ACLU Review – Indigent Defendants

In late June of 2016, the American Civil Liberties Union of Utah filed a lawsuit against the State of Utah alleging that Utah was not complying with the Sixth Amendment of the U.S. Constitution, which guarantees that anyone who faces potential jail/prison time receives lawful representation, regardless of their ability to pay for it.  This lawsuit comes just months after Utah passed a new bill to help oversee the quality of such representation – and indeed, may have been spurred on by that bill – and, according to the ACLU, is intended to ensure that all Utahns have “vigorous legal representation when facing the power of the state.”  So what is it about Utah’s legal defender system that has gotten the ACLU all worked up?

The Sixth Amendment

In the Sixth Amendment to the U.S. Constitution, the right to representation for defendants in a criminal court is guaranteed.  This representation is required to be of such a quality that, regardless of a defendant’s ability to pay for it, the prosecution must be subject to the “crucible of meaningful adversarial testing;” i.e., the criminal defense must be adequate and competent.  Moreover, and as the Utah constitution has expounded upon, this “meaningful adversarial testing” is to be supplemented by “investigatory resources necessary for a complete defense.”  In short, defendants that are subject to criminal charges are to be provided qualified attorneys for representation, along with a support staff and an investigation team, with the goal of exhausting all possible defenses in any case.

Utah’s Indigent Defense System

Utah is one of only two states which has delegated the responsibility for indigent defense – representation by criminal defense attorneys appointed for people who otherwise could not afford them – to local counties and cities, with very few exceptions.  This usually means contracts with private law firms, often for a simple, flat annual fee, and places the burden of paying for such contracts solely on those counties and cities.  The state otherwise has no involvement in the public defender system whatsoever.  Long a subject of criticism by the ACLU – among other groups – this system underwent a significant change in 2016, considered in the paragraphs below.

Problems in Utah’s System

There are a number of inherent difficulties with providing defendants with what is essentially free representation.  In their lengthy 60 page complaint to the Third District Court of Salt Lake City, the ACLU lists several problems with Utah’s system, most of which involve one issue: funding.  Naturally this problem is expounded upon via a number of other criticisms, but in essence, each and every one invariably ties back to the inability – or even unwillingness – of counties and cities to provide adequate and responsible funding to public defense attorneys.  These criticisms, as listed in the actual lawsuit filed with the court, are summarized in brief here:

  • Lack of Oversight

First among the many complaints made by the ACLU in their lawsuit against Utah is a lack of oversight over the various public defender systems employed throughout the state. Specifically, the ACLU points out that “no statewide entity or official” exists to supervise public defenders – be they contracted private firms or otherwise.  According to the ACLU, this absence of oversight results in a number of deficiencies, including the employment of public defense attorneys who are undertrained, unexperienced and unevaluated in their work.   Despite a recently appointed commission intended to address these matters (see below), the ACLU complains that this commission is only advisory in nature, and as such has no power to enforce constitutionally mandated requirements for public defense cases.

  • Reliance on City/County Funding 

The second problem listed by the ACLU with Utah’s public defense system is a reliance on local funding, usually by a county or city agency. Apart from the counties of Salt Lake and Utah (who employ not-for-profit organizations for public defense work [according to the ACLU lawsuit]), the ACLU points out that public defense responsibilities in Utah are largely contracted out to private law firms – often to the lowest bidder – and that these contracts are generally flat-fee in nature.  This means that, regardless of the number of indigent defendants, these public defenders are paid an unchanging, yearly amount for their services, with the result that such public defenders are motivated not to protect the constitutional rights of their defendants, but rather to simply close cases as quickly as possible.Moreover, because the generic flat-fee system does not account for extra costs (such as those for case investigation or expert witnesses), public defenders in Utah are generally motivated not to employ such services, as they would themselves be responsible for compensating them.

