7 LONG TITLE
8 General Description:
9 This bill addresses provisions relating to indigent defense.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ rewrites portions of Title 77, Chapter 32, Part 8, Utah Indigent Defense
15 ▸ addresses membership, membership qualifications, terms, and quorum requirements
16 of the commission;
17 ▸ addresses duties of the director of the commission;
18 ▸ addresses powers and duties of the commission;
19 ▸ addresses minimum guidelines;
20 ▸ addresses provisions regarding the Indigent Defense Resources Restricted Account;
21 ▸ addresses provisions of an indigent defense services grant program;
22 ▸ modifies provisions requiring cooperation and participation with commission;
23 ▸ repeals sections of the code relating to the commission; and
24 ▸ makes technical changes.
25 Money Appropriated in this Bill:
27 Other Special Clauses:
29 Utah Code Sections Affected:
31 77-32-801, as last amended by Laws of Utah 2017, Chapter 111
32 77-32-802, as last amended by Laws of Utah 2017, Chapter 111
33 77-32-803, as last amended by Laws of Utah 2017, Chapter 111
35 77-32-801.5, Utah Code Annotated 1953
36 REPEALS AND REENACTS:
37 77-32-804, as last amended by Laws of Utah 2017, Chapter 111
38 77-32-805, as last amended by Laws of Utah 2017, Chapter 111
39 77-32-806, as last amended by Laws of Utah 2017, Chapter 111
40 77-32-807, as last amended by Laws of Utah 2017, Chapter 111
42 77-32-808, as last amended by Laws of Utah 2017, Chapter 111
43 77-32-809, as last amended by Laws of Utah 2017, Chapter 111
44 77-32-810, as enacted by Laws of Utah 2016, Chapter 177
46 Be it enacted by the Legislature of the state of Utah:
47 Section 1. Section 77-32-801 is amended to read:
49 77-32-801. Utah Indigent Defense Commission -- Creation -- Purpose.
50 (1) There is created within the State Commission on Criminal and Juvenile Justice the
51 "Utah Indigent Defense Commission."
52 (2) The purpose of the commission is to assist the state in meeting the state's
53 obligations for the provision of indigent defense services, consistent with the United States
54 Constitution, the Utah Constitution, and the Utah Code.
61 Section 2. Section 77-32-801.5 is enacted to read:
62 77-32-801.5. Definitions.
63 Notwithstanding Section 77-32-201, as used in this part:
64 (1) "Account" means the Indigent Defense Resources Account, created in Section
66 (2) "Indigent defense service provider" means an individual or an entity providing
67 indigent defense services for:
68 (a) a county;
69 (b) a municipality; or
70 (c) any combination of counties or municipalities, or both, through an interlocal
71 agreement or other agreement under Section 77-32-306 to provide regional indigent defense
73 (3) "Indigent defense services" means the representation of an indigent individual.
74 (4) "Indigent defense system" means indigent defense services provided by:
75 (a) local units of government, including a county or municipality; or
76 (b) a regional legal defense organization.
77 (5) "Indigent individual" means an individual who:
78 (a) qualifies as indigent under indigency standards established in Section 77-32-202;
79 (b) does not, after being fully advised of the right to counsel, knowingly, intelligently,
80 and voluntarily waive the right to counsel; and
81 (c) is:
82 (i) accused of a criminal offense the penalty for which includes any possibility of
83 incarceration, confinement, or detention regardless of whether actually imposed;
84 (ii) a minor arrested or charged with any offense under Title 78A, Chapter 6, Part 6,
85 Delinquency and Criminal Actions, or Title 78A, Chapter 6, Part 7, Transfer of Jurisdiction;
86 (iii) a parent or legal guardian facing any action initiated by the state or political
87 subdivision of the state under Title 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency
88 Proceedings, Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act, or Title 78A,
89 Chapter 6, Part 10, Adult Offenses;
90 (iv) a parent or legal guardian facing any action initiated by a private party under Title
91 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
92 (v) any one of the parties in the proceedings listed in this Subsection (5)(c), who is
93 appealing a first appeal from a conviction or other final court action in one of those
95 Section 3. Section 77-32-802 is amended to read:
96 77-32-802. Commission members -- Member qualifications -- Terms -- Vacancy.
97 (1) The commission is composed of [
98 nonvoting [
99 (a) The governor, with the consent of the Senate, shall appoint the following 12 voting
101 (i) two practicing criminal defense attorneys [
104 (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
105 Association of Criminal Defense Lawyers;
107 Minority Bar Association;
109 county of the first or second class;
111 county of the third through sixth class;
113 Association of Criminal Defense Lawyers;
115 its membership;
118 House and President of the Senate; and
120 entity funded under Title 63A, Chapter 11, Child Welfare Parental Defense Program.
