|B. State Oversight Commissions|
State oversight commissions or boards have shown a capacity to enhance the quality and independence of indigent defense representation. The existence of an oversight body, however, is not a panacea for all that ails a failing or underperforming defense system. Absent adequate funding, the authority to make changes, and independence of the defense function, an oversight body is likely to be unsuccessful in fully transforming a state’s indigent defense system.
The main reasons for establishing an indigent defense oversight body are to protect the independence of the defense function from political and judicial interference and ensure quality representation. While quality representation can be addressed through responsibilities delegated to the commission, the way the commission is constructed has much to do with its independence. Statewide oversight of indigent defense and funding at the state level can enhance the equitable allocation of resources throughout the jurisdiction while seeking to ensure uniform representation and implementing efficiencies in the delivery of defense services. Although there is no single perfect statute that every state should enact, there are certain necessary components that would seem to be essential to include in legislation establishing a statewide oversight authority. If the principles underlying these components are ignored, it is unlikely that the oversight body will succeed in effectuating positive change.
Independence and Structure of State Oversight Commissions
The importance of establishing an independent indigent defense system cannot be overstated. Experience demonstrates that defense counsel will not fully discharge their duties as zealous advocates for their clients when their compensation, resources, and continued employment depend upon catering to the predilections of politicians or judges. Even when political or judicial oversight of the defense function does not actually impact the performance of counsel, clients and the general public may still have doubts about the loyalties of those providing defense services.
There are several ways a legislature can ensure the independence of a state’s indigent defense delivery system. Distribution of the appointment authority, delineation of membership criteria, proper placement of the agency within the government, and statutory directives are all mechanisms states can employ to secure the independence of both the oversight body and the indigent defense system it supervises. In addition, special attention should be paid to the size of the commission and tenure of its members.
One of the most important mechanisms for ensuring independence is to have appointments to the oversight board originate from a variety of sources. At a minimum, the authority to appoint members to the commission should be allocated to all three branches of government and relevant bar associations. For example, North Carolina shares responsibility for making appointments among the chief justice, governor, house, senate, and six different bar groups, with the commission appointing three additional members. In another state, the responsibility is shared among the governor, the chief justice, the chairman of the legislature, and the state bar association. Models such as these ensure a diverse commission that is neither beholden to nor apt to do the bidding of any single branch of government, bar group, or individual who selects the commission’s members.
In some states, the appointing authority is not distributed nearly as widely, but the person making the appointments must select members from candidates nominated by other government branches and specified groups. Thus, in Montana, although the entire commission is appointed by the governor, the governor must appoint two nominees whose names are submitted by the supreme court, three nominees submitted by the president of the state bar, and two non-attorney members of the general public submitted by the legislature. Other states grant appointment powers to groups such as the board of trustees of the state’s criminal justice institute or the interchurch conference.
Some states also seek to achieve a diverse membership of the oversight body by requiring that members meet certain criteria. States have required that the geography of members, their political affiliation, and ethnicity be considered. Some states also have required a certain number of non-attorney members, advocates on behalf of underrepresented groups, or representatives of special interest groups such as the mentally ill, whereas others exclude certain categories of individuals from membership such as judges, prosecutors, and law enforcement officials. While there are states that jeopardize their commission’s independence by concentrating the authority to appoint in a single person, these states usually have some provisions regarding the backgrounds of persons who can be appointed as commission members in an effort to enhance diversity.
At the very least, it is essential that an oversight body be composed of persons devoted to improving the delivery of indigent defense services and who fairly and equally represent the state’s various constituencies committed to enhancing defense representation. Ideally, a majority of members would have experience in providing indigent defense representation, and the membership would include leading members of the state’s criminal defense bar. However, not all members need to have prior criminal law experience if they are otherwise persons likely to be respected by members of the state’s executive, legislative, and judicial branches of government. Judges and legislators should not be statutorily excluded from membership consideration, as they can be effective contributors to a commission’s ability to promote positive change.
Ideally, an indigent defense oversight body should be an independent agency of state government. This allows the commission to retain decision-making authority and advocate for adequate indigent defense funding. If a state’s indigent defense system is financed primarily by the state, it is especially important that its budget remain separate from those of other agencies, including the courts, so that resources directed towards indigent defense are not seen as having a negative impact on other worthwhile spending. For example, if the agency is housed in the judicial branch and is part of the judiciary’s budget, the judiciary may be less likely to advocate for increased indigent defense funding if it means less money will be available for judges, court personnel, and facilities.
