FULL REPORT (2.6 MB, PDF file): Sixth Amendment Center, The Right to Counsel in Rural Nevada: Evaluation of Indigent Defense Services (September 2018).
EXECUTIVE SUMMARY ONLY (1.5 MB, PDF file): Sixth Amendment Center, The Right to Counsel in Rural Nevada: Evaluation of Indigent Defense Services (September 2018).
Providing the Sixth Amendment right to effective assistance of counsel is a state obligation under the Fourteenth Amendment. Nonetheless, Nevada has left it to each of the cities and rural counties to determine how to provide the right to counsel in the courts located within their geographic boundaries. When a state chooses to place this responsibility on its local governments, then the state must guarantee that the local governments are not only capable of providing adequate representation, but that they are in fact doing so.
The State of Nevada has no method of ensuring that its local governments meet the state’s constitutional obligations. The State of Nevada must, at the very least, have an entity authorized to promulgate and enforce systemic standards. No such entity currently exists. Moreover, the State of Nevada does not require uniform indigent defense data collection and reporting. Without objective and reliable data, right to counsel funding and policy decisions are subject to speculation, anecdotes and potentially even bias. For trial level services, the State of Nevada has only very limited oversight of primary representation (not conflict representation) in just the two jurisdictions (Carson City and Storey County) that use the state public defender office. Yet the state public defender system suffers from undue political interference and inadequate funding.
Cities receive almost no direction at all from the state about how to provide representation to indigent defendants charged in the municipal courts with misdemeanors that carry possible jail sentences. There are four free-standing municipal courts in all of the 15 rural counties combined: Fallon Municipal Court within Churchill County; Fernley Municipal Court and Yerington Municipal Court within Lyon County; and Ely Municipal Court within White Pine County.
Counties with a population of 100,00 or more (only Clark County and Washoe County) are required to have a county-funded public defender office with a full-time public defender. Less populous counties may have a public defender office if they wish and their public defender does not have to be a fulltime employee, i.e. the county can enter into a contract with a private attorney to serve as the public defender on a part-time basis.
Only the three rural counties of Elko, Humboldt, and Pershing have a county funded and administered public defender office, furnished and equipped at government expense and staffed by full-time government employees who receive a salary and benefits. Churchill, Douglas, Esmeralda, Eureka, Lander, Lincoln, Lyon, Mineral, Nye, and White Pine counties instead provide right to counsel services by contracting with private attorneys for a fixed annual fee and out of which the attorney must provide all overhead necessary to serve as an attorney. In many instances, these contract attorneys are also responsible for paying for much of the case-related expenses that are necessary to the defense of the indigent defendants whom they are appointed to represent.
If a county does not have a public defender office in some form, then the state public defender provides indigent representation in that county. Only Carson City and Storey County remain in the state public defender system. The counties in which the state public defender office provides trial level services must pay the state for those services in an amount assessed by the legislature in each biennial session, which since 1991 has been 100% of the estimated cost of trial level services. The state provides the funding for appeals handled by the state public defender office in all counties other than Clark and Washoe and for post-conviction statewide.
Nevada’s decades of efforts to ensure the effective assistance of the right to counsel have been a critical prelude to the issues that confront the rural counties today. Most of the attempts to fix systemic deficiencies in the state’s right to counsel systems have been made by the Nevada Supreme Court. But it is only one of the three branches of state government. The court does not have the power of the purse and cannot, because of separation of powers concerns, tell the legislature how to spend taxpayer resources.
Rural actors and policymakers are wary of efforts to force rural counties to use the services of the state public defender, even if that office were fully funded by the state. Decisions by rural policymakers to move out of the state public defender system have not been based solely on a desire to provide services as inexpensively as possible. Rather, five and a half decades of expanding right to counsel responsibilities under both federal and state law, in interaction with changes in Nevada’s statutory law, have led county after county to strike out on their own in legitimate attempts to ensure adequate right to counsel services where the state has failed to do so.
Without guidance from the State of Nevada on how to create local structures that meet the parameters of the Sixth Amendment, the local indigent defense systems suffer to various degrees with:
- lack of independence from judges, prosecutors, and county/city governance;
- lack of institutionalized attorney supervision and training;
- absence of attorneys at initial appearance to advocate for pretrial release of defendants;
- lack of independent defense investigations in all but the most serious felony cases;
- almost no support services, such as social workers, legal secretaries/paraprofessionals, mental health services, and translation services for non-English speaking indigent defendants;
- fixed fee contracts that pay the same no matter how few or how many cases the attorney handles, and that require the attorney to pay for overhead out of the fixed compensation, and that in some instances require the attorney to pay for conflict counsel and/or case-related expenses out of the fixed compensation; and
- excessive caseloads in those rural counties with populations greater than 15,000.