Public defender
Encyclopedia
The term public defender is primarily used to refer to a criminal defense lawyer
appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States
and Brazil
. The term is also applied to some ombudsman
offices, for example in Jamaica, and is one way of translating a common Spanish-language term for ombudsman, defensor del pueblo. The rest of this article deals with the primary meaning.
countries, following the model from the French Napoleonic Code
of criminal procedure, the courts typically appoint private attorneys at the expense of the state. As a rule defense attorneys in such countries are not directly employed by the government.
, the constitution provides for a public defender's office at both state and federal levels. In most states, like Rio de Janeiro
, Mato Grosso, Mato Grosso do Sul and Rio Grande do Sul, the Public Defender, as the Prosecutor, has a "judge status". They have the same salary and prerrogatives. The public defender's office in these states has a long tradition of assisting the poor and lower middle-class in both civil and criminal matters while other, poorer states, are still struggling to set up a public defenders office.
The federal public defender's office (Defensoria Pública da União) has only recently began hiring attorneys and lacks in infrastructure. There are only 481 Federal Public Defenders in the whole country to assist more than 130 million people, which causes the general public to rely on lawyers assigned and paid by the federal judicial branch on a case to case basis.
Regarding conflicts of interest, the public defender may also be precluded from representing a defendant if the office previously represented a witness to the crime charged—not only a co-defendant (other defendant).
.
s") and counsel paid by the state is operated in the United Kingdom
.
In addition to government-based offices, there are also a smaller but significant number of not-for-profit agencies, often referred to as a "Defender Service", or Legal Aid Societies that provide indigent criminal defense services. These entities tend to rely heavily on indirect sources, public funding, and charitable contributions to meet their operating costs.
Yet another, although increasingly less common method to appoint counsel for indigent criminal defendants is by way of a so-called "panel" of private attorneys who enter agreements with the government to handle such cases. Under this system attorneys generally operate as independent contractors and are compensated at a fixed rate for the case or sometimes by the hour.
The landmark case in the United States that helped pave the way for all defendants to be guaranteed an attorney in criminal proceedings was Gideon v. Wainwright
, . Gideon was a middle-aged Florida man who was charged with breaking into a bar and stealing money and beer
. He argued at his arraignment
that he could not adequately defend himself, and that a system that puts an uneducated person against a trained attorney is fundamentally unfair. On appeal, the Supreme Court of the United States agreed.
Although there had been some provisions for free attorneys prior to Gideon, it served as the catalyst for a wave of change. Following the landmark 1963 decision, the 1960s witnessed the creation of programs across the country to make this right available to most people charged with crimes who could not afford an attorney to represent them.
The first person to propose the creation of a public defender's office was California's first female attorney, Clara Shortridge Foltz. In a time before there were public defenders, young, inexperienced attorneys were often ordered by courts to defend indigents pro bono
, and in that capacity, Foltz saw firsthand the inequitable results of that system. As a result of Foltz's energetic lobbying, Los Angeles County hired Walton J. Wood
to head the first public defender's office in the United States in January 1914. In 1921, the California Legislature extended the public defender system to all state courts.
Public defender agencies of all kinds are supported by public funding, but are ethically bound to be independent and do not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys. One of the most well established statewide public defender systems is in Wisconsin
. The Wisconsin State Public Defender has been used as a model for other states and several countries. Wisconsin has a program that uses both staff attorneys and appointments to attorneys in private practice. State public defender systems can vary widely from state to state, county to county, and from federal defender organizations. Most chief public defenders are appointed. The chief public defenders in Florida
, Tennessee
, Lincoln, Nebraska
, and San Francisco are elected.
Defenders vary greatly regarding the types of support staff they employ to support the work of their attorneys. In addition to clerical staff, defender offices may employ investigators, social workers, and forensic experts, such as psychologists. These human resources may help defenders provide more professional service than an appointed lawyer without this type of staff or funds to employ them. Private appointed attorneys are entitled to apply to the court for the services of an expert or investigator and the government is required to pay for those services if they are essential to the defense of the accused person.
