By Michael Tartaglia and Kourtney Kinchen
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. We wish all our readers a happy and healthy 2022!
Indigent defense funding
The Kansas State Board of Indigents’ Defense Services (BIDS) provides representation in felonies and appeals through 17 staffed public defender offices (covering 43 of the state’s 105 counties) and pays for private counsel services for felony representation in the rest of the state through contracts and/or hourly rates. Kansas increased BIDS’s funding in 2021 by $7.7 million: $4.1 million to add additional public defender positions and to implement a case management system, and $3.6 million to increase the assigned counsel statutory rate. Kansas also passed legislation permitting BIDS to override the existing pay rate of $80 per hour for assigned counsel and instead pay $100 per hour in order to retain attorneys. BIDS’s budget has grown by nearly $10 million since fiscal year 2019.
The Louisiana legislature has re-established a working group to study potential changes to address the Louisiana Public Defender Board’s funding issues. Currently, a majority of the funding for trial-level adult criminal public defense services in Louisiana is generated through a fee assessed against all defendants adjudicated guilty by a criminal court. In reality, this means that the majority of funding comes through fees assessed on traffic tickets, so the funding for public defense services is all but eliminated whenever law enforcement stops writing traffic tickets (e.g., during natural disasters like hurricanes Katrina, Rita and Ida, or pandemics). The working group is to deliver its findings to the state’s senate by March 1, 2022.
Maine passed legislation to reform its indigent defense and court systems in response to 6AC’s recommendations. The Maine Commission on Indigent Legal Services (MCILS) oversees and funds all indigent representation in the state, provided by private attorneys. 6AC’s evaluation concluded that MCILS is expected to oversee the representation by, and cost of, nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates – all with a staff of just three people. In June 2021, the Maine Legislature increased the MCILS budget by more than 50%, from $18 million to $27.5 million. This will allow MCILS to triple their staff to improve oversight of the private bar and raise assigned counsel compensation rates from $60/hour to $80/hour. MCILS subsequently banned all flat fee contracting and instituted better financial controls.
Massachusetts also raised hourly rates for appointed indigent defense attorneys, after receiving a $28 million budget increase. The Committee for Public Counsel Services (CPCS) administers trial-level indigent defense throughout the state, provided through a combination of panels of private assigned counsel to cover the majority of the geographic area of the state and public defender offices in some locations. Rates for private assigned counsel now range from $60-$110 per hour, up from $53-$100 per hour.
Michigan’s budget includes an increase of $31.4 million for the Michigan Indigent Defense Commission (MIDC). MIDC is a state agency that sets standards for indigent defense services statewide, conducts research and audits on local indigent defense systems, and distributes state funds to allow the local systems to meet its standards. MIDC’s total funding for fiscal year 2022 includes $149 million for grants to be distributed to county and local indigent defense systems; this represents a 26.7% increase over the fiscal year 2021 allocation.
The Missouri State Public Defender (MSPD) has 33 trial-level public defender offices providing services to adult and juvenile clients in 45 judicial circuits covering the state’s 115 counties. Unlike most other state public defender systems that have a separate system for conflict representation, the Missouri public defender system assigns a neighboring public defender office to provide representation in multiple defendant and other conflict cases. Missouri uses assigned counsel or contract defenders in less than 5% of all cases. A $3.6 million increase in MSPD’s budget allowed the state public defender to hire 53 new public defenders to reduce the backlog of defendants who were on wait lists throughout the state because the public defender had insufficient staff to represent them. This is a 6% increase, bringing state funding to $57 million.
North Carolina Indigent Defense Services (IDS) received an appropriation of $136 million for the 2021-2022 fiscal year and $138 million for the 2022-2023 fiscal year, increases of more than $10 million per year compared to the previous biennium. IDS oversees trial-level indigent defense services provided statewide through a combination of staff public defenders and private attorneys, though decisions about the delivery model used in each judicial district are made by the legislature with local input. The funding will help IDS implement a strategic plan that includes increasing compensation. IDS will also open a new public defender office serving Cleveland and Lincoln Counties, which will make 37 of the state’s 100 counties covered by a public defender office. With this budget increase, IDS implemented rate increases for private assigned counsel to take effect on January 1, 2022. Hourly compensation rates have risen to:
- $100 for potentially capital and capital cases, including appeals and post-conviction (up from $85);
- $85 for high-level non-capital felonies and certain appeals (up from $75);
- $75 for non-capital criminal or non-criminal appeals (no increase); and
- $65 for lower-level felonies, misdemeanors, parole and probation revocation, and other case types (up from $55).
