Settlement delivers constitutionally-guaranteed legal representation to criminal defendants accused who cannot afford lawyers; will build upon last year’s legislative reform

LAS VEGAS — The American Civil Liberties Union of Nevada, the American Civil Liberties Union, O’Melveny & Myers LLP, and Franny Forsman have settled a class action lawsuit against the state of Nevada and its governor for failing to ensure constitutionally adequate legal representation to people accused of crimes who cannot afford attorneys. The settlement will ensure all persons facing formal charges across ten rural counties for which the penalty includes the possibility of imprisonment receive the counsel that they are entitled to under the U.S. and Nevada Constitutions. 

For decades, Nevada failed to fulfill its constitutional obligation to provide meaningful legal representation to criminal defendants who cannot afford an attorney in most of its rural counties. In 2017, the ACLU of Nevada and its colleagues filed Davis v. Nevada, seeking to uphold the right to counsel throughout the state for all criminally accused people. In 2019, under mounting pressure from the pending lawsuit, Nevada enacted new legislation intended to improve the state’s public defense system. The legislation was a significant first step but insufficient on its own to remedy the longstanding crisis. 

This week, the judge presiding over Davis v. Nevada has approved a stipulated consent judgment which will build upon last year’s legislative reform and ensure a true overhaul of the state’s public defense system. For a minimum of three years, a court-appointed monitor will ensure that Nevada complies with the terms of the judgment and fulfills its constitutional duty to guarantee the right to counsel for all. 

Diane Davis, one of the lead plaintiffs in the case, said:

“I’ve seen how important the public defense system is with my own eyes, and I’ve seen how bad it is when that system doesn’t work. I hope this settlement means other people will have better experiences with public defenders.”

ACLU of Nevada Legal Director Sherrie Royster said:

“We have talked about this issue for a long time in Nevada, so this is a huge step forward. Lower income Nevadans have the right to receive equal treatment from the criminal justice system whether they are in an urban or a rural area, and this settlement is a sign that Nevada is finally taking that responsibility seriously.”

Emma Andersson, senior staff attorney with the ACLU’s Criminal Law Reform Project said: 

“The crisis in Nevada that led to this lawsuit is not an anomaly. In too many jurisdictions across the country, lawmakers treat public defense like an afterthought instead of an essential service without which our criminal legal system is doomed to violate people’s constitutional rights. But our constitution does not allow shortcuts on the road to depriving people of their liberty. We are hopeful that the settlement of this case will firmly establish a new path for Nevada in which the rights of all accused people are robustly protected.”

Maggie Carter, partner at O’Melveny & Myers LLP said:

“This settlement agreement is a significant milestone on the road to a fairer criminal justice system in Nevada, and across the United States. For too long and for too many people the right to counsel in Nevada has been an empty promise. This settlement will ensure that this indispensable constitutional right is available to all Nevadans. It shouldalso serve as a wake-up call for other states that are failing criminal defendants who cannot afford an attorney.”

Franny Forsman, former Federal Public Defender for the District of Nevada said:

“Poor people facing prosecution in small counties in Nevada have been short-changed for many years. The State has finally seen the importance of providing the resources that the counties need including standards, training, oversight, and money to fill the gaps. There is still a lot of work to do but this settlement is great progress towards ensuring that due process applies to all of us.”

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