The Sixth Amendment Center is often asked to provide an independent, objective evaluation of how a jurisdiction fulfills or fails to fulfill its Sixth Amendment obligation to provide counsel to those facing loss of liberty who cannot afford to hire their own attorney. Below are the reports from many of those jurisdictions, available for download free of charge, reflecting 6AC’s findings and recommendations based in Sixth Amendment case law and national standards for right to counsel systems.
The Right to Counsel in Lake County, California
Evaluation of Trial-Level Indigent Representation Services
February 2023
At the request of the County of Lake, 6AC conducted an evaluation of trial-level indigent representation services provided in the county. The Right to Counsel in Lake County, California (February 2023) shows that the State of California has not established any means to ensure that Lake County provides to every indigent defendant an attorney who has the time, training, and resources to provide effective representation at every critical stage of a criminal case. Lake County has established an indigent representation system that is completely devoid of basic oversight. The absence of systemic accountability has allowed deficiencies in the provision of direct services to indigent defendants to become institutionalized. The U.S. Supreme Court describes this as the constructive denial of the Sixth Amendment right to counsel.
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Publication Number: 2023.001
The Right to Counsel in Oakland County, Michigan
Evaluation of Trial-Level Indigent Defense Services in Adult Criminal Cases
October 2022
The State of Michigan delegates to its counties, cities, townships, and villages the responsibility for establishing and administering indigent defense systems to effectively represent indigent adult defendants who face possible incarceration for crimes in the trial courts. Funded through the Michigan Indigent Defense Commission at the request of Oakland County, 6AC evaluated Oakland County’s system for providing the right to counsel in those trial courts for which the county government is fiscally responsible – the Sixth Judicial Circuit Court and the 52nd District Court – in an effort to aid the county in determining the feasibility of creating a public defender office. 6AC’s report, The Right to Counsel in Oakland County, Michigan: Evaluation of Trial-Level Indigent Defense Services in Adult Criminal Cases (October 2022), concludes that Oakland County’s assigned counsel compensation method creates economic disincentives that impair defense counsel’s ability to provide effective representation and that indigent defense attorneys’ workloads are not controlled to permit effective representation and that indigent defense attorneys do not continuously represent and personally appear at every court appearance throughout the pendency of the case.
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Publication Number: 2022.002
The Right to Counsel in New Hampshire
Evaluation of Trial-Level Indigent Defense Representation in Adult Criminal and Juvenile Delinquency Cases
October 2022
The State of New Hampshire has vested in the New Hampshire Judicial Council (judicial council) the entirety of the state’s Fourteenth Amendment obligation to ensure effective Sixth Amendment services. At the request of the judicial council, through the U.S. Department of Justice, Bureau of Justice Assistance, 6AC conducted a statewide study of the indigent representation services provided in the trial courts in adult criminal and juvenile delinquency cases. 6AC’s report, The Right to Counsel in New Hampshire: Evaluation of Trial-Level Indigent Defense Representation in Adult Criminal and Juvenile Delinquency Cases (October 2022), concludes that New Hampshire’s indigent defense system is inadequately funded and lacks the structural safeguards necessary to ensure the provision of effective assistance of counsel to every indigent defendant, as required by the federal and state constitutions, allowing for the possibility of both actual and constructive denial of the right to effective assistance of counsel to at least some indigent defendants.
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Publication Number: 2022.001
The Right to Counsel in Illinois
Evaluation of Adult Criminal Trial-Level Indigent Defense Services
June 2021
The State of Illinois delegates to its counties and trial court judges the responsibility for providing and overseeing attorneys to effectively represent indigent defendants in the trial courts, and it delegates to its counties nearly all of the responsibility for funding the right to counsel of those indigent defendants. services. Yet Illinois is one of only seven states that do not have any state-level mechanism to oversee any aspect of trial-level right to counsel services. As a result, Illinois cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all, and the state cannot know how much the provision of indigent representation should cost nor how to provide it effectively in all 102 counties. At the request of the Illinois Supreme Court and the Administrative Office of Illinois Courts, 6AC conducted a multi-year, statewide study of trial level indigent defense services. The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services (June 2021) explains how, in some circumstances, indigent defendants in Illinois are actually deprived of counsel at a critical stage of their criminal case. In other instances, an indigent defense system attorney is appointed but under circumstances that cause a constructive denial of the right to counsel.
