Brief Indigent Defense Services in Rural Areas

Introduction

The Supreme Court held in Gideon v. Wainright that the Sixth Amendment right to appointed counsel applied to all state defendants charged with a felony whom the state considers indigent. With states left to enforce this directive, a variety of approaches to indigent defense services have arisen to provide oversight, administer services and ensure funding. Lack of resources and attorneys mean rural areas especially struggle to provide indigent defense services. This report reviews state legislative efforts to promote indigent defense services in rural areas.

State Oversight of Indigent Defense Services

Many states, but not all, have created oversight commissions or boards to oversee services and set standards for indigent defense services. Some states have permanent, statewide indigent defense commissions or boards that oversee all services and set and enforce standards, while other state oversight commissions only oversee certain case types or regions. According to the Department of Justice's most recent report on public defense system models, "two-thirds of states (34) do not have full statewide oversight of public defense, meaning they do not set standards or monitor whether people receive counsel in all cases where they have a right to it."

Of those states with oversight commissions, 17 have limited authority, meaning the commission may oversee only felony cases or that counties may opt out of the commission's oversight.

State Administration of Indigent Defense Services

The administration of public defense services involves a web of state and local governments agencies alongside private lawyers hired for contract work. The Bureau of Justice Statistics has previously identified five public defense models:

1. Governmental public defender office, which provides representation through publicly operated governmental offices where staff are government employees funded by the state or county governments.
2. Governmental conflict public defender office, which provides representation in cases where legal conflicts exist through a publicly operated governmental office and where staff are government employees.
3. Nongovernmental public defender office, which provides representation through written contracts between some governmental entity and a nonprofit entity. Staff are not government employees.
4. Contract system, which provides representation through contracts or other agreements between a governmental entity and one or more private attorneys or law firms that operate for-profit.
5. Assigned or appointed counsel system, which provide representation through individual attorneys or law firms. These attorneys are assigned state or appointed on a case-by-case basis.

Often, state delivery of indigent defense services uses a mix of administrative approaches. The most recent study of state public defense systems by the National Institute of Justice found that while "data are scant . . . an estimated 20 states that primarily (in most trial-level cases) use public defenders, five states that primarily use private attorneys, and 25 states that use more mixed methods."

State Funding of Indigent Defense Services

State methods for funding defense services occurs in a variety of fashions: 15 states fund defense services entirely at the state level, five states fund services entirely from the local level, and 30 states use a mix of funding from both state and federal sources. State-funded services are those where funding for indigent defense services comes entirely from the state level rather than local sources such as those obtained through court fines and fees.

In mixed or locally funded systems the responsibility for public defense may depend on the case or court type. In Alaska, the state funds a public defender program that covers representation in state court cases, but municipalities must pay for appointed counsel in cases they prosecute in which there is a right to counsel. In Kentucky, the public defender office in the largest country is funded by a combination of state and county funds. In Oklahoma, all but the two largest counties in the state have state-funded public defense systems. Mixed funding could alternatively look like the local government paying the upfront costs for all cases with state reimbursement of counties according to a formula.

Legal Deserts

Despite Gideon's holding, those in need of indigent defense services may not always be able to secure them. The dearth of nearby services leads to the existence of legal deserts—large areas where people must travel far to find a lawyer for routine matters like drawing up a will, handling a divorce or disputing a traffic violation. One 2020 study by the American Bar Association found that 40% of all counties and county-equivalents in the United States—1,272 of 3,141—have less than one lawyer per 1,000 residents.

Several factors likely contribute to the existence of legal deserts. First, wages in rural areas tend to be much lower than in urban areas for many professions, including attorneys. Another study found that rural counties average $20,000 lower wages than those in urban areas. Second, large caseloads undertaken by fewer attorneys in rural areas compared to their urban counterparts also deters attorneys from relocating to those areas. Third, both attorneys and clients in rural areas frequently travel over long distances for court appearances and attorney-client meetings. A 2018 study of one rural county in central New York showed an average travel of 195 miles per case. Additional factors contributing to legal deserts are lack of replacements for attorneys who leave the area or retire as well as a lack of specialized representation available for criminal defendants.

In addition to these factors, The Michigan Indigent Defense Counsel reported several possible reasons for legal deserts in rural Michigan including a shortage of affordable housing, limited access to medical facilities and limited high-speed broadband infrastructure.

State Examples

States legislators have worked on several policy approaches promoting indigent defense services in rural areas. Below are examples from five states.