Problems of excessive case loads and low salaries still plague many state public defenders' offices. To avoid these problems the American Bar Association and the National Legal Aid & Defender Association
have promulgated standards relating to the performance of and appropriate case loads for public defenders. Research has indicated that indigents receive the highest level of representation when assisted by a well funded professional office dedicated to criminal defense. Some of these studies have indicated that the outcomes for properly funded and independent public defender clients are on equal footing as clients of private attorneys in the same jurisdiction.
Issues often arise in state jurisdictions with regard to appropriate levels of public defender funding. If attorneys are under-funded, their case loads can become so excessive that they are unable to provide adequate representation. Further, funding issues can keep salaries too low to attract the best legal talent or to keep experienced lawyers on staff.
These issues have come to the fore with recent studies disclosing that innocent people have been condemned to death in part due to inadequate representation in Cook County
, Illinois
(Chicago
), although none of the overturned "death penalty" cases were actually represented by the Cook County Public Defender
.
The elected public defenders in Florida have engaged in extensive litigation regarding underfunding and excessive caseloads. This litigation is based on their ethical and constitutional duties to provide effective counsel to their clients and their independence from the judges who appoint them. A private attorney in Florida commented on another private attorney's caseload, "A busy attorney might take 50 to 100 cases a year. If you take more than that, you might not be able to remember who your clients are and what their cases are about." In the same county, the average caseload of a public defender was 550 felonies or 610 misdemeanors annually.
There was a lawsuit in New York State as well, in which the New York Civil Liberties Union
has filed on behalf of 20 accused individuals claiming that the provision of public defense services has been inadequate. In New York State, many public officials have supported that claim, including the former-Chief Judge, Judith Kaye
.
In some jurisdictions, an indigent criminal defendant may be ordered to reimburse the state for the costs of his or her defense, based upon the defendant's ability to do so.
In jurisdictions where indigent defense is handled on the basis of contracts or ad-hoc appointments, there has been increasing concern about the low pay and minimal resources given to public defenders.
In jurisdictions where the public defender is a government agency, public defenders are generally on the same or similar pay-scale to prosecutors. This rate of pay is generally (but not always) below that of the private sector. In addition, often the number of attorneys allotted to the public defender may not be sufficient to handle the number of cases they are required to handle. Government agencies may, however, be able to provide collateral services such as social workers.
The Sixth Amendment of the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the assistance of counsel for his defense.” In the famous Scottsboro Boys
case, Powell v. Alabama
, 287 U.S. 45 (1932), the United States Supreme Court held that the indigent defendants, unable to afford to hire their own attorneys and accused of what was then a capital crime, had the right to a court-appointed attorney flowing from the Sixth Amendment. The defendants in that case were nine black men accused of rape by two white women in Alabama, and the white judge had failed to appoint counsel. Accordingly, one of the underlying social concerns in Powell was guarding against the danger that innocent people would suffer false accusations motivated by racism, then end up facing the ultimate punishment because their poverty precluded them from obtaining guidance through the potentially unfair trial process. The Court's decision applied only to capital crimes.
A decade later, Betts v. Brady
, 316 U.S. 455 (1942) narrowed the Powell holding. The soon-to-be-overturned Betts decision held that an indigent defendant, even in a capital case, had no right to court-appointed counsel unless the defendant was illiterate, of low intelligence generally, or caught up in a particularly complicated trial.
Gideon v. Wainwright
, 372 U.S. 335 (1963), established a clear doctrine: the Sixth Amendment right to counsel is a fundamental right, essential for a fair trial, and necessitates that the courts appoint lawyers for all indigent defendants, regardless of that defendant’s education or intelligence.
The function of a public defender, then, is to provide the due process safeguard that the Supreme Court deemed necessary for a constitutionally sound criminal justice system.
Some public defenders follow a "holistic approach" to providing public defense services to their clients. Because the public defender office is working with people who are living in poverty, they have an opportunity to make a positive impact on the lives of the clients, families and communities they work in. One example of holistic representation is the use of social work services to identify the reason for the criminal act and try to work on that problem. In many cases, people who are arrested are suffering from a drug problem or may even have an undiagnosed mental illness. A holistic public defender would be able to find an appropriate treatment program for such a client and advocate to the judge and the prosecutor to allow the client to receive treatment rather than go to jail. This helps the family and in turn improves the drug problem in that community one person at a time. Some public defender offices also have community based services to help prevent criminal activity.