Of the 43 states with agencies that have authority over indigent defense, 25 have placed their indigent defense programs in the executive branch and 18 house their agencies within the judicial branch. However, over one-third of the agencies are merely placed in a governmental branch for administrative purposes, while permitting them to maintain control over their decisions and budget. For example, Connecticut, Minnesota, and Oregon all have classified their oversight bodies as autonomous divisions of the judicial department. In Idaho, the state appellate defender office is a self-governing agency under the executive branch. The Department of Public Advocacy in Kentucky and the Public Defender Commission in Montana are within the executive branch for administrative purposes only. In Massachusetts, the Committee for Public Counsel Services is an independent agency whose budget appears as a line item in the judiciary’s budget, but its submissions to the legislature are not in any way controlled by the judicial branch.
The statutes of some states include language confirming that the delivery of indigent defense services is to remain independent. For instance, the Colorado State Public Defender is an agency of the judicial department. However, Colorado’s statute states that “the state public defender at all times shall serve his clients independently of any political considerations….” Some states, such as Kentucky and Minnesota, specifically prohibit the commission overseeing the indigent defense delivery system from interfering with the handling of individual cases.
Unfortunately, simply declaring the independence of a commission does not make it so. In Georgia, the legislature created the Georgia Public Defender Standards Council (GPDSC) to assure that “adequate and effective legal representation is provided, independently of political considerations.” However, Georgia’s indigent defense system has not been adequately funded, and the legislature threatened to withhold funding if changes to the system were not implemented. In 2007, the legislature moved the GPDSC from the judicial branch to the executive branch in order to allow greater state control over its budget. In 2008, the Georgia Senate, dissatisfied with the costs of a pending death penalty case, even went so far as to pressure the GPDSC to intervene in the case.
Commission Size and Membership Tenure
Across the country, indigent defense commissions range in size from as few as three members to as many as 15 members. Commissions need not be a particular size but commissions of at least seven to nine members may be preferable so that they can perform the necessary work, wield sufficient authority, and feel a sense of responsibility for the commission’s performance. Conversely, the larger the commission, the less likely members may have a sense of personal responsibility for the commission’s success. On the other hand, since members of oversight bodies are usually uncompensated except for expenses, a commission larger than nine to 13 members will more likely assure the presence of a quorum at meetings and sufficient persons to devote time to essential tasks. Moreover, large and diverse commissions may be more effective since there are more members to express public support on behalf of indigent defense.
The tenure of commission members is usually fixed by statute at three or four years. To achieve continuity, however, terms should be staggered, requiring some members initially to serve shorter terms so that all members are not up for reappointment at once. Some state statutes limit the number of terms a board member may serve.
Ensuring Quality Representation and
The responsibilities assigned to the oversight body should enable it to improve the quality of indigent defense representation. If the statewide authority is not allowed to perform certain tasks, the lack of power can undermine the rationale for its existence. Conversely, legislatures should not burden commissions with tasks that could undercut defender offices providing representation, are a conflict of interest, or waste limited resources.
In order to exercise their authority, oversight bodies require meaningful standards and guidelines with which to judge the adequacy of the indigent defense delivery system. These may be promulgated by the commission or delineated by statute. Some state statutes spell out the responsibilities of the commission in great detail, whereas other statutes are skeletal, leaving the details to the commission and state public defender or director. Arguably, the best statutory schemes permit the board to adopt broad policies but make it clear that it is not to interfere with the daily operations of the program.
To be successful, a commission should be empowered to determine the most appropriate method for delivering indigent defense services. As previously discussed, this is often a contentious subject, raising the issue of control between state and local jurisdictions. However, a commission has limited ability to ensure cost-effective, quality representation if it is unable to change an underperforming or expensive system from one delivery method to another.
In addition, oversight bodies should have the authority to establish procedures to certify that the defense attorneys providing representation are competent to do their jobs. Accordingly, boards should be able to establish performance standards for attorneys and require procedures to evaluate attorneys based on its standards or, alternatively, by standards enacted by the legislature or issued by the state’s highest court. Minimum standards include ensuring that the attorneys have training in criminal law; that the attorneys are participating in a certain number of relevant continuing legal education classes; and that the experience level of the attorney matches the severity of the case.
The board must also be able to assure that defense attorneys have sufficient support services. Without adequate support staff such as trained investigators, paralegals, social workers, and secretaries, defense attorneys must necessarily handle fewer cases and will be less cost-efficient. Additionally, to provide quality representation, defense counsel require research and technology capabilities, training, and access to independent experts.
To ensure quality representation, the board also must be able to control the workload of defense attorneys. One of the board’s most important responsibilities should be to devise workload standards and enforce compliance with those standards. Ideally, every commission should complete a comprehensive study of the state’s indigent defense system to develop appropriate workload limits. But since virtually all states rely to a considerable extent on public defender programs to furnish much of the representation, in order for workload limits to be successful, defense systems must also make provisions for participation of the private bar, with adequate funds to compensate private assigned counsel or contract attorneys. For this reason, the ABA has long recommended that all systems of public defense provide for “the active and substantial participation of the private bar.”