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Publication Number: 2021.001
The Right to Counsel in Santa Cruz County, California
Evaluation of Trial Level Indigent Representation Services
September 2020
In its attempt to fulfill the right to counsel responsibilities delegated to it by the state, for decades Santa Cruz County has chosen to use private attorneys to provide all indigent representation services. Santa Cruz County is considering how best to provide indigent representation services when its existing contracts with private law firms expire on June 30, 2022. Santa Cruz County does not have an office or person charged with oversight of the entire indigent representation system (both primary and conflict), and the county cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all. In the absence of this information, it is impossible for the county to determine how much the provision of indigent representation should cost or how to provide it effectively. It is toward that end that the County of Santa Cruz commissioned the Sixth Amendment Center to conduct this evaluation. The Right to Counsel in Santa Cruz County, California: Evaluation of Trial Level Indigent Representation Services (September 2020), explains how Santa Cruz County has delegated all decision-making about the provision of the right to counsel to the private law firms with which it enters into contracts, but without requiring those contract law firms to report information critical to knowing whether they are providing effective assistance of counsel.
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Publication Number: 2020.001
The Right to Counsel in Armstrong County & Potter County, Texas
Evaluation of Adult Trial Level Indigent Defense Representation
November 2019
Texas has 254 counties, and the criminal justice system in each of those counties operates differently from all others. Texas state law requires the judges who have jurisdiction over criminal cases in each county to adopt by local rule countywide procedures for providing counsel to indigent defendants at trial and appeal for crimes punishable by incarceration. Texas state law also requires the county in which a criminal prosecution is instituted to pay the cost of appointed counsel and all reasonable and necessary expenses of the defense at both trial and appeal. The Right to Counsel in Armstrong County & Potter County, Texas: Evaluation of Adult Trial Level Indigent Defense Representation (November 2019), explains how Texas’s statutory scheme that delegates to counties and trial court judges the state’s Sixth Amendment responsibilities opens the door to the dangers of undue judicial interference with the right to counsel.
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Publication Number: 2019.004
The Right to Counsel in Wayne County, Michigan
Evaluation of Assigned Counsel Services in the Third Judicial Circuit
August 2019
In Wayne County, which includes Detroit, 75% of indigent felony defendants receive trial level representation from attorneys selected and overseen by trial court judges of the Third Judicial Circuit. The Right to Counsel in Wayne County, Michigan: Evaluation of Assigned Counsel Services in the Third Judicial Circuit (August 2019), explains how forcing trial court judges to design and directly oversee the system that provides attorneys to represent indigent defendants always opens the door to the dangers of undue judicial interference with the right to counsel. Every aspect of the Sixth Amendment right to counsel is impaired, in the felony assigned counsel services provided in the Third Judicial Circuit, by the lack of independence from the judiciary, leaving the personal interests of appointed private attorneys in conflict with the legal interests of the defendants whom they are appointed to represent. Repairing the felony right to counsel at trial requires greater authority and resources than county officials and trial court judges have under the legal and financial construct created by state law.
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Publication Number: 2019.003
The Right to Counsel in Maine
Evaluation of Services Provided by the Maine Commission on Indigent Legal Services
April 2019
Maine is the only state in the country that provides all indigent defense services through private attorneys. There are two principal reasons that other states have moved away from using solely private attorneys. First, it is difficult to predict and contain costs in a private attorney system. Second, it is difficult to supervise private attorneys to ensure they can and do provide effective representation. The Right to Counsel in Maine: Evaluation of Services Provided by the Maine Commission on Indigent Legal Services (April 2019), explains how Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. Maine cannot guarantee effective representation in each and every case, as is their Sixth and Fourteenth Amendment obligation, as the failure to provide oversight often results in the interest of indigent defendants being in conflict with the financial interests of the attorneys appointed to represent them.