Full-time public defenders are specialists who only handle criminal matters (although some public defender officials handle quasi-criminal civil cases, in which defendants are entitled to appointed counsel), and can tap into a nation-wide network for guidance and assistance.
Many, if not most, public defenders enjoy some form of civil service protections, such as a requirement that any employment termination be only for "good cause." Many staff attorneys belong to unions. These protections may allow public defenders more freedom in vigorously handling their caseloads. In Florida, staff attorneys have no civil service protections.
Federal Public Defender offices follow one of two models. The first model, the Federal Public Defender, is a federal agency which operates under the Judicial Branch of the federal government, specifically administered by the Administrative Office of the United States Courts. However, they perform administrative and budgetary duties as only the circuit courts of appeals of the United States are in charge of appointing their respective Federal Defenders, who in turn hire lawyers and support staff and manage the office. This model is followed separately for each individual judicial district in their circuit. The procedures for appointment, re-appointment and other administrative matters vary from circuit to circuit but the Federal Public Defender is appointed for 4 year terms. The second model is that of the community defender. Although similar to a federal public defender, technically it is actually a corporation that receives federal grant money and acts more independently from the federal judiciary. Although both type of defender offices are supported by public funding, they do not take direction from the government as to the operation of the offices.
The Office of the Federal Public Defender operates under authority of the Criminal Justice Act of 1964 (CJA),18 U.S.C. § 3006A. It provides defense services in federal criminal cases to individuals who are financially unable to obtain adequate representation. A person's eligibility for defender services is determined by the federal court. Defender organization attorneys may not engage in the private practice of law. Those accused who are found to be indigent in jurisdictions without a Federal or Community Defender, and those for whom there is a conflict or those charged at a time the Defender in their jurisdiction is short staffed or has a full caseload, will be appointed private counsel who are paid an hourly rate from an approved list of qualified lawyers who have the requisite experience to handle a federal criminal case.
By law, lawyers employed by Federal Public Defender offices have salaries set to match those of lawyers in the U.S. Attorney's office. The combination of salary, benefits and support team tends to attract, and more importantly retain, highly qualified attorneys. Especially in more rural areas, where federal criminal work is considered well-paid, many federal defenders have risen up through the state systems before becoming federal defenders. However, since each judicial district has a separate Federal Public Defender who administers and staffs each office in their district and manages the budget, the quality of representation varies from district to district. For example, their approval of the expenditure of funds for expert witnesses and training is up to each individual Federal Defender in their respective district and a few defenders are known to withhold those funds for important matters like those experts or transcripts that are critical for effective trial preparation Therefore, though rare, in some jurisdictions an indigent defendant may be better represented from appointed counsel who can petition the Court for the expenditure of expert witness funds and funds for critical items like official transcripts of hearings for use at trial.
State public defenders (as well as state prosecutors) often begin their careers handling misdemeanor cases. Since misdemeanors generally do not involve serious injuries, the parties are often more willing to ask that charges be dismissed, and less likely to appeal a dismissal by a judge. Therefore, although the volume may appear high, the work-per-case is significantly lower for misdemeanors.
In jurisdictions without an organized public defender agency, some courts and legislatures in some states tend to "cap" the amount a panel attorney who does not work for a public defender agency can receive in compensation on a case, there is much more pressure on the "panel" attorneys to resolve a case or issue quickly than there is for a full-time Federal Public Defender, who can afford to invest all the time necessary to fully develop an unusual motion or issue.
There remain some perceived differences between the quality in state versus federal public defenders offices, and the difference between poorly supported state programs versus properly supported state offices has caused much confusion amongst the general public. The stories have created a perception that all defenders are overworked and have to "dump cases". "Dump truck" and "public pretender" are terms sometimes used by defendants when complaining about their public defender. The California Court of Appeal
has explained:
Because conflict of interest problems could exist where multiple defendants participated in a single crime, only one person in a group of co-defendants will be assigned an attorney from a public defender office. For many defendants, it is in their best interest to testify against co-defendants in exchange for a reduced sentence. To ensure that each defendant is afforded his constitutional right to an effective defense, jurisdictions may have several public defender entities, or a "conflict panel" of private practice attorneys. This enables the court to assign each defendant an attorney from a completely separate office, thereby guarding against the risk of one client's privileged information accidentally falling into the hands of another client's attorney. Some jurisdictions, like in Los Angeles County, employ a separate entity for legal representation called the Alternate Public Defender's office. Any further conflicts are handled by court-appointed private attorneys. Recently, Florida
instituted an Office of Criminal Conflict and Civil Regional Counsel in each of its five appellate districts to afford indigent codefendants
this need for due process
of law.
