All data is current as of 2017, unless otherwise noted.
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How the right to counsel is administered and structured
State commission: yes – limited authority
Branch of government: executive
Historically, Utah’s counties and cities were wholly responsible for providing right to counsel services, with no oversight by or assistance from state government. Today, counties and cities still have the primary responsibility for providing, overseeing, and funding right to counsel services, but Utah has taken a first step toward establishing state oversight of those local systems and providing some state funding to assist local governments with the costs.
In March 2016 and taking effect in May of that year, Utah legislators created the Utah Indigent Defense Commission (UIDC) as the first-ever state-level body in Utah that has responsibilities for the right to counsel. The UIDC is in the executive branch of government and is within the Commission on Criminal and Juvenile Justice.
The UIDC has thirteen members (eleven voting members and two non-voting ex officio members). The governor, with the consent of the state senate, appoints nine of the eleven voting members:
- 3 members recommended by the Utah Association of Criminal Defense Lawyers, of which 2 must be practicing criminal defense attorneys and 1 must be a current director of a county public defender organization;
- 1 member recommended by the Utah Minority Bar Association, who must be an attorney representing minority interests;
- 2 members recommended by the Utah Association of Counties, of whom 1 must be from the more urban counties with populations of at least 125,000 and 1 must be from the more rural counties with populations under 125,000;
- 2 members recommended by the Utah League of Cities and Towns from among its membership; and
- 1 retired judge, recommended by the Judicial Council.
The other two voting members are:
- 1 member of the Utah Legislature, jointly selected by the Speaker of the House and President of the Senate; and
- the executive director (or her designee) of the Commission on Criminal and Juvenile Justice.
The two ex officio non-voting commission members are: a representative from the Administrative Office of the Courts, appointed by the Judicial Council; and the director of the UIDC itself. Commissioners serve staggered four-year terms, such that approximately half of the members are appointed every two years. The initial voting members of the commission were appointed and confirmed during the summer and fall of 2016.
The commission hires a director, who must be an attorney, to oversee the state office. That director is then responsible for hiring staff as necessary to carry out the duties of the commission. UIDC hired its first executive director in October 2016.
The overarching purpose of the commission is to “assist the state in meeting the state’s obligations for the provision of indigent criminal defense services.” Toward that end, the commission has three primary areas of responsibility: (1) to adopt statewide principles (although they are to be “guiding” or “advisory,” rather than mandatory) for public defense services, including guidelines for attorney caseloads and delivery of services; (2) to evaluate the local public defense systems to determine the extent of their compliance with the commission’s principles, and then to collect and report data about the extent of that compliance; and (3) to create and oversee a system for local governments to apply for state grant funds.
Notably, the 2016 enabling legislation limits the commission’s authority to “indigent criminal defense services,” i.e., adult felony and misdemeanor cases, and does not include oversight of public defense in juvenile cases.
The commission is considered to have limited authority because: (1) local governments still primarily provide and fund indigent services; (2) the commission has no authority over juvenile right to counsel services; and (3) while all local governments are required to cooperate with the commission in determining the extent to which they meet commission principles, the commission’s only authority over their systems is to investigate and report.
How the right to counsel is funded
Percentage of state funding: 6%
Percentage of local funding: 94%
Percentage of alternative funding: 0%
Utah’s counties and municipalities are initially responsible for the full cost of providing all right to counsel services. The Utah Association of Counties reports that, in 2015, the counties budgeted a combined $29.4 million on indigent defense, reflecting an increase in spending of 65 percent from ten years earlier. At a 6% increase per year, counties would likely spend $31,164,000 in 2016 and $33,033,840 in 2017.
Effective May of 2016, the legislature created the state-level “Indigent Defense Resources Restricted Account” within the state’s general fund. Deposits to that account come from two sources: (1) state general fund appropriations; and (2) any funds the Utah Indigent Defense Commission (UIDC) is able to obtain from other sources such as private or federal funding. The state’s first general fund appropriation in 2016 was for $2 million.
