Idaho passes initial reforms; Second round of reforms introduced

March 26, 2013


David Carroll


Pleading The Sixth


Pleading the Sixth: The Idaho Senate unanimously passed an initial indigent defense reform package, sending it on for the Governor’s signature.  Not content to rest with creating a uniform standard of indigency and barring children from waiving counsel, among others reforms, a concurrent resolution also passed the House and was voted favorably our of Senate Judiciary. The concurrent resolution calls for a legislative study commission to consider how best to implement broader statewide oversight of indigent defense.  And, even as the state contemplates broader reforms, a new report on Canyon County looks to reform local services there.

On March 25, 2013, the Idaho Senate unanimously passed three bills (all on 35-0 votes) that represent the initial steps to reforming indigent defense services in the state. HB 147 clarifies that the right to counsel attaches to any offense with a penalty that includes the possibility of incarceration regardless of whether the penalty is actually imposed and establishes a uniform presumptive indigency threshold at 187% of the Federal Poverty Guideline. The second bill, HB 148, resolves ethical conflicts that currently allow an appointed attorney to serve as both an attorney and as a guardian ad litem in child protective cases, requiring children over 12 to get an attorney and a guardian. The final bill, HB 149, seeks to prevent a juvenile from ever making an uninformed waiver of his right to an attorney, specifically barring children under the age of 14 from ever waiving the right to counsel. (Click here for a more detailed discussion of these bills.)

The successful passage of the three bills on an overwhelmingly bipartisan vote in both legislative chambers (the three bills had previously passed the House on votes of 62-8, 69-1, and 70-0 respectively) is almost entirely due to the fact that they represented the initial recommendations of the Idaho Criminal Justice Commission (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.”

Not content to rest on their laurels, the ICJC also saw the Senate Judiciary Committee favorably vote out on March 25, 2013, a concurrent resolution setting out a path for the next steps in the reform of right to counsel services in the state. The concurrent resolution already passed the House on a sweeping margin of 68-0-2).

House Concurrent Resolution 026

HCR 026 acknowledges that the ICJC has identified numerous systemic deficiencies in the delivery of the right to counsel in Idaho, including, but not limited to, a lack of uniformity in the “appointment and waiver of counsel, contribution and recoupment practices, public defense contracting practices and data reporting; excessive caseloads and workloads; a lack of independence of the public defense function; a lack of training and resources for attorneys providing public defense services, particularly in the areas of juvenile defense, child protection and mental health commitment; the existence of flat fee contracts for public defense services; and county commissioners’ lack of access to information and resources to assist in the provision of public defense.”

The resolution goes on to state that the ICJC’s research has concluded that the nationwide approach to overcoming such systemic deficiencies has been “state oversight of the public defense system that includes statewide standards and, in many instances, state moneys.” It is generally accepted that it will be quite difficult to increase the involvement of state government into areas of responsibility conventionally reserved for county government in a traditionally conservative state like Idaho. Because of this, the ICJC sponsored-resolution seeks to engage the legislature directly before putting forth specific recommendations.  As such, HCR 026 calls for a legislative study commission of five Senators and five members of the House to determine how best to move to state oversight.

HCR 026 specifically directs the legislative committee to study two models.  The first is a model where “although public defense delivery at the trial level would remain primarily funded and administered at the county level,” a state commission would be authorized to promulgate and enforce standards related to: attorney training, data collection and reporting, contracting, attorney qualification, and attorney workload (among others).  The second model to be considered is akin to the delivery system currently employed in Pennsylvania.  That is, all counties would be required to operate public defender offices and the heads of the public defender offices could collectively lobby and offer training through a statewide public defender association.


The methodical and successful collaborative approach to criminal justice reform demonstrated by the ICJC is just one example why national advocates are calling for the creation of a National Commission on the Fair Administration of Justice to study and make recommendations about reforming state criminal justice systems. (Read more here.)  Idaho has demonstrated that, by relegating the adversarial process to the formal criminal justice system and coming together as collaborators, it is possible for policymakers and stakeholders of diverging interests to work together to address difficult public safety issues impacting all components of the criminal justice system. It is indeed possible for policymakers of all three branches of government and from all political viewpoints (conservative, liberal, libertarian and independent), and criminal justice stakeholders (prosecution, law enforcement, judges, defense attorneys, etc.), as well as victims and the wrongfully accused alike, to sit down to ask seemingly tough questions. For example, should states emulate the federal system and move away from cash bail? Or, is there a way to uphold defendants’ constitutional right to counsel while limiting the reliance on the formal criminal justice system for low-level, non-violent offense?