How Utah’s public defense system is failing the poor

The state is one of just two that provide no funding for the right to legal counsel, leaving local governments on the hook.

 

On Jan. 1, 2015, Sue M. was walking a friend’s dog in Parowan, Utah, a small desert town near Zion National Park, when two unleashed Rottweilers attacked the dog. Sue (who asked that her full name not be used to protect her identity) filed a police report, but no investigation followed. Instead, a police officer came to her house, handcuffed her and took her to the Iron County Jail, where she spent three traumatic nights, locked inside a chaotic windowless room with 14 other women. Her crime? Her name was in the police database for an unpaid fine.

Earlier that year, Sue had shoplifted aspirin from a supermarket, was charged with retail theft and fined $680. At 51, Sue struggles with depression and chronic pain, and blames the episode on the fact that her doctor had just changed her medication, increasing her emotional instability. Four months later, unemployed and recovering from breast cancer, she still hadn’t paid the fine.

Sue was assigned a court-appointed public defender, but had to call him twice to get a response. He said that the only time he could meet with her was on the day of her court appearance. During their five-minute-long meeting, Sue asked whether there was any way to reduce the fine, which she could not afford to pay. But the lawyer was unwilling to pursue the matter. “They just want your money,” he told her.

Sue is not alone in feeling shortchanged by her public defender. Utah and Pennsylvania are the only two states in the country that provide no funding for the right to legal counsel — guaranteed to all Americans by the Sixth Amendment, regardless of their ability to pay. That leaves local governments on the hook for public defense, but in Utah’s budget-strapped rural counties the system is failing:  public defenders are overworked and underpaid, many defendants never meet a lawyer until minutes before their trial, and each year hundreds of people are convicted without satisfactory legal representation.

 

Tom Means, Utah’s lead public defender, speaks with a client at a pretrial hearing.
Mark Johnston/Daily Herald

The right to a public defender stems from the 1963 Gideon v. Wainwright decision, in which the Supreme Court held that states are constitutionally required to provide legal counsel to defendants who cannot afford to hire their own. The roots of that decision, however, are actually much older. Nearly 100 years before, a man named Shepherd L. Wixom was charged with stagecoach robbery in Lander County, Nevada. Wixom, who was poor, fought for the right to have his own lawyer. In 1875, Nevada became the first state to authorize the appointment of, and payment for, defense attorneys in all criminal matters.

Montana, Idaho and California soon followed, and for much of the past 150 years, access to legal representation for all was the norm. But in the 1980s, the number of criminal cases exploded, thanks to the War on Drugs and new “tough on crime” policies.  As the volume of cases increased nationwide, many counties could no longer afford to pay the full costs of public defense. And so they looked for shortcuts.

In Utah, the problem was amplified by a lack of government oversight and funding for the state’s increasingly over-burdened public defense system. Most counties in Utah offer contracts to public defenders for an annual flat fee, regardless of the number of cases. Often that leaves a defender tasked with well over the American Bar Association’s maximum suggested caseload — 150 felonies or 300 misdemeanors a year. Sometimes, the low flat-fee rate, which in some counties is less than $30,000, means that public defenders have to sign contracts with multiple counties or work in private practice on the side, leaving them without the time or economic incentive to fully represent their poor clients.

“My job is to give someone a voice in the system,” says Michael Studebaker, a juvenile public defender in Box Elder County, Utah. “But the problem is that too many defenders won’t do that because they don’t have enough time.”

The flaws in Utah’s patchwork system were documented in a report released last year by the independent Sixth Amendment Center, hired by the state judicial council to assess Utah’s situation. The report found that 65 percent of poor criminal defendants were never even provided legal counsel. The majority of cases end in plea-bargaining, a strategy Studebaker calls “meet and plea” — anxious clients have little more than a brief conversation in the courtroom with a harried public defender before they end up pleading guilty.

