‘Still a ways to go’ but indigent defense is improving in Nevada’s rural counties

Progress on correcting systemic issues with the delivery of indigent defense in Nevada’s rural counties has sped up in recent years, but the state is still out of compliance with standards set in a legal agreement it entered three years ago.

Nevada’s Department of Indigent Defense Services (DIDS) was established by state lawmakers in 2019 under the looming shadow of a high-profile class action lawsuit filed in 2017 by the ACLU. That lawsuit, Davis v. Nevada, argued the state was routinely violating people’s constitutional right to adequate legal representation. Specifically, the lawsuit took issue with rural counties that outsourced their indigent defense to contract attorneys who were financially incentivized to perform as little work as possible.

In 2020, the parties settled and agreed to a stipulated consent judgment that specified steps the state would need to take to guarantee the right to counsel to those who don’t have the resources to hire an attorney and rely on a public defender after being criminally charged.

Overhauling decades-long systems across nearly a dozen rural counties is a heavy lift that will take time, but DIDS Executive Director Marcie Ryba says the state has made significant progress, particularly after some key pieces of legislation passed earlier this year.

Lawmakers during this year’s regular session established in statute a funding mechanism recommended by the Board on Indigent Defense Services wherein counties would not be saddled with the full cost of indigent defense. Using actual spending data from 2018 and 2019, maximum contribution amounts were set for each county, and anything spent above that amount would be covered by the state.

The cost sharing system encourages each county to expand and improve their indigent defense relative to their own starting point and without worrying about how to pay for it.

Lawmakers gave DIDS a two-year budget of $7 million for reimbursing counties directly and placed an additional $12 million into a contingency account that can be accessed by the Interim Finance Committee.

Ryba says these changes were designed to give counties confidence the state would reimburse them as promised, and quickly. Some at the county level had worried the state would treat indigent defense services as an unfunded mandate that they would be forced to absorb.

“We are showing the counties we are doing everything we can to protect them,” said Ryba.

In fiscal year 2022, the state reimbursed eight rural counties around $1.9 million in indigent defense expenses. In fiscal year 2023, $3.2 million was reimbursed. Ryba sees it as a groundbreaking achievement because counties previously had to bear the full cost of these important services themselves.

Total reimbursement amounts are likely to increase going forward as counties further improve their indigent defense services, but it is unknown what level of expenses the state might eventually see.

Moving toward compliance

Prior to Davis, 10 rural counties in Nevada paid contract attorneys a flat fee for providing indigent defense, with no regard for caseloads or severity of cases. That system created a financial incentive for closing cases as quickly as possible — something the ACLU argued was a violation of the 6th Amendment.

Diane Davis, the namesake plaintiff in the case, at the time of the lawsuit’s filing in 2017 claimed no investigations had been done into her case in the four years since her arrest and that her contract attorney was pressuring her to plead guilty.

The Davis settlement did away with flat-fee agreements in those 10 counties, which are often referred to as “Davis counties.” The settlement also requires the state to determine standards for caseloads to ensure that attorneys aren’t overburdened with too many clients, as well as set minimum performance standards, which could look at things like how quickly the attorney meets with the client after being appointed to the case.

Every county in the state has submitted its own plan for providing indigent defense services, and DIDS staff is now working with each county to help implement those plans. All of Nevada’s counties are moving toward legal compliance, but some are fully embracing major internal changes.

Churchill County and Carson City both launched their own public defender’s offices. The latter has indicated it wants funding parity between its public defender’s office and the criminal division of its district attorney’s office.

Lyon County raised the hourly pay rate for its contract attorneys — a decision DIDS staff said had a ripple effect on pay rates in other counties.

Also during this year’s legislative session, the Board on Indigent Defense Services was given the authority to set the minimum reimbursement rate for contract attorneys providing indigent defense in counties with a population less than 100,000. Rates had previously been set in statute and hadn’t been touched since 2003, when they were adjusted to $100 per hour (or $125 per hour for capital cases).

That regulatory process has already begun in earnest.

Public defenders need resources equal to what public prosecutors have, said Ryba, who prior to joining DIDS spent 15 years as an attorney at the Nevada State Public Defender’s Office.

“When I look across the aisle, that person shouldn’t be making a larger salary, or having more resources because they are working for the state,” she said. “I think that’s something we’re striving for and making big changes toward.”

‘Still a ways to go’

“The Department of Indigent Defense Services has worked very hard to improve representation for people in rural counties,” said Chris Peterson, legal director at ACLU of Nevada, which is continuing to monitor the state’s progress. “At the same time, we still have a ways to go. As of now the state hasn’t reached compliance.”

Peterson says it’s clear at this point a framework is in place, but he says the state needs to put “flesh on the bones” to get into substantial compliance with Davis. One component of that is making sure indigent defense attorneys in rural counties have ongoing access to resources and training.

“Simply having counsel in name is not the same as having someone properly trained,” he added. “And you can’t rest on your laurels. It’s an ongoing process. The law 10 years ago is not the law today. The expectations today are not those that existed 10 years ago.”

While DIDS has held several statewide conferences in an attempt to provide training for rural attorneys, Eve Hanan, the UNLV law professor who serves as the court monitor for the Davis judgment, noted in her most recent report to the court that DIDS lacks the funding needed to offer comprehensive continued training. 

Hanan also expressed concern DIDS will not be able to complete the “robust assessment and evaluation of both county defense systems and attorneys providing public defense” as required by the judgment. Those assessments require in-person visits to courtrooms.

“It is difficult to see how a robust, annual review of all counties and attorneys could take place without additional staffing for the Department,” she wrote.

Hanan recommended DIDS seek additional funding from lawmakers via the IFC.

Progress on establishing caseload and workload standards was delayed as the state awaited results from a nationwide public defender study conducted by RAND Corporation. That national report was finally released last week and, along with state-specific data that’s been collected in recent years, will be used by the National Center for State Courts (NCSC) to make specific recommendations for rural counties in Nevada.

According to the Davis agreement, the state will have a year to get into compliance with the recommendations made by the NCSC.

“Likely we are going to need a lot more public defenders in our rural counties,” added Ryba.

Ryba and her DIDS staff appear confident the state can make good on Davis, saying that state lawmakers and the governor have expressed support for their efforts and understand the importance of ensuring everyone has proper legal representation.

The need for quality public defenders goes beyond the immediate impact it has on defendants facing the criminal justice system, says Peterson, because public defenders are often the first to see patterns across multiple cases.

“When they see something happening over and over again, across their court cases, they can address it systemically,” he said. “If they’re new or not sufficiently trained, they won’t realize there is a problem. They might say this is how we’ve always done it. Or if they’re not sufficiently independent, they would be discouraged from addressing it.”