By Ruth Brown, Idaho Reports 

When Neil Price returned to the Ada County Public Defender’s Office in 2016, he planned to work there until retirement. Price, who is certified to defend clients who face the death penalty, told Idaho Reports he saw the work as a calling.  

But after learning that transferring to the new state-led public defense office would mean a 10% pay cut, he put in his notice with Ada County and accepted a new position at the Federal Defenders Services in Idaho.  

Price isn’t alone. Several attorneys in the Kootenai County public defender’s office have publicly voiced their frustration with the change and have announced they won’t join the new office, according to the Coeur d’Alene Press. While the newly appointed State Public Defender said he has no concerns about the office’s ability to serve defendants when the state of Idaho will take over the cost of public defense on Oct. 1, some public defenders are worried that the state won’t have enough attorneys to provide constitutionally adequate services.  

FROM COUNTIES TO STATE 

The change comes after sweeping legislation transferred the financial responsibility of public defense from the counties to a newly formed state office. The shift comes after years-long litigation over inadequate public defense in the state. The Sixth Amendment of the U.S. Constitution entitles all criminal defendants to an attorney if they cannot afford one. 

Before the transition, 12 counties had in-house public defense offices. The rest contracted out services. After Oct. 1, the State Public Defender’s Office will provide those legal services throughout Idaho, or pay the contracted attorneys. 

The SPD’s Office says it sent about 300 job offers to public defenders currently working in the 12 county public defense offices. SPD told Idaho Reports it can’t disclose how many declined the state’s offer, but on Oct. 1, it can reveal how many people the office employs.  

Eric Fredericksen, the new State Public Defender, told Idaho Reports he isn’t worried about his office’s ability to provide adequate public defense. 

“I have zero concern across the state,” Fredericksen said in a Wednesday interview. “We’re going district by district, making sure everybody’s covered.” 

BUDGET QUESTIONS 

The 2024 Legislature set the SPD budget for fiscal year 2025 at $49 million, which must cover salaries at the 12 institutional public defense offices, plus additional contract attorneys across the state.  

The SPD office said in early August that based on its job offers, about 77% of SPD employees would receive a salary increase, while 7% of salaries would remain the same, and 15% of employees would see a decrease from their current county pay rate. The size of those increases and decreases isn’t yet clear.  

The office based most of the salary adjustments on length of service. 

“Our staff worked closely with the Idaho Department of Human Resources to set a state-wide salary structure,” said SPD spokesperson Patrick Orr. 

But for some, particularly those in Ada County, the pay cut was too much.  

“It’s not about the money, but what the money represents,” Price told Idaho Reports. “They sought to equalize the pay throughout the state no matter the (attorney’s) training and experience. It went on years of services and raised the floor for entry level.” 

Fredericksen said length of service was the only way to objectively equalize salaries across the state. Different counties varied significantly in how much they paid public defenders. 

“That was probably my most difficult day as a public defender, as an attorney, is just having those conversations,” he said about informing the attorneys who received pay cuts. “Those are not fun to have. Public defenders should be paid more, but their salaries are based on what we currently have for our budget.” 

Attorney Terry Ratliff testified twice at the Legislature before they passed the public defense bill, proposing a budget twice that of what lawmakers ultimately appropriated. 

“We asked for $80 or $81 million in funding,” Ratliff said. “It’s totally underfunded, and they’ll be working out of the back of your car at $100 bucks an hour.” 

LAWSUITS OVER CONSTITUTIONAL OBLIGATIONS  

The change in the public defense system came after an ACLU lawsuit, Tucker v Idaho, which found significant deficiencies in Idaho’s public defense system, with overburdened public defenders handling too many cases, and indigent defendants who had little to no access to their attorneys. 

But Price worries this fix won’t be constitutionally adequate, either, if the state can’t convince enough attorneys to come on board. Price said he fears Idaho could end up like Oregon, which has had ongoing public defense shortages. In 2023, a federal judge ruled that if Oregon cannot provide a defendant with an attorney within 7 days of their first appearance, the sheriff must release the person from custody.  

“(Legislators) aren’t interested in indigent defense,” Price said. “They aren’t interested in issues that affect poor people. It’s woefully underfunded and it’s going to continue be so.” 

Price feels legislators aren’t worried about the ACLU suing them again if this system falls short. “If anything, they’d campaign on it,” he said.  

