Nevada’s rural counties historically suffer from a lack of basic needs, like health care.
But doctors and nurses aren't the only service providers rural areas are short on. They also lack state-provided defense attorneys for those who can’t afford one.
Now it looks like that is going to change.
The ACLU of Nevada, the ACLU national and former federal public defender for the District of Nevada, Franny Forsman, just settled a class-action lawsuit against Nevada.
“There’s a fundamental problem with the way that indigent defense is funded in the rural counties,” Forsman told KNPR's State of Nevada.
She said over the years the state has removed funding for indigent defense in Nevada's rural counties. Thirty years ago, the state paid for 80 percent of the cost but now it pays for just 20 percent.
That has left counties basically on their own.
Forsman said that has led to shockingly high caseloads for lawyers who are often getting a flat fee for their work. In one instance, a lawyer had 1,000 cases and was getting paid a flat fee, which she said disincentivizes advocating for a client.
“The more work you do on a case you get paid the same whether you have 600 cases or 1,000 cases,” she said.
Another problem in Nevada's rural counties has been independence.
“The fundamental principle of indigent defense is that it must be independent from the judiciary," Forsman said, "That has been accomplished in Washoe and Clark County has not been accomplished yet in the rural counties.”
Often judges or county commissions will appoint lawyers to cover indigent defense, bringing up questions about undue influence.
“If judges are selecting and paying lawyers who are doing the work in these rural counties, there is judicial influence on the work that the lawyer does,” she said.
The settlement addresses many of those concerns. It comes on the heels of Assembly Bill 81, which was passed by the Nevada Legislature in 2019.
Forsman said the bill corrects many of the issues outlined in the lawsuit but the lawsuit goes a step further. It will be considered 'pending' until 2023.
That will allow AB81 to go through several legislative sessions without being watered down or overturned.
“There have been a number of programs where the Legislature has come through and then you find them disappearing the following session,” Forsman said.
The settlement also establishes a monitor who will report back to the court on whether the agreement is being carried out. There will also be strong data collection requirements.
Forsman said Nevada is notorious for not collecting and keeping data but the settlement changes that.
“This is very heavy on making sure that we can tell what is going on through the data,” she said.
With data on caseload and performance standards, the monitor will be able to study just how well the new programs are working.
In addition, the new state agency created by AB81 is already working with law schools in the state to bring law students to the rural counties on special projects in hopes of attracting young lawyers to the rural lifestyle.
“So we can get young, bright lawyers out into the counties with sufficient supervision to be able to provide the representation that is needed out there,” she said.
Nevada is far from the only state that is not providing the type of indigent defense guaranteed by the Constitution.
Jason Williamson is a staff attorney with the ACLU. He said the organization has filed several lawsuits over the years against states, counties and municipalities, trying to get them to follow the law.
“Public defense is in a state of crisis across the country and not only in rural areas but in jurisdictions all across the United States,” he said.
Williamson noted that indigent defense has not been adequately funded or resources for years. The Supreme Court decision on the issue was handed down more than 50 years ago.
He said the High Court was clear then and it is clear now - the responsibility for funding indigent defense lies with the states.
“That is the state’s responsibility to provide the resources necessary for folks to get the kind of representation that I think all of us would expect if we were accused of a crime,” he said.
After years of fighting for states to fulfill their constitutional obligations, Williamson believes the deal in Nevada could be a big step forward.
“The settlement in Nevada gives us some hope that there are some changes in the offing but as the legal team in Nevada is well aware there is still a long way to go,” he said.
Williamson said the ACLU filed a lawsuit in Idaho, which has some of the same problems as Nevada with a small rural population spread out over large counties that are sometimes difficult to get to.
He understands those challenges and the difficulties many states have finding enough money to cover all their obligations:
“But this is a constitutional right and there is nothing in the Supreme Court’s decisions in the last 50 plus years that say that the state is responsible for ensuring that these rights can be enjoyed by criminal defendants as long as there is money available to do so," he said.
After fighting for these changes since the 90s, Forsman is hopeful that if everything laid out in the settlement and AB81 goes as planned there will be systemic changes to Nevada's legal system.
“I think it's beyond the rural counties. I think when you strengthen an indigent defense system it makes everybody act better,” she said.
Franny Forsman, former Federal Public Defender, District of Nevada; Jason Williamson, staff attorney, ACLU national
