Who is it that’s responsible, in the end, for ensuring that people who cannot afford an attorney to defend them in court, get one?
The state says it’s the counties.
The counties say it’s the state.
The responsibility for someone in the government – that is to say, and have no doubt about it, it is our responsibility – is clear. The United States constitution says as much, according to uncontroverted rulings of the United States Supreme Court. Because most criminal cases are based in state rather than federal law, most public defenders operate in systems governed by the states.
Complicating that a bit, courts and clerks are funded mostly on the local level, county by county, and you can make a good argument that public defenders are too, or should be.
Speaking in the latest case – generated by the American Civil Liberties Union – before 4th District Judge Sam Hoagland, Deputy Attorney General Michael Gilmore said that public defender standards and operations are a local matter, not state. And, he seemed to suggest, even if “the state” were considered responsible, there’s no specific office in state government that has the power and budget item to handle public defense.
That really ought to make sense – it really should. The fact that in practice, if not in theory, it doesn’t, owes a lot to the way Idaho operates.
Idaho’s policymakers, meaning its legislators and statewide officials, often talk about how governmental control should be devolved down to the lowest practical level; but that mostly seems to mean federal-state relations rather than state-local. “Home rule” is not strong in Idaho, as the record of legislative session after session has demonstrated. This next session may see the scaleback or even elimination of city urban renewal authority, for one example. But cities have relatively broad freedom to act compared, in most cases, with counties. Practically everything a county does is circumscribed, down to the inch, by state law and regulation. And to a great extent that includes the amount of revenue it can raise, and how it can be spent.
Little wonder the counties, more or less hogtied by the state, are feeling some frustration here.
Dan Chadwick, the longtime executive director of the Idaho Association of Counties, pointed out that at least one county (Canyon) already faced an individual lawsuit over public defense before the ACLU action. Chadwick: “Quite frankly it's a big frustration for us, and we're talking about a state responsibility. The only reason it's a county responsibility is that the state has chosen to delegate that to the counties ... no matter what we do and how hard we try to fix it, we end up in court anyway.”
An interim legislative committee has been looking into the situation – it has been recognized by legislators as a serious problem – but seems unlikely to come up with any concrete solutions before the next session convenes.
No comprehensive answers, in any event, could come from expecting each of the 44 counties to individually come up with answers on public defense. That could happen only on the state level, and only if the state figures out some way to pay for it, whether through an ostensibly local tax or through direct state funding.
Either way, the place to look for answers will be the state. And specifically, the third floor of the Statehouse starting next month.