It’s June of 2005. I’m in the first days of what would become a decades long career as a public defender. On my desk is a three-foot stack of files, inherited from my predecessor, representing the cases set for court just that week. As I’m wading through files, an energetic man bursts into my office for one of my very first client meetings. I can tell he’s got something important on his mind. Something important to tell me. “I just want to know one thing,” he says, “I think I have a good defense. So, let me know if I should hire a real lawyer.” Amused and undeterred, I embarked on my journey as a public defender. Public defense in Idaho has changed a lot since that day in June 2005. October 1, 2024, may have been the biggest change yet. On that day, Idaho transitioned to a single, statewide, state funded system.

The Right to Counsel

             Of all the rights possessed by one accused of a crime, the right to counsel is the most valuable. It stands as a safeguard “deemed necessary to insure fundamental human rights of life and liberty.”[i] “The right to counsel is so basic to our notions of fair trial and due process that denial of the right is never treated as harmless error.”[ii] Without it, the rights to be free from unreasonable searches and seizures,[iii] to a speedy and public trial,[iv] to an impartial jury,[v] to be free from cruel and unusual punishments,[vi] to confront one’s accusers,[vii] to hold the government to its burden,[viii] and to due process itself,[ix] would be little more than ideas scratched on parchment.

Justice Sutherland articulated the fundamental nature of the right to counsel in Powell v. Alabama:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’ ^[x]

Thirty years later, in Gideon v. Wainwright, the U.S. Supreme Court again discussed the “obvious truth” that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”[xi] The Gideon Court noted the “vast sums of money” spent by the government “to establish machinery to try defendants accused of crime.”[xii] “That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend,” reasoned the Court, “are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.”[xiii] Ultimately, the Gideon Court held that the Sixth Amendment guarantee of the right to counsel applied to the states declaring, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”[xiv]

Idaho’s Journey

A review of Idaho history reveals that Idaho reveres the right to counsel even more than the federal system does.  In fact, the right to counsel is so sacred in Idaho that it is not only guaranteed in Article I, § 3 of our state constitution, but the right to court-appointed counsel for every indigent defendant was codified in Idaho decades before Gideon. In 1887, Title VI., Chapter I., § 7721 of the Revised Statutes of Idaho read:

            Sec. 7721. If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.

In 1923, the Idaho Supreme Court declared:

            It is the public policy of this state, disclosed by constitutional guaranties as well as by numerous provisions of the statutes, to accord to every person accused of crime, not only a fair and impartial trial, but every reasonable opportunity to prepare his defense and to vindicate his innocence upon a trial. In the case of indigent persons accused of crime the court must assign counsel to the defense at public expense (C.S., sec. 8858).[xv]

            In Betts v. Brady,[xvi] the U.S. Supreme Court rejected the proposition that the Fourteenth Amendment required states to appoint counsel for all indigent defendants. However, the U.S. Supreme Court noted that at the time of the Betts case, Idaho was one of only eighteen states requiring appointment of counsel in all cases where defendants were unable to procure counsel.[xvii] 

            Up until October 1, 2024, the State of Idaho required each of its 44 counties to “provide for the representation of indigent persons and other individuals who are entitled to be represented by an attorney at public expense.”[xviii] The counties could choose from establishing a county public defender’s office, joining with another county, or counties, to create a joint public defender’s office, contracting with an existing public defender’s office, or contracting with defending attorneys to provide public defense services.[xix] Each county was also tasked with appropriating enough money each year to fund its chosen method.[xx]            

            In 2014, the Idaho Public Defense Act was passed.[xxi]  With this act, the counties were left with the responsibility of providing public defense services, but the state now provided additional funding. The Public Defense Act also created the Public Defense Commission (“PDC”), a self-governing agency tasked with promulgating rules and standards governing public defense.[xxii] The PDC also acted as the conduit through which state funding was requested and received.[xxiii] 

            On June 17, 2015, the American Civil Liberties Union of Idaho initiated a class action lawsuit accusing Idaho of failing to meet its state and federal constitutional obligations to provide adequate public defense (the “Tucker Lawsuit”).[xxiv] That lawsuit was appealed twice to the Idaho Supreme Court and twice remanded back to the District Court.[xxv] The Tucker Lawsuit was dismissed by the District Court in February of 2024, and is currently on appeal for the third time.[xxvi]

            Enter House Bill 735,[xxvii] passed into law in March 2022. Couched as a “property tax relief” bill, H.B. 735, among other things, released the counties “from any further financial obligation to provide indigent public defense” beginning October 1, 2024.[xxviii] Through H.B. 735, the Legislature also expressed its intention that, before adjournment of the 2023 legislative session, Idaho would create a new state public defense system.[xxix]

            The following legislative session, the State Public Defender Act (“SPDA”)[xxx] passed the legislature and was signed by the governor on March 30, 2023. The SPDA created the Office of the State Public Defender (“OSPD”) in the department of self-governing agencies.[xxxi] The Act also created eight statutory positions—the State Public Defender (“SPD”) and seven District Public Defenders (“DPD”).[xxxii] Together, the SPD and DPDs are charged with fulfilling “Idaho’s obligation to provide indigent public defense pursuant to the Sixth Amendment to the United States constitution; Section 13 Article I of the constitution of the State of Idaho;” and the SPDA.[xxxiii] On October 1, 2024, Idaho embarked on the transition to a statewide public defense system.

