Designing a statewide commission

May 5, 2014


Jon Mosher


Foundational Standards for Right to Counsel Services


Q: Do all statewide indigent defense commissions offer the same protection against undue political and judicial interference?

A: No.

When looking at indigent defense commissions, it is very important to understand the structural differences existing between the various state models. Some statewide commissions cover only a part of a system (e.g., an “appellate only” commission), part of a state’s geography (e.g., a rural public defense commission), or offer only limited oversight of a system in exchange for state financial support. Such states are defined as having commissions with “limited authority.”

Perhaps more importantly, some indigent defense commissions follow national standards more rigorously and offer greater protection of the system. Those states that fall short of national standards are also defined as having limited authority. We will explain.

National standards are clear that the defense function must be insulated from outside political or judicial interference by a board or commission appointed from diverse au­thorities, so that no one branch of government can exert more control over the system than any others. For example, footnotes to the first of the American Bar Association Ten Principles of a Public Defense Delivery System refer to National Study Commission on Defense Services’ (NSC) Guidelines for Legal Defense Systems in the United States (1976). The Guidelines were created in consultation with the United States Department of Justice (DOJ) under a DOJ Law Enforcement Assistance Administration (LEAA) grant. NSC Guideline 2.10 (The Defender Commission) states in part:

A special Defender Commission should be established for every defender system, whether public or private. The Commission should consist of from nine to thirteen members, depending upon the size of the community, the number of identifiable factions or components of the client population, and judgments as to which non-cli­ent groups should be represented. Commission members should be selected under the following criteria: The primary consideration in establishing the composition of the Commission should be ensuring the independence of the Defender Director. (a) The members of the Commission should represent a diversity of factions in order to ensure insulation from partisan politics. (b) No single branch of government should have a majority of votes on the Commission.

There are 33 states that currently that have some form of a statewide indigent defense commissions (66% of all states). Nineteen of these have commissions that oversee all aspects of indigent defense services. For ease of explanation, we include in this group both Colorado and Michigan. Each of those states has two statewide commissions. Colorado has one commission over the primary system and a second overseeing conflict representation, while Michigan has one commission overseeing appellate services and a second overseeing trial level representation.

However, only 12 of those 19 states statutorily require diverse appointing authorities to name public defense commission members. Of the remaining seven states, five cede all appointing authority to the governor and two give all appointments to the judiciary.

Statewide Indigent Defense Commissions

Fourteen states have commissions with “limited authority,” nine of which statutorily require diverse appointing authorities. Three of these cover only part of the state’s indigent defense system: Idaho (trial-level only); Nebraska (capital trials/appeals, and limited non-capital felonies); and Tennessee (capital post-conviction only). Five more have commissions that offer state support to county-based systems: Indiana, New York, Ohio, South Carolina and Texas. North Carolina is categorized with this group because, despite having apparently broad authority to oversee both primary and conflict services, the commission there does not have the power to determine the indigent defense delivery model in each county. The authority to determine the delivery model used is a legislative decision with input from local actors (county bars, judiciary, etc.). Additionally, the presiding judge of the Superior Court in the North Carolina district has the authority to hire the local chief public defender.

That leaves five states with limited authority commissions that do not vest diverse authorities with appointment powers. Illinois’ public defense commission oversees only appellate services. There, the judiciary makes all appointments to the appellate commission. The other four states with limited commissions allow the governor to make all commission appointments. The Kansas commission only oversees felony and appellate representation. The commission in Oklahoma only administers services in rural counties (Oklahoma City and Tulsa remains outside of the state system). Georgia’s public defense statutes allow counties to opt out of the system, meaning the state has no regulatory authority over those regions. Additionally, the executive director of the state system is a direct gubernatorial appointee. Similarly, thought the commission in West Virginia has broad authority to improve indigent defense services statewide, the executive director is a direct gubernatorial appointee as are the other members of the commission.

Limited Commissions

That leaves seventeen states that have no commission at all: Alabama, Alaska, Arizona, California, Delaware, Florida, Iowa, Mississippi, Nevada, New Jersey, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Washington, and Wyoming.