In order to monitor compliance with performance standards and workload limitations, the board should have authority to collect data and confirm its accuracy. As part of its information gathering, the oversight body will need to define what constitutes a case and establish a uniform case reporting system to ensure statewide consistency in caseload numbers. At a minimum, this system should provide accurate figures regarding the number of new appointments and case dispositions, by case type and by the number of pending cases. It should also be the board’s responsibility to maintain and publish records and statistics regarding the delivery of indigent defense services so that funding sources understand how appropriations are being spent and can plan for future needs.
Another significant commission responsibility is to provide vigorous support for indigent defense. Statutes should require commissions to submit budgetary requests each year, and commissions should be authorized to represent indigent defense interests before the legislature. Ensuring sufficient funding so that indigent defense providers are fairly compensated for their work should be among the most important goals of commissions. It should also be the function of commissions to formulate compensation plans for indigent defense counsel, whether they are public defenders, contract attorneys, or assigned counsel paid on a case-by-case basis.
Finally, commissions should be in charge of appointing the state public defender or director. If the commission is properly constructed, it will be an independent body that will be able to hire the best-qualified candidate without regard to politics or judicial interference. Chief defenders should be fired only for cause and should have a set term of employment rather than serve at will. This enables the chief defender or director to do his or her job knowing that he or she answers only to the commission and the needs of indigent defendants.
Some states have given their oversight bodies responsibilities that are not essential for the board to discharge. For example, in several states, the board is required to develop standards to determine whether a person is eligible for court-appointed counsel. While statewide standards are important to assure consistent determinations across the state, the preparation of such standards need not necessarily be handled by the board.
It is a problem, however, if an oversight body is assigned tasks that undermine the independence of the defense function, are a conflict of interest, or lead to a perception of misplaced loyalty. While a board can develop eligibility standards, neither the board nor defense providers should be asked to determine whether a particular individual meets the standards or be required to collect funds from defendants as partial payments for their representation. Legislatures, local governments, and judges may accuse providers of being too lax in their decisions about eligibility in order to obtain increased funding if they think too many people are being found eligible for defense services. Individual defendants may worry that their attorneys will not provide zealous representation or are not on their side at all if they are collecting monies for the state. Moreover, it is a waste of limited resources allocated to indigent defense to force the providers of services to undertake this responsibility.
Oversight bodies also should not be able to hire the personnel who work for the state public defender or director. In Louisiana, the statute allows the Louisiana Public Defender Board to hire and determine the salaries of the state public defender’s senior management team. Conceivably, this could lead to problems if the state’s director disagrees with a hiring decision or a senior staff member complains to the board rather than resolves issues with the director.
There are a multitude of other tasks that, if given to the board rather than the state public defender or director, could lead to overreaching by the board. For example, in Arkansas, the Public Defender Commission has the power to “allocate personnel for each public defender’s office throughout the state” and “approve the reassignment of cases from one public defender to another public defender in an adjacent area for the purpose of avoiding conflicts or adjusting caseloads.” Language such as this potentially affords the commission the opportunity to micromanage defense services in the state and undermines the authority of the state’s executive director to control the program’s resources. Moreover, if the commission does not act expeditiously, it could lead to unwarranted delays in case reassignment or in maintaining proper office staffing levels.
Scope of Authority and Its Impact on Independence and Quality
The prior review of statewide systems of indigent defense can be summarized as follows: Twenty-seven states have organized their defense services either entirely or substantially on a statewide basis. Of these, there are 19 states that have a state commission with supervisory authority over the state’s defense program headed by either a state public defender or state director; in the other eight states, there is a state public defender but not a state commission to provide oversight. In the remaining 23 states, there is either a state commission with partial authority over indigent defense (nine states); a state appellate commission or agency (six states); or no state commission of any kind (eight states). While it is always hazardous to generalize, usually, the greater the responsibility of the oversight body for managing the state’s indigent defense services, the better and more consistent is the representation throughout the state.
Oversight bodies with full authority and clear independence are best equipped to have a positive impact on indigent defense. This is especially true when the commission controls most or all of the state’s funds for indigent defense. The relationship between state funding and an indigent defense oversight body’s level of authority is inextricable and, for the most part, directly proportionate. Without adequate funding, even a well-designed and empowered commission will struggle to keep the indigent defense system afloat.
Full Authority Oversight Commissions and State Public Defender Agencies with Commissions
Nineteen states have either a statewide public defender agency with a full-authority commission and chief public defender or a full-authority commission with a state director who acts as a chief public defender. Of these 19 states, 12 have public defender agencies and commissions and are entirely state funded, and all of the eight states with a state director are either entirely or almost entirely state funded. Because these 19 commissions are overwhelmingly state funded, they are well situated to exercise authority over their states’ indigent defense systems.
