By Ruth Brown, Idaho Reports
The public defense system overhaul bill moved forward Tuesday in a 13-5 vote, despite more than two hours of concerns around funding and the executive branch’s power.
Rep. Jon Weber, R-Rexburg, sponsored House Bill 236, and said it was a collaboration of work with the defense system. It moved out of the House Judiciary, Rules and Administration Committee and now heads to the floor for a vote.
Currently in Idaho, public defense is funded almost entirely by counties and supplemented by the state Public Defense Commission. The bill would eliminate the commission and create a new office, the Office of the State Public Defender. The move comes after House Bill 735, passed in 2022, created a new funding stream for public defense.
The 6th Amendment to the U.S. Constitution mandates that all accused people have the right to a defense in court at the public’s expense if they cannot afford an attorney.
Idaho’s issues around public defense have been on ongoing battle for years, especially after a 2015 class-action lawsuit, Tucker v State of Idaho, accused the state of having an inadequate system.
In 2021, the Idaho Supreme Court held that the state remains liable for its inadequate provision of public defense, even though the state has delegated the requirement to provide public defense to counties since 1967.
The lawsuit in Tucker v Idaho is set to go to trial next year.
Some public defenders testified in opposition to the bill, expressing concerns about funding, but others, such as Canyon County Chief Public Defender Aaron Bazzoli, testified in support of the bill.
Bazzoli said he recognized there were still details that needed to be worked out over the next year.
“Some of this is going to have to be done as you keep moving forward,” he said. “There’s lots of issues that many of us have addressed and talked about.”
Canyon County has an in-house public defense office, meaning all of its attorneys are county employees.
“This is not a one-and-done, easy fix kind of thing,” Bazzoli told the committee. “This is a massive undertaking, and probably bringing in close to 500 employees that are now county employees to become state employees.”
Most counties, particularly the rural ones, have contracts with local law firms to provide public defense. Should the bill pass, those contracts would now be with the state, rather than the county.
One of those contract attorneys, Elisa Massoth, is a public defender in Payette County who primarily represents poor people when the state is seeking the death penalty.
“Independence is the cornerstone of public confidence in the justice system,” Massoth said. “Without political independence, the entire justice system is undermined. It looks rigged.”
She noted that the governor already chooses the director of prisons, the members of the parole commission, the director of Idaho State Police and, if the bill passes, he would choose the director of public defense.
“That gives him control of handcuffs, prison cells, keys to the prisons, decisions on execution, and control of public defenders, who are the only adversaries in those that I just mentioned,” Massoth said. “To that degree, in the eyes of the public, that is a rigged system.”
Anne Taylor, chief public defender in Kootenai County, also expressed concern about political influence on public defenders’ work.
“I do think it’s equally, if not more, problematic that the governor is the one who has sole power [under the bill] to remove that state public defender,” Taylor said.
Should the bill pass, the governor would appoint the new state public defender to serve a four-year term. In each of the state’s seven judicial districts, the state would employ a district public defender.
The district public defenders would also be chosen by the governor, from a list of names provided by the Magistrate Commission, which is made up of local community members.
The Office of the State Public Defender, according to the bill, would ensure qualified defending attorneys, investigators and other staff, as well as appropriate facilities for providing indigent public defense.
The transition
The transition from county to state public defense is outlined in the bill in detail.
After Oct. 1, 2024, all counties would be released of financial or legal obligations to provide indigent public defense. The state public defender would reimburse counties for any expenses incurred in providing office space and related expenses for public defenders.
The bill has a fiscal note of $48 million in Fiscal Year 2024 to be dedicated to the Office of the State Public Defender.
The new state public defender and district public defenders shall, to the greatest extent possible, provide the option to current defending attorneys employed by a county office to continue their employment with the office of the state public defender, working in the same county that previously employed them.
Counties would continue to provide facilities for those in-house attorneys for the next five years.
Seth Grigg, executive director of Idaho Association of Counties, spoke in support of the bill and addressed some of the concerns around funding from testifiers.
“The first year of implementation, the first nine months, is $48 million,” Grigg said. “That is, if you annualize that over 12 months, that’s much more than what counties are putting into the system itself.”
Rep. Heather Scott, R-Blanchard, and Rep. Joe Alfieri, R-Coeur d’Alene, both expressed concern about giving the governor too much power with the bill.
Rep. David Cannon, R-Blackfoot, supported the bill. His law firm has a contract with Bingham County to offer public defense.
“In my opinion, we’ve done a pretty good job to build in the protections,” Cannon said in response to concerns about the governor having too much power through the bill.
Ruth Brown | Producer
Ruth Brown grew up in South Dakota and her first job out of college was covering the South Dakota Legislature. She’s since moved on to Idaho lawmakers. Brown spent 10 years working in print journalism, including newspapers such as the Idaho Statesman and Idaho Press, where she’s covered everything from the correctional system to health care issues. She joined Idaho Reports in 2021 and looks forward to telling stories about how state policy can impact the lives of regular Idahoans.
