ACLU Files Class-Action Lawsuit Against Montana's Indigent Defense Program

Affiliate: ACLU of Montana
February 14, 2002 12:00 am

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HELENA, MT – The American Civil Liberties Union and the ACLU of Montana today filed a class-action lawsuit against the state of Montana and seven counties alleging that the indigent defense services in those counties are constitutionally deficient.

“The state has failed to provide the counties with the funding and guidance needed to administer an indigent defense program adequately,” said Scott Crichton, Executive Director of the ACLU of Montana. “Under these circumstances, even the most diligent attorneys cannot provide competent representation.”

Without proper funding and oversight, the lawsuit asserts, attorneys for indigent defendants cannot confer with clients in a meaningful manner, conduct necessary pre-trial investigations, secure necessary expert assistance, or prepare adequately for hearings and trials. The ACLU is asking the court to see that an indigent defense system in accordance with the United States and Montana Constitutions is put in place immediately.

Although the U.S. Supreme Court in 1963 held that the responsibility for providing indigent counsel rests with the state, the ACLU lawsuit says that Montana has largely ignored this ruling. The state has delegated responsibility for the design and administration of indigent defense programs to its counties, but has failed to ensure that the counties can meet this obligation.

While the state has agreed to assume financial responsibility for certain indigent defense expenses, it requires the counties to shoulder the initial burden of those costs and apply for reimbursement. It then makes reimbursement contingent on the availability of state funds. If such funds are not available, the counties must assume the shortfall.

“Many counties minimize their financial exposure by requiring attorneys to carry excessive workloads and limiting access to experts, investigators and support staff,” said Beth Brenneman, Legal Director of the ACLU of Montana. “Indigent defense counsel are essentially forced to provide paltry legal representation on shoestring budgets.”

While the state has established job qualifications, rates of compensation, training programs and programs of supervision, oversight and technical assistance for County Attorneys, neither the state nor the counties have established anything similar for indigent defense providers. As a result, indigent defense providers are often poorly trained and inexperienced.

“A system that provides resources to the prosecution without providing those same resources to the defense is fundamentally unfair,” said Ron Waterman, lead counsel and ACLU cooperating attorney. “The results of a criminal prosecution can only be trusted if the prosecution and defense are on a level playing field.”

Today’s lawsuit was brought on behalf of seven plaintiffs including Michelle Ford, a young woman who has been detained in the Flathead County Jail for seven months and whose attorney has yet to initiate an investigation into the charges against her, and Winchester Wiseman, who was charged six weeks ago and is detained in the Cascade County Jail but has not had a detailed conversation with his attorney about the facts of his case.

Today’s class-action lawsuit charges that deficiencies in the state’s allocation of its indigent defense responsibilities are not new. They initially were identified as far back as 1976 in a report issued by the National Center for Defense Management (NCDM).

“Montana has been on notice for at least 25 years that its indigent defense program is constitutionally inadequate,” said Vincent Warren, an ACLU staff attorney. “Yet, it has done little, if anything, to remedy this.”

In the last few years, advocates in some states, including Connecticut, Pennsylvania, New York, Georgia and Mississippi, have filed suit to remedy indigent defense deficiencies. While some of these suits are ongoing, at least two – Connecticut and Pennsylvania – have resulted in successful settlements, increasing the funding available for indigent defense and improving the administration of indigent defense programs.

The attorneys working on this case include: Robin L. Dahlberg and E. Vincent Warren, of the ACLU’s national office; Beth Brenneman, Legal Director of the ACLU of Montana; Ronald F. Waterman, lead counsel and cooperating attorney for the ACLU of Montana; and Julie A. North, Anthony C. Johnstone and Melissa J. Baily, co-counsel and ACLU cooperating attorneys from the firm, Cravath, Swaine & Moore.

The complaint is online at

To read the ACLU’s fact sheet on Montana’s indigent defense program go to

To read learn more about Montana’s failure to meet national indigent defense standards go to

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