ANOTHER PUZZLE PIECE: CONTRACT ATTORNEYS  

In addition to the 300 job offers, the Public Defense Office says it has signed contracts with more than 100 attorneys in counties without established state public defense offices.  

The state also uses contracted attorneys when a public defense office has a conflict, or has multiple co-defendants. SPD Director of the alternate counsel division Shannon Romero told Idaho Reports that some counties also rely on contracted attorneys simply because in-house counsel had high caseloads. The new office hopes to eliminate that problem. 

As of Oct. 1, contracted attorneys will receive $100 per hour. Lead counsel in capital cases will receive $150 an hour, while co-counsel will get $125 an hour. 

That is an increase in fees for the majority of contracted public defenders in the state, according to the Public Defender’s Office. 

But some would still see a decrease. Ratliff, a longtime contracted public defender in Elmore County, chose not to sign on with the state. Elmore County currently pays him $200 an hour, and other attorneys $125-155 an hour.  

Ratliff is certified to defend clients who face the death penalty, and received $300 an hour for one such case in Jerome County.  He said the uniform state set-up will eliminate the ability to bill for services like the use of a paralegal.  

Between Ratliff and the other attorneys at his firm, 95% of their practice was indigent defense. Two of the employees will still do part-time indigent defense, he said. He personally plans to withdraw from roughly 110 pending cases, most of which are felonies cases.  

When asked, Fredericksen said his office was prepared to handle such large numbers of newly unrepresented cases. Judges do have the authority to order an attorney to stay on a case until its conclusion, in which case the state would pay the attorney the designated $100 an hour.  

“Each criminal case has unique circumstances,” said Nate Poppino, spokesperson for the Idaho Supreme Court. “If a judge is asked to allow a defendant’s attorney to change, that judge considers the request in light of those unique circumstances, weighing any prejudice to the defendant in the process. It’s a highly individualized situation.” 

In cases where an attorney is allowed to withdraw, the SPD’s biggest concern is the prompt transfer of files to new attorneys. Fredericksen said contracted attorneys could take over cases such as Ratliff’s, even if they’re based in Ada County. 

The Idaho State Bar will put out an opinion for attorneys on the ethical boundaries of withdrawing from cases for financial reasons, at the authorization of the Bar’s Board of Commissioners, said Bar counsel Joe Pirtle. The Bar will distribute that opinion to its members, including judges, and Pirtle hoped it would be released this week. 

A SNEAK PEEK AT POTENTIAL PROBLEMS  

Though Fredericksen is confident in his office’s ability to represent clients, the budget request for next fiscal year shows they have concerns moving forward. 

Like all state agencies, Fredericksen’s office has submitted its budget request for fiscal year 2026 to the Division of Financial Management. Highlights include a request for more than 17 additional full-time employees and funding for establishing in-house public defense offices in Elmore, Jerome, Benewah and Shoshone counties. These would be in addition to the 12 institutional public defense offices.  

The budget request also anticipates a substantial operating budget deficit in FY 2026, of $16.38 million, if the office doesn’t receive a supplemental. The expected deficit is due in part to higher contract and capital crime costs.  
 
“The budget shortfall presents a critical challenge to maintaining the quality and effectiveness of indigent defense services,” the request states. “Without an increase in funding, the State of Idaho risks facing damages from current and further litigation related to the perceived inability to provide constitutionally mandated legal representation.” 

In FY 2021, the Capital Crimes Defense Fund premiums, which counties used to pay into, amounted to $810,000. Since then, costs have risen to more than $2.2 million. Given population growth, and known pending capital cases, SPD anticipates capital costs will reach $3 million by next fiscal year. 

 State agency budget requests are due Sept. 1 each year, and the legislature’s Joint Finance-Appropriations Committee will consider those requests starting in January.  

“I am confident in the state of Idaho, both in the governor’s office, the legislature’s always supported public defense, and I think we have a lot of support from the courts, as well, too,” Fredericksen said. “So, they can’t outwardly support us in front of the legislature, but I think the court really is behind what we’re doing.” 

But Price still has concerns about how much the state is willing to spend, and what message that sends to its public defenders. 

“What’s most important is people don’t get into this to have a vacation home and get rich,” Price said. “But they still want to be respected and feel valued.” 

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