Pleading the Sixth: In his State of the Judiciary address, Nevada’s Chief Justice decried the growing justice gap in right to counsel services between urban and rural jurisdictions in his state. Announcing that rural counties simply cannot shoulder the state’s Sixth Amendment obligations any longer, the Chief Justice challenged the legislature to create a statewide indigent defense commission. Given the Chief Justice’s comments, we can think of no better time to release a new 6AC video explaining Nevada’s unique right to counsel history and how rural defense attorneys today earn less than 1% of the compensation the legislature thought was necessary in the 1870s.
On March 8, 2017, Nevada Supreme Court Justice Michael Cherry strongly urged the state legislature to come to terms with the growing justice gap between urban and rural counties in the provision of right to counsel services. “In our urban counties, a defendant can count on a public defender to provide prompt representation. However in the rural parts of our state, indigent defendants may sit in jail for an extended period of time waiting to speak to an attorney while witnesses’ memories fade and investigative leads go cold.” He continued, “even after that defendant is appointed an attorney (in a rural court), he or she may be one of several hundred clients all vying at the same time for the attention of that single attorney.”
Why the disparity between urban and rural services?
More than 90 years before the U.S. Supreme Court decision in Gideon v. Wainwright, a thirty-year-old harness maker, accused of a series of stagecoach robberies in Battle Mountain, Nevada, questioned the legality of being tried without counsel. The story of Shepherd L. Wixom explains Nevada’s unique right to counsel history as the first state to guarantee both counsel in all cases and the payment of counsel for services rendered. Yet rural defense attorneys today earn less than 1% of the compensation the legislature thought was necessary in the 1870s. Watch the video below.
Nevada statutes require all counties with a population of 100,000 or more to create a county-funded office of the public defender. Clark County (Las Vegas) and Washoe County (Reno) are the only two counties that currently qualify. The right to counsel services in these two urban centers have evolved over the years to include established conflict public defender offices and organized, independent tertiary assigned counsel systems.
As the urban indigent defense services were becoming more sophisticated and specialized, the system the Nevada legislature originally envisioned for rural counties was devolving. In 1971, the legislature created the State Public Defender system to set uniform policies for the delivery of indigent defense services in Nevada’s rural counties. Consistent with prevailing criminal justice standards, an independent commission appointed by diverse factions to ensure that no single branch of government could exert undue interference with the work of the agency oversaw the State Public Defender system. As originally conceived, the State Public Defender was funded through a combination of state and county funding, with the state paying for 80% of all public defender costs in the rural counties and the counties paying the remaining 20%.
However, only four years after creating the State Public Defender Commission, the Nevada Legislature did away with it and voted instead to make the State Public Defender a direct gubernatorial appointment. Then, in 1989, the legislature further compromised the ability of the State Public Defender to render effective services by demoting the position from a gubernatorial cabinet-level position to one of several intra-agency positions within the Department of Human Services.
As only one of a number of agencies within the Department of Human Services, the State Public Defender must now justify its office budget among all human services divisions and then have the Director of Human Services argue that budget amongst all other cabinet departments. The State Public Defender now lacks the ability to independently advocate for needed resources, and over time the state reduced its financial commitment to the point where today participating counties pay 80% of the entire cost of the system.
As the state reduced its funding contribution to the State Public Defender to provide right to counsel services, rural counties realized they could simply opt out of the state system. This left them free of state oversight, and in exercising local power over their public defense systems, most rural counties have chosen to spend less money on the right to counsel. In most instances, county governments established systems in which the lowest bidder is contracted to provide representation in an unlimited number of cases for a single flat fee. The attorneys are not reimbursed for overhead or for out-of-pocket case expenses such as expert witnesses, investigators, mileage, etc. Today, the State Public Defender serves only Carson City (population: 54,521) and Storey County (3,987) – less than two percent of the state’s population.
Moving forward: Is help on the way?
Noting that the rural counties’ “financial burden increases as the U.S. Supreme Court continually clarifies and expands the obligations an attorney owes the indigent accused” and the systems in which they operate, Justice Cherry urged the legislature to engage in comprehensive reform: “We must do better at providing representation to rural defendants. . . . Rural persons are just as deserving of representation as their urban neighbors. I encourage you to provide equal justice to rural individuals too. The time has come for an independent Indigent Defense Commission.”