A recent study by postdoc fellow Radha Iyengar of Harvard University
found that private attorneys appointed under the federal Criminal Justice Act fare worse than their Federal Public Defender counterparts, often leading to sentences averaging eight months longer and costing taxpayers $61 million a year more than salaried public defenders would cost.
Notably, the landmark Gideon case only gives an indigent criminal defendant a right to be represented at trial and upon the first appeal as of right. But the Supreme Court has held that there is no right to representation for discretionary appeals or postconviction collateral attacks like habeas corpus
and coram nobis
. In other words, an indigent convicted criminal who loses his trial and first appeal of right, if one is available (three states do not even allow an appeal of right), is on his own afterwards.
Of course, an appellate public defender, upon reviewing the trial record, will often find overwhelming evidence of the client's guilt and conclude there are no reasonable grounds for an appeal. The dilemma is obvious: On the one hand, they have a duty to diligently represent their client and honor their client's right to a first appeal, but on the other, they have a duty to not file frivolous appeals.
In 2000, the U.S. Supreme Court upheld as constitutional the so-called Wende procedure implemented by California to resolve this situation. The appellate public defender files a brief summarizing the procedural and factual history of the case, indicates that he has explained his evaluation of the case to his client and told the client of his right to file a pro se supplemental brief, asks that the court independently examine the record for arguable issues, and expresses his availability to argue any issues on which the court desires briefing. However, the appellate brief never expressly indicates that the appeal is frivolous, though the implicit message is obvious. The California Court of Appeal then undertakes its own review of the record. If it finds a possible issue, it directs the parties to brief and argue it. If it finds none, it issues an opinion (usually unpublished) affirming the conviction.
public defender office is called the Department of Public Advocacy. Federal Public Defender offices are customarily located in larger metropolitan areas of the district, but serve clients throughout their assigned area.
If a concern involves a civil case (e.g., personal injury or a landlord-tenant dispute), as opposed to a criminal case, one needs to contact a legal aid
office, as public defenders are typically prohibited from taking civil cases, although public defenders may be appointed in civil cases that are quasi-criminal in nature (e.g., removal of children from parents and civil commitments for alleged sexually violent predators) or in highly unusual situations where the civil proceedings may be highly connected to criminal proceedings.
In Hungary, either the police, the public prosecutor or the court (depending on what individual cases require) appoints a criminal defender at the state's cost to defend those that can not afford a chosen lawyer. The defence counsel's participation is required by the Criminal Procedure Act. Usually a private lawyer is appointed, one for each defendant, and conflict of interest between contradicting suspects is observed, e.g. not the same lawyer is to represent two contradicting suspects. If convicted, the defender's fee is to be borne by the defendant afterwards, but is rarely sought after.
Criminal defense lawyer
A criminal defense lawyer is a lawyer specializing in the defense of individuals and companies charged with criminal conduct. Criminal defense lawyers can be permanently employed by the various jurisdictions with criminal courts. Such lawyers are often called public defenders. For a much more...
appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
. The term is also applied to some ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
offices, for example in Jamaica, and is one way of translating a common Spanish-language term for ombudsman, defensor del pueblo. The rest of this article deals with the primary meaning.
By country
In civil lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries, following the model from the French Napoleonic Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
of criminal procedure, the courts typically appoint private attorneys at the expense of the state. As a rule defense attorneys in such countries are not directly employed by the government.
Brazil
In BrazilBrazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
, the constitution provides for a public defender's office at both state and federal levels. In most states, like Rio de Janeiro
Rio de Janeiro (state)
Rio de Janeiro is one of the 27 states of Brazil.Rio de Janeiro has the second largest economy of Brazil behind only São Paulo state.The state of Rio de Janeiro is located within the Brazilian geopolitical region classified as the Southeast...