The report also documented how outsourcing public defense to counties increased the likelihood of conflicts of interest. The county often defers to the prosecutor regarding which public defenders to hire, an arrangement comparable to letting one team pick its opponent, says Anna Brower of the American Civil Liberties Association (ACLU). The public defender may hesitate to ask for a special investigator or expert witnesses, because doing so not only reveals the defense’s strategy, it also costs the county extra money. According to the multiple current or former public defenders interviewed for this story, many lawyers have lost their contracts after billing the county for too many such “extras,” like choosing to go to trial instead of arranging a plea deal. The result is a justice culture that rewards deference over a robust defense, says Brower.

Ending up with a criminal record due to inadequate legal representation has consequences that go beyond the courtroom. A poor person with a record can be barred from certain educational grants, professional licenses and public housing. Inadequate public defense also contributes to Utah’s growing number of people behind bars for minor offenses or for simply violating the terms of their probation or parole, by missing an appointment or failing to pay a fine.

Ironically, short-changing public defense ends up costing the state more at the other end, says David Carroll, the executive director of the Sixth Amendment Center. “When you don’t have proper representation, people sit in jail longer pre-trail and get longer sentences,” he says. In the U.S., prison systems now account for $1 out of every $15 of state general fund discretionary dollars.

 

Utah’s public defense may be among the country’s worst, but the state is by no means the only one where the system is failing the poor. Studebaker says it’s a “monstrous problem” throughout the rural West, where counties with low tax bases suffer the most from a lack of state funding. In January, Studebaker sued Washington County, Utah, alleging unconstitutional public defense on behalf of several defendants facing serious criminal charges.

The lawsuit recalls Sue’s experience in neighboring Iron County. Under Washington County’s current system, the suit notes, public defenders regularly fail to meet and confer with their clients in a meaningful manner before trial. Often, the lawyer’s contact with a defendant is limited to a few minutes in the courthouse immediately prior to a court appearance. Overall, the complaint states, Utah’s public defense system is designed “to minimize potential financial liability rather than to ensure adequate defense representation.” 

Studebaker hopes his suit will help spur the changes necessary to fix the system, such as establishing a statewide public defender office that employs full-time lawyers.

Already, a number of Western states have taken steps toward reform. In recent years, Nevada, Idaho, Montana and Washington have abolished flat-fee contracting, and both Montana and Colorado formed statewide commissions to enforce higher standards for rural public -defenders.

In March, Utah’s Legislature passed a bill aimed at reforming the state’s system. The proposal, which will likely go into effect this May, would create a statewide public defense commission to establish standards and provide training and money to the counties. Those standards would presumably address the flat-rate contracts and other shortcomings. But Brower says the funding falls far short of the estimated $30 million-$40 million that’s needed: There’s only $1.5 million to start with, and then $500,000 annually thereafter.

Meanwhile, Sue’s fine has now risen to over $900, thanks to late fees and the additional fee the county imposed for sending it to a collections agency. Before she was released from jail, a judge ordered her to start paying the fine in $25 monthly installments, which Sue still cannot afford to pay. She is $50,000 in debt from her master’s degree and gets by with the help of food stamps.

The Utah State Correctional Facility in Draper, Utah.
Rick Bowmer/Associated Press

Last year, Sue applied to live in a housing shelter, but was denied when a previous conviction for forging a prescription for painkillers appeared on a background check. She is trying to support herself through a variety of odd jobs: Writing about hiking trails around Parowan for a local tourism website, teaching karate, walking dogs, handing out samples at Costco. But a full-time position with a salary that would allow her to pay off her debts still eludes her — likely because of her two criminal convictions. Sometimes she thinks about that vial of aspirin. The price, she remembers ruefully, was just $1.45.

For the ACLU’s Brower, Sue’s experience highlights the substandard treatment of Utah’s poor at the hands of its criminal justice system. “You put public defenders in a situation where they can’t be a vigorous defender of their client’s rights,” she says, noting that an adequate defense would almost certainly have argued down the fee, had it written off altogether, or pushed for community service instead, given Sue’s financial circumstances and mental health problems.

Sue says that she is resigned to poverty. A few weeks ago, she applied for disability benefits, hoping that, if she’s successful, it will enable her to finally pay off the fine. Eventually, Sue would like to become a writer, or perhaps an addiction therapist. “I’ve heard they’re less strict on background checks,” she says.

Correspondent Sarah Tory writes from Paonia, Colorado.