The Commission was created by the General Assembly in 1989 by P.L. 284-1989. The Commission's primary purposes are to:
- Make recommendations concerning standards for indigent defense services provided for defendants against whom the state has sought the death sentence under I.C. 35-50-2-9;
- Adopt guidelines and salary and fee schedules pursuant to which Indiana counties are eligible for reimbursement under I.C. 33-40-6; and
- Review and approve requests from county auditors for state reimbursement from the public defense fund in capital cases.
In 1993, the General Assembly amended the Commission's statute in P.L. 283-1993 and authorized reimbursement from the public defense fund of 25 percent of a county's net expenditures in non-capital cases.
Effective July 1, 1997, the reimbursement level in non-capital cases was amended to provide 40 percent reimbursement of defense services in non-capital cases, except misdemeanors.
Under I.C.33-40-5-4, the Commission is currently mandated to do the following:
- Make recommendations to the Indiana Supreme Court concerning standards for indigent defense services provided for defendants against whom the state has sought the death sentence under I.C. 35-50-2-9, including the following subjects:
- Determining indigency and eligibility for legal representation.
- Selection and qualifications of attorneys to represent indigent defendants at public expense.
- Determining conflicts of interest.
- Investigative, clerical, and other support services necessary to provide adequate legal representation.
- Adopt guidelines and standards for indigent defense services under which counties are eligible for reimbursement under I.C. 33-40-6, including but not limited to the following subjects:
- Determining indigency and the eligibility for legal representation. The issuance and enforcement of orders requiring defendants to pay for the costs of court appointed legal representation under I.C. 33-40-6. The use and expenditure of funds in the county supplemental public defender services fund established by I.C. 33-40-3-1. Qualifications of attorneys to represent indigent defendants at public expense.
- Minimum and maximum caseloads of public defender offices and contract attorneys.
- Make recommendations concerning the delivery of indigent defense services in Indiana.
- Make an annual report to the Governor, the General Assembly, and the Supreme Court on the operation of the public defense fund.
Capital Cases. The Commission held its first meeting on January 29, 1990. The Commission's primary focus during its first year was the preparation of a proposed new court rule concerning the appointment and compensation of counsel to represent defendants in capital cases. In November 1990, the Commission submitted to the Supreme Court a proposed new court rule concerning these subjects. In June 1991, the Supreme Court issued a draft of a proposed amendment to Criminal Rule 24 (now Rule 6.1) regarding the appointment and compensation of counsel in capital cases, which incorporated many of the Commission's recommendations. Subsequently, the Commission submitted to the Supreme Court a written response to the Court's proposed draft rule. On October 25, 1991, the Supreme Court adopted amendments to Criminal Rule 6.1, effective January 1, 1992.
In 1991, the Commission adopted guidelines under which Indiana counties are eligible for reimbursement for indigent defense services in capital cases from the public defense fund under I.C. 33-40-6. These guidelines, effective January 1, 1992, require compliance with Criminal Rule 6.1.
In 1992, as a service to the trial courts and after consultation with then-Chief Justice Shepard, the Commission began maintaining a roster of attorneys who qualify for appointment in capital cases as lead counsel, co-counsel, or appellate counsel on the basis of their experience and their compliance with the training requirements in Criminal Rule 6.1. The roster is intended to aid trial judges in seeking qualified counsel when death penalty requests are filed against indigent defendants, although trial judges may appoint attorneys who are not on the roster if they meet the qualifications specified in Criminal Rule 6.1. The roster is under constant revision, with attorneys being requested to update their information.
Also during 1998-99, the Commission studied and reported to the Chief Justice regarding defense costs in several capital cases. The Commission offered to be involved, through staff, in assisting courts in budgeting for capital cases. At the request of the trial judges, the Commission revised the form used by counties to submit claims for reimbursement in capital cases.
