BOISE, ID – Idaho has significantly reformed its public defense system since 2022. Now, the state Supreme Court will weigh whether the changes are enough to show the state is meeting its constitutional obligation to provide adequate representation or if it’s too soon to decide.

Attorneys representing indigent defendants — those who are charged with a crime who cannot pay for their own legal representation — argued on Friday before the state’s high court in Boise that despite an entirely different system, the state still isn’t meeting its constitutional requirement.

The state’s system is being challenged by attorneys for the ACLU of Idaho and the law firm Hogan Lovells, who on Friday asked the Idaho Supreme Court to reverse a February District Court dismissal of the case, named Tucker v. Carlson.

“We have never asked for a particular model of public defense; what we have asked for is that the state implement public defense in a way that passes constitutional muster,” Hogan Lovells Attorney Joe Cavanaugh told the justices.

The state argued that the reforms — which consolidated a fractured, county-based system for public defense into a state-funded Office of the Public Defender — are exactly what the courts and plaintiffs had been asking for in the case when it was filed a decade ago.

“The new state system has addressed the issues that have been raised in this lawsuit. It’s really that simple,” said Joe Aldridge, an attorney from Scanlan Griffiths + Aldridge who argued on behalf of the state.

Idaho has overhauled its public defense system. The ACLU says it’s not enough.

The ACLU of Idaho, in its December appeal to the state’s highest court, argued that the state reforms may have made the situation worse because it was followed by a mass resignation of public defenders across the state, the Idaho Capital Sun reported.

‘Headed for a disaster:’ ACLU asks Idaho Supreme Court to order public defense system reform

As of Friday, the Office of the State Public Defender had 21 public defender openings, which included vacancies and new positions created by 2025 legislation to open four new offices in Jerome, Shoshone, Benewah and Elmore counties, Office of the Public Defender spokesperson Patrick Orr told the Sun.

The changes made thus far were spurred by the original filing of the case in 2015, contending Idaho’s system was inadequate to guarantee people’s right to counsel under the Constitution’s Sixth Amendment.

In 2022, the Legislature passed House Bill 735 so the state would fund all public defense rather than the counties. In 2023, the Legislature passed House Bill 236 to replace the Public Defense Commission with a new state agency, the Office of the Public Defender.

The new public defender office fully transitioned into the new system in October 2024.

Cavanaugh argued Friday in court that the reforms haven’t changed the “deficiencies on the ground” regarding low-income people’s access to adequate defense. He said that legislative reforms don’t relieve the courts of enforcing the Constitution.

“The Legislature’s had their shot, and has proven to have failed at that shot,” he said. “These issues are occurring right in the judiciary’s backyard.”

The lawsuit is asking the court to declare the state of Idaho’s public defense system unconstitutional and to place an injunction on the state, requiring it to create a plan to fix the alleged deficiencies to bring the system into compliance with the constitution. The plaintiffs also ask the court to review and approve the plan and appoint an independent monitor to implement the plan.

Idaho justices mull if available data can show new system is or isn’t constitutional

Multiple justices questioned Cavanaugh about how the court could use the data included in the December 2024 filing regarding the alleged deficiencies in the state’s system, to determine how adequate it is now.

“It just feels like the ground has changed so much that you would almost be forced to start over,” Justice Gregory Moeller said.

The lawsuit filed in December includes written testimony from attorneys and defendants who describe situations such as defendants arriving in court multiple times without an attorney present, despite multiple attempts to contact the state public defense office, the Sun reported.

Cavanaugh argued that the data supplied looked at the issue on a statewide basis and wasn’t tied to any particular system.

Aldridge, on behalf of the state, said it was too soon to make a determination that the new system was adequate, but that it met its obligation by putting in place a system “that was designed to promote constitutionally adequate indigent defense.”

Moeller asked Aldridge if the state could show that the new system has made significant improvements.

“At this state in time, nobody can say whether or not the new state system suffers from widespread, persistent structural defects … it’s simply too soon to make that determination,” he said.

Aldridge said that it would take “probably a few years” before enough cases went through the new system to be able to determine if it was accurate, but that the new funding and oversight structure was designed to be the “state-of-the-art, gold standard.”

Idaho Capital Sun is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Idaho Capital Sun maintains editorial independence. Contact Editor Christina Lords for questions: info@idahocapitalsun.com.