, Mato Grosso, Mato Grosso do Sul and Rio Grande do Sul, the Public Defender, as the Prosecutor, has a "judge status". They have the same salary and prerrogatives. The public defender's office in these states has a long tradition of assisting the poor and lower middle-class in both civil and criminal matters while other, poorer states, are still struggling to set up a public defenders office.
The federal public defender's office (Defensoria Pública da União) has only recently began hiring attorneys and lacks in infrastructure. There are only 481 Federal Public Defenders in the whole country to assist more than 130 million people, which causes the general public to rely on lawyers assigned and paid by the federal judicial branch on a case to case basis.
Regarding conflicts of interest, the public defender may also be precluded from representing a defendant if the office previously represented a witness to the crime charged—not only a co-defendant (other defendant).
Germany
Germany does not provide indigent legal representation in criminal trials, although it does provide legal adviceLegal advice
In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court , ordinarily in exchange for financial or other tangible compensation...
.
United Kingdom
A system of private lawyers ("solicitorSolicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s") and counsel paid by the state is operated in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
United States
Different jurisdictions use different approaches in providing legal counsel for criminal defendants who can't afford private attorneys. Under the federal system and most common among the states is through a publicly funded public defender office. Typically, these offices function as an agency of the federal, state or local government and as such, these attorneys are compensated as salaried government employees. This approach provides a substantial majority of the indigent criminal defense representation in the United States.In addition to government-based offices, there are also a smaller but significant number of not-for-profit agencies, often referred to as a "Defender Service", or Legal Aid Societies that provide indigent criminal defense services. These entities tend to rely heavily on indirect sources, public funding, and charitable contributions to meet their operating costs.
Yet another, although increasingly less common method to appoint counsel for indigent criminal defendants is by way of a so-called "panel" of private attorneys who enter agreements with the government to handle such cases. Under this system attorneys generally operate as independent contractors and are compensated at a fixed rate for the case or sometimes by the hour.
Founding and history
The landmark case in the United States that helped pave the way for all defendants to be guaranteed an attorney in criminal proceedings was Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...
, . Gideon was a middle-aged Florida man who was charged with breaking into a bar and stealing money and beer
Beer
Beer is the world's most widely consumed andprobably oldest alcoholic beverage; it is the third most popular drink overall, after water and tea. It is produced by the brewing and fermentation of sugars, mainly derived from malted cereal grains, most commonly malted barley and malted wheat...
. He argued at his arraignment
Arraignment
Arraignment is a formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea...
that he could not adequately defend himself, and that a system that puts an uneducated person against a trained attorney is fundamentally unfair. On appeal, the Supreme Court of the United States agreed.
Although there had been some provisions for free attorneys prior to Gideon, it served as the catalyst for a wave of change. Following the landmark 1963 decision, the 1960s witnessed the creation of programs across the country to make this right available to most people charged with crimes who could not afford an attorney to represent them.
The first person to propose the creation of a public defender's office was California's first female attorney, Clara Shortridge Foltz. In a time before there were public defenders, young, inexperienced attorneys were often ordered by courts to defend indigents pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
, and in that capacity, Foltz saw firsthand the inequitable results of that system. As a result of Foltz's energetic lobbying, Los Angeles County hired Walton J. Wood
Walton J. Wood
Walton James Wood was an American attorney and jurist who served as the first public defender in United States history from 1914–1921 and as an associate justice of the California Second District Court of Appeal, Division Two from 1935–1945, having been appointed to the latter post by Republican...
to head the first public defender's office in the United States in January 1914. In 1921, the California Legislature extended the public defender system to all state courts.
Structure
Public defender agencies of all kinds are supported by public funding, but are ethically bound to be independent and do not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys. One of the most well established statewide public defender systems is in Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
. The Wisconsin State Public Defender has been used as a model for other states and several countries. Wisconsin has a program that uses both staff attorneys and appointments to attorneys in private practice. State public defender systems can vary widely from state to state, county to county, and from federal defender organizations. Most chief public defenders are appointed. The chief public defenders in Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
, Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
, Lincoln, Nebraska
Lincoln, Nebraska
The City of Lincoln is the capital and the second-most populous city of the US state of Nebraska. Lincoln is also the county seat of Lancaster County and the home of the University of Nebraska. Lincoln's 2010 Census population was 258,379....
