There’s “work to do to bring consistency to the process,” said leader of the state agency that sets indigency determination guidelines for participating counties. Photo from Getty Images.

By Leslie Bonilla Muñiz
Indiana Capital Chronicle

INDIANAPOLIS — Indiana’s trial courts use largely individually set, unwritten methodologies to decide who’s poor enough for publicly funded legal defense, the state has found.

About two-thirds of Hoosier judicial officers – judges, magistrates, commissioners and referees – reported policies at their trial courts are set by individual officers, and a similar proportion noted they don’t have written policies.

That’s according to a survey sent to 514 judicial officers working for trial courts in mid-January. More than 340 replied by the mid-February deadline, and of those, 261 presided over criminal cases and were shown the full list of questions.

The study arose from 2024’s Senate Enrolled Act 179. The little-known Justice Reinvestment Advisory Council approved its release ahead of a July deadline – to little public fanfare.

The U.S. and Indiana constitutions guarantee the right to counsel for people accused of crimes. Courts assess whether defendants are indigent – unable to afford private attorneys without substantial hardship – before appointing them public defenders.

Mason’s is the only state agency that publishes standards and guidelines for indigency determinations. They’re applicable only to counties that choose to comply in exchange for partial reimbursement of felony criminal public defense expenses.

Sixty-six member counties or coalitions logged about $58 million in public defense expenses for non-capital cases in the first half of 2025, according to the commission. That doesn’t include spending in non-member counties. More than $150,000 in reimbursement requests for capital cases, for which all counties are eligible, were filed over that time period.

The Findings

Of the 261 trial court judicial officers who presided over criminal cases, 75% were judges, 23% were magistrates and 2% were either commissioners or referees.

Percentages for answers were based on the number of respondents to each question, not to the survey as a whole.

Derrick Mason. Photo from Commission on Court Appointed Attorneys.

About 65% reported that the policy for making indigency determinations is set by individual judicial officers – with 27% reporting court-level policies and just 8% noting county-level policies.

The non-judge respondents were asked if they follow the same policies as their supervising judges. Three-quarters said they do and a quarter said they don’t.

The survey found that a high percentage of initial hearings were held for criminal felony cases, but that they were waived more often in criminal misdemeanor cases. A majority of cases where an indigency determination was made at the initial hearing resulted in the appointment of a public defender.

Indigency assessments were also conducted at “status of counsel” hearings, after private attorneys withdrew and throughout the proceedings.

About 68% said there were no written procedures for making those indigency determinations, while 32% reported having written policies.

Almost three-quarters of respondents said they use a standard “dialogue” for indigence determinations during hearings, with about two-thirds of them being self-created. Others were provided by current or prior judges, or came from bench books. Just 1% said their counties had developed the dialogues.

A defendant’s income, employment status, expenses, assets and housing status were among the most commonly asked-about factors. Several respondents said employment status, or the ability to pay bail, was enough on its own to determine someone doesn’t qualify for a public defender.

When a defendant provides a court with information that no attorney will take the case as private counsel, or requests appointed counsel, the vast majority of respondents said their courts don’t verify the information beyond taking answers under oath or penalty of perjury, or setting additional “status of counsel” hearings.

Indiana’s attorney shortage was a least a minor contributor in decisions to appoint public defenders for 22% of respondents.

Just over a quarter reported having a process to identify the cost of counsel in their communities, and only 4% said their court has compiled information on local attorneys’ rates.

For help finding affordable attorneys, defendants are often referred to local bar associations, online listings, references at the courthouse and so on, according to the survey.

The report also includes results from city and town courts, which have more limited jurisdictions. The survey was sent to 45 judges, but of the 22 who filled it out, just 14 indicated they preside over criminal cases.

Recommendations Made

The report called on the state, and local bar associations, for changes to boost consistency across Indiana.

In the short-term, it recommended that the Office of Judicial Administration continue training judicial officers on their constitutional obligations, current statutes and case law, substantial hardship standards and more.

That training should emphasize that single factors alone aren’t enough to determine indigency unless that’s in law, the report continued. For example, Indiana Code allows a court to consider eligibility for public assistance programs as sufficient evidence someone qualifies for a public defender.

Another short-term suggestion was that bar associations develop directories of area attorneys and make available them available online or at courthouses – and maintain reports on the range of private attorney costs for criminal cases that courts can use.

Substantive changes shouldn’t be made until a commission pilot program concludes, the report added.

Nine counties will be eligible for 18 months of partial reimbursement of misdemeanor public defense expenses, as part of an initiative authorized last year, under the same law that launched the survey.

The statute lets the commission pick up to 12 participants for a four-year pilot ending in 2029, but the agency cut back on both in response to budget reductions.