The commissions discussed in the preceding paragraph are in the best position to protect the independence of the defense function when selection of the state public defender or state director is made by the commission. The proper construction of the commission as a non-political body should insulate the defense function from political influence because the state defender or director is accountable, not to just one publicly elected person, but to a diverse group of commission members. Moreover, while some chief defenders serve at the pleasure of the commission, others are even further protected from political pressures by having a fixed term with removal only for cause.
These same states are in the best position to improve and maintain quality indigent defense services throughout the state because they control the allocation of funds and resources. Full-authority oversight bodies with statewide public defender offices are usually responsible for monitoring costs and workloads, implementing and enforcing attorney experience and training requirements, setting attorney performance standards, and determining compensation levels. They can assure that attorneys comply with their standards by refusing to pay or hire those who do not meet requirements. Full-authority commissions can control quality and efficiency in the use of resources by modifying the delivery system for providing indigent defense services.
Another crucial way that full-authority commissions and statewide public defender offices can seek to assure quality representation is to limit attorney workloads, assuming sufficient funds are available to implement a feasible plan. For appointed and contract counsel, it is possible to control workload by monitoring the number and types of cases assigned and refusing to compensate for appointments once a maximum permitted number of cases is reached. If attorneys will not be paid for cases beyond a certain maximum allowed number of cases, the attorneys will almost certainly seek to avoid being appointed.
It is more difficult to control the caseloads of attorneys within public defender offices, mainly because statutes in many states designate the public defender to be appointed without regard to caseloads and the capacity of the defender to handle the cases. Arguably, however, state legislatures never intended that defender programs would undertake representation in circumstances where attorneys could not possibly represent their clients competently in ways consistent with professional responsibility rules. New Hampshire is one of the few states in which the issue of caseloads for public defenders is addressed through an innovative agreement between the state public defender’s office and the state’s Judicial Council. Pursuant to the agreement, the number of cases each public defender may have at one time is limited, and the public defender agency is required to distribute the proper types of cases to the attorney by level of experience. There also are contractual obligations regarding the number of homicides that the staff can handle simultaneously. Finally, and perhaps most important, the public defender’s office is required to notify the courts if their caseload becomes too high, so that the courts may appoint private assigned counsel.
Even when a commission or public defender office is fully state-funded, the level and regularity of funding provided sometimes depends upon the source of funds from within the state government. The state government may pay for all indigent defense costs through its general funds, cover a portion of the expense through the use of special funds, or pay for all costs of indigent defense through special funds. Because the amount of special funds available varies, and oftentimes does not correlate with indigent defense needs, funding defense services through the use of general funds is preferable, at least theoretically.
While a state that funds a full-authority commission or a statewide public defender agency with a commission is in the best position to provide high quality indigent defense representation, this is not always the case. In Missouri, for example, the commission is appointed solely by the governor, thus failing to assure the body’s complete independence. Moreover, although the state alone is responsible for paying for indigent defense, Missouri’s public defenders are not well compensated, the program historically has had high turnover, and some districts are currently refusing to accept some types of cases due to unreasonably high caseloads, which has been a problem for some time. As Missouri demonstrates, a commission and a statewide public defender agency are not sufficient unless there also are adequate personnel and resources.
State Public Defender Agencies without an Oversight Commission
Eight states have statewide, state-funded, public defender programs without an oversight body. Statewide public defender offices are in an excellent position to assure quality representation and can provide the same quality control as state public defender agencies with oversight commissions. Accordingly, they can monitor costs, limit workloads, implement attorney performance standards, and provide training and supervision to their attorneys.
The most significant difference between state public defender agencies with commissions and those without is that the independence of the latter is not protected from external influences. In all eight states without commissions, the chief public defender is appointed by the governor. Consequently, all of these agencies are housed in the executive branch of government, though Iowa’s defense program is labeled an independent agency within the executive branch. In some states, the governor’s appointee is subject to confirmation by the legislature. In at least half of these states, the state public defender serves at the pleasure of the governor. While the current public defender of Delaware has been in office since 1970, through both Democratic and Republican administrations, other state chief defenders have been replaced for political reasons. In New Mexico, after the governor took office in 2003, he fired top executive officials throughout the state, including the chief public defender who was appointed by the previous governor. In 2001, Vermont’s governor summarily dismissed the state’s defender general for persistently advocating for more staff to meet rising caseloads. As suggested earlier in this chapter, chief defenders in states with commissions designated by various appointing authorities enjoy greater protection from political interference than do state public defender chiefs who serve without oversight commissions.
