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Among the recent election results, the passage of a Constitutional Amendment in New Mexico stands as a significant milestone in public defense reform. The state is now in compliance with Principle #1 of the ABA Ten Principles of a Public Defense Delivery System – that the “public defense function, including the selection, funding, and payment of defense counsel, is independent.”
On May 9, the U.S. Government Accountability Office (GAO) issued a report assessing the ways in which the federal government has provided funding and other federal support to the states for indigent defense for the last seven years.
The meaning of the Sixth Amendment’s promise of “effective counsel” has taken on additional dimensions over the past few weeks. On March 21, 2012, the U.S. Supreme Court issued two decisions exploring the right to effective assistance of counsel during plea bargaining. In Missouri v.
On December 8, 2011, Pennsylvania’s Joint State Government Commission issued its report, A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, concluding that public defense providers labor “under an obsolete, purely localized system,” and that the structure of services “impedes efforts to represent clients effectively.” Echoing the 2003 report of the Supreme Court Committee on Racial and Gender Bias in the Judicial System, the new report states:
On November 15, 2011, the Emery County Progress reported that the county attorney -- the same office that prosecutes crimes in the county -- not only plays a major role in selecting opposing counsel, but also controls the budget of the local indigent defense system. Though this column has reported on undue prosecutorial interference in Utah before (click here to read about Utah district attorneys involved in the selection and oversight of public defenders), this is the first documented instance in which there is a direct financial conflict of interest between the two adversarial components of the court system.
On October 31, 2011, the public comment period closed on proposed Washington State Supreme Court standards that would implement many of the American Bar Association’s Ten Principles of a Public Defense Delivery System. These proposed standards have been long in the making. The Washington State Bar Association (WSBA) Council on Public Defense developed the standards now being proposed for Supreme Court approval after months of seeking input from numerous stakeholders and interested parties. Nonetheless, in the final days open for public comment, a flurry of opposition was mounted by local prosecutors, county and city policymakers, judges, the State Legislature, and even some public defense providers. [All public comments are available on the Court’s website here].
"[D]ysfunctional family life is rarely observed by individual family members, who are so entrenched in the process that they cannot really see it for what it is." Thus concludes Allegheny County Office of the Public Defender Assessment, a report by the Institute for Law & Policy Planning (L&PP). The study, commissioned by Allegheny County (Pittsburgh), explains why it is that public defense attorneys within deficient systems cannot understand the depth and breadth of the on-going, chronic right to counsel problems in their own jurisdiction. Because of that, public defense attorneys often cannot fix their own systemic problems. The L&PP report remained hidden from public view for over two years and only came to light through the committed effort of the American Civil Liberties Union of Pennsylvania (ACLU-PA) to get it released under Pennsylvania’s freedom of information laws.
On October 13, 2011, Michigan Governor Rick Snyder issued Executive Order No. 2011-12 establishing an Indigent Defense Advisory Commission (Commission). The Commission is charged to make recommendations to the Governor and Legislature for statewide “improvements to the system of providing legal representation for indigent criminal defendants.” The recommendations from the 14-member, bi-partisan Commission must ensure that: “indigent defense is free from undue political interference and conflicts of interest;” “the right to counsel is delivered by effective counsel at each critical stage of the proceedings in a manner that is consistent throughout the state;” and, “government-funded criminal defense lawyers are sufficiently trained and supervised, appropriately qualified, and adequately compensated.” The Commission must meet their charge in a manner that is fiscally responsible and cost-effective, while being “responsive to jurisdictional variances and local community needs.” Findings and recommendations are due to the Legislature and Governor no later than July 15, 2012.
In Polk County v. Dodson, 454 U.S. 312 (1981), the United States Supreme Court found that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages,” noting that a “public defender is not amenable to administrative direction in the same sense as other state employees”. In fact, the Court noted, a “defense lawyer best serves the public not by acting on the State's behalf or in concert with it, but rather by advancing the undivided interests of the client.” A new report by the American Civil Liberties Union of Utah (ACLU-Utah) finds that the state of Utah fails to uphold this constitutional obligation. In “most” of the nine counties studied by the ACLU-Utah, the local prosecutor “routinely” is responsible for hand-selecting opposing defense counsel and often helps to negotiate the terms of defender contracts. Worse, the report highlights that in several counties defense attorneys must request trial-related expenses from the county attorneys.