Representation by Counsel of Access to Resources: Utah’s Single Source Approach to Indigent Defense

The article below was published on July 16, 2015 in the Washington & Lee Law Review online (Volume 72, Issue 1, Article 3). 

The State of Utah has a unique way of providing representation in criminal cases to defendants who are too poor to hire an attorney. In Utah, there is no statewide funding or supervision of indigent defense. Each county, city, or town is responsible for creating and funding their own indigent defense delivery system. Utah is one of only two states in the United States—Pennsylvania is the other—that fails to provide state funding or oversight of indigent defense. But what makes Utah truly unique is the way in which counties and municipalities are required to structure their indigent defense delivery systems. Utah’s Indigent Defense Act (IDA) mandates a single-source approach to the provision of indigent defense: indigent defendants who require additional “defense resources” to adequately prepare for trial, such as investigators or expert witnesses, must agree to be represented by the county or municipality’s “defense service provider.” A defendant who elects to retain private counsel is not entitled to additional funds from the county or municipality for any additional “defense resources.”

This “single-source approach” does not affect those defendants who are too poor to hire an attorney or those defendants wealthy enough to both retain counsel and pay the cost of whatever additional defense resources are necessary to adequately prepare for trial. But for defendants who are marginally indigent, who have the financial resources to retain counsel but are unable to afford additional “defense resources,” the single-source approach forces them to waive either their Sixth Amendment right to counsel of choice or their Fourteenth Amendment right to “the basic tools of an adequate defense.”

Defendants have the right to select an attorney who will be the architect of their defense, but they also have the right to “the raw materials integral to the building of an effective defense.” Utah’s single-source approach to indigent defense ignores the fact that these rights are two separate and distinct constitutional rights and conditions a defendant’s access to additional resources on a waiver of their right to counsel of their own choice. Now that the Supreme Court of Utah has decided that the IDA’s single-source approach is constitutional, marginally indigent defendants in Utah who wish to retain counsel, but also need additional defense resources to adequately prepare for trial, have no other option than to appeal to the Federal Courts. Whatever decision is ultimately reached by the United States Court of Appeals for the Tenth Circuit, it is abundantly clear that the IDA’s single-source approach to indigent defense is yet another legislative effort to avoid adequately funding an indigent defense system that would seem to have “no other purpose or effect than to chill the assertion of constitutional rights.”