Even if a chief defender retains employment with a new administration, the lack of independence may impact how the chief deals with recommendations from the governor to decrease the budget of the public defender program or proposed legislation detrimental to indigent defense. Obviously, it places a chief defender in an awkward position to speak out against such actions. For example, in New Mexico, some former assistant public defenders felt pressured by the chief defender to adhere to the governor’s agenda for indigent defense. This same chief defender opposed establishing a commission that would have provided more independence for the statewide public defender’s agency. There also is a separation of powers concern if the executive branch controls both the prosecution of crimes and the defense provided to those accused of crimes. Finally, because governors are elected officials, some with term limits, there may be frequent turnover at both positions.
State Commissions with Partial Authority
Nine states have partial-authority commissions that oversee certain aspects of the state’s indigent defense system. The theoretical benefit of such a system is that it encourages better practices while allowing for local autonomy. Unfortunately, partial-authority commissions have had limited success improving the quality of indigent defense representation statewide, and none provide satisfactory independence for defense services throughout the state.
The states with partial-authority commissions fall into two broad categories. Three states have oversight bodies that employ staff who provide representation in particular geographic areas or in specific types of cases. The other four states use a supplemental funding model whereby counties are encouraged to improve their systems through supplemental state funding. Of these seven states, only Kansas and Oklahoma provide more than 50% of indigent defense funding; in the remaining states, more than half of the funding for indigent defense comes from the counties.
Partial-authority commissions with staff who provide direct representation to indigent defendants are better able to ensure quality defense services than those commissions that merely award supplemental funding. In the three states where the state provides representation in some cases, the oversight bodies uphold standards with which indigent defense representation must comply only in those cases. Because the public defenders work for the state entity, the commissions can readily monitor and control quality. But, inadequate funding remains a constant problem that undermines progress within these programs. Moreover, there is no oversight or quality control of defenders who provide representation outside the commission’s jurisdiction. Therefore, the quality of indigent defense statewide is apt to be quite variable.
Likewise, statewide improvement through the use of the supplemental funding model has been modest. Under this format, all or part of the commission’s authority is linked to supplemental state funding, which is available if local jurisdictions comply with state standards. Basically, states entice counties to improve their indigent defense systems by awarding funds to those counties willing to adhere to state indigent defense standards. County compliance is voluntary, except in Texas, where compliance is mandatory.
Experience suggests several problems with this model. First, unless these commissions are adequately funded, they will not have enough revenues to encourage county compliance with state standards. Partial-authority commissions need to cover a significant portion of the counties’ indigent defense costs to make compliance with standards fiscally viable.
The experience of Indiana, which is one of the more successful partial-authority commissions, illustrates the difficulty with such programs. In Indiana, the state provides less than half of the funding for indigent defense, although the commission has persuaded the more populous of the state’s 92 counties to create independent local boards to oversee indigent defense in their jurisdictions, which includes determining the indigent defense delivery method. In order to qualify for 40% state reimbursement of the county’s indigent defense expenses, counties have had to adhere to the commission’s caseload standards and increase their overall expenditures. In some years, however, the commission has received less funding from the state than was needed for its reimbursements to the counties, so reimbursements were reduced to less than 40%, which in turn has frustrated the counties that were part of the program. In addition, many of the smaller counties have never agreed to become part of the commission’s reimbursement program, and therefore, have not been obligated to increase their expenditures or improve their indigent defense systems. Thus, in Indiana, there is not full statewide oversight and, rather than having just one commission with full authority over the entire state, there is a single partial commission and numerous local boards, all of which are independent of one another.
Second, the commissions must have meaningful standards either adopted by the commission or statutorily defined, and be willing and able to withhold funds from counties in non-compliance. In Washington, state monies are disbursed to all counties that apply for indigent defense improvement grants so long as they are using it for an eligible purpose, although there are no mandatory state standards. However, the counties themselves are required by legislation to formulate minimum standards. Whether or not the standards are binding, state commissions may overlook a county’s non-compliance because they do not want to harm a struggling indigent defense system by withholding funding. While this is understandable, it may render the model less effective if county governments perceive they will receive funding regardless of whether they improve their systems.
Another difficulty with the supplemental funding model is that commissions and their staffs are not always capable of adequately reviewing the performance of the counties’ indigent defense systems. This has sometimes been due to a lack of sufficient personnel, such as in Indiana where there are only two full-time employees. Commissions, therefore, must rely on self-reported data from the counties while lacking the necessary personnel to validate its accuracy. Moreover, because partial-authority commissions cannot mandate uniform case-counting methods and/or a statewide data system, the consistency and reliability of indigent defense data suffers.
