Nevada removes political interference from the system

Pleading the Sixth: Nevada Governor Joe Lombardo signed SB407 into law, releasing control of the state’s public defense system and empowering its independence. This marks the end of a tumultuous year rife with turnover and instability in public defense leadership. Effective tomorrow, July 1, 2025, the Department of Indigent Defense Services (DIDS) Executive Director will serve at the pleasure of the Board of Indigent Defense Services (BIDS), and the DIDS Executive Director will have the authority to appoint the head of the Nevada State Public Defender (NSPD) – powers that previously rested with the Governor. 6AC applauds state leaders for prioritizing changes that, as declared by the Nevada Legislature, “uphold the public policy that an indigent defense system must be independent in order to provide constitutionally adequate representation[.]”

Nevada Governor Joe Lombardo signed SB407 into law, marking the end of a tumultuous year that started with the Governor’s Office firing the Department of Indigent Defense Services (DIDS) Executive Director, followed by resignations of the Board of Indigent Defense Services (BIDS) Chair and the head of the Nevada State Public Defender (NSPD). Effective tomorrow, July 1, 2025, the DIDS Executive Director will serve at the pleasure of BIDS and the DIDS Executive Director will have the authority to appoint the head of NSPD—powers that previously rested with the Governor.

In transferring control from the Governor to BIDS and DIDS—the state oversight commission and state oversight agency, respectively—the Nevada Legislature achieves its declared purpose: “uphold the public policy that an indigent defense system must be independent in order to provide constitutionally adequate representation, as recognized by the American Bar Association Ten Principles of a Public Defense Delivery System[.]”

One step back: political interference plays out in Nevada

In 2019, after nearly two decades of persistent reform efforts that included two 6AC reports and an ACLU lawsuit, Davis v. Nevada, which resulted in court monitoring over the state’s compliance with the 2020 settlement agreement, Nevada took a major step in establishing BIDS and DIDS to oversee all public defense services. In the six years since, BIDS and DIDS have made significant progress in implementing and enforcing statewide standards and regulations on attorney qualification, training, maximum caseloads, financial conflicts of interest, continuous representation, data reporting, and attorney performance.

All the while however, BIDS and DIDS worked under the pressure of political interference: the DIDS Executive Director served at the pleasure of the Governor, who also appointed the State Public Defender.

When the state infringes on the defense function’s “constitutionally protected” independence by allowing political or judicial interference into the system, the state risks a systemwide denial of the Sixth Amendment right to counsel. The head of a public defense system should not serve at the governor’s pleasure—period. As an elected political official, a governor must sometimes advance popular criminal justice policy positions that conflict with the constitutional rights of criminal defendants. This tension is expected but becomes a big problem when the governor also has the power to hire and fire the head of the public defense system, whose duty is to advance the constitutional rights of criminal defendants. For this reason, the U.S. Supreme Court explains and national standards like the ABA Ten Principles state that an independent statewide oversight board composed of all three government branches should have the power to appoint and remove the head of the public defense system to ensure it remains “independent of political influence.”

So, in August 2024, when it became public that the Governor’s Office fired the DIDS Executive Director, a question arose: is Nevada’s public defense system independent from political interference? After the firing, the Davis v. Nevada court monitor released her 14th Report of the Monitor and 15th Report of the Monitor, finding that “the degree to which the Governor’s Office is supervising or directing the Department remains a matter of concern for the independence of the defense function” and recommended amending the statute to comply with national standards so that the DIDS Executive Director can be “confident that they can protect the Sixth Amendment right to counsel without political interference.”

The Nevada Legislature and Governor’s Office responded, doing just that.

Two steps forward: Nevada prioritizes and protects independence

SB407 transfers power from the Governor and into the hands of BIDS and DIDS. Instead of the Governor, BIDS will select the DIDS Executive Director for a renewable four-to-six-year term, who can be removed only for good cause by BIDS, and the DIDS Executive Director will select the State Public Defender. But the Governor did not release all control—the statute allows the Governor to remove the DIDS Executive Director “in extraordinary circumstances” such as criminal conduct, malfeasance, or nonfeasance. However, “an otherwise lawful action taken within the scope of the statutory authority of the Executive Director does not constitute malfeasance or nonfeasance.”

Time will tell how this plays out. For now, 6AC applauds state leaders for responding to a crisis that prioritizes and protects independence of the defense function and the constitutional rights of the accused.