Last Wednesday, a six-attorney team coordinated by the American Civil Liberties Union sued the State of Idaho and various public officials tied to Idaho State Public Defense Commission.

Currently, each of Idaho’s 44 counties has its own system of providing public defender services to indigent defendants.  Some have a public defender office.  Others contract out to private attorneys. 

Gov. Butch Otter, in his 2015 State of the State address, pointed out that “the courts have made it clear that our current method of providing legal counsel for indigent criminal defendants does not pass constitutional muster." 

Two provisions are at issue, one in the Idaho Constitution and the other in the U.S. Constitution.

The Idaho Constitution in Article I, Section 13 provides that criminal defendants “appear and defend in person and with counsel.”  The Idaho Supreme Court in 1923 determined that meant the criminal indigent defendants were entitled to an attorney at public expense.  State v. Montroy, 37 Idaho 684, 217 P. 611 (Idaho, 1923):

It is the public policy of this state, disclosed by constitutional guarantees as well as by numerous provisions of the statutes, to accord to every person accused of a crime, not only a fair and impartial trial, but every reasonable opportunity to prepare his defense and to vindicate his innocence upon a trial. In a case of indigent persons accused of crime, the court must assign counsel to the defense at public expense.

In 1963, the U.S. Supreme Court determined that the right counsel, under the Sixth Amendment to the U.S. Constitution, required an attorney for the indigent in felony cases.  Gideon v. Wainwright, 372 U.S. 335 (1963).  That has since been expanded to misdemeanors.  Argersinger v. Hamlin, 407 U.S. 25 (1972).

The class action lawsuit, filed in the state court in Ada County, asks that:

  • The case be certified as a class action
  • A declaration that the State of Idaho is obligated to provide “constitutionally adequate representation to indigent defendants, including at initial appearances
  • Enjoin the state from providing constitutionally deficient representation
  • Require the State to propose (and the Court approve) a plan to develop and implement a statewide system of public defense
  • Require the State to propose (and the Court approve) uniform workload, performance and training standards for public defenders
  • Bar use of fixed-fee contracts for public defender services
  • Award attorneys fees and costs

This issue has been brewing for a several years. In 2010, the National Legal Aid and Defender Association (“NLADA”) found that Idaho’s county-by-county system of public defenders failed to meet constitutionally-mandated requirements.

The National Advisory Commission on Criminal Justice Standards and Goals (“NACCJSG”) in 1973 recommended that a public defender have no more than 150 felony cases per year and no more than 400 cases that were misdemeanors.  These are total cases per category and do not contemplate an attorney carrying both kinds of cases.

Yet, the data indicates Idaho county public defender caseloads are simply too high. 

For instance, the NLADA report analyzed the public defender office in Bonneville County and found that three attorneys handling felonies averaged nearly 209 cases a year, far beyond the NACCJSG standards.  The two attorneys handling misdemeanors were even further beyond the requirements with one handling 797 cases and the other 1154.

The same report indicated that in Canyon County, felony-only attorneys averaged 223 felony cases per year and misdemeanor and lower court attorneys averaged 954 cases.

The effect of these large caseloads is that defense attorneys can only spend a limited amount of time with each client, shortchanging those with need of greater attention.

In August of 2013, Idaho Chief Justice Roger Burdick testified before a legislative interim committee on the issue noting: “Frankly, our system for the defense of indigents, as required by Idaho's constitution and laws, is broken.”

In 2014 the Idaho Legislature passed, and Gov. Otter signed, HB 542, which created a Public Defense Commission to collect uniform data, provide training and generate performance standards.  It also prohibits counties from entering into flat-fee public defender contracts (on the theory that system encourages defense attorneys to shortchange complicated cases).  The Commission has been working on a model public defender contract for counties and has had a presentation from David Carroll of the Sixth Amendment Center (which was broadcast statewide).

The ACLU says Idaho is out of time, blasting the State of Idaho for appointing committees and passing legislation that has not fixed the underlying noncompliance with constitutional requirements. And, they may be right.

The Pre-Trial Justice Subcommittee of the Idaho Criminal Justice Commission determined that only five Idaho counties provide counsel at initial appearances, despite a 2008 U.S. Supreme Court case mandating representation at that stage.  Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008).

According to the ACLU, 19 Idaho counties are still using fixed-fee contracts despite the ban in the Idaho Code enacted in 2014.

The solution may be a legislative fix before the Ada County court rules.

The Idaho Association of Counties in 2014 adopted a policy resolution offered to cede the system to the State of Idaho in exchange for capping county spending at their current rates.

According to Public Defense Commission Vice-Chair Darrell Bolz, the public defender system in Idaho’s counties costs about $23 million a year.  Estimates are that another $10-15 million will be required to bring the Idaho public defender system into constitutional compliance.  If the State of Idaho were to create a statewide system of professional public defenders, apply the funds currently spent by the counties, and contribute state funds for the balance, that may create an acceptable system.

The choice Idaho now faces is whether to wait for the likely adverse court decision or move ahead and address the issue with the hope that the state court will bless the devised solution.  Waiting will draw in more claimants and boost the risk of paying even larger attorney fees but avoids developing a system that the court eventually finds unsatisfactory.

It is a tough choice and it will be interesting to see which course Idaho policymakers follow. 

Steve Taggart is an Idaho Falls attorney specializing in bankruptcy (  He has an extensive background in politics and public policy.  He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..