Partial-authority commissions also lack the authority to assure meaningful independence of the defense function throughout the state. Local authorities typically determine the method for delivering defense services, as in Indiana mentioned above, as well as the amount of county funding to be allocated for indigent defense. Consequently, in states with partial authority commissions, it is virtually inevitable that there will be significant statewide variations in the quality of representation.
When establishing a full state commission or statewide body for public defense cannot be achieved, it may make sense to start with a partial-authority commission. On the other hand, compromise legislation that ends with a partial-authority commission may actually serve to delay the achievement of lasting reform if the legislature believes that it has tackled the problem of indigent defense and that nothing further need be done. In the end, progress through partial-authority commissions is apt to be unsatisfactory because uniformity and independence of the defense function is not assured statewide, and funding typically continues to be inadequate.
State Commissions with Limited Scope
Four states have statewide commissions of limited scope that oversee particular aspects of indigent defense representation. California, Illinois, Michigan, and Tennessee have commissions overseeing statewide agencies that provide direct representation in appellate and/or capital post-conviction cases. These commissions vary in their ability to protect the independence and quality of the defense function under their jurisdiction.
The sole responsibility of California’s capital post-conviction board of directors is to appoint the Executive Director of the capital post-conviction office. While this protects the office’s independence, there is no external quality control or body to advocate for the office. Conversely, in Illinois, the State Appellate Defender is appointed by the Supreme Court and subject to removal for cause, so independence of the agency’s chief executive is not ensured by the agency’s oversight board. However, the board has authority regarding the quality of representation because it can advise the State Appellate Defender concerning policy and approve its budget. In contrast, in Michigan, the State Appellate Defender is appointed by the commission, which also is authorized to oversee the quality of the representation through its role in developing standards for the program. Similarly, in Tennessee, the Post-Conviction Defender Commission appoints the Post-Conviction Defender, prepares the annual budget, and oversees the expenditures of funds.
Another commission of limited scope is Colorado’s Alternate Defense Counsel Commission. In cases where the Colorado State Public Defender has a conflict, counsel is appointed through the Office of Alternate Defense Counsel. The commission ensures the independence of that office, as it appoints the Alternate Defense Counsel. The commission also advises the Office of Alternate Defense Counsel regarding “the development and maintenance of competent and cost-effective representation.” Thus, Colorado protects the independence of the defense function through two separate commissions because a commission also oversees the Colorado State Public Defender.
Keys to a Successful Oversight Commission
A successful oversight body ensures the independence of the defense function, seeks to secure quality indigent defense representation throughout the state, and directs the allocation of resources. Attributes that distinguish an effective commission include strong leadership, effective oversight, adequate staff, and the collection of accurate and reliable data.
Since members of an indigent defense commission represent the interests of a program that is usually unpopular, its leadership must be well-respected, persistent, and capable of communicating effectively with potentially adverse groups. In order to effectuate change, both the commission and the chief defender or state director need the assistance of diverse constituencies. Accordingly, the leadership must be politically knowledgeable, adept at garnering a consensus, and possess strong professional and interpersonal skills.
The capacity to provide effective oversight is another crucial component for a successful state commission. Thus, a commission needs to develop comprehensive standards for assessing the adequacy of representation provided. In order to confirm compliance with its standards and other requirements, a commission also must have sufficient staff and resources to evaluate indigent defense on a regular basis. Furthermore, these evaluations must be conducted in a manner that is transparent and fair so that both state officials and the indigent defense providers accept the results as credible.
Another key ingredient to a commission’s success is access to accurate and reliable data regarding indigent defense cases. A state should have a standardized statewide case-tracking system to compile information, and, if one does not exist, the commission should be empowered to establish one. Accordingly, all providers should have to report relevant statistics uniformly across the state, allowing for accurate individual assessments as well as precise comparisons among localities. Without reliable data, a commission cannot be confident about implementing changes, nor can it be an effective voice in communicating to the legislature the appropriate amount of funding for indigent defense across the state.
See ABA/TSG Indigent Defense Commissions, supra note 1, at i; ABA Providing Defense Services, supra note 58, Chapter 1, at 5-1.3(b).
See, e.g., Arkansas, Georgia, Kansas, Oklahoma, North Dakota, and West Virginia.
See, e.g., Colorado, Connecticut, Indiana, Missouri, and Ohio.
See, e.g., Minnesota, North Carolina, and Tennessee.
See, e.g., Colorado, Connecticut, Kansas, Montana, and Oregon.
 For example, Kentucky requires that one member of its commission “shall be a child advocate or a person with substantial experience in the representation of children.” Ky. Rev. Stat. Ann. § 31.015(1) (a) (2) (West Supp. 2008). Louisiana requires one member to be a juvenile justice advocate. Montana requires one member that advocates for indigent persons and one that advocates for racial minorities.