, and San Francisco are elected.
Defenders vary greatly regarding the types of support staff they employ to support the work of their attorneys. In addition to clerical staff, defender offices may employ investigators, social workers, and forensic experts, such as psychologists. These human resources may help defenders provide more professional service than an appointed lawyer without this type of staff or funds to employ them. Private appointed attorneys are entitled to apply to the court for the services of an expert or investigator and the government is required to pay for those services if they are essential to the defense of the accused person.
Funding and staffing problems
Problems of excessive case loads and low salaries still plague many state public defenders' offices. To avoid these problems the American Bar Association and the National Legal Aid & Defender Association
National Legal Aid & Defender Association
The National Legal Aid & Defender Association is the oldest and largest national, nonprofit membership organization devoted to advocating equal justice for all Americans...
have promulgated standards relating to the performance of and appropriate case loads for public defenders. Research has indicated that indigents receive the highest level of representation when assisted by a well funded professional office dedicated to criminal defense. Some of these studies have indicated that the outcomes for properly funded and independent public defender clients are on equal footing as clients of private attorneys in the same jurisdiction.
Issues often arise in state jurisdictions with regard to appropriate levels of public defender funding. If attorneys are under-funded, their case loads can become so excessive that they are unable to provide adequate representation. Further, funding issues can keep salaries too low to attract the best legal talent or to keep experienced lawyers on staff.
These issues have come to the fore with recent studies disclosing that innocent people have been condemned to death in part due to inadequate representation in Cook County
Cook County, Illinois
Cook County is a county in the U.S. state of Illinois, with its county seat in Chicago. It is the second most populous county in the United States after Los Angeles County. The county has 5,194,675 residents, which is 40.5 percent of all Illinois residents. Cook County's population is larger than...
, Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
(Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...
), although none of the overturned "death penalty" cases were actually represented by the Cook County Public Defender
Cook County Public Defender
The Cook County Public Defender provides legal representation in the areas of felony and misdemeanor criminal, delinquency, abuse/neglect, some appeals, post-conviction and traffic cases throughout the Cook County in Illinois. Currently, the head of the Cook County Public Defender is Abishi C....
.
The elected public defenders in Florida have engaged in extensive litigation regarding underfunding and excessive caseloads. This litigation is based on their ethical and constitutional duties to provide effective counsel to their clients and their independence from the judges who appoint them. A private attorney in Florida commented on another private attorney's caseload, "A busy attorney might take 50 to 100 cases a year. If you take more than that, you might not be able to remember who your clients are and what their cases are about." In the same county, the average caseload of a public defender was 550 felonies or 610 misdemeanors annually.
There was a lawsuit in New York State as well, in which the New York Civil Liberties Union
New York Civil Liberties Union
The New York Civil Liberties Union is an civil rights organization in the United States. Founded in 1951 as the New York affiliate of the American Civil Liberties Union, it is a not-for-profit, nonpartisan organization with nearly 50,000 members across New York State.NYCLU's stated mission is to...
has filed on behalf of 20 accused individuals claiming that the provision of public defense services has been inadequate. In New York State, many public officials have supported that claim, including the former-Chief Judge, Judith Kaye
Judith Kaye
Judith S. Kaye is a retired New York judge who served as Chief Judge of New York from March 23, 1993 until December 31, 2008. She was the first woman to occupy the State Judiciary's highest office.-Early life and education:...
.
In some jurisdictions, an indigent criminal defendant may be ordered to reimburse the state for the costs of his or her defense, based upon the defendant's ability to do so.
Pay
In jurisdictions where indigent defense is handled on the basis of contracts or ad-hoc appointments, there has been increasing concern about the low pay and minimal resources given to public defenders.
In jurisdictions where the public defender is a government agency, public defenders are generally on the same or similar pay-scale to prosecutors. This rate of pay is generally (but not always) below that of the private sector. In addition, often the number of attorneys allotted to the public defender may not be sufficient to handle the number of cases they are required to handle. Government agencies may, however, be able to provide collateral services such as social workers.
