All data is current as of 2013, unless otherwise noted.
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How the right to counsel is administered and structured
State commission: yes
Branch of government: executive
The Nevada Board of Indigent Defense Services (BIDS), which oversees the Department of Indigent Defense Services, has 13 voting members and up to three non-voting members, each appointed to three-year terms and eligible for re-appointment. The individual members are selected based on backgrounds calculated to ensure consideration of a variety of viewpoints, and they are appointed by diverse authorities:
- Two members must be Nevada attorneys in good standing, one appointed by the Governor and one appointed by the Senate Majority Leader;
- One member must have expertise in the finances of state government, appointed by the Speaker of the Assembly;
- One member must either have expertise in juvenile justice and criminal law or be a retired judge or retired justice, appointed by the Nevada Supreme Court Chief Justice;
- One member selected by the State Bar of Nevada board of governors must be a Nevada attorney in good standing who resides in a county with a population under 100,000, appointed by the Governor;
- Four members selected by the Nevada Association of Counties must reside in counties with a population under 100,000 and one of those members must have expertise in the finances of local government, all appointed by the Governor;
- Two members selected by the Clark County (Las Vegas) Board of County Commissioners, appointed by the Governor;
- One member selected by the Washoe County (Reno) Board of County Commissioners, appointed by the Governor; and
- One member selected jointly by the State Bar of Nevada associations that represent members of racial or ethnic minorities, appointed by the Governor.
For the non-voting members: the Nevada Supreme Court Chief Justice may designate one person to represent the interests of the court; and the Governor may appoint up to two members, one of whom must be recommended by the State Bar of Nevada board of governors.
Each person appointed to BIDS must have either:
- “Significant experience providing legal representation to indigent persons who are charged with public offenses or to children who are alleged to be delinquent or in need of supervision;” or
- “A demonstrated commitment to providing effective legal representation to such indigent persons;” or
- “Expertise or experience, as determined by the appointing authority, which qualifies the person to contribute to the purpose of the Board or to carrying out any of its functions.”
Board members cannot be currently serving or currently employed as: a judge, justice, or judicial officer; a legislator, state officer, or state employee; a prosecuting attorney or their employee; a law enforcement officer or employee of a law enforcement agency; nor an attorney who may obtain any financial benefit from the board’s policies. Also prohibited from serving on the board is anyone who is currently employed by: the Department of Indigent Defense Services; a public defender; or any attorney providing indigent defense services pursuant to a contract with a county.
BIDS is required to “[e]stablish minimum standards for the delivery of indigent defense services to ensure that such services meet the constitutional requirements and do not create any type of economic disincentive or impair the ability of the defense attorney to provide effective representation.” BIDS oversees the Department of Indigent Defense Services to monitor and enforce BIDS standards, and the State Public Defender to provide direct representation in those jurisdictions that opt to contract with BIDS (currently Carson City and Storey County).The rural counties that choose to not participate decide how much they will spend on providing right to counsel services and bear that cost.
However, BIDS must adopt regulations that:
- require the new Department of Indigent Defense Services, the State Public Defender, and the counties to require compliance with BIDS regulations by the indigent defense attorneys whom they employ or contract;
- require the Department of Indigent Defense Services and the counties “to ensure, to the greatest extent possible, consistency in the representation of indigent defendants so that the same attorney represents a defendant through every stage of the case without delegating the representation to others, except that administrative and other tasks which do not affect the rights of the defendant may be delegated;”
- establish guidelines “to determine the maximum caseloads for attorneys who provide indigent defense services;”
- require “specific continuing education and experience for attorneys who provide indigent defense services;” and
- require attorneys to “track their time and provide reports” and that they do so “in a uniform manner.”
Together, the board and the department are required to “develop procedures for the mandatory collection of data concerning the provision of indigent defense services, including the manner in which such services are provided.” As BIDS deems necessary, the newly created Department of Indigent Defense Services will conduct audits and investigations “to determine whether minimum standards in the provision of indigent defense services are being followed and provided in compliance with constitutional requirements.”
In short, all attorneys who are employed, contracted, or paid to represent indigent defendants must comply with the standards, adopted through regulation, that are promulgated by BIDS. The attorneys must also report to BIDS all information required, once the procedures are in place. If a county “is not meeting the minimum standards for the provision of indigent defense services or is in any other manner deficient in the provision of such services,” the new legislation gives BIDS and the department the authority to implement and enforce a “corrective action plan” to bring the county into compliance. Counties other than Clark and Washoe can be required to transfer responsibility for the provision of all indigent defense services to the State Public Defender (which is now under the authority of the department and BIDS). This legislation, for the first time, gives the State of Nevada the ability to provide effective oversight of right to counsel services throughout the state.
Pursuant to the Nevada Supreme Court’s inherent authority to regulate legal practice in the state, the Court issued Administrative Order ADKT-411 on January 4, 2008 that, among other things: a) instituted performance standards for attorneys in trial-level adult criminal, juvenile delinquency, and appellate representation; b) removed the judiciary from the oversight and administration of indigent defense; and c) required each county to submit to the Supreme Court for approval local plans for delivering indigent defense services.
How the right to counsel is funded
Percentage of state funding: 1%
Percentage of local funding: 99%
Percentage of alternative funding: 0%
As originally conceived in 1971, 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%. 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 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 rural counties that choose to not participate in the state system (all of them other than Carson City and Storey County) decide how much they will spend on providing right to counsel services and bear that cost. Clark and Washoe each carry the full cost of providing right to counsel services within their respective counties.
The methods used to provide public counsel
By statute, Clark County (Las Vegas) and Washoe County (Reno) must each have a county-funded office of the public defender, because the county population is 100,000 or more. In Clark County, the primary office is the Office of the Clark County Public Defender (Las Vegas). The Clark County Special Public Defender handles conflicts only in death penalty cases, other murder cases, and representation of parents in termination of parental rights proceedings. An independent, coordinated assigned counsel system in Clark County handles all other conflict matters. In Washoe County, the primary office is the Washoe County Public Defender’s Office, and the Alternate Public Defender’s Office provides conflict representation in all types of trial level cases.
The fourteen rural counties and one independent city (Carson City) may contract with the State Public Defender or may, if they so desire, establish a county public defender office. Today, the State Public Defender serves only Carson City and Storey County. Of the remaining counties, only Elko County has established its own county public defender office. In all other counties, the county governments have 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 mileage, experts, investigators, etc.
Nevada Constitution, art. 1, § 8
Nevada Supreme Court Administrative Orders, ADKT-411 (additional public defense procedures)
Source of data: original research conducted by Sixth Amendment Center staff.