State of the Sixth

State government funding.

Local governments most in demand for providing indigent defense services are often the ones least able to afford them. The circumstances that restrain a local government’s revenue – low property values, high unemployment, high poverty, and low household incomes – tend to correlate with high crime rates, high indigency rates, and high demand for appointed counsel. Under-resourced local governments that are already financially strained risk providing services that are affordable (e.g., awarding a flat fee government contract to the lowest bidder) rather than services that are constitutionally effective.

No.

Alternative revenue sources do not work as a primary source of indigent defense services because alternative revenue sources do not create a stable, consistent, and predictable revenue stream to fund effective indigent defense services. For example, most funding for indigent defense services in Louisiana is generated through fees assessed on traffic tickets. So, if law enforcement stops writing traffic tickets (e.g., during COVID-19 or Hurricane Katrina), most funding for indigent defense services is eliminated. Moreover, this type of funding can create a conflict between public safety and a constitutional right. For example, a sheriff may determine it is in the community’s best interest to channel its resources away from writing traffic tickets and into the prevention of opioid use. While this decision may be best for public safety, this results in less revenue for a constitutional right.

Not necessarily.

The delivery model is less important than ensuring that whichever model is chosen meets the constitutional parameters set out by the U.S. Supreme Court – the early appointment of qualified and trained attorneys who have sufficient time and resources to provide effective representation under independent supervision. We have seen public defenders in offices carrying excessive caseloads with almost no supervision, and private attorneys in a managed assigned counsel system adhering to strict performance standards under independent oversight – and the other way around.

Yes.

Private attorneys should be paid a reasonable fee that covers a reasonable attorney fee and overhead expenses. A private attorney taking court-appointed cases can also run a private practice, and the pay generated from court-appointed work will typically be less than private work. Given this reality, government should not:

• pay a flat fee per day, week, month, or year regardless of the number of case events, defendants, or cases the attorney represents;
• pay an hourly rate that is not reasonable enough to cover the attorney fee and overhead expenses, or that is capped; or
• require the attorney to pay for case-related expenses – such as travel, calls from jail, and an investigator – out of pocket.

These payment schemes exacerbate this discrepancy by incentivizing private attorneys to spend as little time as possible on their appointed cases.

Yes. A state commission should be independent and exercise oversight statewide.

A state commission should consist of 9-13 members that “represent[s] a diversity of factions in order to ensure insulation from partisan politics” so that no single branch of government can exercise undue power or influence over the director of indigent defense services. This independent commission should have the statutory authority to (1) appoint a term-limited chief defender removable only for good cause, and (2) set, monitor, and enforce standards related to the early appointment of qualified and trained attorneys who have sufficient time and resources to provide effective representation statewide.

Even though many states today technically have a state commission, not all state commissions are built the same – some may not be independent, and others may not have statewide oversight.

Mostly, the answer is “no.” Because the District of Columbia is an incorporated federal district, the U.S. Congress directly funds the Public Defender Services of the District of Columbia (PDS) and the private attorney panel through the Criminal Justice Act (CJA). All other populated unincorporated territories fund indigent defense through their individual island governments. All U.S. unincorporated territories, like states, may apply for federal grants when applicable.

No. Each territorial government has the same authority as states to provide indigent defense services through government-employed public defenders, private criminal defense lawyers, or a hybrid of both.

No. Article IV, section 3, clause 2 of the U.S. Constitution, known as the Territorial Clause, gives Congress the power to “make all needful Rules and Regulations respecting the Territory or other Property” of the United States. The territory of the United States includes the 50 states and the District of Columbia that are incorporated into the United States and, today, a total of 14 areas over which the United States has sovereignty but that are not incorporated. Nine of those are predominantly uninhabited wild-life refuges or have only a few U.S. military personnel residing there. The five significant unincorporated areas – we refer to them as territories – are American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands. Each territory has its own unique relationship with the United States and the U.S. Constitution does not automatically apply in its entirety in the territories.

The U.S. Constitution, and thus the constitutional right to counsel, applies in the territories only to the extent that Congress enacts statutes saying that all or certain parts of it apply to a specific territory or where the courts have decided that a right protected by the U.S. Constitution is “fundamental.”

The U.S. Supreme Court has not directly decided whether the Sixth Amendment right to counsel is among the fundamental rights that apply in the territories. In the absence of a direct federal constitutional right to counsel, acts of Congress and/or the local constitution and local statutes of an individual territory may expressly guarantee the right to counsel. For example, the Organic Act of Guam requires that the Sixth Amendment and the Fourteenth Amendment due process clause apply on Guam and shall have the same force and effect there as in the United States.