2020 Year in Review

2020 brought many challenges to people across the nation. Changes to the ways we work and interact have led many to reassess priorities and focus on how we can improve ourselves and our communities.

In that pursuit, courts around the country struggled to balance defendants’ rights to speedy and public trials with the need to protect public health. Many courts tried to adapt by increasing the use of video and telephonic hearings, and creating more physical separation and implementing public health measures for in-person proceedings. However, jury trials across the country were either cancelled entirely or subject to lengthy delays, many of which seem likely to continue into 2021. It is 6AC’s hope and expectation that criminal justice stakeholders around the country will continue to seek ways to adapt and ensure that all defendants’ rights are preserved during this difficult time.

The perspective we gain by working with diverse communities around the country allows us to understand the depth and breadth of America’s struggles to fulfill the Sixth Amendment right to counsel. This perspective also leads us to be optimistic about the efforts states are making towards continued improvements. Despite the often difficult news cycle of 2020, 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 2021!

I. Funding

California appropriated $10 million for a pilot program in which the state will provide funding to local jurisdictions to supplement indigent defense spending.

In September 2020, the Louisiana legislature passed Act. No. 45 reallocating $3 million in funding from other departments to the Louisiana Public Defender Board (LPDB) for public defenders to obtain office space throughout the state. LPDB still has to develop a plan for spending the money, subject to approval from the Joint Legislative Committee on the Budget.

Also in Louisiana, the New Orleans city council reallocated nearly $2 million in funding from the district attorney and sheriff, to increase funding for the Orleans Parish public defender. While the increase brought the public defender’s funding to about 65% of the district attorney’s budget, the budget falls short of an ordinance passed in the summer of 2020 requiring the public defenders receive 80% of the DA’s funding. With the increased funding, the public defender plans in 2021 to start re-hiring contractors to reduce the waitlist for appointed counsel.

The Michigan Indigent Defense Commission (MIDC) received a state general fund appropriation to issue $117.5 million in grant funding to local governments for the fiscal year ending September 2021, to be distributed to counties statewide to help those counties come into compliance with MIDC standards. This reflect a 36% increase from the previous year’s $86 million allocation. The budget summary report states: “As the MIDC begins their review and approval of fiscal year 2021 compliance plans and cost analyses later this spring, approvals will be monitored to determine whether additional resources beyond those recommended in the Executive Budget will be needed for fiscal year 2021.” An additional $2 million was allocated to MIDC for their internal operations. The state appellate defender office also received $8 million in general fund appropriations.

New York’s budget provided more than a $50 million increase for indigent defense services throughout the state, a 23% increase over the previous budget. The majority of the increase goes towards helping counties come into compliance with the settlement reached in the Hurrell-Harring litigation, but some funding will also allow the central office staff for the Office of Indigent Legal Services (ILS) to expand.

Ohio more than doubled indigent defense funding in the current biennial budget (passed in 2019), compared to 2018-19 spending. The final appropriations amount to more than $167 million in 2020 and more than $204 million in 2021. The $204 million appropriated for 2021 is more than 200% higher than Ohio’s 2019 appropriation of just over $101 million. Nearly $111 million is set aside specifically for reimbursing counties for the costs of indigent defense in 2021, a reduction from the original allocation due to pandemic-related budget cuts, but still a substantial increase from Ohio’s historic funding levels for county reimbursements.

Virginia appropriated $2.7 million to create a new public defender office serving Prince William County and the Manassas area, the most populated area in the state still without a public defender office.

II. Structural reforms to indigent defense

Georgia’s state public defender restructured the appellate division to assign an attorney to cover each judicial district in the state.

The Idaho Legislature passed House Bill 319, giving the state appellate public defender authority for appeals in misdemeanor and juvenile cases, and relieving county public defenders of this responsibility.

Iowa Senate Bill 2182 permits the state public defender to launch a pilot project to improve outcomes in child welfare cases. Using that authority, the state public defender will appoint attorneys with special expertise in welfare cases to indigent persons even before proceedings begin.

In October 2020, the Maine Commission on Indigent Legal Services (MCILS) voted to implement a host of new standards regarding attorney qualifications and training, assigned counsel oversight, and appointment of counsel in individual cases. The proposed standards are subject to an open comment period before being submitted for legislative approval in January 2021. Under the proposed standards, the director has greater authority to remove attorneys from the list of qualified appointed counsel, attorneys taking assignments must comply with investigations and audits into their billing, and Maine will create a mentoring program for less experienced attorneys to gain expertise in criminal law. The reforms to MCILS are part of Maine’s ongoing efforts to improve the quality of services in response to 6AC’s report from 2019 that found a lack of oversight and effectiveness statewide.

Maryland House Bill 918 removed a limitation in the definition of the types of misdemeanor offenses eligible for representation by the state public defender. Now, defendants charged with any offense punishable by confinement, not just those incurring three months or more, are eligible for representation by the state public defender.

The Michigan Indigent Defense Commission (MIDC) received approval of a new standard applicable to all counties throughout the state, requiring that local indigent defense systems remain independent from judicial interference.

The Nevada Supreme Court ended its indigent defense commission after 13 years. The Court implemented a host of reforms through its supervisory power with the commission, such as removing the judiciary from indigent defense, and banning flat-fee contracts. The Supreme Court’s indigent defense reform efforts led directly to legislative action in 2019 creating Nevada’s new Department of Indigent Defense Services. The termination of the Court’s commission is a recognition that creation of the Nevada Department of Indigent Defense Services obviates the need for further, parallel reforms led solely by the state courts.

