The difference in quality between state-provided legal services for those who can’t afford a lawyer and those offered by privately paid attorneys in Nevada is the subject of both a class-action lawsuit brought by the American Civil Liberties Union (ACLU) and a new state commission.
In November 2017, the ACLU filed a lawsuit in the First Judicial District Court in Carson City to address the disparity between state and county-provided public defense throughout Nevada. The issue is that counties often provide public defense by contracting out to private attorneys who are overburdened with 400-500 cases and hours of travel to rural courthouses.
“What I will say is some of the systems that I studied in your state [Nevada], I would really describe it ‘non-systems,’” said David Carroll, executive director of the Sixth Amendment Center, a Boston-based organization focused on making legal defense available to everyone.
The center derives its name from the Sixth Amendment of the Constitution, which guarantees the rights to a trial by jury, to be confronted with witnesses and to provide counsel for the defendant.
The Legislature passed a bill earlier this year, AB81, that created the new Board on Indigent Defense Services (BIDS) to uphold statewide standards of public legal defense. BIDS will have oversight of the State Public Defender’s Office, which is located in Carson City, and all other local and county public defenders.
The state public defender currently only has jurisdiction over Carson City and Storey County where Clark, Elko, Humboldt, Pershing and Washoe counties have their own public defenders. The other counties in the state work with contract attorneys out of their own pocket.
“As originally conceived in 1971, the State Public Defender was funded through a combination of state and county funding, with the state paying for 80 percent of all public defender costs in the rural counties and the counties paying the remaining 20 percent,” according to the Sixth Amendment Center’s website. “Over time, the state reduced its financial commitment to the point where today participating counties pay 80 percent of the entire cost of the system.”
The practice in rural counties of contracting outside attorneys has caught the attention of the ACLU and the Sixth Amendment Center, which says that the private caseload of contract attorneys isn’t taken into consideration when assigning them public defendants. Without any limit or standards for total caseloads, attorneys are not able to give the appropriate amount of time to individual cases and quality suffers compared with clients who have private lawyers that can devote more time to their case.
The lack of state funding can sometimes result in ineffective legal services in Nevada’s smallest counties. In Clark County, by contrast, there is an entirely separate public defender’s office with more than 200 staff that are able to help those in need of legal counsel.
When asked what state standards for cases per attorney should be in Nevada, Carroll said it’s important to collect data in making that decision.
“What I do think is necessary is that attorneys should be tracking time so that you can establish what is the appropriate caseload level for each jurisdiction,” he said in an interview.
One of the biggest contributing factors to a decline in adequate legal counsel is that the wealthier counties have more money to spend on attorneys than others. Many counties in Nevada don’t have sufficient funds to hire enough contract attorneys, which is why the state is being asked to oversee the issue and standardize the amount needed for legal counsel.
“The wealthier counties tend to do a better job at providing those services when really a lot of counties, what they need, is help from the state,” Holly Welborn, policy director for the ACLU of Nevada, said in an interview. “It’s a Sixth Amendment state obligation to fund indigent defense services.”
The newly established BIDS was supposed to have funding of $15 million to address any deficiencies between state and county public defenders. Before the bill was passed, the funding was removed and BIDS was only given enough to pay for its offices and the salary for its executive director.
The board, which is made up of 13 voting members and three non-voting members, will focus on creating a statewide standard for public defense and track data to bring to the next legislative session. Members include Chris Giunchigliani, who served on the Clark County Commission and in the legislature; Robert Crowell, the mayor of Carson City; and Executive Director Marcie Ryba, who was the chief deputy public defender in Carson City.
Thursday was the first meeting of BIDS where Ryba was present as the executive director and discussed with the board how limited the budget is and what she is doing to work within those limitations. There is no office space as of yet because the board only has $1,500 a month for that expense but the board is currently looking at splitting an office with other agencies.
With budget constraints continuing until at least the next legislative session, the board will have to find ways to establish statewide standards for legal defense that will address the issues brought up by the ACLU lawsuit.
“It’s really going to come down to, are the deficiencies discovered, are they creating appropriate caseload standards to meet the needs of rural communities, and is the state funding whatever deficiencies exist in those counties,” said Welborn. “So that’s what we’re looking for when we analyze this and we look at whatever regulations they’re passing through the Board of Indigent Defense Services.”
The ACLU’s lawsuit against the state is still ongoing, with the deadline for discovery in July 2020. The ACLU is continuing with the case to ensure that the changes brought about by the commission address the disparities seen between counties and have some form of standardization throughout the state.
Carroll said there is still a lot that BIDS can achieve without the state funding.
“As you’re working toward this next [legislative] session, you could take something like attorney qualification standards that will say these are the level of experience, the type of training that attorneys who want to represent the indigent accused must meet before handling certain types of cases,” said Carroll.
Updated on Jan. 7, 2020 to correct information in text and in graphic about which counties use contract attorneys for public defense.