Enrolled Copy S.B. 160
1 INDIGENT DEFENSE AMENDMENTS
2024 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Todd D. Weiler House Sponsor: Tyler Clancy
2
3 LONG TITLE
4 General Description:
5 This bill amends provisions related to indigent defense.
6 Highlighted Provisions:
7 This bill:
8 ▸ repeals the Indigent Defense Funds Board;
9 ▸ amends provisions related to assigning an indigent defense service provider to represent
10 an indigent individual;
11 ▸ amends the duties of the Indigent Defense Commission and the Office of Indigent
12 Defense Services to incorporate the duties of the Indigent Defense Funds Board;
13 ▸ amends provisions related to using and administering the Indigent Aggravated Murder
14 Defense Fund;
15 ▸ repeals provisions that allow an indigent defense service provider to file a motion with
16 the court for an order for the payment of extraordinary indigent defense expenses; and
17 ▸ makes technical and conforming changes.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 78B-22-102, as last amended by Laws of Utah 2022, Chapters 281, 451
25 78B-22-203, as last amended by Laws of Utah 2023, Chapter 182
26 78B-22-404, as last amended by Laws of Utah 2022, Chapter 451
27 78B-22-452, as last amended by Laws of Utah 2021, Chapter 228
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28 78B-22-701, as last amended by Laws of Utah 2023, Chapter 182
29 78B-22-702, as last amended by Laws of Utah 2023, Chapter 182
30 78B-22-703, as last amended by Laws of Utah 2023, Chapter 182
31 78B-22-704, as last amended by Laws of Utah 2023, Chapter 182
32 RENUMBERS AND AMENDS:
33 78B-22-701.5, (Renumbered from 78B-22-502, as last amended by Laws of Utah 2020,
34 Chapter 392)
35 REPEALS:
36 78B-22-501, as last amended by Laws of Utah 2022, Chapter 451
37 78B-22-705, as enacted by Laws of Utah 2023, Chapter 182
38
39 Be it enacted by the Legislature of the state of Utah:
40 Section 1. Section 78B-22-102 is amended to read:
41 78B-22-102 . Definitions.
42 As used in this chapter:
43 (1) "Account" means the Indigent Defense Resources Restricted Account created in Section
44 78B-22-405.
45 [(2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.]
46 [(3)] (2) "Commission" means the Utah Indigent Defense Commission created in Section
47 78B-22-401.
48 [(4)] (3) "Child welfare case" means a proceeding under Title 80, Chapter 3, Abuse,
49 Neglect, and Dependency Proceedings, or Title 80, Chapter 4, Termination and
50 Restoration of Parental Rights.
51 [(5)] (4) "Executive Director" means the executive director of the Office of Indigent
52 Defense Services, created in Section 78B-22-451, who is appointed in accordance with
53 Section 78B-22-453.
54 [(6)] (5) "Indigent defense resources" means the resources necessary to provide an effective
55 defense for an indigent individual.
56 [(7)] (6) "Indigent defense service provider" means an attorney or entity appointed to
57 represent an indigent individual through:
58 (a) a contract with an indigent defense system to provide indigent defense services;
59 (b) an order issued by the court under Subsection 78B-22-203(2)(a); or
60 (c) direct employment with an indigent defense system.
61 [(8)] (7) "Indigent defense services" means:
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62 (a) the representation of an indigent individual by an indigent defense service provider;
63 and
64 (b) the provision of indigent defense resources for an indigent individual.
65 [(9)] (8) "Indigent defense system" means:
66 (a) a city or town that is responsible for providing indigent defense services;
67 (b) a county that is responsible for providing indigent defense services in the district
68 court, juvenile court, and the county's justice courts; or
69 (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
70 Act, that is responsible for providing indigent defense services according to the terms
71 of an agreement between a county, city, or town.
72 [(10)] (9) "Indigent individual" means:
73 (a) a minor who is:
74 (i) arrested and admitted into detention for an offense under Section 78A-6-103;
75 (ii) charged by petition or information in the juvenile or district court; or
76 (iii) described in this Subsection [(10)] (9)(a), who is appealing an adjudication or
77 other final court action; and
78 (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
79 Section 78B-22-202.
80 [(11)] (10) "Minor" means the same as that term is defined in Section 80-1-102.