 Both Montana and West Virginia require one member of its commission to be “a member of an organization that advocates on behalf of people with mental illness and developmental disabilities.” Mont. Code Ann. § 2-15-1028 (2) (f) (2007); W. Va. Code § 29-21-3b(b) (5) (West Supp. 2008).
 For instance, Indiana excludes law enforcement officers and court employees; Kentucky excludes prosecutors, law enforcement officials, and judges.
See, e.g., MSBA (Maine State Bar Association) Summer Meeting Focuses on Judicial Budget Cut Impacts, Indigent Defense, The Supplement, Aug. 2008, at 2 [hereinafter MSBA Summer Meeting] (“Because the state’s indigent defense fund is part of the judiciary budget, paying rising indigent defense costs means taking money from other judiciary budget accounts, which in turn has forced such measures as temporary court closures”).
Alaska, Arizona, Arkansas, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, Vermont, West Virginia, Wisconsin, and Wyoming.
California, Colorado, Connecticut, Illinois, Indiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, North Carolina, Oregon, Texas, Virginia, and Washington.
Connecticut, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New Jersey, North Carolina, Oregon, Texas, Washington, and Wisconsin.
Conn. Gen. Stat. § 51-289(j) (2007); Minn. Stat. § 611.215 (1) (a) (2008); Or. Rev. Stat. § 151.213(1) (2007).
Idaho Code Ann. § 19-869(1) (LexisNexis 2008).
Ky. Rev. Stat. Ann. § 31.010 (West Supp. 2008); Mont. Code Ann. § 2-15-1028(6) (2007).
 E-mail from William Leahy, Chief Counsel, Committee for Public Counsel Services, to Norman Lefstein (Nov. 24, 2008, 14:48:00 EST) (on file with Reporters).
Colo. Rev. Stat. § 21-1-101(1) (2008).
Ky. Rev. Stat. § 31.015(7) (West Supp. 2008); Minn. Rev. Stat. § 611.215(3) (2008).
Ga. Code Ann. § 17-12-1(c) (2008).
 Terry Wolf, Public Defenders Cry Foul, Dublin Courier Herald, Oct. 1, 2008, at 1.
 Stephen B. Bright, Georgia Beggars Indigent Defense: As Lawyers for the Poor Get a Pittance, Prosecutors Enjoy a Blank Check, Want to Pick Opponents, The Daily R., Jan. 24, 2008, at 4.
See, e.g., Illinois and Kansas.
 For example, North Carolina’s Indigent Defense Services Act of 2000 is comprehensive, with eight subsections regarding the commission’s responsibilities and, within one subsection, a list of specific standards governing indigent defense that the commission is tasked with developing. N.C. Gen. Stat. § 7A-489.5 (2008). Conversely, Maryland’s statute gives only a brief outline of the duties of the commission’s Board of Trustees. Md. Code Ann., Crim. Proc. § 16-302 (West Supp. 2008).
See generally discussion of excessive caseloads, supra notes 96–124 and accompanying text, Chapter 2.
ABA Providing Defense Services, supra note 58, Chapter 1, at 5-1.2(b); see also ABA Ten Principles, supra note 70, Chapter 1, at Principle 2 (“Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar”).
See, e.g., Arkansas, North Carolina, and Texas.
La. Rev. Stat. Ann. § 15:150(A) (Supp. 2008).
 Lefstein, Loy. J. Pub. Int. L., supra note 27, at 133–34.
Ark. Code Ann. § 16-87-203(3) (Supp. 2008).
Arkansas, Colorado, Connecticut, Hawaii, Kentucky, Maryland, Minnesota, Missouri, Montana, New Hampshire, and Wisconsin.
Louisiana, Massachusetts, North Carolina, North Dakota, Oregon, South Carolina, Virginia, and West Virginia.
 In some states, local governments provide office space and/or a minimal amount of additional funding. In South Carolina, the counties may not contribute less money to indigent defense than the amount they allocated the previous year. In Louisiana, for fiscal year 2008–2009, the state is contributing $28 million to indigent defense in addition to amounts contributed by the parishes.
 In Kentucky, the governor chooses the Public Advocate for a four-year term from a list of nominees submitted by the commission. In West Virginia, the Executive Director of Public Defender Services is chosen by the governor and serves as chair of the Indigent Defense Commission. West Virginia is the only state where the chief defender is formally a member of the commission, although the chief defender in Missouri is designated by statute as an ex-officio member.
 Not all states grant their commissions this kind of broad authority. For example, Indiana has a partial-authority commission and each of the state’s 92 counties may determine its own system for providing defense services. See infra note 110 and accompanying text
See ABA Defense Function, supra note 73, Chapter 1, at 4.13(e) (“Defense counsel should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the client’s interest in the speedy disposition of charges, or may lead to the breach of professional obligations.”).