The Commission also amended the capital guidelines to provide for reimbursement in situations where standby counsel has been appointed for a defendant who has waived right to counsel. The Commission requires such counsel to meet the requirements for lead counsel under Criminal Rule 6.1.
In 1999-00, the Commission began studying the use of salaried public defenders as counsel in death penalty cases. The Marion County Public Defender Agency proposed using a full-time salaried public defender rather than an hourly paid attorney to handle death penalty cases. Subsequently, a full-time salaried public defender provision was added to Criminal Rule 6.1 by the Supreme Court effective January 1, 2001.
During 2000-01, the Commission amended its Guidelines in Capital Cases to provide that requests for reimbursement be submitted within 120 days of the date the county paid the underlying invoice. This amendment resulted in more timely filing of claims and more accurate budgeting.
Non-Capital Cases. After the enactment of P.L. 283-1993, the Commission began work on the adoption of standards for non-capital cases under IC 33-40-5-4(2), (formerly IC 33-9-13-3(a)(2)). On June 29, 1994, the Commission approved a draft of standards and authorized the distribution of the proposed standards to county auditors, commissioners, council members, judges, and public defenders for comment. On September 1, 1994, the Commission reviewed the comments, made revisions, and adopted standards for non-capital cases with an effective date of January 1, 1995.
On December 2, 1994, the Commission adopted a policy authorizing counties to phase-in compliance with the non-capital standards on a court-by-court basis so long as the county made a commitment to bring all indigent defense services into compliance with the standards within a reasonable period of time.
Originally, the qualifying counties were reimbursed up to 25 percent of their non-capital indigent felony and juvenile defense expenses; then the Legislature enacted P.L. 202-1997, effective July 1, 1997, which increased the reimbursement up to 40 percent.
In February of 1998, a full time staff attorney for the Commission was hired through the Supreme Court's Division of State Court Administration. Due to the volume of work, a second staff attorney was added in 2005.
In 1995 and 1996, the first eight counties qualified for non-capital reimbursements: Marion, Clark, LaPorte, Miami, Montgomery, Orange, Parke and Warren. In 1997 and 1998, five additional counties became eligible for reimbursement: Floyd, Benton, Fulton, Madison and Vermillion.
In FY 1999-2000, twenty-four counties submitted comprehensive plans. These counties were Blackford, Fayette, Henry, Jasper, Jennings, Scott, Shelby, Vigo, Fountain, Hancock, Martin, Pulaski, Union, Newton, Crawford, Decatur, Lake, Spencer, Sullivan, Switzerland, Ohio, Knox, Whitley, and Greene. In response to a Commission mailing to all judges, county auditors, and county council and commission presidents, another 20 counties expressed interest in attaining eligibility for state reimbursement. Staff for the Commission made presentations to 50 counties regarding participation in the reimbursement program, and provided information, sample ordinances, comprehensive plans or financial analysis to these counties.
In FY 2000-01, twelve additional counties submitted comprehensive plans - Adams, Carroll, Jay, Kosciusko, Monroe, Noble, Pike, Rush, Steuben, Vanderburgh, Washington, and White. At the close of that fiscal year, 49 counties were eligible for reimbursement in non-capital cases. Staff for the Commission continued to make presentations to counties regarding participation in the reimbursement program. Meetings were conducted throughout the year with officials of thirty counties, as interest in participation grew.
Between 2003 and 2007 the counties of Wells, Grant, Tippecanoe, Allen, Perry, Howard, Wabash and St. Joseph became eligible for reimbursement. From 2010 to 2012, LaGrange, Lawrence, and Brown counties became eligible. Since 2012, the Commission approved the comprehensive plans for Cass, Ripley, Owen, DeKalb and Jackson counties. These changes have brought the total number of counties with approved comprehensive plans to 72. The number of remaining counties eligible for reimbursements from the Public Defense Fund is 67. Visit the Reimbursement History Page to see the current eligibility status of all counties participating in the program.