There is no limit on the amount of the fee that an attorney can be paid for a given case, and assigned counsel can also seek reimbursement for case-related expenses. This is the first hourly rate change since 2011, when rates were reduced from $75 to a low of $55 per hour for low-level felonies, misdemeanors, revocations, and other cases. Attorneys providing indigent defense services pursuant to a contract will also see rate increases, though the new contract rates have not yet been set.
The Ohio General Assembly allocated $336 million over the next two years to the Office of the Public Defender (OPD). OPD provides direct representation in non-death adult appeals and post-conviction cases and in trial-level services in counties that opt to contract with OPD (10 of Ohio’s 88 counties currently do so). OPD traditionally has reimbursed the other 78 counties a portion of their trial-level costs. The new funding allows counties to receive reimbursement for up to 100% of the costs incurred in providing indigent defense services. A year after the coronavirus pandemic necessitated a hiring freeze that left seven positions unfilled, the new funding also allows OPD to expand its central office staff by 15 people.
The Oklahoma Indigent Defense System (OIDS) provides all right to counsel services outside of Oklahoma and Tulsa counties. Non-capital trial services are provided by staff public defender offices and private attorneys under contract. A year after OIDS weathered a 4% budget cut (along with all other government agencies due to COVID-19), the legislature restored the previous budget in fiscal year 2021 and then increased the office’s budget by more than 17%, bringing total funding to over $20.5 million for fiscal year 2022. With the additional funding, OIDS opened two new public defender offices in 2021, with twelve attorneys and three support staff serving a total of seven counties that previously had contract public defenders.
The Oregon legislature increased the biennium budget for Oregon Public Defender Services (OPDS) by more than $100 million, raising the total funding by almost 25%. OPDS is a state agency under the Public Defense Services Commission, that administers and oversees contracts with indigent defense providers statewide for trial-level representation and whose attorneys directly represent criminal defendants in appeals. This budget increase enables OPDS to hire 23 additional central office staff to improve oversight and training, reduce the pay disparity between urban and rural defenders, decrease defender caseloads, and raise investigator pay rates. This is the single biggest budget increase the organization has ever received.
With that funding increase, Oregon, where all attorneys providing trial-level indigent defense are independent contractors, now requires OPDS to enter into contracts that adhere to best practices regarding compensation, resources, and caseloads. As part of that adherence, contracts must provide adequate resources and compensation for defenders, rather than paying a single flat fee. Oregon enacted these statutory changes in response to 6AC’s recommendations for removing financial conflicts of interest from the contracting process. Additionally, the law tasks the commission with developing systems to provide better fiscal oversight and changes the composition of the OPDS Commission from seven to nine members, including one public defense service provider and at least one person who has formerly been represented by an Oregon public defender.
The South Carolina Commission on Indigent Defense (SCCID) oversees primary representation at the trial level in criminal and juvenile delinquency cases (other than in municipal courts). SCCID employs 16 circuit public defenders that have broad flexibility as to how they run their day-to-day operations within the parameters of SCCID policy and standards. Historically, though the circuit defenders are state employees, the assistant public defenders are employees of one of the counties within their circuit. SCCID received $4.8 million in one-time funding to allow it to hire new attorneys to deal with the COVID-19 backlog and an additional $3.6 million in recurring funding to hire 32 investigators and 16 new public defenders – two investigators and one attorney for each of the state’s 16 judicial circuits. This new funding increases the total state contribution to SCCID by nearly 47% — to over $26 million from $18 million the previous year.
Indigent defense structure
The California Office of the State Public Defender (OSPD) represents clients in capital post-conviction appeals. Beginning August 6, 2020, OSPD is also responsible for providing assistance and training to county public defender offices, and in May 2021, OSPD established the Indigent Defense Improvement Division and appointed the division’s first director to administer the newly mandated support to counties. This year, California launched a pilot program with $50 million to assist counties in providing postconviction representation in certain cases.
The Idaho Public Defense Commission (PDC) is a state agency that oversees local systems’ provision of trial-level indigent defense services, including by enforcing rules statewide to ensure effective assistance of counsel. Legislative committees in 2021 approved new PDC rules designed to ensure independence of the defense function from judicial and political interference and that indigent defense attorneys receive compensation and resources equitable to those given to the prosecution.