 The New Hampshire Public Defender (NHPD) is a non-profit organization that contracts with the state to provide indigent defense representation. The Judicial Council enters into the contract on behalf of the state to hire NHPD to be the primary provider of indigent defense representation.
 Our review of funding sources in preparation for this report revealed that Texas is apparently the only state in which state financing of indigent defense is derived entirely from special funds.
See supra notes 50–59 and accompanying text, Chapter 2.
 Cavanaugh, supra note 120, Chapter 2. The Missouri Public Defender Commission promulgated a rule, effective July 30, 2008, limiting public defender caseloads and adopting procedures for refusing cases. Mo. Code Regs. Ann. tit 18, § 10-4.010. See also TSG MO Report, supra note 84, Chapter 2.
Alaska, Delaware, Iowa, Rhode Island, New Jersey, New Mexico, Vermont, and Wyoming. Iowa has a commission that only makes recommendations to the legislature regarding hourly rates and per case fee limitations; therefore, it provides no oversight and has no actual power. Vermont’s Office of Defender General has seven county staff offices and five public defender contract offices, which are law firms that contract with the state to provide public defender services.
Alaska, New Jersey, Rhode Island, and Vermont.
Iowa, New Mexico, Vermont, and Wyoming.
See State of Delaware, Office of the Public Defender website, available at http://publicdefender.delaware.gov/aboutagency.shtml.
 No Exceptions Campaign, The Need for Independent Public Defense Systems, Jul. 2008, available at http://www.noexceptions.org/pdf/july_pub.pdf.
 David Alire Garcia, On the Defensive: Public Lawyers Lobby for Independence, Santa Fe Rep., Mar. 14, 2007, available at http://www.nmcoalitionforjustice.org/news_files/SF-Reporter_031407.pdf.
Georgia, Indiana, Kansas, Nebraska, Nevada, Ohio, Oklahoma, Texas, and Washington.
 In Kansas, the Board of Indigents’ Defense Services is responsible for all felony cases and counties may contract with the Board for coverage of misdemeanor and juvenile cases. The Georgia Public Defender Standards Council provides representation for felony and juvenile cases, along with appeals arising from these cases. As in Kansas, local governments may contract with the Council for coverage of misdemeanor cases. In Oklahoma, the Indigent Defense System provides all indigent defense services in 75 counties, excluding only Tulsa and Oklahoma counties.
Indiana, Ohio, Texas, and Washington.
 As of 2005, Kansas and Oklahoma were 35th and 39th in the nation, respectively, in per capita expenditures on indigent defense. In 2005, the population of Kansas was 2,774,687 and the state’s total indigent defense expenditures were $23.4 million; the population of Oklahoma was 3,547,884 and the state’s indigent defense expenditures were $28.4 million. ABA/TSG FY 2005 Indigent Defense Expenditures, supra note 26, Chapter 2, at 12, 25, 35–36. Dividing total expenditures by population yields roughly $8.44 and $8.01 per capita, respectively, as the amount spent on indigent defense. See Id. at 35. See also Greg Bluestein, Ga. Public Defenders Reluctantly Agree to Cuts, Forbes, Sept. 26, 2008 (“The system’s budget has been whacked from $42 million to $35 million since it started in 2005”).
See the website of the Indiana Public Defender Commission and the Annual Report Cover Letter for 2007–2008 and Cover Letters for Annual Reports of prior fiscal years, available at http://www.in.gov/judiciary/pdc/.
 “Each county or city under this chapter shall adopt standards for the delivery of public defense services, whether those services are provided by contract, assigned counsel, or a public defender office. Standards shall include the following: Compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney, and nondiscrimination. The standards endorsed by the Washington state bar association for the provision of public defense services should serve as guidelines to local legislative authorities in adopting standards.” Wash. Rev. Code Ann. § 10.101.030 (West 2005).
See ABA/TSG Indigent Defense Commissions, supra note 1, at 11. In Georgia, the state legislature acknowledged that the supplemental funding model failed and switched to the current partial authority system in 2005. While using the supplemental funding model, Georgia did not provide an adequate monetary incentive to encourage county compliance with their extensive standards and counties in non-compliance still received state funds because the commission did not wish to withhold funds from struggling county indigent defense systems or anger state legislators.
See website of Indiana Public Defender Commission, supra note 110.
See supra notes 7–8 and accompanying text.
California’s Habeas Corpus Resource Center has a five-member board of directors. Each of California’s five Appellate Projects appoints one member to the board. (These projects are non-profit organizations that assign attorneys to non-capital appeals and provide training, as well as some direct representation of indigent appellants.)
Colo. Rev. Stat. § 21-2-101(1) (2008).
Id. at § 2 1-2-101(3).
Id. at § 21-2-101(4).