Public defenders

SIGNIFICANCE: By representing criminal defendants who cannot afford to pay for their own attorneys, public defenders play an important role in ensuring that the right of all defendants to counsel is satisfied.

Persons charged with a crime in the United States are entitled to have a lawyer represent them. Those who cannot afford to hire their own lawyer are entitled to representation by a lawyer appointed by the court and paid for by the government. In most US cities and many states, this representation is provided by a lawyer or group of lawyers called public defenders. These attorneys are employed by the government specifically to represent those who cannot afford to hire their own counsel.

The Constitutional Right to Counsel

Before 1963 most persons charged with a crime who could not afford to hire a lawyer to represent them simply represented themselves. Even in very serious cases, poor, and sometimes poorly educated, people had to present their own cases to juries and judges. There was no nationally recognized right to have a lawyer appointed to represent indigent defendants. The US Supreme Court held in 1942 that criminal defendants were entitled to the appointment of a lawyer at government expense only when special circumstances required a lawyer to make a defendant’s trial fair. The Court held that the constitutional guarantee of “due process” required only that defendants have fair trials and that in most cases trials could be fair even if the defendant did not have a lawyer.

The Supreme Court recognized two exceptions to this “special circumstances” rule, but these exceptions had limited applicability. First, persons charged with crimes against federal law in federal rather than state courts were entitled under the Sixth Amendment to the US Constitution to have a lawyer appointed to represent them. The assistance of counsel clause of the amendment provides that “in all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” Second, persons charged in federal or state courts with capital crimes, for which they could receive the death penalty, were entitled to the appointment of a lawyer. Because the vast majority of criminal charges did not carry a possible death sentence as punishment and most criminal offenses were (and still are) prosecuted in state rather than in federal courts, most people charged with most crimes were represented by a lawyer only if they had the money to hire one. Even persons charged with very serious crimes that could result in long prison terms were routinely tried without counsel.

These rules changed dramatically in 1963, when the US Supreme Court decided in the case of Gideon v. Wainwright that having a lawyer represent an accused person was essential to ensuring that every criminal trial was fair. The source of this right was the Sixth Amendment’s guarantee of the assistance of counsel. For the first time, the Court ruled that the Sixth Amendment’s guarantee of the assistance of counsel was fully applicable to the states and required that all indigent persons charged with felonies in state courts, not just in federal courts, had to be provided with a lawyer at government expense.

The Creation of the Public Defender

The Supreme Court’s Gideon v. Wainwright decision resulted in the creation of public defender offices and programs throughout the nation. Some jurisdictions established public defenders to handle most criminal cases against indigent persons, while others relied on the appointment of private lawyers to handle these cases. In 1972 the Supreme Court expanded the right to an appointed lawyer to include those persons charged with misdemeanors as well as felonies. It later limited this right to those misdemeanor cases in which persons are actually sentenced to imprisonment, excluding cases in which punishment is limited to fines.

The right to have an appointed lawyer can begin at any critical stage of a case, even before it comes to trial, such as at an initial or preliminary hearing. This right can begin as soon as a person is arrested, when a person is questioned by police and given the Miranda warnings—that is, the notification of the arrested person of their the rights to speak with a lawyer, to have a lawyer appointed if they cannot afford to hire one, and to remain silent in order to avoid self-incrimination. Often the lawyer appointed is a public defender. Poor persons charged with a crime have a right to the services of a lawyer free of charge during trial, sentencing, and one appeal. The right does not provide for representation for further appeals or for representation in civil cases.

Modern Public Defenders

Although the Supreme Court has held that the US Constitution requires that indigent persons charged with crimes be provided a lawyer at government expense, it has not specified how this must be done. Jurisdictions in the United States use three basic methods to provide such representation: public defenders, assigned counsels, and contract attorneys. Public defenders are lawyers who exclusively represent indigent criminal defendants. They may be organized into offices by city, county, or state, and they are usually employees of one of these units of government. Federal courts have a federal defender system, which provides representation to indigent persons charged with federal crimes. Assigned counsels are private lawyers who makes themselves available for appointment by the court on a case-by-case basis. They may or may not specialize in criminal defense, and they may or may not be screened or specially trained to handle criminal cases. They are paid a fee, which is usually fixed but can vary according to the time they spend on a case or on the type of case they are handling. Contract attorneys are members of organizations, such as law firms or bar associations, that contract with cities, counties, or states to handle a certain number of appointed cases for a set period of time.

