Strike 5: The State of California calls a strike on San Benito County

March 5, 2024


Aditi Goel


Pleading The Sixth


Pleading the Sixth. The State of California calls a strike on itself in a new state report that finds “there are signs that effective representation is not being provided” in San Benito County. Since 2020, constitutional right to counsel deprivations have been exposed in Fresno, Santa Cruz, Lake, and Kern counties. How many more county reports and lawsuits will it take before the state answers Gideon’s call?

In a newly issued report, the Office of the State Public Defender (OSPD) finds that San Benito County’s indigent defense system “is inadequate to ensure that community members with the fewest resources are consistently receiving effective representation.” The San Benito report adds to the mounting number of reports and lawsuits exposing constitutional right to counsel deprivations across California. Since 2020, 6AC reports have been issued out of Santa Cruz County (2020) and Lake County (2023), and the ACLU has sued Fresno County (2020), and Kern County (pending). This time, however, the State of California called the strike itself.  

As the nation heads into celebrating the 61st anniversary of Gideon v. Wainwright, what more will it take for the state to answer Gideon’s call?

OSPD’s San Benito County report

According to the OSPD report, San Benito County contracts with a private, for-profit law firm to have two attorneys available to provide primary indigent defense services in criminal cases (as well as child dependency cases, parental termination cases, probate conservatorships, and paternity cases) in exchange for an average flat fee of “$50,330 per month, or just over $600,000 per year.” There are no caseload restrictions in the contract: “the firm gets the same amount whether they have 1,000 cases or 5,000 cases, whether every case goes to trial or every case gets pled out.” The report states that six counties in the state contract with this same law firm “for some amount of their indigent defense services.”   

When this law firm has a conflict, the county contracts with a private attorney to provide indigent defense services in adult criminal cases in exchange for a flat annual fee of $167,622.20, and the county has a third contract with a different private attorney to provide primary indigent defense services in juvenile delinquency cases and third-level conflict cases in adult criminal cases in exchange for a flat fee of $97,502.73. 

Among other findings, OSPD’s report found the county’s indigent defense system “is almost entirely devoid of structure and oversight and is profoundly underfunded in comparison to the prosecution function,” and that “there are signs that effective representation is not being provided” by the attorneys working within the system: they “are not typically litigating cases to trial,” lack “consistent communication with clients,” and carry more cases than what national standards call for.

Will California be last in the nation to answer Gideon’s call?

The issues uncovered in the OSPD report are not San Benito County’s issues alone to fix. Gideon made ensuring the constitutional right to counsel a state – not local – obligation. Although a state may delegate its constitutional responsibilities to counties, the state must guarantee that every county can, and in fact does, provide adequate representation to every indigent defendant. 

However, California is one of only three states in the nation that requires local governments to fund and administer trial-level right to counsel services while having no state oversight (Arizona and South Dakota are the other two). The state is void of any commission, office, entity, or officer that is authorized and funded to oversee indigent defense throughout the state to prevent against the constitutional deprivations that have been uncovered in report after lawsuit, in county after county. California ranks 48th in the country for its proportion of funding contribution, with counties shouldering over 95% of the state’s total indigent defense costs.   

Unlike moves recently made by similarly situated states like Pennsylvania and South Dakota, California has not responded to any of these strikes. No California government branch or official has publicly called for state government to – pause – and understand the depth and complexity of the right to counsel problem in the state before crafting legislative solutions. Until this happens, each county is on its own to fund and fulfill the state’s constitutional mandate.