Utah Senate Bill 139 and Senate Bill 170 add a member to the Utah Indigent Defense Commission with experience in family law; create a statewide appellate defender division and a statewide office of indigent defense services; and transfer certain responsibilities from the Utah Indigent Defense Commission to the newly-created office, including data collection, establishing procedures for grant distribution, helping counties come into compliance with commission-promulgated principles, auditing and reviewing local services, and making annual reports to all three branches of government. The bills also expand the Utah Indigent Defense Commission’s oversight authority by empowering the commission to enforce local compliance with minimum standards by withholding state grant dollars from any local systems failing to submitting annual plans for meeting the commission’s principles.

The Wyoming Legislature passed Senate File 13, establishing a uniform indigence standard throughout the state. Now, people who are on many forms of public assistance, or whose income is less than 125% of the federal poverty limits are considered “needy”; people whose income is between 125%-218% of the federal poverty guidelines may be considered “needy” by court determination; and people whose income is above 218% of the federal poverty guidelines cannot be considered “needy.” The law went into effect July 1, 2020. Previously, indigency determinations were left up to individual courts with only abstract guidance on making such a determination.

Wyoming also created a standalone juvenile guardian ad litem division, removing administration of the division from the Office of State Public Defender, effective July 1, 2020.

III. Major litigation news

In 2015, the ACLU filed suit against Fresno County and the state of California, alleging that the state had delegated its constitutional obligation to provide effective representation without adequate oversight to ensure that counties were capable of creating and maintaining constitutionally-sufficient systems. The litigation settled in January 2020, and California devoted $4 million dollars in 2020-21, and $3.5 million per year on an ongoing basis to supplement funding at the Office of the State Public Defender (OSPD), which only represents people appealing a capital sentence. This amount reflects an increase of about 28% over OSPD’s current budget, and is designed to expand OSPD’s mission to provide greater support to counties’ indigent defense systems through training and technical assistance.

Following the Nevada General Assembly’s passage of AB81 in 2019, the state settled a lawsuit in 2020 that sought to ensure effective representation for all people charged with a criminal or delinquency offense in the rural counties throughout the state (that is, all counties except Clark and Washoe, which house Las Vegas and Reno, respectively). According to the terms of the settlement agreement, the state of Nevada must:

• provide an annual report on the status of indigent defense;
• create a standardized contract for the provision of indigent defense services and approve those contracts prior to execution, and the contracts must prohibit flat-fee payment arrangements and specify quality control mechanisms such as qualifications, performance standards (incorporating the standards established by the state supreme court in 2008), training, and evaluation;
• establish a system for client surveys and incorporating feedback into review of services;
• conduct a Delphi study to establish Nevada-specific workload standards; and
• implement the workload standards in all rural counties.

According to the terms of the settlement agreement, the rural counties must:

• provide data regarding workloads to the state Board of Indigent Defense Services (BIDS);
• enter into a standardized contract for provision of indigent defense services; and
• ensure persons charged with criminal and delinquency offenses have “immediate access” to an application for appointed counsel, are screened for indigency within 48 hours of arrest, are represented by counsel at initial appearance

IV. Other criminal justice reforms

In September 2020, California signed into law AB1869, rescinding most fees assessed by courts and law enforcement against defendants, including the public defense fee, the criminal justice administration fee, booking fees, and supervision fees.

Indiana Senate Enrolled Act 302 establishes a uniform procedure for determining indigence and thus financial eligibility for appointed counsel statewide. Governor Holcomb signed the bill into law in March 2020.

In an extraordinary legislative session, the Louisiana Legislature passed Senate Resolution 20, creating an independent and diverse taskforce to study “optimal funding mechanisms” for LPDB and indigent defense throughout the state. The taskforce is required to report its findings by April 2021.

In December 2020, the Nevada Supreme Court issued ADKT491, adopting uniform rules of criminal practice statewide. The proposed rules were promulgated over five years by a statewide commission comprised of legal professionals and members of the state judiciary. The rules go into effect in March 2021. Among other changes, the adopted rules provide that felony defendants have a right to appointed counsel at their initial appearance after being bound over from the lower court. Additionally, defendants with limited English proficiency are entitled to an interpreter at no cost.

The New Hampshire General Court passed a law in 2019, which went into effect in 2020, changing when and how indigent defendants may be required to pay costs associated with their criminal cases, and creating a committee to study the costs of indigent defense representation. Under the new law:

• only defendants convicted of a crime or delinquency offense can be forced to pay assessments;
• the court must make a written finding on the record of the defendant’s ability to pay;
• a number of fees assessed against indigent defendants must be waived by the court upon a finding of indigence;
• the office of cost containment is to establish a schedule of assessments;
• fees for appointed counsel are capped at the amount the state pays under its flat-rate contract with private appointed counsel; and
• the “administrative services assessment” is capped at 10% of the total amount of counsel fees and expenses.

The Ohio Supreme Court Amended its rules of criminal procedure relating to bail determinations and pretrial release. One new provision requires that “[i]f, at the initial bail hearing before a judicial officer, the defendant was not represented by counsel, and if the defendant has not yet been released on bail, a second bail hearing shall be held on the second court day following the initial bail hearing. An indigent defendant shall be afforded representation by appointed counsel at State’s expense at this second bail hearing.”

The Tennessee General Assembly reinstated a longevity-based salary increase for public defender investigators, which had been suspended for a decade.

The Virginia General Assembly passed HB824, permitting indigent defendants to receive an ex parte hearing on the need for expert witness assistance in a criminal case, and directing that the court “shall order the appointment of a qualified expert” upon finding that the expert would materially assist in the defense and denial thereof would result in a fundamentally unfair trial.