Gideon Alert: National Association of Counties calls for improved public defense services

BY David Carroll on Wednesday, January 26, 2011 at 1:42 PM

On January 19, 2011, the National Association of Counties (NACo) called upon the United States Department of Justice to assist rural counties in overcoming systemic deficiencies that prevent them from meeting the states’ obligation to provide constitutionally-mandated indigent defense services.  Founded in 1935, NACo is the only national organization that represents county governments in the United States and provides essential services to America’s 3,068 counties.  In their press release, NACo recommends funding pilot public defender programs to serve multi-county jurisdictions, while reminding counties of NACo’s policy that public defenders be active participants in all criminal justice planning at the local level.

The problems of indigent defense in rural America are, perhaps, best explained in an examination of Nevada’s long history with the delivery of public defense services.  In 1971, the Nevada Legislature created an independent state commission to oversee services of the State Public Defender in the states’ 15 rural counties. As originally conceived, the state would pay for 80% of the cost of representation leaving counties to shoulder only 20%.  With such incentives, all 15 rural counties opted in. 

 In 1975, however, the Nevada Legislature disbanded the commission, making the State Public Defender a direct gubernatorial appointment.  In 1979, the then-current State Public Defender resigned his post, stating that the scheme for financing the Public Defender’s office rendered accomplishing the agency’s mission impossible and that the 1975 Legislature had changed the appointment scheme to that of a purely political appointment.  In 1989, the State Public Defender was placed under the Department of Human Resources, where it remains today. This means:  (1) to secure adequate funding, the State Public Defender must first advocate for its resources against all of the other departments within Human Resources; and (2) the Human Resources budget must then compete against the other executive branch funding priorities.  Since this re-organization, services have steadily declined.  By 1999, the majority of rural counties had left the state system once the state reduced its share of the costs to approximately 47%.

The failure of the State Public Defender system left many rural counties with a Hobson’s choice -- continue to participate in the State Public Defender system and receive some financial assistance but inadequate services, or shoulder the entire financial burden but have more say over how services would be delivered.  County after county left the program and, in most instances, settled on flat-fee contracting systems, in which a lawyer is paid a fixed amount to take all or a certain percentage of the counties’ indigent defense cases, no matter how many cases that might be. 

A 2000 report to the Nevada Supreme Court, conducted by The Spangenberg Group under a joint grant from the Department of Justice’s Bureau of Justice Assistance and the American Bar Association’s Bar Information Program, further examined the problems of rural Nevada.  One county studied was Nye County.  Nye County is 18,150 square miles, or approximately the size of Massachusetts, Vermont and Rhode Island combined.  The county has two county seats and two county courthouses situated four hours apart by car (approximately the drive time from Providence, RI to Montpelier, VT, or, from Oklahoma City, OK to Dallas, TX).  Though the county has two DA offices and two sets of court staff, all primary indigent defense cases were handled by a single public defender.  The arrangement was that he would receive a single flat fee, no matter how many cases came into court and no matter which court they came into.  The contract did not provide any reimbursement for overhead costs, including mileage.  The attorney found it so difficult to make ends meet that he ended up taking an additional contract in a neighboring county (Esmeralda), or adding approximately ¾ of Connecticut to his coverage area.  At the time of the DOJ/ABA Report (2000), the state was paying only approximately 40% of the costs for counties that used the State Public Defender system.  That state contribution has now plummeted to a mere 20%.

Nevada’s counties are further constrained in their ability to fund indigent defense due to being a “Dillon’s Rule” state.  “Dillon’s Rule,” named after the Iowa Supreme Court judge who penned it [City of Clinton v. Cedar Rapids and Missouri Railroad Company, 24 Iowa 455 (1868)],  holds that counties possess and can exercise only those powers expressly granted them by the state legislature, and no others.  As such, counties’ authority to increase or add new revenue streams to pay for indigent defense is limited by the legislature.  In October 2008, the Rural Sub-committee of the Nevada Indigent Defense Task Force filed their final report with the Supreme Court, calling for a state takeover of indigent defense in the rural counties. To date, no action has been taken by either the legislature or the Supreme Court.

NACo’s call for reform is most welcomed in addressing these deep-rooted problems in rural America.   Nevada is not the only state in our country with vast geographic rural areas.  NACo’s proposal might go far toward increasing the quality of Sixth Amendment representation in states such as Texas, Idaho, and Michigan.

The press release coincided with NACo’s annual symposium on justice and public safety.  A national voice like that of NACo, working to improve the state of indigent defense, helps to bring in other non-traditional allies, such as the Association of Prosecuting Attorneys (APA).  APA President David LaBahn is quoted as saying, “[e]ncouraging multi‐county systems in rural America makes a lot of sense to many prosecutors in our association. …  Scheduling may be a problem, but if we can send a man to the moon we should be able to get the prosecutor, the judge and the public defender to the same county courthouse at the same time.”

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