Idaho Governor signs public defense commission bill into law

April 1, 2014


David Carroll


Pleading The Sixth


Pleading the Sixth: Idaho became the 23rd state to create a statewide public defender commission overseeing right to counsel services when the Governor signed a reform bill into law after it overwhelmingly passed both chambers of the legislature. Though the Governor also signed a budget bill giving the nascent commission start-up money, a second reform bill is still needed to ensure that commission standards will be enforce uniformly across the state. Has the Idaho Association of Counties found the solution to this final reform hurdle?

On March 26, 2014 Idaho Governor C.L. Butch Otter signed House Bill 542 into law creating the Idaho public defense commission. The bill generated overwhelming legislative support as it passed the House of Representative with a wide majority (63-5-2) and unanimously passed the Senate (35-0). The new law creates an independent seven-member commission appointed by diverse authorities with immediate authority to provide training, promulgate performance standards, and initiate uniform data collection. Importantly, the bill also prohibits all flat fee contracting. On the same day, Governor Otter also signed House Bill 634 appropriating $300,000 for the commission to begin their work, including hiring an Executive Director. (For a full analysis of the bills, click here. Note, the earlier story reported on a bill that included both the commission and funding.  For procedural reasons that original bill was tabled and split into House Bills 542 and 634.)

There are now 23 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, Idaho, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, 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.

What still needs to be accomplished in Idaho

To be clear, the simple creation of, and initial funding for, a statewide public defense commission in Idaho will not in and of itself change the multifaceted right to counsel deficiencies occurring throughout the state, and first documented in the National Legal Aid & Defender Association 2010 report, The Guarantee of Counsel: Advocacy and Due Process in Idaho’s Trial Courts.

Because of the depth and breadth of indigent defense problems in Idaho, it is difficult, at best, to unify the practices of 44 county-based “non-systems” into a statewide whole in one felled swoop. For example, the members of the Legislative Public Defense Reform Interim Committee that proposed the recently enacted legislation were concerned that the amount of time it takes to appoint a commission, set a meeting schedule, hire an executive director, instruct the director to hire necessary staff, and accomplish the immediate goals of training and data collection, would all take more than a year to accomplish.

And, perhaps concerned about how long it is taking for the Michigan Indigent Defense Commission to be appointed, the Legislative Interim Committee did not want the reform work in Idaho to similarly stop during the natural roll out of the commission. Therefore, the Idaho Legislature also passed a new concurrent resolution, HCR 40, reconstituting the Legislative Interim Committee to continue work during the summer and fall of 2014 to specifically look at the issues of: how a coordinated state system will be funded (state, county, or hybrid state/county); and, effective enforcement mechanism of commission standards.

A new Idaho Association of Counties policy proposal may resolve the remaining issues

Over the course of 2013, the Legislative Interim Committee heard testimony from a number of groups (e.g., prosecutors, judges, etc.) that suggested that indigent defense services should remain county-funded and county administered. This presented a difficulty regarding how to enforce the standard promulgated by the public defense commission. That is, if the state is not funding the system what is the mechanism for enforcing binding standards?

On February 5, 2014, the Idaho Association of Counties (IAC) met to discuss these very issues and ultimately concluded that the best policy for Idaho was not to leave decision-making power over the right to counsel at the local level. Instead, they adopted a policy resolution that would cede to the state the power to enforce standards and administer the system at the state level in exchange for capping county costs at their current spending levels.

Currently, counties are collectively spending approximately $22 million annually on indigent defense, with an estimated $10-15 million needed to have the system come into compliance with the majority of the American Bar Association Ten Principles of a Public Defense Delivery System. The IAC proposal would require counties to annually contribute the collective $22 million to the state public defense commission, with any new monies required to meet standards coming entirely from the state. Outside of the funding obligation, counties would have no further say over how services are administered.

This seems like a win-win in that the counties cap their fiscal obligations in perpetuity while the state gets the assurance that decisions about standard implementation is entirely state controlled. Under this proposal, the state also does not have to come up with $32-37 million for the system all on its own.  The Sixth Amendment Center notes that this IAC proposal, if enacted, would also mean that all budget debates would occur at the legislature instead of in the 44 various counties.


Idaho is a traditionally conservative state, with Republicans outnumbering Democrats by wide margins in both the House (57-13) and the Senate (28-7), and with all of the major state elected officials also from the Republican Party (Governor, Lt. Governor, Attorney General, etc.). We mention this, not because indigent defense reform is an anomaly in such a conservative state, but rather to underscore the fact that the vast majority of comprehensive legislative reforms over the past decade have been republican-led and driven (e.g., Louisiana, Michigan, and now Idaho).

The 6AC believes that reform movements can stall under the misconception that the right to counsel is a progressive cause. The cause of “justice for all” is neither liberal nor conservative. Our country was founded on the notion that individual liberty is a natural right that cannot be unduly taken by the tyranny of big government without the process being fair. A defense system that operates by incarcerating the accused and then sorting out the worst of the miscarriages of justice in the appellate process is perhaps the most costly approach to what is already an expensive proposition. And errors in convictions give rise to safety issues in the society as a whole, whether an innocent defendant is put behind bars, or the perpetrator of the crime is left to go free because of ineffective representation at trial. These are ideals that all Americans can get support regardless of political affiliation.

The Sixth Amendment Center (6AC) served as technical advisors to the Legislative Public Defense Reform Interim Committee providing information on national standards and how other states structure and fund indigent defense services. Funding for these services came, in part, under a generous grant from the U.S. Department of Justice, Bureau of Justice Assistance.