Nevada made a number of changes to the statutory provisions for appointing and compensating attorneys for indigent defendants. The Department of Indigent Defense Services (DIDS) assists counties in developing quality, equitable, and sustainable indigent defense systems. Nevada counties are required to submit plans to DIDS that meet regulations. For the first time in Nevada’s history, all counties have entered into agreements with a state agency memorializing plans to provide for indigent defense services. The new law provides that DIDS (or its designee) is responsible for overseeing the appointment of counsel, removes judges from administration of the indigent defense system, requires appointed counsel to appear for initial appearance and bail determinations, and requires that local systems comply with state regulations governing compensation for appointed counsel. The legislature appropriated approximately $2.4 million over the next biennium to improve indigent defense services in rural areas. DIDS also rolled out a case management system for Nevada’s 15 rural counties to report to DIDS information pertaining to attorney caseloads and time spent on appointed cases.
The Virginia Indigent Defense Commission (VIDC) has the authority to set standards and to enforce compliance with those standards through its central office in Richmond. VIDC funds representation through a combination of public defender offices and private attorneys. In 2021, Virginia established a public defender office in Chesterfield County, marking the second consecutive year the legislature created a new public defender office in a large county.
Wisconsin granted its Public Defender Board authority to provide merit-based pay raises to attorneys in the Wisconsin State Public Defenders office for fiscal year 2021-2022, and those pay raises are exempt from a statutory limitation on government employee raises. This is the second time in three years that state public defenders will receive merit-based raises, as Wisconsin continues to find ways to increase compensation for all attorneys appointed to represent indigent defendants.
Other legal system reforms to expand and reaffirm the right to counsel
Some states focused on ensuring counsel at particular types of hearings:
- Alabama now requires that a court hold a pretrial detention hearing for individuals held without bail immediately upon an arrestee’s initial appearance in court and guarantees the right to the assistance of counsel at that hearing.
- California amended procedures to require courts to appoint counsel in resentencing defendants in the court’s discretion or pursuant to a statutory sentence reduction for repeat offenders.
- Colorado created a right to a bond hearing within 48 hours of arrest, including weekends and holidays, at which defendants have the right to counsel
- Idaho expanded the State Appellate Public Defender’s authority to provide representation in appeals to include misdemeanor and juvenile delinquency cases.
- A reform bill in Maine bars communications between prosecutors and unrepresented defendants unless the defendant has been informed of the right to appointed counsel and the defendant has executed a written waiver of that right.
- Starting July 1, 2022, Nevada will require that courts hold a pretrial release hearing within 48 hours of a person being taken into custody, at which point a defendant has the right to counsel.
Some states worked to generally expand who is eligible for appointed counsel:
- Arkansas clarified the definition of who qualifies as indigent for purposes of receiving appointed counsel, with a presumptive qualification for anyone earning less than 200% of the federal poverty level. The state also expanded the right to counsel for noncustodial and putative parents in proceedings that could result in the child’s removal from the home.
- California expanded its definition of “indigent person” by changing the eligibility threshold from 125% to 200% of the federal poverty guidelines.
- Washington became the first state in the country to ensure tenants facing eviction have a right to appointed counsel in those proceedings, and by October 2021 it had approved 17 counties’ plans for providing those attorneys. Shortly after Washington, Maryland became the second and Connecticut the third state to pass such laws. Similarly, the New York city council expanded a pilot project for providing right to counsel services in housing court to low-income tenants – where previously only people living in 25 zip codes were eligible, the new law expands the program to the entire city.
Other states bolstered protections for juveniles:
- Arizona passed legislation that strengthens the right to counsel for juveniles. Courts are now required to appoint an attorney to represent juveniles at all stages of delinquency, dependency, and termination of parental rights cases. Additionally, juveniles are no longer required to reimburse the government for appointed counsel.
- Juveniles in California can now appeal decisions to transfer their cases from juvenile court to adult criminal court, and they expressly have the right to counsel for these appeals.
- Colorado repealed administrative fees and court costs in delinquency cases, including the fee to apply for a public defender, and also eliminated all outstanding debt for these fees and costs.
- Juvenile courts in Louisiana are no longer permitted to assess costs for any judicial expense against a defendant in a juvenile delinquency case nor against the parents or guardians.
