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The Right to Counsel in Indiana

In Indiana, counties and cities are responsible for funding and administering all indigent defense services. Indiana counties (but not cities) may, if they so choose, receive a partial reimbursement from the state for their indigent defense costs – excluding misdemeanors, for which the state provides no reimbursement at all — in exchange for meeting standards set by the Indiana Public Defender Commission (IPDC). However, counties are also free to forgo state money and avoid state oversight. What many Indiana counties have realized is that they can contract with private counsel on a flat fee basis for an unlimited number of cases for less money than it would cost to comply with state standards (even factoring in the state reimbursement). Thirty-seven of Indiana’s 92 counties (40%) choose not to participate in the state’s reimbursement program as of June 30, 2015, more than 20 years after the state reimbursement program began. The Right to Counsel in Indiana: An Assessment of Trial Level Indigent Defense Services explains objectively and in detail how and why this hybrid system for right to counsel services, known as the “Indiana Model,” where lawyers for some indigent defendants are required to meet standards conducive to constitutional effectiveness while lawyers for other defendants are not, both institutionalizes and legitimizes counties’ choices to not fulfill the minimum parameters of effective representation required by the U.S. and Indiana constitutions.

The Right to Counsel in Utah

Utah’s trial courts do not uniformly provide counsel at all critical stages of criminal cases as required by the U.S. Supreme Court, with many defendants – particularly those facing misdemeanor charges in justice courts – never speaking to an attorney. Those defendants who do receive representation too often receive an attorney operating under multiple conflicts of interest (financial and other) arising from unfair contractual arrangements that create incentives against zealous representation. The challenge of providing effective representation for each client can be exacerbated by excessive caseloads that reduce the time a lawyer can spend on an individual case. And these appointed attorneys generally lack appropriate independence from undue state and local government interference in securing the necessary resources to put the state’s case to the test. The Right to Counsel in Utah: An Assessment of Trial-Level Indigent Defense Services shows that the primary cause for the institutionalization of these practices is the lack of accountability inherent in the system, allowing significant structural flaws to linger uncorrected. Future attempts to remedy widespread systemic conflicts cannot succeed without first addressing the lack of constitutionally-mandated defender independence.

Justice Shortchanged

Wisconsin lawyers appointed to represent the accused have significant financial conflicts imposed upon them by the state. The evidence suggests financial considerations may have trumped the constitutional imperative for independent, conflict-free public defense services. As a result, Wisconsin’s ability to provide constitutional right to counsel services is undermined. Justice Shortchanged: Assigned Counsel Compensation in Wisconsin demonstrates that unreasonable compensation rates and flat fee contractual arrangements to represent the poor in criminal courts are constitutional violations because each pits the attorney’s financial well-being against the client’s right to conflict-free representation.

The State of the Right to Counsel in Mississippi

Mississippi is one of only six states that do not contribute any money for non-capital, trial-level right to counsel services. In 2011, the state legislature took initial steps toward state oversight of indigent defense services by establishing the Mississippi Office of the State Public Defender (OSPD), and mandated that this new office examine the delivery of trial-level indigent defense services across the state. Specifically, the OSPD is to “coordinate the collection and dissemination of statistical data” and to “develop plans and proposals for further development of a statewide public defender system in coordination with the Mississippi Public Defenders Task Force. With no state resources dedicated to the task at hand, OSPD retained the assistance of the 6AC (initially under a grant from the American Bar Association, and then under a grant from the United States Department of Justice, Bureau of Justice Assistance) to assist with the research and technical assistance. The product of that technical assistance effort is The State of the Right to Counsel in Mississippi: Report & Recommendations. (First produced in October 2013 for internal use by the State Public Defender, the updated version is now made widely available.)

The Crucible of Adversarial Testing

In Delaware, able attorneys are working in a structure that prevents them from meeting constitutional adequacy despite their commitment, dedication and hard work. System­ic impediments clear out thousands of defendants each year who should be receiving representation under the Sixth Amendment, but that are not. These defendants either face subtle (or sometimes direct) pressure to forego the right to the assistance of coun­sel, or unwittingly waive that right without knowing the full consequences of doing so. Where defendants have not already relented to pressure to forego the right to counsel, their lawyers are provided too late and with too little time to be the zealous advocates that each defendant has as his privilege. And as a result, Delaware’s indigent defense function fails to subject the prosecution’s case to “the crucible of meaningful adversar­ial testing” rendering the entire adversarial process “presumptively unreliable.”

Reclaiming Justice

Serious problems exist today in rural Nevada when it comes to providing attorneys to poor people who face the potential loss of liberty at the hands of the criminal justice system. Produced on behalf of the Nevada Supreme Court, Reclaiming Justice demonstrates that the serious systemic deficiencies plaguing rural counties are a relatively recent development (beginning in 1975) and a turning away from Nevada’s longstanding history of ensuring equal justice to people of insufficient means. In fact, while the federal right to counsel in state court proceedings celebrates its 50th anniversary, this same right had been established in Nevada nearly 100 years before the 1963 Gideon decision. By exploring the state’s history, the 6AC offers a road map for solutions to Nevada’s present-day right to counsel problems.

State Page: South Dakota

State Page: Tennessee

State Page: Texas

State Page: Utah

State Page: Vermont