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Publication Number: 2019.002
The Right to Counsel in Oregon
Evaluation of Trial Level Public Defense Representation Provided Through the Office of Public Defense Services
January 2019
Providing the Sixth Amendment right to effective assistance of counsel is a state obligation under the Fourteenth Amendment. The State of Oregon attempts to fulfill its obligation to provide effective right to counsel services in trial courts primarily through an array of contracts let by the Public Defense Services Commission (PDSC), and administered by the Office of Public Defense Services (OPDS), with public defender offices, private law firms, consortia of individual attorneys and law firms, non-profit organizations, and occasionally individual lawyers. The Right to Counsel in Oregon: Evaluation of Trial Level Public Defense Representation Provided Through the Office of Public Defense Services explains how, in doing so, the state has created a complex bureaucracy that collects a significant amount of indigent defense data, yet does not provide sufficient oversight or financial accountability. In some instances, the complex bureaucracy is itself a hindrance to effective assistance of counsel. Moreover, the report concludes that this complex bureaucracy obscures an attorney compensation plan that is at root a fixed fee contract system that pits appointed lawyers’ financial self-interest against the due process rights of their clients, and is prohibited by national public defense standards.
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Publication Number: 2019.001
The Right to Counsel in Rural Nevada
Evaluation of Indigent Defense Services
September 2018
In the 14 counties and one independent city of Carson City that together make up rural Nevada, only 333,373 people reside over an area that is larger than all but ten states. In addition to the sparse population spread across a great geographic expanse, there is a paucity of attorneys, limited social services, and almost no public transportation. It is against this backdrop that the counties and cities of rural Nevada struggle to provide the effective assistance of counsel to indigent defendants, largely without guidance from or oversight by the State of Nevada. The Right to Counsel in Rural Nevada: Evaluation of Indigent Defense Services explains for the first time how indigent defense services are provided in every trial level court outside of Clark County (Las Vegas) and Washoe County (Reno). There are longstanding, deep-rooted problems in the rural courts, including: a dearth of public defense data, especially regarding caseloads; a prevalence of fixed fee contracts; a pervasive lack of independence of the defense function from undue political and judicial interference; and the failure to appoint attorneys early enough in the criminal process. The municipal courts in Nevada are a cause of particular concern where some judges chill the right to counsel by informing defendants that they will be charged for the cost of their representation.
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Publication Number: 2018.004
The Right to Counsel in Wayne County, Michigan
Evaluation of the State Defender Office of the Metropolitan Justice Center of Southeast Michigan
April 2018
Attorneys with the State Defender Office of the Metropolitan Justice Center of Southeast Michigan are unable to put each and every prosecution to the “crucible of meaningful adversarial testing,” as is their ethical duty and constitutional obligation, because they lack sufficient time, resources, and support staff to properly prepare cases. Such is the conclusion of The Right to Counsel in Wayne County, Michigan: Evaluation of the State Defender Office of the Metropolitan Justice Center of Southeast Michigan. The Sixth Amendment Center (6AC), in cooperation with the Seattle University School of Law (SUSL), finds that State of Michigan and Wayne County share fault for this failure. 6AC and SUSL recommend that the state and county therefore share in the responsibility for providing effective representation in the future.
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Publication Number: 2018.002
The Right to Counsel in Mississippi
Evaluation of Adult Felony Trial Level Indigent Defense Services
March 2018
Felony defendants throughout Mississippi are arrested and then routinely wait from typically two months to up to a year before a lawyer begins working on their behalf. When a felony lawyer is finally appointed, the attorney is too often under-resourced, overworked, and financially conflicted between working on behalf of the defendant’s legal interests and doing what the attorney needs to do to please the judge to secure the next contract or appointment. The Right to Counsel in Mississippi: Evaluation of Adult Felony Trial Level Indigent Defense Services explains how the vast majority of indigent persons accused of felony crimes in Mississippi never have an attorney working on their behalf prior to their arraignment in circuit court. Instead, during the entire period between a felony arrest and the arraignment on indictment, indigent felony defendants fall into a “black hole” in which they are not represented by an attorney.
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Publication Number: 2018.001
The Right to Counsel in Indiana
Evaluation of Trial Level Indigent Defense Services
October 2016
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.
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Publication Number: 2016.001
The Right to Counsel in Utah
An Assessment of Trial-Level Indigent Defense Services
October 2015
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.
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Publication Number: 2015.002
Justice Shortchanged
Assigned Counsel Compensation in Wisconsin
May 2015
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.
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Publication Number: 2015.003
The State of the Right to Counsel in Mississippi
Report & Recommendations
September 2014
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.)
Publication Number: 2014.005
The Crucible of Adversarial Testing
Access to Counsel in Delaware’s Criminal Courts
February 2014
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.”
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Publication Number: 2014.001
Reclaiming Justice
Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future
March 2013
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.
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Publication Number: 2013.001