            As one might expect, this transition has come with its share of growing pains. The two main hurdles are funding and a shortage of attorneys (though, the two are, of course, related). The SPDA came with a starting budget of approximately $48 million.[xxxiv] This fell woefully short of the funding necessary for Idaho to meet the constitutional obligations owed to those accused by the government but without the resources needed to hire counsel. As noted by the U.S. Supreme Court in Gideon, the government spends “vast sums of money to establish machinery to try defendants accused of crime.”[xxxv] Therefore, to protect citizens from being crushed by the weight of the state’s resources, the OSPD must be provided funds sufficient to establish its own “machinery.” The machinery required to fulfill the necessity of ensuring the fundamental human rights of life and liberty consists of attorneys, staff, investigators, facilities, equipment, technology, training, experts, support services for clients, etc. Idaho, like many other states, is also seeing a shortage of attorneys, especially those entering public service. The lack of funding only exacerbated the shortage of attorneys in public defense.  Recently, with the passage of S.B. 1109 and S.B. 1202, the Idaho Legislature took a step in the right direction by approving a total budget of approximately $83 million.[xxxvi] Time will tell whether this amount is sufficient, although I fear it is not.

            Idaho’s new public defense system needs the help of the entire bar to succeed. Sign up.  Join the OSPD.[xxxvii] Reach out to your District Public Defender and offer to take just one case—every client matters. Contact your legislators. Remind them of the fundamental nature of the right to counsel. Educate them about the important work done by public defenders. Encourage them to adequately fund the right to counsel. Mentor young attorneys and encourage them to give back by defending one of our most fundamental rights—the right to counsel. Or simply thank a public defender for their work.

Continuing the Journey

            It’s February 2025, nearly two decades since I first became a public defender. As I wait in the hallway for court to start, a gentleman, also waiting for court, strikes up a conversation. He shares his opinions of his case, the court, the prosecutor, and his treatment in general. I share some advice and try to answer his questions as best I can without knowing all that his case entails. The time has come for us to enter the courtroom. He asks if he could hire me. I tell him, “No, I don’t accept private cases, I’m a public defender.”  He steps back, a stunned look on his face, “You’re a public defender? But you sound like a real lawyer.” Still amused and still undeterred, I’ll continue my journey in public defense as Idaho continues its journey. I believe in the mission. For me, it’s a calling. Like me, there are hundreds of dedicated professionals steadfastly standing firm against the machinery of the state, protecting the constitutional rights possessed by every citizen of Idaho, protecting my rights, and protecting yours. Standing tall for the accused.

Jordan S. Crane is Idaho’s Seventh District Public Defender. His career in public defense began in 2005 when he joined Bonneville County’s Public Defender’s Office where he served as a deputy, chief deputy, and conflict public defender. In 2015 he was appointed as Bonneville County’s Chief Public Defender where he remained until being selected for his current position.   

[i] Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. Ct. 1019, 1022, 82 L. Ed. 1461 (1938).

[ii] In Interest of Kinley, 108 Idaho 862, 866, 702 P.2d 900, 904 (Ct. App. 1985) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).  

[iii] U.S. Const. amend. IV, Idaho Const. art. 1, § 17.

[iv] U.S. Const. amend. VI, Idaho Const. art. 1, § 13.

[v] U.S. Const. amend. VI, Idaho Const. art. 1, § 7.

[vi] U.S. Const. amend. VIII, Idaho Const. art. 1, § 6.

[vii] U.S. Const. amend. VI.

[viii] Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1242, 127 L. Ed. 2d 583 (1994).

[ix] U.S. Const. amend. VI, Idaho Const. art. 1, § 13.

[x] Powell v. Alabama,287 U.S. 45, 68-69, 53 S.Ct. 55, 53, 77 L.Ed. 158 (1932).

[xi] Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963).

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] State v. Montroy, 37 Idaho 684, 690, 217 P. 611, 614 (1923). (C.S., sec. 8858).

[xvi] 316 U.S. 455, 62 S.Ct. 1252 (1942) (overruled by Gideon).

[xvii] Id. at 470, 62 S.Ct. at 1260. 

[xviii] Idaho Code § 19-859 (repealed 2023, ch. 220, § 27, p. 660). 

[xix] Id. 

[xx] I.C. § 19-862 (repealed 2023, ch. 220, § 29, p. 660).    

[xxi] I.C. § 19-848 (repealed 2023, ch. 220, § 23, p. 660). 

[xxii] I.C. § 19-850 (repealed 2023, ch. 220, § 25, p. 660). 

[xxiii] I.C. § 19-862A (repealed 2023, ch. 220, § 30, p. 660).

[xxiv] Tucker, et.al. v. Idaho, et.al., Ada Co. Case No. CV-OC-2015-10240.

[xxv] Tucker v. State, 162 Idaho 11, 394 P.3d 54 (2017) (“Tucker I”); Tucker v. State, 168 Idaho 570, 484 P.3d 851 (2021) (“Tucker II”).

[xxvi] Tucker, et.al. v. Idaho, et.al., Ada Co. Case No. CV-OC-2015-10240.

[xxvii] H.B. 735 66th Leg. (Idaho 2022).

[xxviii] I.C. § 19-847 (repealed 2023, ch. 220, § 3, p. 660), I.C. § 19-6008(1)(a). 

[xxix] Statement of Purpose, H.B. 735 66th Leg. (Idaho 2022).

[xxx] I.C. §§ 19-6001-19-6020.

[xxxi] I.C. § 19-6003. 

[xxxii] I.C. §§ 19-6004, 6006. 

[xxxiii] I.C. § 19-6005. 

[xxxiv] H.B. 236 67th Leg. (Idaho 2023). 

[xxxv] Gideon, 372 U.S. at 344. 

[xxxvi] S.B. 1109 68th Leg. (Idaho 2025); S.B. 1202 68th Leg. (Idaho 2025).

[xxxvii] For information regarding open positions, see spd.idaho.gov or statecareers.idaho.gov.