- Missouri now requires juveniles to have a meaningful consultation with an attorney prior to waiving counsel in a delinquency case. Juveniles are entirely prohibited from waiving counsel in certain cases, including transfer hearings to adult court and hearings where the child is subject to incarceration.
- Nebraska guaranteed juveniles the right to appointed counsel in all matters in family court and requires the Nebraska Supreme Court to implement a rule requiring a juvenile to consult with counsel prior to waiving the right to counsel.
- New Hampshire now requires courts to appoint counsel for juveniles charged with a delinquent act by the time the court issues the summons and ensures that appointed counsel also represents the juvenile in related proceedings arising from the same charged incident. The law also prohibits the state from entering into a contract with a private attorney that contains any financial disincentives to effective representation in juvenile delinquency cases and requires the New Hampshire Judicial Council to develop standards of effective representation in delinquency cases by July 2022.
- New Mexico eliminated the public defender application fee for a child charged with a delinquency offense.
- North Dakota changed juvenile law through the Juvenile Court Act. Children are now provided counsel in all proceedings involving dependency and delinquency matters. Children accused of committing a delinquent act can now be referred to human services instead of being arrested and sent to court. The state also passed legislation to create multiple planning committees within the existing juvenile justice committee to further study juvenile court systems and make recommendations for improvements.
- Oregon abolished fines and fees for juvenile cases and guarantees the right to appointed counsel regardless of the juvenile’s indigency status.
- The Utah Indigent Defense Commission (UIDC) is now statutorily authorized to take appeals from child welfare cases in rural areas, and in its first year taking such cases the UIDC dramatically increased the number of appeals filed.
- The Washington state legislature guaranteed juveniles the right to consult with an attorney prior to any custodial interrogation or evidentiary search and when detained by law enforcement officers in connection with suspected criminal activity. The state public defender set up a 24/7 hotline for law enforcement to contact an attorney upon an initial encounter with a youth they seek to detain. Washington also guaranteed the right to representation to children in dependency proceedings and created a new department within the office of civil legal aid to ensure that children statewide receive access to an attorney. The state will pay for appointed counsel in these cases. The legislature requested that the Washington Supreme Court create a working group to develop standards and qualifications for attorneys appointed in dependency cases.
And some states extended protections to immigrants:
- California will now require counties to make “best efforts” to provide representation and access to immigration legal services for undocumented dependents in foster care.
- Colorado created an immigrant legal defense fund to issue grants to nonprofit organizations providing legal assistance to indigent immigrants.
- The Illinois General Assembly has given the Cook County (Chicago) public defender authority to represent noncitizens in immigration cases.
County-level indigent defense reforms
Finally, while this review is focused primarily on state-level reforms, there are also positive development in many counties. These are just a few of the changes and does not purport to be a comprehensive county-level review.
For decades, Santa Cruz County California delegated to private law firms, through county contracts, all decisions regarding the provision of Sixth Amendment right to counsel services. 6AC’s evaluation of the system showed that the county cannot accurately say how many people or cases, and in what case types, require appointed counsel nor by whom the representation is being provided, if at all. At the same time, the county did not require that the contract private law firms explain critical information such as: how much tax-payer money they spend on overhead and what is acquired; how much money the firms pay to partners, associate attorneys, and staff; nor exactly what services are provided in exchange.
The Santa Cruz Board of Supervisors voted to not renew the private contracts and instead establish a county public defender office with salary and benefit parity with the local prosecution office. In September 2021, after a national search, Santa Cruz County announced the hiring of the county’s first chief public defender, who will oversee the transition to the new indigent defense system by June 2022.
Based on 6AC technical assistance and in direct response to findings and recommendations of the 2019 6AC evaluation of their delivery system, Armstrong and Potter counties in Texas (Amarillo area) approved a complete overhaul of their indigent defense services. The new system is overseen by a nine-person independent indigent defense commission established at the county level. Starting in 2022, the local commission will oversee the first-ever public defender office in Amarillo plus a managed assigned counsel system for conflicts. The plan calls for 12 full-time staff positions (including the heads of the two system components) in year one and 17 full-time staff positions in year two. The total budget is $893,847 in the first year, with the state providing $715,078 in grant funding (80%) and the county paying the remaining $178,769. Over the past two years, public defender offices have opened in 20 counties across the state of Texas.