By A. William Maupin and Franny Forsman
The state of Nevada has an opportunity right now to make real progress on a longstanding failure: its constitutional obligation to provide meaningful representation to indigent defendants who face criminal charges. AB 81, which won Assembly Judiciary Committee approval earlier this month, will create funding and oversight of the system for providing appointed lawyers to indigent defendants in rural Nevada. The bill is the product of more than 12 years of work by the Nevada Supreme Court Indigent Defense Commission and the Right to Counsel Commission, created by the 2017 legislature.
In a recent column disparaging AB 81’s breakthroughs, Indy writer Orrin Johnson complained that the real problems in the rural counties are a lack of funding, interference by county officials and limited attorney interest in doing the work. Although he claimed that AB 81 addresses none of those concerns, AB 81 addresses them all. After numerous failed attempts to bring adequate funding, implementation of standards and independence of the defense function to the whole state, AB 81, for the first time, recognizes the state’s constitutional responsibility. The United States Supreme Court, the Sixth Amendment Center, the Right to Counsel Commission and the bill itself recognize that the state cannot shrug off its burden to small counties that cannot afford to provide the level of service that our nation’s Constitution requires.
In 2007, alarm over the condition of indigent defense in Nevada inspired the co-author of this column and then chief justice to create the Indigent Defense Commission through the Nevada Supreme Court’s Administrative Docket. Another justice, Michael Cherry, has served as the IDC’s Chair. The IDC has prompted reforms primarily in Clark and Washoe counties, where funds were available. But most rural counties continue to award contracts that make no provision for the number of cases assigned or the nature of the assignments. The contracts are awarded by county commissions and county managers, advised by district attorneys (the opponents of the lawyers selected) who have no expertise in indigent defense. In counties that award contracts through a bidding process, the lowest bidder is often the likeliest to prevail. Because these attorneys operate without state standards, supervision, or accountability, there is no state system to ensure meaningful representation. As Johnson himself acknowledged, “We get what we pay for.”
At a Judiciary Committee hearing in March, Assemblywoman Teresa Benitez-Thompson, who served on the Right to Counsel Commission, offered a substantial amendment to AB 81’s original version. Her amendment refined the process for ensuring that all counties meet certain standards for the provision of appointed counsel and included $15 million in funding to assist the counties in meeting those standards. The bill’s remaining provisions address training for attorneys interested in doing appointed work, study of caseloads and payment practices and oversight of the appointment process itself.
The United States Supreme Court has made clear since its Gideon decision in 1963 that it has been the obligation of the state—not local governments—to provide effective assistance of counsel to indigent defendants. After the Gideon decision, Nevada created a state public defender and subsidized the counties, but in the mid-1970s, the state steadily reduced its support of the counties, until the counties now shoulder 90 percent of the load. And as it retreated financially, the state did nothing to set standards or increase oversight. AB 81, while not fixing every problem, is a strong start to address the state’s failure to fulfill its constitutional obligations.
A. William Maupin was a state Supreme Court justice from 1997 to 2009. Franny Forsman was the federal public defender for Nevada from 1989 to 2011.