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Protecting the Bill of Rights in Utah since 1958

Indigent Defense: The Bill Is Now Public...and It's Not Enough

12 February 2016 Published in The ACLU of Utah Activist

Last week, Senator Todd Weiler's legislation to address Utah's indigent defense crisis finally became public. SB155, "Indigent Defense Commission," is not a bad bill...but it's nowhere near robust enough to address the fact that every day, Utahns appearing in district and justice courts throughout the state, are being deprived of their Sixth Amendment right to legal counsel.IDP YesOn6 teaser

Last fall, we were hopeful that the state would have a strong and serious response to the damning report issued last fall by the Sixth Amendment Center. The report made clear that Utahns are being essentially and constructively denied their right to a lawyer, if they are not wealthy enough to afford a private defense attorney to represent them.

Accordingly, we are disappointed with this bill, which represents this session's single legislative attempt to address the indigent defense crisis that had become crystal clear over the past five years of studies, reports and task forces.

The bill would establish a state-level indigent defense commission, responsible for setting standards and providing oversight for county-level public defense. It seeks a one-time $3.0 million appropriation to set up and staff the commission.

Based on the ACLU's experience in other states, we anticipate that this commission will be slow to get going, and insufficient by itself to address the pressing problems with our public defense system. We have said for months now that given the very disturbing conclusions in the Sixth Amendment Center’s report last October, legislation that only proposes a statewide commission is simply not proportionate to the scale of the problem.

Simply put, regardless of good intentions, this legislation does not commit the State of Utah to invest the amount of money, attention and energy needed to resolve this crisis. The state has a constitutional obligation to ensure that every person who is accused of a crime and is at risk of losing her or his liberty because of it - regardless of that person's inability to pony up $5,000 for an attorney's retainer - has a vigorous legal defense to protect that threatened liberty.

While we appreciate Senator Weiler's sponsorship of this bill, this effort by the state is unlikely to preclude litigation by the ACLU of Utah. SB155 does next to nothing to address the complete lack of state funding for indigent defense, which continues to perpetuate the very real and continuing crisis for small- and mid-size counties. 

The nicest thing we can say about SB 155 that it will hopefully become one part of an arduous journey. Not the FIRST step of that journey...we've been on this path for years now and, frankly, we expected a bit more after all the waiting.

This legislation confirms that Utah's long journey toward a public defense system that actually works, will likely include multiple legislative and litigation efforts before we can say that our state ensures that every Utahn can be afforded the constitutional guarantees of the Sixth Amendment.