BOISE — Both the United States and Idaho constitutions guarantee legal representation to anyone charged with a criminal offense, regardless of whether they can afford to pay an attorney.
But with little oversight and guidance from the state government, counties are left fending for themselves — and footing the bill — to provide attorneys for low-income defendants.
It’s not a problem the state is likely to solve in one year, Rep. Darrell Bolz said. But he hopes to start moving in the right direction.
Statewide public defender reform is among the top priorities for the American Civil Liberties Union of Idaho during the upcoming legislative session, executive director Monica Hopkins said. Without state-level oversight, she said, Idaho’s counties can’t consistently provide the level of quality defense services its cash-strapped defendants are promised. And that, she said, renders the current system unconstitutional.
“Ultimately, this is a state responsibility. It’s not a county responsibility,” Hopkins said. “That means cash. That means really investing in a system to make it constitutional.”
County-level control over public defenders makes a certain amount of sense, Bolz said. Local authorities have a better sense of their own needs, after all, than their counterparts in the State House. Some counties are so small that there wouldn’t be enough work for even a single attorney working as a public defender. Such counties, Bolz explained, might have the option of creating a single office to cover themselves and their neighbors.
“I think it’s far better for us to do something, rather than have some judge come in and say, ‘You will do this,’” Bolz said. “Because then we have no choice in the matter, and the flexibility is completely wiped out. They could come in and say every county will have a public defender office. Well, then, who’s going to pay for these very small counties?”
But Idaho is still ultimately responsible for meeting its own constitutional mandate, and that means state-level training, standards and oversight over public defender services.
Currently, only a handful of counties employ in-house public defenders, Bolz said. The rest — including Canyon County, though plans are currently underway to establish an internal department — outsource indigent defense to private law firms through flat-fee contracts. That’s problematic because the contracted firms have little incentive to give their public defense clients the same attention as their paying customers.
“This is why you need some kind of standards in there,” Bolz said. “So you’re giving these indigent people some of the same kind of representation that a person who has money would be able to get.”
Bolz said he thinks Canyon County — which recently announced it would create an in-house public defense service rather than contracting out to a private firm — is moving in the right direction. An internal service will cost a little more, he said. But when meeting a constitutional requirement is at issue, it has to be done.
Hopkins pointed out, however, that Canyon County is just one county out of 44. Even if it’s moving in the right direction, public defense remains the state’s responsibility. And until there’s uniformity in every county across Idaho, the system is still unconstitutional.
“(The 6th Amendment) doesn’t say, ‘Every county in every state across the nation should decide how to public defense services,” she said. “It’s a state responsibility.”