Idaho's misdemeanor probation systems may violate state Constitution

BY Jon Mosher on Thursday, October 13, 2011 at 2:57 PM

The October 12, 2011 Idaho Statesman reports that Idaho’s misdemeanor probation system may have been operating illegally for almost two decades.  People placed on probation for felony offenses are supervised by the State Board of Correction.  But each of Idaho’s 44 counties decide for themselves how to supervise people on probation for misdemeanors.  Thirty-eight of the counties operate their own misdemeanor probation programs, one county has no program at all, and five counties contract with a private for-profit company to provide services.  A recently filed class-action lawsuit challenged the private contract program in Ada County, which includes the state capital Boise, alleging that probationers are being charged higher fees than allowed by state law and are being subjected to conditions that were not part of their sentence.  Of even greater concern to County Commissioners throughout the state is an August 15 memo from Sara Thomas, chief of the Idaho State Appellate Defender’s appellate unit.  Thomas’ memo concludes that Idaho’s Constitution requires all people on probation to be supervised by the State Board of Corrections and that the legislature has never had authority to put counties in charge of adult misdemeanor probation programs.  

This issue is of particular interest for Idaho’s ability to provide an effective right to counsel to indigent defendants charged with misdemeanor offences.

Idaho has a statewide appellate defense system, which it funds entirely through the state general fund.  But the state has delegated to each county the obligation for funding and administering trial-level indigent defense services, including misdemeanor representation, and choosing its own method of providing services in those cases.  In one county, there may be an institutional public defender office that handles most cases, with a flat-fee contract for conflict cases.  In another, primary services may be provided through a flat-fee contract, with conflict representation provided by assigned counsel.  None of Idaho’s counties have a public defense commission to oversee the delivery of services.  Instead, regardless of the method by which they provide attorneys, all services are directly administered by the county’s board of commissioners.  

In The Guarantee of Counsel, our 2010 study of Idaho’s trial-level defender systems, we found “the state of Idaho fails to provide the level of representation required by our Constitution for those who cannot afford counsel in its criminal and juvenile courts.  By delegating to each county the responsibility to provide counsel at the trial level without any state funding or oversight, Idaho has sewn a patchwork quilt of underfunded, inconsistent systems that vary greatly in defining who qualifies for services and in the level of competency of the services rendered.”  Of particular concern was the structure by which misdemeanor representation is delivered: “Local jurisdictions get around their constitutional obligation to provide lawyers in misdemeanor cases in a myriad of ways, including accepting uninformed waivers of counsel, pressuring defendants to ‘work out a deal’ with the prosecutor prior to being given publicly-financed defense counsel, and threatening unfair cost recovery measures.”

When people charged with misdemeanors are denied their right to counsel, there is no lawyer to protect them against illegal probation supervision practices like those alleged in the Ada County lawsuit and detailed in the Thomas memo.  And taxpayers unfortunately may be left holding the bag.  The Idaho Statesman quotes one Commissioner: “I just hope that we don’t have a lot of liability for all of the years that county commissioners all around the state have been running misdemeanor probation programs,” Commissioner Sharon Ullman said.  “I don’t think anyone wants this house of cards to come crashing down.”

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