to the local governments. Counties and cities may, but are not required to, apply to OPD for state funds to improve indigent defense services, in exchange for which they must comply or be attempting to comply with the WSBA standards. However, state funding has never been sufficient (accounting for approximately 4% of the total trial level funding of defender services). Like Indiana, the state of Washington does not provide sufficient funding to serve as an incentive for counties and cities to comply with standards, the state has no mechanism to ensure that constitutionally effective counsel is provided in counties and cities that do not seek state funds, and there is insufficient staffing at the OPD to monitor compliance in those counties and cities that do seek state funds.
Recent legislative trends away from the Indiana Model
A common element of recent indigent defense reforms by states is the insistence that local governments must comply with statewide commission standards for the provision of indigent defense regardless of whether a local government is seeking state funding. The 6AC presents two states, Michigan and Idaho, to show how compliance with standards is to be uniformly enforced in all courts.
Michigan: Under a comprehensive legislative reform package passed in 2013, the state of Michigan now shares the cost of indigent defense representation with its counties and municipalities and enforces standards in all courts. The Michigan Indigent Defense Commission (MIDC) proposes standards for adoption by the state Supreme Court to ensure that constitutionally effective indigent defense services are consistently delivered to all indigent adults in the state. MIDC also has authority to assure that all courts throughout the state are complying with those standards. The lion’s share of the funding to meet the MIDC standards will come from the state, not the counties.
All local governments are required to continue spending on indigent criminal defense services at least the amount they had spent on average during the three fiscal years before the MIDC was created. If the MIDC determines that more money is necessary for a local government to comply with the MIDC standards, “that excess funding shall be paid by this state.” In effect, the counties’ portion of indigent defense funding is locked at this three-year average rate, with all additional funding coming from the state.
If a local government fails to meet MIDC standards, the MIDC is authorized to take over the administration of indigent criminal defense services in that jurisdiction. As a disincentive for counties to purposely fail to meet standards in order to have the state take over the system and relieve them of all funding responsibilities, the legislation mandates that counties in jurisdictions taken over by MIDC will have to pay 10% of any costs the MIDC incurs in bringing right to counsel services up to standards in addition to paying the statutorily mandated local contribution, and the cost to those counties will increase to 20% in year two of a state takeover and to 30% in year three. In short, it will not cost counties a penny more to ensure that indigent people receive constitutionally effective assistance of counsel, while the failure to do so will carry significant financial penalties.
Idaho: Similar legislative reforms were adopted in Idaho beginning in 2014 and moving forward in 2016. In 2014, Idaho created its State Public Defense Commission (ISPDC), and in 2016 the ISPDC was charged with creating statewide standards that all of the courts in Idaho must meet in providing representation to the indigent.
All counties must comply with the ISPDC standards, but the state is providing funding to help them do so. ISPDC is authorized 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 can 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. If a local jurisdiction is already meeting ISPDC standards at its current funding level, it can use the state grant funds to improve its system even further.
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.
Under the legislative reforms passed in Idaho, counties have every reason to strive to provide constitutionally effective assistance of counsel, and they have serious fiscal reasons to avoid failure.
States across the country can and do create indigent defense systems that take a wide variety of forms. This is entirely appropriate because each jurisdiction must take into account its unique court structures and cultures, geographic expanse and population centers, and criminal procedures and court rules, to create a system that works best for the citizenry of each state. Some states relieve local governments entirely of the responsibility for administering and funding public defense. Other states may prefer a more home rule approach that lets localities experiment with the best possible means of providing effective assistance of counsel, while constantly monitoring to ensure that no defendant slips through the cracks in any courtroom. What every state must do – the one thing that is not optional – is to comply with the requirements of current Sixth Amendment case law and prevailing national standards (most notably, the American Bar Association’s Ten Principles of a Public Defense Delivery System) and ensure that these requirements are met in every court in the state. Opting out of the Sixth Amendment is never a viable option. And of course a state is free to do more (though not less) in ensuring that every defendant, without regard to wealth, receives the effective assistance of counsel.
The Sixth Amendment Center (6AC) thanks the National Association of Criminal Defense Lawyers (NACDL) for commissioning this report as a part of its public defense reform program. NACDL acknowledges the support of Koch Industries, whose generous funding helps to support NACDL’s public defense work. That work is also supported by the Foundation for Criminal Justice (FCJ).