  • Excessive Caseloads 

Third on the list of complaints brought up by the ACLU is the excessive caseload of many public defenders, which they allege “affects the productivity and effectiveness of indigent defense counsel more than any other variable.” Citing the National Advisory Commission on Criminal Justice Standards and Goals, the ACLU points out that “a single, full-time indigent defense counsel [attorney] can reasonably be expected to handle no more than 150 felonies per year; or 400 misdemeanors per year; or 200 juvenile delinquency cases per year.”  While alleging that Utah does not keep track of exact caseload numbers, the ACLU nevertheless suggests that some public defenders handle up to 300 felony cases – twice the recommended amount – with the result that public defenders put only minimal effort into the defense of their appointed clients.

  • Disproportionate Funding 

Addressing the matter more directly, the fourth complaint introduced by the ACLU in their lawsuit against Utah is the disproportionate funding allotted to public defenders when compared to the funding provided prosecuting agencies. As the ACLU points out, prosecutors are allotted funding directly by the state for both themselves and their staff – not to mention provided with benefits such as health insurance and retirement plans – whilst public defenders, who are generally contracted, private law firms, must pay their own overheads.This disparity generates predictable results: public defenders, lacking the resources of the state, are unable to match the investigation efforts and general expertise of prosecuting agencies, providing prosecutors with an edge in criminal cases.  Moreover – according to the ACLU – this inequality of funding means that, particularly in the case of contracted private defense firms, public defenders are more likely to prioritize high-paying, private clients, once a contract has been landed.

  • Inadequate Availability 

The final complaint made by the ACLU is that of the accessibility of public defenders to their appointed clients. As a consequence of the lack of resources, funding and excessive caseloads, the ACLU points out that, in many counties/cities, public defenders are simply so overworked that they do not have time to meet with indigent defendants.  This lack of contact allegedly makes it impossible for public defenders to “adequately argue against pretrial incarceration or the imposition of bail,” among other things, resulting in excessive spells of jail-time whilst a case has yet to be resolved.

S.B. 155 – The Indigent Defense Bill

Preceding the ACLU lawsuit – and perhaps even anticipating it – in 2016 the Utah Legislature adopted Bill S.B. 155, with the intent to begin to address the problems within Utah’s indigent defense system.  Allotting some 2 million dollars toward that effort, the bill ordered the formation of a “Commission on Criminal and Juvenile Justice – Utah Indigent Defense Commission.”  According to this bill, the Utah Indigent Defense Commission has been given two primary responsibilities: first, it is to collect data and provide an annual report to the legislature on the exact statistics of the state of public defense in Utah (specifically concerning the complaints listed in the ACLU’s lawsuit), and second, it is to allot extra funds to counties and cities to support public defense offices, contracted or otherwise.

S.B. 155 has been received critically by the ACLU.  For one thing, the 2 million dollar allotment includes an interesting proviso: 1.5 million of the 2 million allotted funds are a strictly “one time appropriation,” whilst the remaining $500,000 is the only amount guaranteed to be reoccurring.  It is difficult to see how the commission will be able to accomplish anything more than simple data-collection with such little funding, though of course the bill is only the first step toward reforming Utah’s indigent defense system.  For another – and as the ACLU pointed out in their lawsuit – the commission has been given only the power to advise counties and cities of the standards expected of public defenders, but otherwise has no authority to enforce those standards.

Ultimately, however, while one might sympathize with the frustrations of the ACLU over Utah’s indigent defense system, Bill S.B. 155 does represent a step in the right direction: the results of the commission’s analysis on the indigent defense system in Utah are yet to be compiled, but they will doubtless provide a direction for the Utah Legislature to help resolve the problems with Utah’s indigent defense system.  Still, one does question the morality – let alone the efficacy – of the ACLU’s decision to bring a lawsuit against Utah, just when it is beginning to test the waters of reform.  The timing of the lawsuit is questionable, and the attorney fees the ACLU is demanding in their lawsuit may very well hamper the ability of the state to fund additional reform.  In any event, Utahns throughout the state can expect to see significant alterations to their indigent defense system in the near future, for better or worse.

Photo Courtesy of: David Castillo

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