Legislation & Court Decisions

 

R2C tracks state and federal legislation related to public defense and the right to counsel, and we post quarterly legislative updates on this page. Below you will find 13 landmark court decisions about the right to counsel in the US.

 
 

Legislative Updates

January 2020

DC B 291: Detained Youth *Update

This bill, sponsored by Trayon White (D), allows the Juvenile Services Program of the Public Defender Service for the District of Columbia access to incarcerated juveniles in order to provide education on legal rights, access to counsel, and legal support. The bill, now Act A23-0202, became law without the Mayor’s signature 01/22/2020 and was assigned to Congress 01/27/2020.

IL H 3972: Code of Corrections *Update

Sponsored by Rita Mayfield (D), this bill provides for counsel at parole release hearings. This provision includes free assigned counsel for those who cannot afford to retain private counsel. The bill was assigned to the House Committee on Rules 01/08/2020.

IL H 4003: Public Defender Appointments

This bill is sponsored by Rita Mayfield (D), and it makes circuit court judges responsible for public defender appointments and removals in counties with populations over 1,000,000. Currently this responsibility belongs to the board of county commissioners in each county. The bill is also a “denial and limitation of home rule powers and functions,” specifically limiting the power to select or remove public defenders to the state in home rule counties. Home rule status in Illinois is available to counties with a population of a certain size, and it allows counties to exercise any power that is not specifically prohibited under state law. See this overview for more details on home rule in Illinois. The bill was introduced 12/17/2019 and assigned to the House Committee on Rules 01/08/2020.

KS H 2429: Criminal Justice Reform Commission

Sponsored by Stephen Owens (R), this bill adds a public defender to the Criminal Justice Reform Commission, a group which makes recommendations about sentencing guidelines, diversion programs, and data gathering. The Commission already includes one defense attorney: under this bill, two defense attorneys must be on the Commission, and one must be a public defender. The bill was recommended with amendments from the House Committee on Corrections and Juvenile Justice 01/30/2020.

MI S 724: Indigent Defense Commission Act

This bill, sponsored by Peter Lucido (R), adds a provision to the Michigan Indigent Defense Commission Act that requires the presence of defense counsel at every court event throughout a case, including arraignment, probable cause conference, preliminary examination, trial, and any other “critical” event. Once an indigent defendant has entered a guilty plea or has been convicted, defense counsel must be appointed for an appeal. This also applies for interlocutory appeals, including appeals regarding pretrial release on bond. Counsel must be compensated throughout. The bill was introduced and assigned to the Senate Committee on Judiciary and Public Safety 01/16/2020.

MO H 1422: Child’s Right to Counsel *Update

Sponsored by Ingrid Burnett (D), this bill prohibits waiver of counsel in juvenile hearings regarding detention, certification, dismissal, disposition, adjudication for any misdemeanor or felony offense, or supervision revocation. Courts are directed to consider many factors when determining to accept a juvenile’s waiver of counsel, and if it is accepted, it only applies to that proceeding; at all subsequent proceedings, the juvenile must be notified of his or her right to counsel once again. The bill was introduced 01/08/2020 and assigned to the House Committee on Judiciary 01/16/2020.

NH S 237: Office of Cost Containment *Update

This bill is sponsored by Shannon E. Chandley (D), and it amends the procedure courts use to determine an indigent defendant’s ability to pay for appointed counsel services. Whereas under current law anyone who is found able to pay can be charged, under the provisions of this bill only those who were convicted can be charged. After the House Committee on Judiciary recommended that the bill not pass, it failed to pass the House 01/08/2020 and is now dead.

NJ S 4344: Inability to Pay Municipal Court Fee

This bill, sponsored by Linda R. Greenstein (D), requires any municipality that assesses an application fee for representation by municipal public defenders to notify applicants of the fee and any additional fees, as well as the process to waive the fees if unable to pay. The bill was introduced and assigned to the Senate Committee on Judiciary 01/06/2020.

NJ A 812: Municipal Court Inability to Pay Fees

Sponsored by Anthony S. Verrelli (D), this bill accomplishes the same goals as the above bill, NJ S 4344. It was introduced and assigned to the Assembly Committee on Judiciary 01/14/2020.

NY A 9125: Immigration Court Right to Legal Counsel

Sponsored by Catalina Cruz (D), this bill establishes the right to counsel in immigration court proceedings for both citizen and non-citizen defendants. This right attaches no later than first appearance. This must be accompanied by the development of a plan that includes caseload limits and a procedure to oversee these limits. The bill was introduced and assigned to the Assembly Committee on Codes 01/21/2020.

NY S 7261: Right to Legal Counsel in Immigration Court

This bill, sponsored by Brad M. Hoylman (D), accomplishes the same goals as the above bill, NY A 9125. It was introduced and assigned to the Senate Committee on Finance 01/15/2020.

NY S 33: Right of Defendants

This bill, sponsored by Brad M. Hoylman (D), clarifies that the right to a jury trial extends to those charged with misdemeanors in New York City. Under current law, this right is granted to everyone in the state except those charged with class B and certain unclassified misdemeanors in New York City. The bill was assigned to the Senate Committee on Codes 01/08/2020.

OK S 1647: County Indigent Defender Duties

Sponsored by Michael Brooks (D), this bill creates a rebuttable presumption that anyone whose household income does not exceed the federal poverty line or anyone who currently receives cash public assistance is “indigent” for the purposes of eligibility for representation by the Oklahoma Indigent Defense System. The bill was introduced 02/03/2020.

