Season’s Greetings from the 6AC!
We at 6AC are privileged to travel all across the country to meet with criminal justice stakeholders and policymakers as we aim to help them ensure an effective right to counsel. This year brought us as far north as Anchorage, AK, as far west as Santa Cruz, CA, as far south as Amarillo, TX, and as far east as Augusta, ME. And, in the Midwest, we were in urban and rural jurisdictions both great and small – from Cook County, IL (pop. 5 million) to Cave-in-Rock, IL (pop. 318).
That perspective allows us to understand the depth and breadth of America’s right to counsel deficiencies, and how far we as a nation still have to go until each and every person facing a potential loss of liberty in a criminal or delinquency proceeding has access to a qualified lawyer with the time and resources to effectively defend her in court. However, the same perspective leads us to be optimistic about the chances for continued improvements. Toward that end, the 6AC presents this year in review to acknowledge the most significant reforms to how the right to counsel is funded and delivered across the United States.
Here’s hoping our readers have a happy and healthy 2020!!
The biennial Indiana state budget allocated a $4.47 million annual increase for public defense statewide. The total budget for the Public Defender Commission is $22,820,000 per year for FY2019-2020 and FY 2020-2021. The budget allocation represents a 24% increase over previous levels. The increase also shows continued determination by advocates in Indiana to attempt to implement broad reforms of the statewide system, in response to 6AC’s recommendations in its 2016 report.
Massachusetts’ final budget included a $1.9 million increase for public defense services statewide, plus an additional $750,000 specifically to address a shortage of private attorneys handling indigent defense cases in Hampden County (Springfield, the state’s third-largest city). The total addition reflects an 8% budget increase statewide over FY2019 appropriations. (Systemic litigation regarding attorney compensation in Hampden County is further discussed below.)
The Michigan Indigent Defense Commission (MIDC), created in 2013, began in earnest to distribute $84 million in grant funding to counties throughout the state in 2019. The grant funding is designed to help counties come into compliance with new MIDC performance standards that are binding on each county. MIDC’s first four performance standards, prompting the initial round of grant funding, were approved in 2018 and counties had roughly one year to come into compliance with those standards. In addition to the $84 million allocated to MIDC for grant distribution to counties, the legislature also appropriated more than $2 million for internal MIDC operations. The next set of MIDC standards are expected in 2020, which will trigger another round of compliance monitoring and grant funding to counties.
The State of New York in 2019 continued its years-long trend of expanding indigent defense oversight and funding for an increasing number of counties. Following the 2015 settlement of a lawsuit leading to reforms in five upstate counties, legislation in 2017 expanded these reforms statewide by requiring that the state begin to fund the indigent defense function, rather than leaving funding to the counties. In 2018, the state provided more than $161 million in funding to the Office of Indigent Legal Services (ILS) to begin to fulfill this mandate. ILS published standards for assigned counsel programs, effective throughout the state beginning in July 2019. ILS has also started distributing grants to counties to pay for more attorneys to appear at arraignments to represent indigent defendants.
The Ohio Legislature and Governor Mike DeWine more than doubled indigent defense funding from current 2019 levels for the next biennial budget. After budget negotiations, the final appropriations come to more than $167 million in 2020 and more than $204 million in 2021.
The Pennsylvania General Assembly allocated state money for indigent defense, for the first time ever. The legislature approved $500,000 in grant funding to be distributed to counties to reimburse for the costs of indigent defense in capital cases.
In 2019, the Tennessee Supreme Court raised the hourly rates for private assigned counsel to a flat $50, regardless whether the work takes place in court or out of court. The court also raised the dollar amount limits for each type of case to which attorneys could be appointed. To accommodate the new rate and limits, in 2019 the court raised its budget for private assigned counsel payments for the biennial 2019-2020 budget, for a total increase of more than $19 million over that two-year span. The annual budget for 2019 and 2020 is now 30% higher than the 2018 budget.
The Utah State Legislature allocated an additional $4.7 million for indigent defense funding in 2019, more than doubling the state allocation from 2018. Utah first began providing state funding for indigent defense in 2016.
The West Virginia Legislature passed Senate Bill 103, which raised the rates for appointed counsel to $60 per hour for out of court work (formerly $45), and $80 for in-court work (formerly $65).
The Wisconsin Legislature voted to increase the compensation rate for private attorneys appointed to represent indigent defendants. The rate, formerly the lowest in the nation at just $40, has been raised to $70. This is the first time the rate has changed in a quarter century. In fact, the last time the rate was changed, it was lowered from $50 to $40. Wisconsin’s 2019-2021 Budget, via Assembly Bill 56, also includes merit-based raises for assistant state public defenders.
