To put it mildly, as we assess the 2016 Legislative Session in light of Utah’s now-well-documented public defense crisis, we are not impressed.
Utah Legislature Says: "Meh" On Six
We admit it. We were a little too hopeful last Fall.
When the Sixth Amendment Center issued its report on the very sorry nature of Utah’s public defender system (corroborating the ACLU of Utah’s report from four years earlier), we thought that maybe, finally, this would do the trick.
“Each and every day, Utahns are being denied their right to legal counsel in justice and district courts throughout our state,” we exclaimed last Fall, flipping through the dismal report. “How could the state of Utah NOT take decisive action, immediately, to change this?”
We don’t know the answer to that question. But we now know that the state certainly could – and WILL – refrain from taking immediate, decisive action in the face of overwhelming evidence of Utah’s Sixth Amendment crisis.
After years of study and plenty of evidence that Utah’s public defense system is failing on every standard measure of constitutional adequacy, the only relevant bill introduced during the recent session was SB155, “Indigent Defense,” sponsored by Senator Todd Weiler (R-Woods Cross). This legislation will create a statewide indigent defense commission, which is empowered to…study the problem even more now, eventually devise non-binding standards for the counties, and someday provide small grants if counties apply.
Undoubtedly, some form of a statewide system, such as a commission or an office, will be an important part of any long-term solution to Utah’s public defense crisis. But legislation that creates an advisory commission, with crucial details to be worked out later? That response is simply not proportionate to the scale of the problem.
Though we are open to any and all serious, systemic solutions, we have previously laid out some ideas for what a functioning system could look like in Utah (downloadable at the bottom of this post). At the bare minimum, in the aftermath of the Sixth Amendment Center’s report, the state should have immediately established enforceable guidelines for counties setting out the requirements of a constitutionally-acceptable system – and provided significant funding and technical assistance (to the tune of tens of millions of dollars) to meet those guidelines. This session’s legislation did not meet either of those marks.
Using Michigan as an example, we know it will take a few years for a commission in Utah be established, gather information, formulate standards, and be in a place to start to take concrete steps to address the problem. And even if the commission were to be up and running tomorrow, Utah’s annual appropriation of just $500,000 for the commission comes nowhere near what is needed to provide the kind of monetary help the counties will need to implement real solutions.
Not only is Utah continuing to play "kick the can" on oversight and funding issues, the State did not even attempt to address one particularly large contributor to our constitutional crisis: “flat fee” contracting. With a “flat-fee contract,” a county or municipality promises to pay a contracted public defender a set amount of money, no matter HOW many cases local prosecutors file.
Several lawsuits have focused on just this practice, because it is antithetical to providing a robust legal defense. The Sixth Amendment Center found the practice to be so problematic in Utah that of the just two recommendations it made to fix that state’s indigent defense problem, doing away with flat fee contracts was one of them. Nonetheless, it is not clear whether any county or municipality in Utah that uses flat fee contracts for public defense has moved to immediately find alternatives.
Senator Weiler deserves credit for sponsoring the bill at all, and for his eloquent characterization of the problems with Utah’s indigent defense system. I recommend a listen to his presentation of SB155 in the Senate Judiciary Committee (available here).
Again, however, this bill’s measures fall far short of the systemic solutions actually needed to fix the problem. The ACLU of Utah offered support for SB155 – because something is better than nothing – but our support was as lukewarm as the state’s reaction to the dismal findings in the Sixth Amendment Center’s report.
It could be that, reading the political tea leaves, Senator Weiler concluded that the state lacks the willingness to invest the considerable amount of money needed to stem our crisis. We’ve come to a similar conclusion. In many of our discussions about Utah’s indigent defense issues, policymakers and administrators were unable or unwilling to see that it’s not just abstract constitutional principles that our system is failing, but actual people and families in Utah.
So maybe the political leaders who recognized the problem were nonetheless content to take what they could get. But we are unwilling to do so, because Utah deserves better. Our failing system is actually costing millions of dollars every year already. It is impacting the lives of vulnerable people who are not able to find justice in our courts when charged with crimes because the State routinely denies them counsel, either by actually not providing a lawyer or by maintaining a system so adverse to public defenders that they cannot do their jobs properly. .
For these reasons, when people ask us whether SB155 will avert a lawsuit against the state of Utah, we continue to reply: “Every option is still on the table.” This legislation does not commit the State of Utah to invest the amount of money, attention and energy needed to resolve this crisis. It’s very likely that judicial relief will be necessary for the Sixth Amendment to become a reality in Utah.