Utah works to improve public defense



Utah’s 4th District Courthouse resides in downtown Provo. The right to an attorney is a fundamental aspect of jurisprudence and is causing problems on a national scale in regard to the right to a fair trial. (Universe Archives)

Who would have suspected that Clarence Earl Gideon, a man with only an eighth-grade education and a checkered past with the law, would be responsible for guaranteeing one of the best-known constitutional rights — the right to an attorney.

The landmark Gideon v. Wainwright Supreme Court ruling ensures that every defendant has the right to legal counsel. And, if they can’t afford it, a lawyer, one will be provided for them. Unfortunately, this fundamental jurisdiction is causing problems on a national scale for the very thing it was created to protect: the right to a fair trial.

In 2013, the Brennan Center for Justice reported that anywhere from 60 to 90 percent of criminal defendants need publicly funded attorneys, depending on the jurisdiction. The result? Public defenders are overworked and underpaid, and the validity of many trials across the country is being called into question.

Utah, in particular, has been infamous for its poorly funded defense services. Under Supreme Court case law, providing an attorney for those who can’t afford one is a state obligation; however, the Beehive State is one of only two states in the country that delegates funding and administering of such services to local governments.

An 18-month study conducted by The Sixth Amendment Center observed public defense services in 10 Utah counties. These counties encompassed 90 percent of the state’s population and represented all eight felony-level trial court districts.

The research concluded that upward of 62 percent of misdemeanor defendants in Utah are processed through the court system without a lawyer, and at least 35 percent of public defense attorneys are overloaded with cases.

Utah Senate
Sen. Todd Weiler, chief sponsor of the Indigent Defense Commission Amendments. (Utah Senate)

Doug Thompson, an attorney with the Utah County Public Defender’s Office, believes caseloads are the most pressing problem right now.

“A law was passed several years ago to reduce them, but we’ve actually seen the opposite,” Thompson said. “One of the main problems is that orders to show cause have risen, so we’re having to review more probation violation allegations.”

In 2016, the Utah Indigent Defense Act was passed and the Indigent Defense Commission was created to ensure that Utah fulfills its constitutional obligations. State Sen. Todd Weiler, R-Woods Cross, sponsored the legislation and currently serves as a commission member.

An indigent defendant, in many instances, will meet an assigned public defender at their first hearing,” Weiler said. “Three years ago, when the commission was created, public defenders would often spend less than 15 minutes with their client and then just tell them to plead guilty.”

Weiler believes Utah now has the infrastructure in place to migrate away from the status quo, but the process will take time.

This issue was neglected and not prioritized for 40 years,” Weiler said. “It’s almost like we woke up in 2016 and realized we have a problem, but now it’s kind of an institutionalized problem that will take years to change.”

The Utah Judicial Council identified several structural issues with Utah’s indigent defense system in its 2015 report.

Delegating the funding and administration of indigent defense services to counties and municipal governments, like Utah does, is constitutional if the state guarantees adequate services are being provided. Unfortunately, Utah lacks a centralized method to monitor local indigent defense systems. The first problem the Utah Judicial Council identified was the resulting lack of information regarding how local systems function, whether they meet constitutional standards and whether they have enough resources to provide services.

According to the Sixth Amendment Center, this absence of state oversight has become problematic in managing public defense workload, especially since there is no way for local governments to know if an attorney is doing additional work elsewhere.

The Sixth Amendment Center reported in 2013 how a contract defender in Cache County District Court also provided public defense services in the Hyrum Justice Court and the North Logan/Hyde Park Justice Court. While the lawyer’s combined felony caseload (134) and misdemeanor caseload (84) did not appear too overwhelming initially, he also handled an additional 270 delinquency cases and appeared at 432 dependency cases.

The Indigent Defense Commission suggests contract conventions also negatively affect defense services by pitting an attorney’s financial interests against the best interests of the client. According to the Sixth Amendment Center, defense providers outside of Utah and Salt Lake counties are paid a fixed fee to provide services in an undefined number of cases. This incentivizes them to dispose of cases quickly rather than effectively.

To illustrate this conflict of interest, the Sixth Amendment Center provided the example of one rural justice court. The misdemeanor attorney there was paid $600 per month to handle the representation of every indigent defendant. 

He handled 246 justice court cases and was compensated approximately $30 per case, regardless whether the case went to trial or was immediately disposed of. Since there was no independent supervision, this attorney also handled representation in the county district court and the county juvenile court, which worked out to a caseload of 524 in total.

The Sixth Amendment Center calculated that if this attorney worked 40 hours every single week of the year, he would be paid only $17.88 per hour. This is insufficient considering what is required of a practicing attorney.

According to the Utah Indigent Defense Commission’s 2017 report, progress is being made to improve the system. The development of a grant application process allows local governments to receive more funding for indigent defense while also helping the Indigent Defense Commission collect data to determine how to best allocate resources.

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Utah County, which the Indigent Defense Commission sees as critical to centralizing the system, has not had a budget increase to keep up with the ever-growing number of cases.

“It’s a difficult field, and our county is growing really quickly,” Thompson said. “We’re going to have to respond with resources that account for that growth.”

With the county’s cooperation, the Utah County Public Defender’s Office will receive up to $1,398,144 for additional attorneys and increased defense resources over a two year period. 

“The Indigent Defense Commission has really benefited our office,” Thompson said. “We appreciate the support we get, and I think we have it much better than some other places in Utah.” 

Salt Lake County was awarded a grant of $368,530 to hire two more attorneys for the increased workload after the Operation Rio Grande arrests. The Salt Lake Legal Defender Association was struggling to provide constitutional defense services until these new full-time attorneys helped alleviate the caseload.

Juab County also has achieved dramatic improvements to its local indigent defense services as a result of the grant. Using $95,923.82 of grant money, in addition to their local budget of $115,200, Juab County gained six new attorneys.

With more manageable caseloads, these attorneys can now appear early in their cases, fully investigate evidence and ensure that criminal court calendars run more efficiently. It has also allowed conflicts of interest to be properly identified and for specialized attorneys to appear on criminal and juvenile appointed cases.

Weiler believes the Sixth Amendment is just as important as the other amendments in the Bill of Rights, and it shouldn’t be overlooked.

“I hear many people talking about the First Amendment — freedom of speech — or the Second Amendment — the right to bear arms,” he said. “I’m glad the state is finally focusing on the Sixth Amendment because our entire judicial system will be improved as we improve our commitment to making sure everyone has adequate and appropriate representation.”

Timeline created by Lauren Malner

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