Demand for capital defense attorneys may soon skyrocket in Idaho due to new law

Yahoo

12-05-2025

Earlier this year, Idaho legislators passed a bill to allow some cases of lewd conduct with child under age 12 with aggravating circumstances to be punishable by death, despite knowing the U.S. Supreme Court had ruled a similar law unconstitutional. (Getty Images)
This story was first published by Idaho Reports on May 9, 2025.
Earlier this year, Idaho legislators passed a bill to allow some cases of lewd conduct with child under age 12 with aggravating circumstances to be punishable by death, despite knowing the U.S. Supreme Court had ruled a similar law unconstitutional.
The bill did not allocate any additional money for the Idaho State Public Defender's Office. Instead, the fiscal note says the office will have additional expenditures should a defendant be assigned a public defender by the court.
This could be a major flaw. The challenge is more about more than just money. It's about meeting what is required by law and agency rules – and when the death penalty is a possible sentence, those requirements are stricter than other criminal defense cases.
The Sixth Amendment of the U.S. Constitution entitles all criminal defendants to a public attorney if they cannot afford one. But prior state rule and national legal guidance say defendants who are facing the death penalty require more representation. The court grants those defendants a lead counselor and co-counselor, sometimes referred to as the second chair attorney.
In 2024, prosecutors filed 382 charges of lewd conduct with a child under the age of 16, according to Idaho Supreme Court data. That doesn't mean all of those led to convictions, and not all of those victims were 12 or younger.
Compare that to the 30 first-degree murder charges filed in 2024, according to Idaho Supreme Court data. Until House Bill 380's passage, first-degree murder was the only crime punishable by death in Idaho.
Not all 30 of those charges would have been death penalty cases, as some would not have had necessary aggravating circumstances or a plea agreement could have been reached. Still, that's less than one tenth of the charges filed of lewd conduct with a child under the age of 16.
Under the Public Defense Commission's now expired rules, any defendant who is charged with a crime that is potentially punishable by death required representation from a 'capital qualified defending attorney.' The new Idaho Office of the Public Defender hasn't yet adopted rules.
Capital qualified attorneys have advanced familiarity with the laws around capital mitigation and jury selection methods. They also meet or exceed American Bar Association Guidelines and criminal defense experience.
In an April interview with Idaho Reports, State Public Defender Eric Fredericksen said his understanding was that the Public Defense Commission's rules became defunct after his office opened, but added he was not part of that decision-making process.
The Public Defense Commission first established rules in 2016 regarding caseloads and training for public defenders after a massive lawsuit, Tucker v. Idaho, found Idaho's public defense system to be insufficient. The lawsuit is what led Idaho to the eventual establishment of a statewide public defense system. Until the Idaho Office of the Public Defender opened in October 2024, individual counties funded public defense.
Under the commission's rules, lead counsel in a capital case needed at least 10 years in criminal defense and felony jury experience and have served as lead or co-counsel in at least one tried capital case to verdict, among other requirements.
Co-counsel must have at least five years in criminal defense and felony jury experience and have served as lead or co-counsel in at least one tried capital case to verdict, among other requirements.
The new Idaho Office of the Public Defender has been following the guidelines of the National Legal Aid and Defender Association, but has no formal state rules of its own. Those association guidelines require less criminal defense experience than the state's former rules, but still more than non-capital felony defense standards.
A handful of national organizations offer trainings for capital cases, but Fredericksen notes that making the case for life, as it's often referred to by defense attorneys, is different in murder cases than it would be for lewd conduct cases. There's a playbook for defense attorneys in capital murder cases. Having the death penalty on the table for lewd conduct creates a different scenario.
Why the extra rules? A person's life is on the line.
As of April 23, Idaho had 13 attorneys who are qualified to be lead counsel on a capital case. Five are employees of the State Public Defender's Office and eight are private attorneys. There are an additional 18 Idaho attorneys who qualify to be second chair on a capital case.
That means there are only 13 potential lawyers qualified to represent the people charged under the new crime of aggravated lewd conduct with a minor younger than age 12, on top of the other capital cases that may already be on their plates.
Prosecutors won't necessarily seek the death penalty as punishment against every person who is charged with lewd conduct with a minor under 12, but the defense attorneys have an obligation to begin preparing as if it were at the time the charge is filing.
'The moment the charge of (aggravated lewd and lascivious) with a minor under 12 is filed, regardless of whether a death notice is filed, we will begin treating it as a death penalty case,' Fredericksen said. 'So, two attorneys will be handling the case, find a mitigation expert, we find an investigator. You have to start that work on Day 1 because the prosecution starts that work on Day 1.'