The UIDC administers the fund and can use it to carry out the duties of the UIDC (such as paying their staff and operating a statewide data system) and to make grants to local public defense systems to help them pay for attorneys and defense resources. Of note, under the 2016 enabling legislation, the UIDC can only administer grants for adult felony and misdemeanor right to counsel services, and not for juvenile representation.
Local governments are not required to ask for state financial assistance. Called “nonparticipating systems,” these local governments nonetheless are responsible for meeting the commission’s minimum principles for effective representation, but they continue to bear the full cost of doing so.
If local governments want to apply to the UIDC for state grant funds, they must commit to meeting the commission’s principles for effective representation and they must not reduce the amount of local funding for indigent defense below what they were spending in 2016 before the commission was created (called the “baseline budget,” and adjusted each year for population growth and inflation). These are called “participating systems,” and they can apply for two types of grants: (1) matching fund grants; and (2) critical need grants.
Matching fund grants are state funds that help counties pay for service providers. The amount a particular county can receive depends on the size of the county and the amount the county spends beyond its baseline budget. For counties with a population of 700,000 or more (only Salt Lake County), they can receive matching grants in the amount equal to 50% of their excess spending; for counties with populations between 31,000 and 700,000 (includes 10 counties in 2016), 100% of their excess spending; and for the counties with populations less than 31,000 (the remaining eighteen counties in 2016), 200% of their excess spending.
Critical need grants are to help local governments meet the commission’s minimum standards for effective representation when the local government would have to spend more than its baseline budget to do so and that would be “an undue burden.”
Juab County was the first to apply to the UIDC for a state funding grant in 2016.
The methods used to provide public counsel
For (adult) felony and (juvenile) delinquency representation, each of Utah’s twenty-nine counties contracts with one or more attorneys or law firms to provide indigent defense services. The two most populous counties – Salt Lake County (Salt Lake City) and Utah County (Provo) – each contract with a nonprofit law firm that in essence serves as the county’s public defender office. Most counties enter into several annual contracts directly with a handful of individual private attorneys who are each paid a flat-fee to represent all of the indigent cases they are assigned during the year. A smaller number of counties each contract with one private attorney to serve as a coordinating attorney, and that attorney can then subcontract with as few or many other attorneys as he sees fit to cover all of the indigent cases in the county.
Misdemeanor representation can be the responsibility of the county or of a municipality or both. Counties are responsible for providing counsel to the indigent for A-level misdemeanors (carrying up to one year in jail). Any incorporated town or city can establish a local justice court that can hear, among other things, B- and C-level misdemeanors (carrying up to six months and up to ninety days in jail, respectively) that occur within their corporate limits, and if they have such a court they are responsible for fulfilling the right to counsel. In unincorporated areas of a county and when there are no city/town justice courts, the county is responsible for fulfilling the right to counsel in B- and C-level misdemeanors in the county justice court. With the exception of the more urban parts of the state, each local government usually contracts with a single private attorney to represent all indigent misdemeanor defendants in their local courts. Often, the same private attorney has contracts with many (if not all) townships in the county, handling one court’s cases on one day before moving to another’s the next day.
When the Utah legislature created the Utah Indigent Defense Commission (UIDC) in 2016, it directed the commission to encourage and help local governments to establish regional right to counsel systems – cooperative agreements among two or more local governments to jointly provide services – in order to provide effective representation while reducing costs.
Utah Constitution, article 1, section 12 (Rights of Accused Persons)
Utah Code Annotated, §§ 77-32-101 through 77-32-810 (Indigent Defense Act); see §§ 77-32-301 through 77-32-308 for specific provisions concerning counsel for the indigent, and §§ 77-32-801 through 77-32–810 for specific provisions concerning the Utah Indigent Defense Commission
Utah Rules of Criminal Procedure, Rule 8 (Appointment of Counsel)
Source of data: original research conducted by Sixth Amendment Center staff, augmented by the Utah Association of Counties, Counties By the Numbers: Funding Utah’s Indigent Defense System (Nov. 6, 2015).