81 [(12)] (11) "Office" means the Office of Indigent Defense Services created in Section
82 78B-22-451.
83 [(13)] (12) "Participating county" means a county that complies with this chapter for
84 participation in the Indigent Aggravated Murder Defense Fund as provided in Sections
85 78B-22-702 and 78B-22-703.
86 Section 2. Section 78B-22-203 is amended to read:
87 78B-22-203 . Order for indigent defense services.
88 (1) (a) [A] Except as provided in Subsection (6), a court shall appoint an indigent defense
89 service provider who is employed by an indigent defense system or who has a
90 contract with an indigent defense system to provide indigent defense services for an
91 individual over whom the court has jurisdiction if:
92 (i) the individual is an indigent individual; and
93 (ii) the individual does not have private counsel.
94 (b) An indigent defense service provider appointed by the court under Subsection (1)(a)
95 shall provide indigent defense services for the indigent individual in all court
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96 proceedings in the matter for which the indigent defense service provider is
97 appointed.
98 (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense
99 services be provided by an indigent defense service provider who does not have a
100 contract with an indigent defense system if the court finds by clear and convincing
101 evidence that:
102 (i) all the contracted indigent defense service providers:
103 (A) have a conflict of interest; or
104 (B) do not have sufficient expertise to provide indigent defense services for the
105 indigent individual; or
106 (ii) the indigent defense system does not have a contract with an indigent defense
107 service provider for indigent defense services.
108 (b) A court may not order indigent defense services under Subsection (2)(a) unless the
109 court conducts a hearing with proper notice to the indigent defense system by sending
110 notice of the hearing to the county clerk or municipal recorder.
111 (3) (a) A court may order reasonable indigent defense resources for an individual who
112 has retained private counsel only if the court finds by clear and convincing evidence
113 that:
114 (i) the individual is an indigent individual;
115 (ii) the individual would be prejudiced by the substitution of a contracted indigent
116 defense service provider and the prejudice cannot be remedied;
117 (iii) at the time that private counsel was retained, the individual:
118 (A) entered into a written contract with private counsel; and
119 (B) had the ability to pay for indigent defense resources, but no longer has the
120 ability to pay for the indigent defense resources in addition to the cost of
121 private counsel;
122 (iv) there has been an unforeseen change in circumstances that requires indigent
123 defense resources beyond the individual's ability to pay; and
124 (v) any representation under this Subsection (3)(a) is made in good faith and is not
125 calculated to allow the individual or retained private counsel to avoid the
126 requirements of this section.
127 (b) A court may not order indigent defense resources under Subsection (3)(a) until the
128 court conducts a hearing with proper notice to the indigent defense system by sending
129 notice of the hearing to the county clerk or municipal recorder.
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130 (c) At the hearing, the court shall conduct an in camera review of:
131 (i) the private counsel contract;
132 (ii) the costs or anticipated costs of the indigent defense resources; and
133 (iii) other relevant records.
134 (4) A court may only order the representation of an indigent individual by an indigent
135 defense service provider in accordance with this section.
136 (5) A court may not order indigent defense resources be provided to an indigent individual,
137 except as provided in[:] Subsection (3).
138 [(a) Subsection (3); or]
139 [(b) Section 78B-22-705.]
140 (6) (a) For an individual prosecuted for aggravated murder and found indigent, a court
141 from a county participating in the Indigent Aggravated Murder Defense Fund created
142 in Section 78B-22-701 shall notify the Office of Indigent Defense Services of the
143 finding of indigency.
144 (b) The office shall assign an indigent defense service provider qualified under Utah
145 Rules of Criminal Procedure, Rule 8, with whom the office has a preliminary contract
146 to provide indigent defense services for an assigned rate.
147 Section 3. Section 78B-22-404 is amended to read:
148 78B-22-404 . Powers and duties of the commission.