Fredericksen's office remained neutral on the bill. He did write to sponsors Rep. Bruce Skaug, R-Nampa, chairman of the House Judiciary, Rules and Administration Committee, and House Assistant Minority Leader Josh Tanner, R-Eagle, on March 14, stating that he did not have data on how many of the victims in cases they represented were 12 or younger, nor did he have data on how many of them had aggravating circumstances.
On March 18, the State Appellate Public Defender Erik Lehtinen wrote a letter to Senate Judiciary and Rules Committee Chairman Todd Lakey, R-Nampa, and cc'd the bill's co-sponsors and Joint Finance-Appropriations Committee co-chairs Sen. Scott Grow and Rep. Wendy Horman, R-Idaho Falls, about concerns about the bill's potential impact on his office's budget. Idaho Reports obtained a copy of the letter.
The State Appellate Public Defender's Office handles cases post-conviction for appeals. Lehtinen estimated his office would receive, on average, two capital lewd conduct cases a year, in addition to the capital murder case appeals his office already handles.
'I estimate that once the new death penalty scheme fully ramps up, the SAPD would require at least $2,948,000 in additional ongoing funding – a 72.2% increase to the SAPD's current annual appropriation,' wrote Lehtinen in his March 18 letter. That number included 14 new employees, litigation expenses and conflict costs. Lehtinen noted it did not include one-time costs, such as computers for the employees, or paying Idaho State Bar dues.
'This increase in capital cases would require the SAPD to hire at least 14 additional full-time employees in its Capital Litigation Unit: four lead attorneys, four 'second chair' attorneys, two investigators, two mitigation specialists and two administrative assistants or paralegals,' Lehtinen wrote.
Fredericksen told Idaho Reports that because public defense is so reactive to what the prosecution does, he couldn't give a fiscal impact estimate. His office has begun accepting applications for attorneys who may have enough experience to become death penalty qualified.
But if half of the lewd conduct charges filed in 2024 involved children under age 12, he said, Idaho doesn't have enough public, private, and civil attorneys to handle that case load.
The Idaho Legislature approved an $83 million budget for Fredericksen's office for fiscal year 2026. About $32 million of that is an enhancement budget for needed personnel costs, institutional offices in Elmore, Shoshone, Jerome and Benewah counties and more funding for contract attorneys. The budget doesn't specifically single out allocations for more death penalty-qualified attorneys.
When the new law goes into effect on July 1, it will create a new crime called 'aggravated lewd conduct under 16' which creates a new mandatory minimum of 25 years for the crime of lewd conduct with a child ages 13 to 15. The option of pursuing the death penalty would be left to the individual county prosecutor in cases where the child is 12 or younger. The crime of lewd conduct with a child under 16 is already punishable by life in prison.
The bill outlines a series of 17 aggravating factors that make a suspect eligible for the death penalty, including the victim being kidnapped or trafficked, or the suspect engaging in the act three or more times.
If a jury, or the court if a jury is waived, finds two aggravating circumstances beyond a reasonable doubt and if the death penalty is not sought, the court shall impose a life sentence with a minimum period of no less than 30 years in prison.
Public defenders who testified in committee took issue with some of the items listed as aggravating factors, including if the defendant was in 'a position of trust' over the victim because that could be applicable to many sexual assaults of children. Public defenders also objected to including 'force or coercion' as an aggravating factor, as children cannot legally consent, so every case could arguably be 'force or coercion.'
In committee, the Idaho Prosecutor's Association supported the list of aggravating circumstances, saying they were based off Florida and Tennessee's laws.
'I think it's fair to say that with the nature of the aggravating factors, a prosecutor could make a decision that just about every case would meet those aggravating factors,' Fredericksen said. 'Right or wrong, they could make the case to move forward with the aggravating factors under the statute.'
Idaho legislators passed this law knowing that in the 2008 decision Kennedy v. Louisiana, the U.S. Supreme Court determined that the Eighth Amendment prohibits the death penalty for non-fatal sex crimes, even if the crime involved brutality and young children.
Still, Florida passed a similar law in 2023, but to date, no one has been sentenced to death for child sexual assault. Instead, prosecutors have reached plea agreements with lesser punishments than executions, such as life in prison.
Tennessee passed a law similar to Florida's in 2024, but it hasn't yet been used.
During the session, Skaug repeatedly called the Idaho bill a 'test case' as the makeup of SCOTUS has changed since 2008. He also believes prosecutors will only use the charge for 'the worst of the worst.'
Of the four justices who dissented in Kennedy v. Louisiana, three – Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas – are still on the bench. None of the five in the 2008 majority are currently serving.
Regardless of the current court makeup, if someone is sentenced to death under this new law, it will almost certainly end up challenged in court.
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