Idaho legislature contemplates initial reforms

February 19, 2013


David Carroll


Pleading The Sixth


Pleading the Sixth: The Idaho Criminal Justice Commission offered initial indigent defense reforms that have been introduced in the House of Representatives. The proposed reforms seek to, among other things: create a statewide uniform standard for who may get public counsel; clarify the types of cases to which the right to counsel attaches; to bar children from waiving counsel; and to provide lawyers to juveniles over the age of fourteen to advocate on their behalf in child protective cases.  

On February 12, 2013, three new bills seeking to begin needed indigent defense reform were introduced in the Idaho legislature and referred to the House Judiciary, Rules and Administration Committee the next day. Representative Darrell Bolz (R), a member of the Idaho Criminal Justice Commission (ICJC) and member of House Judiciary Committee, introduced all three bills.  The bills represent initial recommendations proposed by the ICJC – a 25-member commission of criminal justice stakeholders that includes prosecutors, judges, law enforcement, defense counsel, county executives, legislators, and state executive representatives, among others, that meets regularly to collaborate and devise best practices to achieve a “safer Idaho.” Because the bills are backed by ICJC, the bills are expected to have broad bi-partisan support.

The Right To Counsel in Idaho

In 1998, the State of Idaho created the Office of the State Appellate Public Defender  (SAPD) to relieve counties of paying for appellate indigent defense services in felony cases (including post-conviction and state habeas cases). SAPD is an executive branch government agency and the head of SAPD is a direct gubernatorial appointee. All other indigent defense services are the responsibility of the counties.  And, though the most populous county [Ada County (Boise)] has a staffed public defender office, most of the other 43 counties provide services through contract defenders or assigned counsel systems.

House Bill 147

The first of the three new bills (HB 147) clarifies the types of cases for which a poor person has a right to an attorney. The U.S. Supreme Court decision in Alabama v. Shelton makes clear that the right to counsel attaches to any case involving the potential for jail time.  A statute might still allow for a maximum punishment of jail time, but unless counsel is afforded to the defendant at trial, the judge is prohibited from ever imposing any amount of jail time – even as a “hollow threat.”  Under the proposed bill the right to counsel would apply to “any offense the penalty for which includes the possibility of confinement, incarceration, imprisonment, or detention in a correctional facility, regardless of whether actually imposed (emphasis added),” to comport with the U.S. Supreme Court case law. 

HB 147 also sets presumptive indigency standards to make the process of determining which defendants qualify for a public attorney more efficient and cost-effective. National standards, including the American Bar Association, Criminal Justice Standards, Providing Defender Services, Standard 5.7-1, require that the threshold for indigency be set at a rate where hiring a private attorney would result in “substantial hardship” on the client. The higher threshold than other government assistance programs is recommended because the current market rates for private lawyers will produce a greater substantial hardship than, for example, what is required to qualify for food stamps.  States like Louisiana (through legislation) and Nevada (through supreme court administrative order), have set the presumptive standard “to include all defendants who receive public assistance, such as Food Stamps, Temporary Assistance for Needy Families, Medicaid, Disability Insurance, resides in public housing, or earns less than two hundred percent of the Federal Poverty Guideline.”

The proposed Idaho bill comes close to matching this definition.  The new bill sets the presumptive threshold at 187% of the federal poverty guideline, while simultaneously automatically qualifying anyone who has already been screened for public assistance by another agency (e.g., food stamps, Medicaid or child care assistance), as well as anyone currently “serving a sentence in a correctional facility or being housed in a mental health facility.”

And, to guard against a breech in a person’s Fifth Amendment right against self-incrimination the bill states that “[n]o information provided by a person” during the screening process “may be used as substantive evidence in any criminal or civil proceeding,” except, for example, if the defendant perjures themselves during the process.

Finally, HB 147 expands indigent defense data reporting. Currently, just those jurisdictions served by a staffed public defender office have to report data. But because most of Idaho is served by contract attorneys or assigned counsel most indigent defense decisions were being made without access to basic data. Under HB 147 all forms of indigent defense delivery models would need to uniformly report expenditures and caseload data by case type.

House Bill 149

The second piece of proposed legislation (HB 149) is specifically directed at protecting juveniles in delinquency proceedings. Under the proposed bill, a juvenile has a right to be “counseled and defended at all stages of the matter beginning with the earliest time” including when “being detained by a law enforcement officer.” And, the child is entitled to representation in “revocation of probation,” “recommitment,” “any appeal” and “any other post-adjudication proceeding or review proceeding that the attorney or juvenile considers appropriate.”

Moreover, the Idaho proposed legislation seeks to prevent a juvenile from making an uninformed waiver of his right to an attorney. For example, under the proposed bill, no child under the age of 14 may ever waive the right to counsel. And, for those over the age of 14, no child may waive counsel if being charged with an offense that is considered a felony if committed by an adult, or is charged with a crime that is sexual in nature. HB 149 would also prohibit a juvenile from waiving counsel in a sentencing proceeding in which commitment is a possibility.

House Bill 148

If enacted, the final bill (HB 148), would resolve ethical conflicts that currently allow an appointed attorney to serve as both an attorney and as a guardian ad litem in child protective cases. At consideration is an attorney’s ethical duty to advocate on behalf of the child (i.e., what the child wants) whereas a guardian advocates in the best interest of the child (i.e., what the child needs). The official statement of purpose accompanying the bill draft states that “[f]or children twelve (12) years of age or older, the legislation requires the appointment of counsel to represent the child absent a finding by the court that such appointment is not appropriate or practicable. The appointment of counsel allows older children to have representation and a voice in critical decisions being made about their lives.”  Children under twelve receive only the appointment of a guardian ad litem.


As with all states that require trial-level indigent defense services to be overseen and administered by their counties, Idaho’s right to counsel services are Balkanized and very greatly from one county to the next. (For more on Idaho’s systemic indigent defense deficiencies see the National Legal Aid & Defender Association’s 2010 report The Guarantee of Counsel.) With these initial bills, Idaho begins the long process of improving their right to counsel services. The 6AC will keep you abreast of their progress.