This week marks the SIXTH anniversary of the release of "Failing Gideon: Utah's Flawed County-by-County Public Defender System," the ACLU of Utah's report on Utah's failing county-by-county public defense system. How, if at all, have things changed?
Still Waiting For Reform: Six Years and Counting...
"While a criminal trial is not a game in which the participants are expected to enter with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators."
- U.S. Supreme Court, United States v. Cronic
We've been concerned for years now about Utah's failure to fulfill the promise of the Sixth Amendment, which guarantees that any person, when threatened with the deprivation of their liberty by the government through the criminal justice system, has access to a defense attorney (regardless of their ability to pay). Sadly, we've seen very little progress made, despite an active lawsuit and substantial incontrivertible research into this failure.
Today, in honor of this week's annivesary of "Failing Gideon," we share a little bit of Utah public defense reform history.
Way back in 2011, the ACLU of Utah released "Failing Gideon: Utah’s Flawed County-By-County Public Defender System." The report, a collaborative project with S.J. Quinney College of Law students and Professor Emily Chiang, detailed the many ways in which people throughout Utah are being deprived of their right to an attorney, regardless of their ability to pay.
The report made this painfully clear: Utah's public defender system has real, persistent problems at every level. The state was taking no responsibility for its constitutional obligation, and the counties were struggling with the burden on their own.
This wasn't the first time our public defender system had been reviewed and found failing - and it wouldn't be the last. In 2008, Utah's Judicial Council created a special committee to study the state's delivery of appellate right to counsel services. The committee found that, not only did the appellate system have serious problems, but that serious issues occurred at the trial level, as well.
"...(B)ecause governments 'quite properly spend vast sums of money to establish machinery to try defendants,' a poor person charged with crime cannot get a fair trial unless a lawyer is provided at state expense."
- Sixth Amendment Center, "The Right to Counsel in Utah: An Assessment of Trial-Level Indigent Defense Services"
Shortly after the Study Committee on Appellate Representation of Indigent Criminal Defendants released its report, the ACLU of Utah released "Failing Gideon." It then took the Utah Judicial Council another four years to confirm our report's findings, through an in-depth study conducted by the non-partisan, non-profit Sixth Amendment Center.
The Sixth Amendment Center's report also made this painfully clear: Utah's public defender system has real, persistent problems at every level. The state was taking no responsibility for its constitutional obligation, and the counties were struggling with the burden on their own.
(If that sounds an awful lot like what the ACLU had already discovered, well, it is).
When the Sixth Amendment Center's report was released in 2015, it made just two recommendations for the state of Utah:
- End flat-fee contracting (which creates negative incentives for quality representation).
- Form a state-level commission to create standards for the provision of indigent defense.
In 2017, we DO have a new Indigent Defense Commission....and we still have flat-fee contracting in many municipalities throughout the state.
Utah's Indigent Defense Commission was created through SB 155, "Indigent Defense," sponsored by Senator Todd Weiler (R-Woods Cross) and passed by the 2016 Utah Legislature. That same legislation also appropriated $1.5 million for the Commission to begin to address this sweeping statewide crisis, estimated (by the ACLU of Utah and others) to require no less than tens of millions of dollars to ameliorate. Additionally, most of that appropriated money as "one-time funding," which means it doesn't recur every year. The limited nature of the funding has kept most counties from asking for any of it - they don't want to hire a public defender for one year, just to fire that attorney a year later.
As we noted earlier this year, the Commission - with strong staff and experienced commissioners - has made some progress. For example, a technical assistance grant from the Commission to Juab County has enabled that county to contract for all its public defense services with the Utah County Public Defender Association, an established and relatively well-provisioned county public defender organization. This small grant, of $180,000, has allowed Juab County to significantly improve its public defender services (by comparison, Juab County Attorney Jared Eldridge alone makes more than $140,000 annually, according to Utah's Right to Know website).
The ACLU of Utah anticipated, back in 2015, that the formation of a commission alone would not be sufficient to solve our public defense crisis. That's why we went ahead with the launch of a new lawsuit that same year, Remick v. Utah, in partnership with co-operating attorney John Harrington and local powerhouse firm Holland & Hart, LLP. We're currently waiting for a major decision in that case - a decision that may determine whether our case can go forward - any day now. Our hope is that, through litigation, we can create sufficient pressure for substantive change in Utah's system, change that can be felt by everyday Utahns statewide who may find themselves in need of a defense attorney.
We knew, when we embarked on this effort many years ago, that the pace of progress would be very slow. It is not easy to bring wholesale reform - even minor progress - to an indigent defense system that has been so long ignored by state leaders. Just ask our ACLU partners in Idaho, Michigan, Montana and New York.
So we appreciate the enduring support of all our members, donors, community partners and cooperating attorneys as we move forward with this effort! Stay tuned for updates on our Yes on Six Campaign in the months ahead.