 



PA HR 619: Indigent Criminal Defense *Update

This bill, sponsored by Joanna E. McClinton (D), mandates data collection on caseloads and funding for assigned counsel, including county-based public defenders, federal public defenders, court-appointed counsel, and private pro bono attorneys. This was proposed after a commission concluded that the state does not collect enough data on these services. Once the study is complete, in November 2020, the Governor and the judiciary committees will receive a report. The bill passed the House 12/17/2019.

VA H 366: Public Defender Offices

Sponsored by Jennifer Carroll Foy (D), this bill establishes a public defender office for the first time in the cities of Manassas and Manassas Park and the County of Prince William—the only Northern Virginia locales without a public defender office. The bill was reported favorably from the House Committee on Appropriations 01/29/2020 and engrossed by the House 02/03/2020.

VA S 72: Public Defender Offices

Sponsored by Scott A. Surovell (D), this bill accomplishes the same goals as the above bill, VA H 366. It passed the Senate 02/03/2020.

VA H 869: Public Defender Compensation Supplement

This bill is sponsored by Jeffrey M. Bourne (D), and changes provisions regarding supplementary compensation for attorneys: if jurisdictions supplement district attorney compensation, they are required to supplement public defender compensation in the same amount. The bill was introduced and assigned to the House Committee on Courts of Justice 01/08/2020.

VA H 820: Court Appearances

This bill, sponsored by Don Scott (D), changes the provisions regarding those who are detained pretrial. Under current law, the accused comes before court the first court day after they were charged, at which time the judge informs them of the bail amount and of the right to counsel. A bail hearing must be held within three weekdays. No hearing on the charges can be held until the defendant has either retained counsel or filed a statement of indigence.

Under the provisions of this bill, anyone who is detained pretrial must come before court the first court day after they were detained, at which point the court must appoint defense counsel for any accused who has not retained private counsel, regardless of the accused’s financial resources. Counsel must be given “reasonable time” to review bail information. Each chief circuit judge must create a plan to meet these requirements by October 2020, including methods to select counsel, to provide counsel adequate time, space, and access to the accused, and to pay assigned counsel. The bill was reported favorably from the House Committee on Courts of Justice 01/31/2020 and referred to the House Committee on Appropriations 01/31/2020.

WA H 1086: Appropriated Funding for Public Defense Services *Reintroduced

Sponsored by Mike Chapman (D), this bill removes the requirement that jurisdictions apply for state public defense funding, instead mandating that all eligible jurisdictions receive this funding on a pro rata basis. In order to be eligible, jurisdictions must, in addition to the existing requirements, provide proof that attorneys are in compliance with state supreme court indigent defense standards. The state is also required to monitor trial-level public defense services to determine this eligibility. It also removes the requirement that jurisdictions must prove “appreciable demonstrable improvements in the delivery of public defense services.” The bill was reintroduced and retained in the House Committee on Appropriations 01/13/2020.

WA S 5098: Appropriated Funding for Public Defense Services *Reintroduced

Sponsored by John Braun (R), this bill accomplishes the same goals as the above, WA H 1086. It was reintroduced and retained in the Senate Committee on Law and Justice 01/13/2020.

WA H 2420: Public Defense Duties Requirement

This bill, sponsored by Morgan Irwin (R), mandates that the state Office of Public Defense assume all powers, duties, and functions related to indigent defense, in order to uphold the constitutional right to counsel. Currently, cities and counties are responsible for the majority of the state’s indigent defense, and the sponsor suggests that this is an unfunded state mandate. The bill was introduced and assigned to the House Committee on Appropriations 01/14/2020.

WA S 5819: Postconviction Review Board *Reintroduced

This bill, sponsored by Jeannie Darneille (D), establishes a postconviction review board and a review process to determine early release of those who have completed a certain portion of their sentence and are over 59 years old. The bill provides for the right to counsel for indigent petitioners during these proceedings. The bill was reintroduced and retained in the Senate Committee on Ways and Means 01/13/2020.

WI S 468: Public Defender Pay Progression

Sponsored by Jerry Petrowski (R), this bill increases the state appropriation for the Public Defender Board by $1,404,000 in FY 2019-20 and by $2,550,200 in FY 2020-21. This added funding will be used to enact the existing Assistant State Public Defender Pay Progression Plan, which consists of 17 equal steps in salary progression between the lowest hourly salary and the highest hourly salary for assistant state public defenders. The Senate amended and passed the bill 01/21/2020; it will now head to the Assembly.

WY S 13: Public Defender Indigency Standards

This bill is authored by the Senate Judiciary Committee, and it amends the eligibility standards to qualify for a public defender. Specifically, the bill clarifies and expands the indigency standards as follows: not only must a person be “unable to provide for the full payment of an attorney and all other necessary expenses of representation,” he or she must be unable to do so “without prejudicing his financial ability to provide basic economic necessities for himself or his family considering the person's available funds and the anticipated cost of the attorney.” In addition to this, those who receive a form of public assistance, who are already serving a sentence, or whose income falls below a certain amount are automatically deemed “needy.” The bill, similar to WY D 185, was prefiled 12/10/2019.

 

Landmark Court Decisions

Tucker v. Idaho  (ongoing)

DOJ Amicus Brief in Tucker v. Idaho

Booth v. Galveston County (ongoing)

State of Iowa v. Archaletta Latrice Young (2015)

Hurrell-Harring v. New York (2014)

Wilbur v. City of Mount Vernon (2013)

Rothgery v. Gillespie County (2008)

Alabama v. Shelton (2002)

United States v. Salerno (1987)

United States v. Cronic (1984)

Strickland v. Washington (1984)

Argersinger v. Hamlin (1972)

In re Gault (1967)

Gideon v. Wainwright (1963)

50 Years Later: The Legacy of Gideon v. Wainwright

 
NACDL's Indigent Defense State Legislation Tracking tool