Ongoing Efforts to Address Systematic Concerns at the Heart of Idaho's Public Defense System 

The ACLU, the ACLU of Idaho, and the global law firm Hogan Lovells filed a lawsuit in 2015 against the State of Idaho over its defective public defense system. That litigation is ongoing today. 

When Idaho passed HB 504 in early 2016, it created the Idaho Public Defense Commission (PDC). The PDC is tasked with creating standards to guide the work of defending attorneys across the state and to ensure constitutional levels of public defense service to their indigent clients.

Beginning in 2018, the PDC engaged in public rule creation (negotiated rulemaking) and asked for public comment on PDC draft standards pertaining to investigations, use of experts, parity in investigators, experts, and testing resources between public defenders and prosecutors, and qualifications for public defenders who work on death penalty cases. The most recent PDC Strategic Plan is available here

You can also review ACLU talking points on PDC through our 2017 Public Defense Commission Rules guide


What's New in Idaho Public Defense?

Ongoing Struggles to Reform Idaho's Public Defense System

In 2022, the Idaho Legislature passed a bill that creates a new funding source for public defense beginning in 2025—shifting the cost of public defense services from the counties to the state.

During the 2023 legislative session, lawmakers were tasked with passing a bill that specifies what that statewide system will look like. Much to the ACLU of Idaho’s disappointment, the legislation introduced this session -- HB 236 -- fell far short of establishing a system that can meet constitutional muster or that will avoid a trial in Tucker.

HB 236: The State Public Defender Act, 2023

HB 236, known as the State Public Defender Act, was introduced and passed during the 2023 legislative session. 

Unfortunately, the bill sponsors and the governor’s office failed to work with key stakeholders, including the ACLU of Idaho, to address significant concerns with the bill. Those concerns include, but are not limited to: inadequate funding, lack of political independence, and permissive standards.

HB 236 Lacks Sufficient Funding

The funding mechanism for the new model of public defense is laid out in different legislation; however, the bill’s Statement of Purpose provides that $48 million is to be made available annually to fund public defense across the state beginning in FY25.

Given recognized national standards for the provision of constitutionally effective public defense and existing caseloads, this level of public defense funding is woefully inadequate.

The Idaho legislature must significantly increase funding to ensure constitutionally adequate representation or decriminalize minor offenses to in order decrease caseloads and alleviate costs associated with the carceral state.

HB 236 Poses Threats to Political Independence

Ensuring that public defense is independent from judicial and political influence is paramount in achieving a constitutional system.

The American Bar Association created the “Ten Principles of a Public Defense Delivery System” as a practical guide for governmental officials, policymakers, and other parties who are charged with creating and funding new --or improving existing-- public defense delivery systems.1

The Ten Principles constitute the fundamental criteria necessary to design a system that provides “effective, efficient, high quality, ethical, and conflict-free legal representation for criminal defendants who are unable to afford an attorney.”2 Political and judicial independence is the very first among the American Bar Association’s Ten Principles of a Public Defense Delivery System because without it, “most of the other ABA Principles are unobtainable.”3 

Under HB 236, the State Public Defender is appointed by the Governor and confirmed by the Senate. Chief District Public Defenders will be hired by District Magistrate Commissions with only permissive input from the State Public Defender.

This structure is contrary to the Sixth Amendment’s mandate that the public defense function, including the selection of defense counsel, be free from political influence.

[1] See “Ten principles of a public defense delivery system.” American Bar Association, 2002,

[2] Id.

[3] "The Preeminent need for Independence of the Defense Function - ABA Principle 1." Sixth Amendment Center, 2023. 


HB 236 Doesn't Adequately Protect All Idahoans

The bill authorizes the State Public Defender to implement the American Bar Association’s most current maximum attorney caseload standards for effective representation, but it does not make clear that those limits are not to be exceeded.

In our view, HB 236 does not do enough to ensure that every indigent defendant’s case receives adequate attention and representation.

It is critical that Idaho’s defenders not take on cases that exceed workload capacities prescribed by the ABA by reference to national workload limits.

What's Next?

The Public Defender Act should be amended to alleviate concerns. As Idaho transitions to a statewide system, it will be incumbent on the newly appointed State Public Defender to implement, monitor compliance with, and enforce national workload standards.

The Idaho legislature will also need to address funding inadequacies—otherwise, the “new model” for public defense in Idaho will be doomed to failure.

The failures of Idaho’s current public defense system have already resulted in years of costly litigation. The litigation is ongoing today and will continue until the system lives up to our treasured U.S. and Idaho constitutions.