Right to counsel

Generally

Individuals who default in the payment of legal financial obligations (LFOs) may face incarceration through a variety of mechanisms.  Relevant to the right to counsel question are three such proceedings: civil contempt, revocation of probation, and revocation of parole.  Indigent individuals are entitled to representation by the public defender in civil contempt matters where incarceration is sought, as are respondents in probation revocation cases, at least where the person is detained by law enforcement.  However, the appointment of counsel in parole revocation matters appears to be subject to the discretion of the Commission.

Civil Contempt

On July 1, 2024, the Idaho legislature enacted SB 1367, which amended the public defense code to provide that indigent persons have the right to appointed counsel in a variety of matters, including “[c]ivil contempt proceedings where incarceration is sought.” Idaho Code Ann. § 19-6009(3)(d).

Probation and Parole: Generally

A variety of LFO types can be made a condition of parole or probation, including supervision costs, restitution, and fines, and probation and parole may be revoked if after a hearing it is determined that the failure to pay was “willful.”[1]

Practically speaking, there is likely to be significant variation in whether parole revocation is sought where the sole ground for revocation is the nonpayment of an LFO. This is because the determination about whether a violation is serious enough to warrant revocation appears to be discretionary. See Idaho Code Ann. § 20-229B (articulating the “sufficient cause” standard for parole revocation) and Alexis Lee Watts, et al., Profiles in Parole Release and Revocation: Examining the Legal Framework in the United States (Idaho), Univ. of Minn. Robina Inst. of Crim. L. and Crim. J. (2017).[2]  In addition, “[a] finding of guilt on a technical parole violation … may result in a series of graduated sanctions.” Id. at 11.  However, because revocation is an authorized consequence of nonpayment, the sections that follow analyze whether the right to counsel attaches at revocation hearings.

Probation Revocation: Right to counsel

The same statute that provides a right to counsel in civil contempt matters where incarceration is sought explicitly mentions probation revocation proceedings. See Idaho Code Ann. § 19-6009(2)(a).  It does appear to provide a right to counsel in probation revocation matters.  The statute provides:

(1) An indigent person who is being detained by a law enforcement officer, who is confined … or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime is entitled:

(a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
(b) To be provided with the necessary services and facilities of representation, including investigation and other preparation. The attorney, services and facilities, and the court costs shall be provided at public expense to the extent that the person is, at the time the court determines indigency pursuant to section 19-6011, Idaho Code, unable to provide for their payment.

(2) An indigent person who is entitled to be represented by an attorney under subsection (1) of this section is entitled:

(a) To be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation.

Idaho Code Ann. § 19-6009 (emphasis added).  Though subsection (1) appears to make the right to counsel in probation revocation matters contingent on detention by law enforcement, section 20-227(a) does authorize the arrest of a probationer (or parolee) where the “probationer … has, in the judgment of [the] … probation officer, violated the conditions of … his parole or probation.”

Furthermore, in State v. Lindsay, the Idaho Court of Appeals, in interpreting Idaho Code § 19-852 (a prior version of Section 19-6009 that used identical wording), found that the appellant was entitled to representation at his probation revocation hearing and “if he could not afford a private attorney he was entitled to court-appointed counsel.” 864 P.2d 663 (Idaho Ct. App. 1993).  The Lindsay court noted that Idaho departs from US Supreme Court precedent in this regard, which has instead held only that the need for counsel in probation revocation matters is analyzed on a case-by-case basis. Lindsay, 864 P.2d at 666 n.1.[3]

Parole Revocation: Discretionary appointment

The Commission may provide counsel if the facts or circumstances demonstrate need.

Respondents in parole revocation hearings are entitled to hire their own attorney. See Idaho Admin. Code r. 50.01.01.400(5)-(5)(a) (“The alleged parole violator may utilize the services of an attorney at any public hearing conducted during the disposition process.”; “An attorney will be paid at the alleged parole violator’s expense.”).  But “[p]rior to a hearing, the alleged parole violator may request legal representation be provided by the Commission.” Id. at (5)(c).  Appointment is discretionary, however.

First, the hearing officer must conclude that “the individual is not able to fully understand the hearing proceedings or is otherwise incapable of representing himself[.]” Id. at (c)(i).  If the hearing officer reaches this conclusion, the officer notifies the Executive Director, at which point the Director or Commission reviews the facts to see if “the alleged parole violator meets the criteria for Commission-provided attorney.”  Relevant facts include the alleged parole violator’s physical and mental health, their “ability and capacity to understand the proceedings”, and the results of a competency assessment if so ordered. Id.

Conclusion

Indigent individuals have the right to counsel at civil contempt matters (where incarceration is sought) and at probation revocation hearings (at least where the person is detained). But the appointment of counsel in parole revocation matters is discretionary, so we have classified the right to counsel as “Qualified,” because it does not apply to all three case types equally.

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[1] See Idaho Code Ann. § 20-225 (providing that the failure to pay supervision costs “shall constitute grounds for the revocation of probation by the court or the revocation of parole by the commission for pardons and parole.”); see also Idaho Crim. R., Rule 33(d) (authorizing restitution as a possible condition of probation) and Id. at (g) (providing that probation may be revoked for the “failure to pay a fine, fee, or costs only if the court finds that the person has willfully refused to make payment, or has failed to make sufficient bona fide efforts to legally acquire the resources to make payment.”) (emphasis added); Idaho Code Ann. § 20-624 (as to incarceration related to the willful nonpayment of a fine).

[2] (citing to e.g., Craig v. State, 844 P.2d 1371 [Idaho Ct. App. 1992] [noting that whether or not a violation is “sufficient” enough to trigger revocation is a matter of Commission discretion] and Idaho Dep’t of Corr., Standard Operating Procedure no. 701.04.02.020 (Dec. 23, 2015) (referred to as the Idaho Response Matrix)].

[3] (“[U]nder the Idaho Supreme Court’s decision in State v. Young, the case-by-case approach to the right to appointed counsel in probation revocation hearings defined by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1764, 36 L.Ed.2d 656, 666 [1973], and referred to by this Court in State v. Buzo, 121 Idaho 324, 326, 824 P.2d 899, 901 [Ct.App.1991], is inapplicable in Idaho.”).