This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
A bill aimed at addressing Utah's anemic — and likely unconstitutional — indigent defense system has passed in both the House and the Senate and is now headed to the governor's office for a signature.
But the bill won't receive as much funding as sponsor Sen. Todd Weiler, R-Woods Cross, initially sought. The first draft sought $3 million to fund the creation of a statewide commission that would oversee indigent-defense services.
Now, the bill seeks $2 million total — $1.5 million in fiscal year 2016, followed by $500,000 the following year.
"We have serious concerns that it does not go far enough," said Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, on Wednesday. "The amount budgeted is not enough."
Hart said his organization estimated that the commission would need between $8 million and $10 million to be able to address Utah's most pressing problems with public defense.
The bill was made in response to criticism that the state is not meeting its constitutional requirement to provide legal help to those who can't afford it.
Utah is one of two states in the nation that delegate that responsibility to individual counties, which have had no state oversight to guide their efforts in meeting the Sixth Amendment obligation.
And how each county handles that responsibility differs. In Salt Lake and Utah counties, a nonprofit public-defender office provides services, but other counties rely on contracting public defenders or private attorneys — sometimes for a flat fee, regardless of caseload.
The proposed statewide commission would be responsible for collecting data, reviewing public-defender contracts, creating caseload guidelines and doling out money from a trust fund to counties that need it to provide defense services.
Hart said that his association is concerned that the commission provides only an advisory role — meaning that if cities and counties decide they don't want to follow its recommendations, there is no enforcement mechanism.
As the commission takes the time to get up and running, Hart said he is concerned that there are Utahns going through the courts whose rights are being violated because they don't have an adequate defense.
"I think this is a good first step," he said of the bill. "And I credit lawmakers and prosecutors and local government officials for taking it on, but by their own admission, it's not adequate. And the difference between this issue and many others where something goes unfunded is this is a constitutional right. They have to do it. They have no choice. And they are acting like they do have a choice."
Weiler told the House Judiciary Committee on Tuesday that SB155 was his "number one priority" for the session, calling it a "must-pass" bill.
"I can promise you, if this bill passes and I'm re-elected, I will be back next year with a lot of changes, and asking for money," he said. "Because it's that big of a problem and we can't fix it in a year."
The senator detailed some of the issues in Utah's system in a legislative hearing last month, saying that public defenders currently have no incentive to take cases to trial or put more work in on behalf of clients because of flat-fee contracts. He also said it was problematic that some county attorneys are advising commissioners on whom to give public defender contracts — essentially picking the opponents they will face in court.
The legislation is a result of four years of study by a state task force, which included Weiler and Hart. As part of the study, the task force hired the Sixth Amendment Center to review the way the accused are being represented in Utah.
In October, the center released a report that found many flaws in the system. The report found that in justice courts, where people often connect with the court system for the first time, over half of defendants are never provided legal representation. The report also found that in district courts, where more people are receiving public defenders, "systemic deficiencies" prevent those attorneys from effectively advocating for their clients.
Utah and one of its counties have already been sued once over their public-defender system. In January, an attorney filed a proposed class-action lawsuit on behalf of criminal defendants who were given public defenders in Washington County. The lawsuit claims defense attorneys who work those contracts are overworked, underpaid and are not given the proper support to defend their clients.
The American Civil Liberties Union of Utah has threatened a lawsuit if big changes were not made during this year's legislative session. On its website, the ACLU commented on SB155 in February, saying that the state's efforts are "unlikely to preclude litigation."