Justice Cherry reached this conclusion after ten years chairing a Supreme Court Indigent Defense Task Force studying the problems. The Nevada Supreme Court has tried to fix as many problems as possible through the Task Force process. An issue is raised and debated among Task Force members (composed of criminal justice stakeholders, county managers, etc.) and then presented to the Court at a public hearing to consider recommendations. If the Court finds a recommendation meritorious, the Court issues an administrative order adopting that recommendation. Through this process, the Court has banned certain flat fee contracts, removed the judiciary from the oversight of defender services, set a uniform standard for determining when someone is indigent, set attorney performance qualifications, and studied workload controls.
Separation of powers considerations preclude the Court from a more permanent fix – namely an independent, predominately state-funded system for rural representation in the rural counties.
How the Nevada legislature can help
The Nevada Advisory Commission on the Administration of Justice (ACAJ) is required to annually submit a report to the legislature recommending “changes pertaining to the administration of justice.” At its September 2016 meeting, the ACAJ overwhelmingly voted to recommend that the legislature:
- Create a 13-member commission with authority over all indigent defense services in criminal, delinquency, child in need of services, and abuse and neglect cases; balance appointments between the interests of all three branches of government, as well as state and local interests and the interests of rural and urban counties; authorize the Commission to promulgate standards of practice; require Supreme Court approval before standards take effect; and make standards applicable to all counties regardless of population.
- Create Office of Indigent Legal Services to carry out the day-to-day operations of the Commission (replacing the existing Office of State Public Defender).
- Authorize Commission to create a specialized appellate representation unit of the Office of Indigent Legal Services and allow counties to cede administration and funding of appellate services to the state.
- Require counties with populations greater than 100,000 to continue to fund and administer trial-level indigent representation through public defender offices, and require compliance with Commission standards.
- Offer counties with populations of 100,000 or less the choice between: continued autonomy over administration of trial-level services and responsibility for fully funding those services; or capping costs at current level and ceding administration of trial-level services to the Commission.
- For counties that cede administration of trial-level indigent defense services to the Commission:
- County financial contribution capped at average of county spending for the preceding three years (excluding expenditures for capital cases);
- Require Commission to maintain existing trial-level delivery system unless: the chief judge and Board of County Commissioners request Commission to restructure services; or Commission evaluates and finds existing delivery system to be out of compliance with standards;
- Authorize Commission to determine and implement the most effective trial-level delivery system, with the flexibility to employ public attorneys and/or contract with private attorneys, on a county or regional basis, to maximize efficiency;
- Authorize Commission to conduct periodic independent evaluations to determine state compliance with Commission standards.
- For counties that retain autonomy over trial-level indigent defense services:
- Require county to fund trial-level services at a level to meet Commission standards;
- Authorize Commission to conduct periodic independent evaluations to determine county compliance with Commission standards; require Commission to provide written notification of non-compliance and allow non-compliant jurisdictions nine months to remedy issues; require Commission to provide technical assistance to non-compliant counties; make findings of non-compliance appealable to the Supreme Court; and, authorize Commission to take over administration of trial-level services in counties found by Supreme Court to be non-compliant and in those counties that do not appeal decision of non-compliance.
- Empower the Commission to require uniform data reporting, regardless of whether services are administered by state or local governments, to help policymakers make informed funding decisions.
Legislation has not yet been introduced to enact the ACAJ recommendations, though 6AC is hopeful that such a bill might be forthcoming. The ACAJ proposal appears to balance both state and local interests.
From a state perspective, the suggested reform would ensure that Nevada meets its Fourteenth Amendment duty to provide Sixth Amendment effective assistance of counsel to the indigent at all critical stages of a case. Where the state administers trial-level services, flexibility in service delivery systems, including through regional plans, will eliminate redundancy and maximize efficient use of limited taxpayer resources. Uniform data collection will arm state policymakers with the information to ensure that limited taxpayer resources are used to maximum efficiency. State oversight of indigent defense services reduces state exposure to costly class action lawsuits. And the initial state financial impact for improving services is minimized, as counties will contribute the majority of funding in the initial roll out.
From a rural county perspective, the proposed legislative approach gives the rural counties a choice of: capping their indigent representation costs at an average of the past three years (excluding extraordinary cases) in perpetuity and ceding administration of trial-level services to the state, or retaining full local autonomy over indigent representation services. If local governments are happy with their current trial-level services, do not want to receive state funding for those services, and their services meet statewide standards, the recommendation has zero impact on trial-level services. All counties would be immediately relieved of responsibility for funding and administering appellate services.