South Dakota

In 2013, South Dakota passed HB 1096, creating an incentive payment for attorneys to provide defense services in rural areas through a tuition repayment program. The incentive payment was made payable in five equal annual installments, with each payment equal to 90% of one year's resident tuition and fees at the University of South Dakota School of Law. These incentives amounted to $12,513.60 per year and a total benefit of $62,568 for each attorney. To fund these payments, the South Dakota legislature made a one-time appropriation of $475,000. Eligible counties were defined as a county with population of 10,000 or less, a municipal population of 3,500 or less and who agree to provide a portion of the incentive payment.

South Dakota expanded and made the program permanent in 2015 to fund 32 attorneys (up from 16) with another one-time appropriation of $500,000, along with another appropriation of $150,000 in 2019. The program's most recent report provides current financial and regional data.

Maine

Maine established the Rural Defender Unit at the end of 2022, comprised of five attorneys with just under $1 million in funding. In 2023, Maine staffed its first fixed regional public defender office, the Capital Region Public Defender Office, in Kennebee County. As of 2023, Maine has appropriated $1.6 million to fund several defender positions including at least eight attorney positions, two paralegal positions and one legal secretary position.

According to the Maine Advisory Committee to the U.S. Commission on Civil Rights, "an estimated $51 million is needed to open public defender offices in all 16 counties in Maine." The Maine Commission on Indigent Legal Services put forth a proposal at an October 2023 meeting that seeks $2.5 million to begin opening public defender offices in several counties. If opened, the proposed offices are designed to handle approximately 30% of the adult and criminal caseload in the counties chosen.

Ohio

In Ohio, public defense services were traditionally funded by a 50-50 split between state and local funds. This changed in 2023, however, with Ohio's passage of House Bill 33 and House Bill 150. House Bill 33 shifted funding sources from a split between state and local to funding entirely from the state level. To do so, Ohio appropriated $366 million to reimburse counties for indigent defense costs for fiscal year 2024 and 2025.

Reimbursement represents a crucial function of the shift to state-only funding. Ohio has set an initial reimbursement rate of 85% for FY24, meaning that the hourly rate of reimbursement may not exceed $75/hour. Counties may still set compensation rates of their choosing but will nonetheless be subject to the state limit on reimbursement. As of March 2023, submissions for indigent defense reimbursement totaled $18.1 million.

Further, Ohio passed House Bill 150 to create the Rural Practice Incentive Program and establish a legislative task force to study and report on indigent defense. The purpose of the incentive program is to provide loan repayment on behalf of attorneys who agree to work as attorneys in areas designated as underserved communities. If funds are available, Ohio will reimburse participating individuals up to $50,000 from a one-time transfer of $1.5 million in the General Revenue Fund to the Program.

Texas

Texas' current approach to indigent defense services in rural areas involves a Managed Assigned Counsel model with a variety of program types utilized: programs operated by governmental entities, programs operated by a nonprofit or corporation, programs operated by local bar associations or a mix of the three. Lubbock County, for example, contracts with the Lubbock Private Defender Office to operate most components of its indigent defense system. Responsibilities of that office include attorney appointments, approval of attorney vouchers, and payment of attorney fees.

Conversely, in Travis County, the Capital Area Private Defender Service allocates responsibility differently. The Capital Area Private Defender Service does not make attorney appointments, but instead establishes who is on the appointment list. Further, Travis County still provides funding for payment of services, but it is the Capital Area Private Defender Service that approves attorney vouchers.

Michigan

Michigan's Indigent Defense Commission (MIDC) provides oversight of public defense service delivery in the state: "Each trial court system still selects and administers its own delivery method but must submit a compliance plan, list of appointed attorneys, financial status report, and quarterly program reports."

The MIDC has made several proposed solutions to attract attorneys to rural parts of Michigan. One suggestion was establishing a contract with a designated special assignment administrator whose duties would include "assigning cases; overseeing the work and needs of attorneys; approving expert and investigator funds; and review and approval of attorneys' invoices."

Critically, the report found from focus groups that there is interest in taking cases in rural communities if the hourly rate matches the federal Criminal Justice Act (CJA) panel rate. Attorneys also stated an expectation that hours for travel should also be compensated at the CJA hourly rate.

The report suggested that the commission consider creating a regional network of public defenders with the goal of it would act as "…a backstop to cover cases with conflict and overflows from some of the rural counties." The network could be structured with contracts with a non-profit corporation or by establishing it under the MIDC.

MIDC also proposed the option of creating a statewide public defender system, which would have a more centralized structure than regional networks and "would have a much broader view of [the hierarchy, transparency, and accountability] of indigent criminal defense across all of Michigan."

Several actions to attract younger defense team members to rural Michigan were proposed, including: promoting improved tuition repayment programs; working to establish a prepaid tuition program for candidates who are willing to make commitments to work for a period of time in a rural defense system; and initiating high school and college participatory programs to cultivate interest in the legal profession in general and public service practice in particular.