Most modern American criminal justice systems and virtually all urban ones rely on some combination of these options to provide representation to a large proportion of criminal defendants. A US Department of Justice study found that in 1996 about 82 percent of defendants charged with felonies in the nation’s seventy-five largest counties were represented by court-appointed counsel. The estimated cost of these services to both state and local governments was more than $2.3 billion in 2007, which was approximately 3.5 times what these services cost in inflation-adjusted constant dollars in 1979. This rise in expenditures for the representation of poor defendants corresponds to the dramatic increase in incarceration rates in the United States during the 1980s and has led to concerns that increased caseloads and reduced funding may cause poor persons charged with crimes to have less fair trials than wealthy criminal defendants.

Problems of Public Defense

Although public defenders receive their salaries from the government, they are legally and ethically obligated to represent their clients, the accused persons, against the government. This has sometimes made the public, and even some clients, resentful or mistrustful of public defenders. Early studies of the system of public defenders during the late 1960s suggested that public defenders sometimes saw themselves as part of a team, which included the prosecutor and the judge, whose goal was to convince clients to plead guilty. Another strand of critical thinking challenged this critique, noting that effective public defenders could often obtain favorable plea bargains for their clients even if they did so through what appeared to be a less aggressive or less adversarial approach. Whatever their views of themselves, public defenders have become essential components of the criminal justice system in most densely populated US jurisdictions.

During the 1980s and 1990s, many American jurisdictions experienced dramatic increases in the demand for public defender services. Between 1982 and 1986, for example, the US Justice Department found that the caseloads of public defenders in the United States increased by 40 percent. This increase was caused in large part by increased prosecution of drug offenses, often characterized as the “war on drugs.” In some jurisdictions, public defenders were each appointed to handle hundreds of cases a year, which raised questions about their effectiveness as defense lawyers and the quality of representation their clients received.

Some public defenders responded by going to court and refusing to accept additional cases without being provided with additional resources. All lawyers have an ethical obligation to represent clients competently, and some public defenders contended that no one could competently represent hundreds of different clients a year, with each case involving different facts and legal issues. Some courts responded to this demand for the services of public defenders by appointing private lawyers to represent indigent defendants pro bono, without compensation, as part of their obligation to serve the public. Because many of these lawyers had little experience practicing criminal law, this practice raised serious concerns about the quality of the representation they provided.

Standards for Criminal Justice

In an effort to establish uniform standards of practice for criminal defense lawyers, including public defenders, the American Bar Association (ABA), the nation’s largest bar association, promulgated Standards for Criminal Justice. First published in 1968 and for the third time in 1992, the Standards set forth guidelines for effective and ethical conduct by both prosecutors and defense lawyers, as well as benchmarks for effective provision of defense services. They seek to provide to all eligible persons “quality” legal representation, as opposed to just competent counsel. They also stipulate that no public defender or appointed counsel should accept workloads that interfere with providing high-quality representation and that government must provide adequate funding for these services. Although these standards are only recommendations and have no legal weight, they have been influential in defining the role and operation of modern public defender offices.

Bibliography

American Bar Association. ABA Standards for Criminal Justice: Providing Defense Services. 3rd ed. Washington: Author, 1992. Print.

Gross, John. "Reframing the Indigent Defense Crisis." Harvard Law Review, 18 Mar. 2023, harvardlawreview.org/blog/2023/03/reframing-the-indigent-defense-crisis/. Accessed 9 July 2024.

Harlow, Caroline Wolf. Defense Counsel in Criminal Cases. Washington: Office of Justice Programs, Dept. of Justice, 2009. Bureau of Justice Statistics. Web. 30 May 2016.

Johnson, Carrie. "You Have the Right to a Lawyer, But Public Defenders Note a Lack of Resources, Respect." National Public Radio (NPR), 18 Mar. 2023, www.npr.org/2023/03/18/1164296236/gideon-wainwright-anniversary-public-defender. Accessed 9 July 2024.

Kunen, James S. "How Can You Defend Those People?": The Making of a Criminal Lawyer. New York: Random, 1983. Print.

Langton, Lynn, and Donald J. Farole Jr. Public Defender Offices, 2007—Statistical Tables. Washington: Office of Justice Programs, Dept. of Justice, 2009. Bureau of Justice Statistics. Web. 30 May 2016.

Lewis, Anthony. Gideon’s Trumpet. 1964. New York: Vintage, 1989. Print.

McIntyre, Lisa J. The Public Defender: The Practice of Law in the Shadows of Repute. Chicago: U of Chicago P, 1987. Print.

Wice, Paul B. Public Defenders and the American Justice System. Westport: Praeger, 2005. Print.

Wormser, Richard. Defending the Accused: Stories from the Courtroom. New York: Watts, 2001. Print.