When the Nevada Supreme Court created the Indigent Defense Commission in April 2007, it became a nationally respected model for addressing the challenges of a chronically understaffed indigent defense system. Yet as the commission, comprising judges and attorneys from around the state, prepares to meet next week, it’s clear the hard work may just be starting.
Federal public defender Franny Forsman, a member of the commission, says that studies going back years have concluded that “Clark County and Washoe County are in crisis in their ability to provide adequate representation to indigent clients.”
David Carroll, research director with the National Legal Aid and Defender Association, also says the system is in trouble. “The Constitution doesn’t allow for justice to be triaged based on economic conditions,” he says. “If you’re a defendant who cannot afford an attorney, your rights are to get competent counsel. This isn’t something you need to balance along with everything else.”
According to the commission, public defenders in Washoe and Clark handled more than 300 cases in 2006. The National Legal Aid and Defender Association recommended a caseload standard of 150; the commission set its own figure at no more than 192 cases. The problem is there isn’t enough money to staff public defenders offices across the state in sufficient number to meet that standard.
As a result, public defenders are caught in a bind. On the one hand they are the last line of defense in the court system, and so they should take on everything. On the other hand, if they’re so strapped with cases that they cannot represent clients adequately, ethically they’re bound to tell the court, “No more,” and refuse cases.
But prosecutors in Clark County downplay the language of “crisis” attached to the indigent defense system. “We do not agree that there is a crisis in Clark County,” says Clark County Deputy District Attorney Nancy Becker. “We believe [public defenders are] not only meeting their constitutional goals, they’re exceeding them and providing good quality care.” Her argument is that the Nevada Supreme Court rarely reverses a case on basis of ineffective assistance of counsel.
Prosecutors were a late addition to the commission; they pushed for caseload standards to be considered guidelines by the state supreme court, not mandatory. Clark County Public Defender Phil Kohn thinks the DA’s office should have butted out. “They felt like they have a right to weigh in on this,” he says. “I disagree with them. I don’t think I have a right to tell them how to prosecute cases. I don’t think they have a right to tell me how to defend them.”
Prosecutors respond that they’re only trying to protect the integrity of the process—an administrative hearing is not the venue, they say, for the court to make sweeping changes in the indigent system. Still, Kohn notes, prosecutors may also be motivated by efficiency. “When you’re filing 50,000 cases a year, you need to get these cases to move quickly. We understand the need for efficiency, but we can’t let efficiency override due process.” Only a few hundred cases go to jury trial. “We have to make sure the right cases do.”
Then there’s the question of budget. Mandatory standards might have impacted budgetary decisions, which could mean more money for public defenders offices at the expense of other social services—not to mention prosecutors.
Of course, while observers agree the Supreme Court deserves praise for taking on the issue, the lingering recession has made real progress difficult. More than 50 percent of the state’s indigent system is funded by the counties, particularly Washoe and Clark. But relying on the state to chip in a greater share to support indigent defense is unlikely—the state after all had to siphon money from Clark County this year to help close its own budget shortfall.
In other words, there are no easy solutions. Kohn notes that his department can only train four to eight new people every six months. “Even if the county had all the money in the world, I can’t get people trained that fast.”