149 (1) The commission shall:
150 (a) adopt core principles for an indigent defense system to ensure the effective
151 representation of indigent individuals consistent with the requirements of the United
152 States Constitution, the Utah Constitution, and the Utah Code, which principles at a
153 minimum shall address the following:
154 (i) an indigent defense system shall ensure that in providing indigent defense services:
155 (A) an indigent individual receives conflict-free indigent defense services; and
156 (B) there is a separate contract for each type of indigent defense service; and
157 (ii) an indigent defense system shall ensure an indigent defense service provider has:
158 (A) the ability to exercise independent judgment without fear of retaliation and is
159 free to represent an indigent individual based on the indigent defense service
160 provider's own independent judgment;
161 (B) adequate access to indigent defense resources;
162 (C) the ability to provide representation to accused individuals in criminal cases at
163 the critical stages of proceedings, and at all stages to indigent individuals in
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164 juvenile delinquency and child welfare proceedings;
165 (D) a workload that allows for sufficient time to meet with clients, investigate
166 cases, file appropriate documents with the courts, and otherwise provide
167 effective assistance of counsel to each client;
168 (E) adequate compensation without financial disincentives;
169 (F) appropriate experience or training in the area for which the indigent defense
170 service provider is representing indigent individuals;
171 (G) compensation for legal training and education in the areas of the law relevant
172 to the types of cases for which the indigent defense service provider is
173 representing indigent individuals; and
174 (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
175 including expectations on client communications and managing conflicts of
176 interest;
177 (b) encourage and aid indigent defense systems in the state in the regionalization of
178 indigent defense services to provide for effective and efficient representation to the
179 indigent individuals;
180 (c) emphasize the importance of ensuring constitutionally effective indigent defense
181 services;
182 (d) encourage members of the judiciary to provide input regarding the delivery of
183 indigent defense services; [and]
184 (e) oversee individuals and entities involved in providing indigent defense services[.] ;
185 and
186 (f) manage county participation in the Indigent Aggravated Murder Defense Fund
187 created in Section 78B-22-701.
188 (2) The commission may:
189 (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
190 Rulemaking Act, to carry out the commission's duties under this part;
191 (b) assign duties related to indigent defense services to the office to assist the
192 commission with the commission's statutory duties;
193 (c) request supplemental appropriations from the Legislature to address a deficit in the
194 Indigent Inmate Fund created in Section 78B-22-455; and
195 (d) request supplemental appropriations from the Legislature to address a deficit in the
196 Child Welfare Parental Representation Fund created in Section 78B-22-804.
197 Section 4. Section 78B-22-452 is amended to read:
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198 78B-22-452 . Duties of the office.
199 (1) The office shall:
200 (a) establish an annual budget for the office for the Indigent Defense Resources
201 Restricted Account created in Section 78B-22-405;
202 (b) assist the commission in performing the commission's statutory duties described in
203 this chapter;
204 (c) identify and collect data that is necessary for the commission to:
205 (i) aid, oversee, and review compliance by indigent defense systems with the
206 commission's core principles for the effective representation of indigent
207 individuals; and
208 (ii) provide reports regarding the operation of the commission and the provision of
209 indigent defense services by indigent defense systems in the state;
210 (d) assist indigent defense systems by reviewing contracts and other agreements, to
211 ensure compliance with the commission's core principles for effective representation
212 of indigent individuals;
213 (e) establish procedures for the receipt and acceptance of complaints regarding the
214 provision of indigent defense services in the state;
215 (f) establish procedures to award grants to indigent defense systems under Section
216 78B-22-406 that are consistent with the commission's core principles;
217 (g) create and enter into contracts consistent with Section 78B-22-454 to provide
218 indigent defense services for an indigent defense inmate who:
219 (i) is incarcerated in a state prison located in a county of the third, fourth, fifth, or
220 sixth class as classified in Section 17-50-501;
221 (ii) is charged with having committed a crime within that state prison; and
222 (iii) has been appointed counsel in accordance with Section 78B-22-203;
223 (h) assist the commission in developing and reviewing advisory caseload guidelines and
224 procedures;
225 (i) investigate, audit, and review the provision of indigent defense services to ensure
226 compliance with the commission's core principles for the effective representation of
227 indigent individuals;
228 (j) administer the Child Welfare Parental Representation Program in accordance with
229 Part 8, Child Welfare Parental Representation Program;
230 (k) administer the Indigent Aggravated Murder Defense Fund in accordance with Part 7,
231 Indigent Aggravated Murder Defense Fund;
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232 (l) assign an indigent defense service provider to represent an individual prosecuted for
233 aggravated murder in accordance with P