121 (b) The Judicial Council shall appoint a voting member from the Administrative Office
122 of the Courts.
124 Justice or the executive director's designee [
129 (d) The director of the commission, appointed under Section 77-32-803, is an ex
130 officio, nonvoting member of the commission.
131 (2) [
132 term, except as provided in Subsection (3).
133 (3) The governor shall stagger the initial terms of appointees so that approximately half
134 of the [
135 (4) [
136 experience in indigent criminal defense , [
137 delinquency proceedings or have otherwise demonstrated a strong commitment to providing
138 effective representation in indigent defense services.
139 (5) A person who is currently employed solely as a criminal prosecuting attorney may
140 not serve as a member of the commission .
141 (6) [
143 (7) The commission may remove a member for incompetence, dereliction of duty,
144 malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
145 (8) [
146 be appointed for the remaining unexpired term in the same manner as the original appointment.
147 (9) The [
150 from the commission's membership to serve a one-year term. A commission member may not
151 serve as chair of the commission for more than three consecutive terms.
152 (10) A member may not receive compensation or benefits for the member's service, but
153 may receive per diem and travel expenses in accordance with:
154 (a) Section 63A-3-106;
155 (b) Section 63A-3-107; and
156 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
160 (11) (a) A majority of the members of the commission constitutes a quorum.
161 (b) If a quorum is present, the action of a majority of the voting members present
162 constitutes the action of the commission.
163 Section 4. Section 77-32-803 is amended to read:
164 77-32-803. Director -- Qualifications -- Staff.
165 (1) The commission shall appoint a director to carry out the following duties:
166 (a) establish an annual budget;
167 (b) assist the commission in [
168 statutory duties;
169 (c) assist the commission in developing and regularly reviewing advisory caseload
170 guidelines and procedures[
173 (d) perform all other duties as assigned.
174 (2) The director shall be an active member of the Utah State Bar with an appropriate
175 background and experience to serve as the full-time director.
176 (3) The director shall hire staff as necessary to carry out the duties of the commission,
178 (a) one individual who is an active member of the Utah State Bar to serve as a full-time
179 assistant director; and
180 (b) one individual with data collection and analysis skills to carry out duties as outlined
181 in Subsection 77-32-804(1)[
182 (4) The commission in appointing the director, and the director in hiring the assistant
183 director, shall give a preference to individuals with experience in adult criminal defense, child
184 welfare parental defense, or juvenile delinquency defense.
185 Section 5. Section 77-32-804 is repealed and reenacted to read:
186 77-32-804. Powers and duties of the commission -- Minimum guidelines -- Annual
188 (1) The commission shall:
189 (a) adopt minimum guidelines for an indigent defense system to ensure the effective
190 representation of indigent individuals consistent with the requirements of the United States
191 Constitution, the Utah Constitution, and the Utah Code, which guidelines at a minimum shall
192 address the following:
193 (i) an indigent defense system shall ensure that in providing indigent defense services:
194 (A) an indigent individual receives conflict-free indigent defense services; and
195 (B) there is a separate contract for each type of indigent defense service and conflict
196 cases; and
197 (ii) an indigent defense system shall ensure an indigent defense service provider has:
198 (A) the ability to exercise independent judgment without fear of retaliation and is free
199 to represent an indigent individual based on the indigent defense service provider's own
200 independent judgment;
201 (B) adequate access to defense resources;
202 (C) the ability to provide representation to accused persons in criminal cases at all
203 critical stages, and at all stages to indigent parties in juvenile delinquency and child welfare
205 (D) a workload that allows for sufficient time to meet with clients, investigate cases,
206 file appropriate documents with the courts, and otherwise provide effective assistance of
207 counsel to each client;
208 (E) adequate compensation without financial disincentives;
209 (F) appropriate experience or training in the area for which the indigent defense service
210 provider is representing indigent individuals;
211 (G) compensation for legal training and education in the areas of the law relevant to the
212 types of cases for which the indigent defense service provider is representing indigent
213 individuals; and
214 (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
215 including expectations on client communications and managing conflicts of interest;
216 (b) encourage and aid indigent defense systems in the state in the regionalization of
217 indigent defense services to provide for effective and efficient representation to all indigent
219 (c) identify and collect data from any source, which is necessary for the commission to:
220 (i) aid, oversee, and review compliance by indigent defense systems with the
221 commission's minimum guidelines for the effective representation of indigent individuals; and
222 (ii) provide reports regarding the operation of the commission and the provision of
223 indigent defense services by indigent defense systems in the state;
224 (d) assist indigent defense systems by reviewing contracts and other agreements, to
225 ensure compliance with the commission's minimum guidelines for effective representation of
226 indigent individuals;
227 (e) investigate, audit, and review the provision of indigent defense services to ensure
228 compliance with the commission's minimum guidelines for the effective representation of
229 indigent individuals;
230 (f) establish procedures for the receipt and acceptance of complaints regarding the
231 provision of indigent defense services in the state;
232 (g) establish procedures to award grants to indigent defense systems under Section
233 77-32-806 consistent with the commission's minimum guidelines for the effective
234 representation of indigent individuals and appropriations by the state;
235 (h) emphasize the importance of ensuring constitutionally effective indigent defense
237 (i) encourage members of the judiciary to provide input regarding the delivery of
238 indigent defense services;
239 (j) oversee individuals and entities involved in providing indigent defense services;
240 (k) annually report to the governor, Legislature, Judiciary Interim Committee, and
241 Judicial Council, regarding:
242 (i) the operations of the commission;
243 (ii) the operations of the indigent defense systems in the state; and
244 (iii) compliance with the commission's minimum guidelines by indigent defense
245 systems receiving grants from the commission;
246 (l) submit recommendations for improving indigent defense services in the state, to
247 legislative, executive, and judicial leadership; and
248 (m) publish an annual report on the commission's website.
