A birds-eye view of independent commissions in the 50 states

April 9, 2013


David Carroll


Foundational Standards for Right to Counsel Services


Update: The information included in this article is now out-of-date. For current information on this topic, look here.

In April 2013, New Mexico became the latest state to create a statewide independent public defense commission.  There are now 20 states and the District of Columbia that have statewide public defender commissions overseeing right to counsel services: Arkansas, Colorado (2 separate commissions for primary and conflict services), Connecticut, District of Columbia, Hawaii, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, South Carolina, Virginia, West Virginia, and Wisconsin.  Another two states, Florida and Tennessee, publicly elect chief defenders to ensure that they are accountable to the voters and not judges or other elected officials.

That means that there are eight states with statewide systems that do not have independent commissions: Alabama, Alaska, Delaware, Iowa, New Jersey, Rhode Island, Vermont and Wyoming. Each of these states could experience the same type of undue political interference as witnessed in New Mexico, though some – like Delaware and New Jersey – have some modicum protections for the chief public defender by having the governor statutorily having to appoint the chief to a term of office greater in length then the governor’s own term (e.g., the Delaware chief public defender is appointed to a term of 6-years; in New Jersey, the term is 5-years). However, of course, a governor in these states could simply appoint a different chief defender for any reason – good, bad or indifferent – if a new governor’s term of office happens to coincide with the end of a particular chief’s term of office.

public defense commissions

That leaves 20 states that have either a partial commission (covering a portion of right to counsel services) or no commission at all.  As is typical of attempts to easily categorize disparate indigent defense systems, there is little uniformity amongst the eight states with “partial” commissions.  Some states come much closer to the spirit of ABA Principle 1 than others. For example, Oklahoma has a statewide commission for indigent defense services [the Oklahoma Indigent Defense Services (OIDS)].  However, because the two most populous counties (with population centers in Tulsa and Oklahoma City) had pre-existing county-based public defender offices prior to the creation of OIDS, both were allowed to continued outside of the statewide commission format.  Similarly, the Kentucky Department of Public Advocacy commission oversees services in all parts of the state except for Jefferson County (Louisville).

The Board of the Georgia Public Defense Standards Council (GPDSC) oversees a hybrid state-county system (rather than a purely state-funded system) in which some counties have statutorily “opted out” of the system entirely.  Undue political interference also permeates the GPDSC as the prevailing statute was amended a few years back to give the Governor de facto control of the board. Kansas has a state-funded, state administered system overseen by an independent commission for felonies and appeals only.  Indigent defendants charged with misdemeanors or juvenile delinquency offenses are relegated to second-class citizens as the level of quality received varies greatly from county to county.  Michigan has a “partial” commission with the most restricted scope as the commission there only oversees appellate services (and only a small percentage of appeals at that).

The statewide commissions in Indiana, Ohio and Texas can be somewhat grouped together.  In each state, a “statewide” commission is responsible for disseminating state funds to local indigent defense systems. For example, The Indiana Public Defender Commission (IPDC) promulgates standards related to workload, attorney qualifications, and pay parity, among others, for both capital and non-capital representation.  Those counties that meet the IPDC standards are eligible to be reimbursed 50% of their capital representation costs and up to 40% of their non-capital costs. (For more on why this model has failed to improve services in much of Indiana, click here). The Texas commission model has been somewhat more successful, as grants there have been used to expand public defender offices, offer indigent defendants a greater voice in selection of their own attorneys, and inspired judges in at least one county to ask out of oversight of the right to counsel services. Ohio has been the least successful of these three “partial” commissions as there dissemination of state funds is not tied in any way to having counties meet standards or try innovative delivery models.

That leaves twelve states that have no statewide commission and usually little to no statewide structure at all:  Arizona, California, Idaho, Illinois, Mississippi, Nebraska, Nevada, New York, Pennsylvania, South Dakota, Utah and Washington. (Though frequent readers of this blog will note that both Idaho and Nevada are making progress to more state involvement)