II. Structural reforms to indigent defense
In January 2019, the Idaho Senate Judiciary Committee approved the first-ever caseload limits for public defenders in the state. The limits follow a recommendation laid out in a report from the Boise State University, which was based on a time-tracking and Delphi study to assess the appropriate workloads for Idaho public defenders. The limits were implemented as a rule created by the Idaho State Public Defense Commission (PDC). Following the caseload standards, in February 2019 the Idaho PDC passed, and Governor Brad Little authorized, new indigent defense rules pertaining to: attorney training, data reporting, contract standards, grant distribution, oversight and implementation of performance standards, and administration of the statewide indigent defense system.
The Maine Commission on Indigent Legal Services (MCILS) underwent a makeover, with an expansion in MCILS’s size from five members to nine, all of whom are appointed by the Governor and confirmed by the Senate. Although MCILS still lacks true political independence, because all Commission members are appointed by the governor (national standards on defender commissions call for diverse appointing authorities), five of those members are now chosen from lists submitted by the legislative and judicial branches, and two non-voting members are chosen from lists submitted by statewide attorney membership organizations. Further, MCILS’ statutory composition has become more sophisticated, with enhanced experience in both finance and child protection cases, as well as the requirement that the non-voting members dedicate the majority of their law practice to indigent legal services.
Nevada implemented a major structural reform to its provision of indigent defense services, by creating a new commission overseeing the delivery of services statewide, the Board of Indigent Defense Services (BIDS). BIDS’ composition aligns with national standards for independence, and BIDS is authorized to establish Nevada-specific performance standards applicable to public defenders across the state, to ensure effective representation as required under the constitution. BIDS represents a major step forward, particularly for rural areas of the state that have traditionally found it difficult to administer and fund indigent defense services at the county level.
The Tennessee District Public Defenders Conference (TDPDC) created a statewide appellate unit, called the Tennessee District Public Defenders Conference Appellate Division. All public defender districts within the state have the option of bringing in attorneys from the Appellate Division to handle appeals, though the office is primarily designed to handle appeals by indigent criminal defendants in the rural areas of the state. 6AC has learned that the Appellate Division’s staff at launch in 2019 includes six attorneys and two secretaries. The TDPDC plans to expand division staff incrementally year by year, based on funding.
The West Virginia legislature authorized West Virginia Public Defender Services to prosecute appeals and writs of habeas corpus on behalf of indigent clients, to create a legal resource center, and to create an “accounting and auditing division” to oversee financial reporting compliance by service providers throughout the state.
III. Major litigation news
Defendants charged with jailable offenses in the Springfield District Court (Hampden County) of Massachusetts argued before the Supreme Judicial Court that the unavailability of attorneys to take their cases, stemming from inadequate compensation rates, violates their right to counsel. The case brings allegations of a situation nearly identical to that which prompted the state to settle the Lavalee lawsuit in 2004 – which also arose out of this same district court. The Massachusetts Supreme Judicial Court’s decision in the current litigation is expected in 2020.
The Missouri State Public Defender, in a joint motion with plaintiffs suing the state over alleged constitutional deficiencies in providing appointed counsel, proposed a consent decree in May 2019, after placing more than 4,300 indigent defendants on a waiting list while public defenders worked on other cases, due to overwhelming demand on their services and inadequate resources. Under the consent decree, the state public defender agrees to provide effective representation at all critical stages, investigate all cases, and communicate with clients throughout their cases. The Missouri Supreme Court has yet to rule on the proposed consent decree.
Two towns – Beaufort and Bluffton – in South Carolina settled a lawsuit alleging systematic denial of counsel to indigent people facing criminal charges punishable by incarceration in municipal courts. Under the terms of the settlement, the cities must contract with the local public defender to provide representation in municipal courts to eligible individuals, and provide defendants with written and oral notifications that they have a right to appointed counsel.
IV. Other criminal justice reforms
The North Dakota Legislative Assembly enacted a new statutory provision guaranteeing parents the right to counsel in guardianship cases.
The Utah State Legislature passed Senate Bill 32, requiring the appointment of counsel for all juveniles charged with a delinquency offense, regardless whether the child is indigent. Previously, only juveniles charged with an offense that would be a felony if committed by an adult were entitled to appointed counsel. The law will also ensure that counsel is present for all juvenile court hearings in all counties. This is a new expansion of the scope of right to counsel services, following the legislature’s decision in 2017 to expand the role of the Utah Indigent Defense Commission to oversee juvenile representation as well.