Changes coming to public defense in Idaho

 This article has been changed to show that in 2012, the Idaho Supreme Court found that Idaho’s public defense system was problematic after years of litigation.

Public defense in Idaho is going to operate differently for attorneys who represent individuals who can’t afford their own counselor.

Starting Oct. 1, public defense will be paid for and coordinated through the State Public Defender. In the current system, counties collect property taxes to fund public defenders within their borders; in the new system, the money for public defense comes from the general and dedicated funds from the state. The prosecutor’s offices will remain funded by the counties.

The State Public Defender has $49 million for fiscal year 2025 that starts Oct. 1. If the State Public Defender runs out of money, it can ask the Idaho Legislature for supplemental funds.

Even though this will be the first year of the State Public Defender, the office looked at the cost of public defense at the county level to determine what it will cost the state. The process has been ongoing for several years, said Patrick Orr, director of communications for the State Public Defender.

“We’re going to learn a lot this year,” Orr said. “We used all that historical information to get that budget.”

Currently, the Nez Perce County Commission handles the contracts for attorneys in the county at a base rate. When the switch occurs, the state office will pay public defenders at an hourly rate of $100, or $150 for capital cases, like murder. If attorneys don’t sign the new contracts they won’t be able to represent indigent clients.

Contracts will also be split from criminal and civil cases so attorneys can choose to represent one or both. Civil cases include child protection, guardianship, termination of parental rights and post-conviction relief, according to Joanna McFarland, public defender, who was hired to be the 2nd District Regional Public Defender. Contracts will also be with individual attorneys, not firms, according to the State Public Defender website.

Instead of cases being assigned by a judge, the State Public Defender Office will assign attorneys. If there is a conflict of interest, the Alternate Counsel Division will assign attorneys to those cases, according to the State Public Defender website.

Exactly how that will work is still being determined, Orr said. The goal is to have equal distribution of cases to public defenders and to create “vertical representation” where the same attorney represents the case from the day it’s assigned to the end.

“This way works better for that concept,” Orr said.

The change to the public defense system came out of a lawsuit, Tucker v. State of Idaho, which showed representation of indigent individuals, who are people who can’t afford an attorney, was inadequate and the public defender system was overburdened and under-resourced. The Sixth Amendment to the U.S. Constitution states that all criminal defendants have a right to an attorney if they can’t afford one. In 2012, the Idaho Supreme Court found that Idaho’s public defense system was problematic after years of litigation.

Out of that, the state created the Public Defense Commission, which supervised contract attorneys and offices, made sure they were in compliance with licensing, monitoring caseloads and provided opportunities for training, skill development and continuing education that is required. Then the Idaho Legislature passed a bill to create the new State Public Defender office, which would ensure qualified defense attorneys, investigative staff and other resources were dedicated to public defense. From that bill, the Public Defense Commission was discontinued July 1 and the State Public Defender took over, although many of the employees of the commission now work for the state office, according to McFarland.

This year a bill was passed in the legislature to include public defenders in child protection cases, which was omitted from the original bill in 2023. Idaho Gov. Brad Little appointed Eric Fredericksen as the State Public Defender to lead the new office. Fredericksen served as the State Appellate Public Defender in 2016 after being appointed by Gov. Butch Otter.

One of the goals with the new system is to make representation and expectations consistent throughout the state.

“With the state taking over, what happens in Nez Perce County should be identical with what happens down in Blaine County so we have the consistency throughout the state (with) the expectations,” McFarland said. “The logistics of all of that will still be unique to each district because what happens in Nez Perce County is going to look very different than what happens down in Ada County, it just is what it is.”

McFarland has been part of the transition team as the state moves to take over the public defender system and was hired July 30 as the new role of regional public defender for the 2nd Judicial District, which includes Nez Perce, Latah, Lewis, Idaho and Clearwater counties. The start date for the position hasn’t been determined yet and the salary for the position is $150,000.

The role of the regional public defender will work with the public defenders, court administrators, judges and the prosecutor’s office to be a liaison and coordinate between all those aspects of the judicial system. The position will continue to make sure public defenders meet the requirements of the state and can also return to practicing in the courtroom if needed.

Some counties have institutional offices that are operated by the county, which makes the transition to the State Public Defender easier because they will go from being county employees to state employees. For counties like Nez Perce County that are contract based, the regional public defender will help with the transition. Because of that, Orr said it’s important that the regional public defender knows the communities where they serve and what their needs are.

He said that the 2nd Judicial District is set up well with McFarland in the role.

“She knows the 2nd District better than anybody, so that’s good for us,” Orr said.

Another change will be that public defenders will have a case management program, called LegalServer, that will track attorneys hours. The program will also be able to track real data of what kinds of cases are going through the judicial system statewide and identify any needs in the community or ongoing issues in law enforcement practices. If it’s seen that an attorney is filing motions against the same employees, new training and policies can be done to prevent further issues. Part of the role of the regional public defender will be addressing the patterns the system reveals, which could include coordinating with the prosecutor’s office to resolve those issues, McFarland said.

Idaho will have plenty of changes for public defenders as the state creates the new office from the ground up. Orr also said that the state couldn’t look to other states for reference, since Colorado is the only state that has a similar system – and it’s not statewide like Idaho.

“Idaho is pretty unique. We’re trying something no one else has ever tried before,” Orr said. “A whole statewide system is brand new. A lot of eyes are on Idaho.”

Orr said that the State Public Defender looked at the best practices around the country to come up with its own system. The main incentive for the new public defender system is to make it work better for the clients.

“It’s an opportunity to do a really good job for people who need good public defense,” Orr said. “It’s certainly an opportunity and not one we’re taking lightly.”

Brewster may be contacted at kbrewster@lmtribune.com or at (208) 848-2297.

Editor’s note: This story is part of a series looking into the changes in Idaho to public defense and how it affects the 2nd Judicial District.