249 (2) An indigent defense system within the state shall meet the minimum guidelines
250 adopted by the commission under Subsection (1)(a).
251 (3) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
252 Administrative Rulemaking Act, to carry out the commission's duties under this part.
253 Section 6. Section 77-32-805 is repealed and reenacted to read:
254 77-32-805. Indigent Defense Resources Restricted Account -- Administration.
255 (1) (a) There is created within the General Fund a restricted account known as the
256 "Indigent Defense Resources Restricted Account."
257 (b) Appropriations from the account are nonlapsing.
258 (2) The account consists of:
259 (a) money appropriated by the Legislature based upon recommendations from the
260 commission consistent with principles of shared state and local funding;
261 (b) any other money received by the commission from any source to carry out the
262 purposes of this part; and
263 (c) any interest and earnings from the investment of account money.
264 (3) The commission shall administer the account and, subject to appropriation,
265 disburse money from the account for the following purposes:
266 (a) to establish and maintain a statewide indigent defense data collection system;
267 (b) to establish and administer a grant program to provide grants of state money to
268 indigent defense systems as set forth in Section 77-32-806;
269 (c) to provide training and continuing legal education for indigent defense service
270 providers; and
271 (d) for administrative costs.
272 Section 7. Section 77-32-806 is repealed and reenacted to read:
273 77-32-806. Indigent defense services grant program.
274 (1) The commission may award grants to supplement local spending by a county or
275 municipality for indigent defense services and defense resources.
276 (2) Commission grant money may be used for the following expenses:
277 (a) to assist a county or municipality to provide indigent defense services that meet the
278 commission's minimum guidelines for the effective representation of indigent individuals;
279 (b) the establishment and maintenance of local indigent defense data collection
281 (c) indigent defense services in addition to those currently being provided by a county
282 or municipality; and
283 (d) to provide training and continuing legal education for indigent defense service
285 (3) To receive a grant from the commission, a county or municipality shall demonstrate
286 to the commission's satisfaction that:
287 (a) the county or municipality has incurred or reasonably anticipates incurring expenses
288 for indigent defense services that are in addition to the county's or municipality's average
289 annual spending on indigent defense services in the three fiscal years immediately preceding
290 the grant application; and
291 (b) a grant from the commission is necessary for the county or municipality to meet the
292 commission's minimum guidelines for the effective representation of indigent individuals.
293 (4) The commission may revoke a grant if an indigent defense system fails to meet
294 requirements of the grant or any of the commission's minimum guidelines for the effective
295 representation of indigent individuals.
296 Section 8. Section 77-32-807 is repealed and reenacted to read:
297 77-32-807. Cooperation and participation with the commission.
298 Indigent defense systems and entities or individuals engaged in providing indigent
299 defense services in the state shall cooperate and participate with the commission in the
300 collection of data, investigation, audit, and review of all indigent defense services.
301 Section 9. Repealer.
302 This bill repeals:
303 Section 77-32-808, Annual report, budget, and listing of expenditures --
304 Availability on website.
305 Section 77-32-809, Investigation, audit, and review of indigent and juvenile defense
306 services -- Cooperation and participation with commission -- Maintenance of local share
307 -- Necessity for excess funding.
308 Section 77-32-810, Applicability of GRAMA and Open and Public Meetings Act.