Issue at stake
The Sixth Amendment of the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the assistance of counsel for his defense.” In the famous Scottsboro Boys
Scottsboro Boys
The Scottsboro Boys were nine black teenage boys accused of rape in Alabama in 1931. The landmark set of legal cases from this incident dealt with racism and the right to a fair trial...
case, Powell v. Alabama
Powell v. Alabama
Powell v. Alabama was a United States Supreme Court decision which determined that in a capital trial, the defendant must be given access to counsel upon his or her own request as part of due process.-Background of the case:...
, 287 U.S. 45 (1932), the United States Supreme Court held that the indigent defendants, unable to afford to hire their own attorneys and accused of what was then a capital crime, had the right to a court-appointed attorney flowing from the Sixth Amendment. The defendants in that case were nine black men accused of rape by two white women in Alabama, and the white judge had failed to appoint counsel. Accordingly, one of the underlying social concerns in Powell was guarding against the danger that innocent people would suffer false accusations motivated by racism, then end up facing the ultimate punishment because their poverty precluded them from obtaining guidance through the potentially unfair trial process. The Court's decision applied only to capital crimes.
A decade later, Betts v. Brady
Betts v. Brady
Betts v. Brady, 316 U.S. 455 , was a landmark United States Supreme Court case that denied counsel to indigent defendants when prosecuted by a state. It was famously overruled by Gideon v. Wainwright.- Background :...
, 316 U.S. 455 (1942) narrowed the Powell holding. The soon-to-be-overturned Betts decision held that an indigent defendant, even in a capital case, had no right to court-appointed counsel unless the defendant was illiterate, of low intelligence generally, or caught up in a particularly complicated trial.
Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...
, 372 U.S. 335 (1963), established a clear doctrine: the Sixth Amendment right to counsel is a fundamental right, essential for a fair trial, and necessitates that the courts appoint lawyers for all indigent defendants, regardless of that defendant’s education or intelligence.
The function of a public defender, then, is to provide the due process safeguard that the Supreme Court deemed necessary for a constitutionally sound criminal justice system.
Practice
Some public defenders follow a "holistic approach" to providing public defense services to their clients. Because the public defender office is working with people who are living in poverty, they have an opportunity to make a positive impact on the lives of the clients, families and communities they work in. One example of holistic representation is the use of social work services to identify the reason for the criminal act and try to work on that problem. In many cases, people who are arrested are suffering from a drug problem or may even have an undiagnosed mental illness. A holistic public defender would be able to find an appropriate treatment program for such a client and advocate to the judge and the prosecutor to allow the client to receive treatment rather than go to jail. This helps the family and in turn improves the drug problem in that community one person at a time. Some public defender offices also have community based services to help prevent criminal activity.
Full-time public defenders are specialists who only handle criminal matters (although some public defender officials handle quasi-criminal civil cases, in which defendants are entitled to appointed counsel), and can tap into a nation-wide network for guidance and assistance.
Many, if not most, public defenders enjoy some form of civil service protections, such as a requirement that any employment termination be only for "good cause." Many staff attorneys belong to unions. These protections may allow public defenders more freedom in vigorously handling their caseloads. In Florida, staff attorneys have no civil service protections.
Structure
Federal Public Defender offices follow one of two models. The first model, the Federal Public Defender, is a federal agency which operates under the Judicial Branch of the federal government, specifically administered by the Administrative Office of the United States Courts. However, they perform administrative and budgetary duties as only the circuit courts of appeals of the United States are in charge of appointing their respective Federal Defenders, who in turn hire lawyers and support staff and manage the office. This model is followed separately for each individual judicial district in their circuit. The procedures for appointment, re-appointment and other administrative matters vary from circuit to circuit but the Federal Public Defender is appointed for 4 year terms. The second model is that of the community defender. Although similar to a federal public defender, technically it is actually a corporation that receives federal grant money and acts more independently from the federal judiciary. Although both type of defender offices are supported by public funding, they do not take direction from the government as to the operation of the offices.
Practice
The Office of the Federal Public Defender operates under authority of the Criminal Justice Act of 1964 (CJA),18 U.S.C. § 3006A. It provides defense services in federal criminal cases to individuals who are financially unable to obtain adequate representation. A person's eligibility for defender services is determined by the federal court. Defender organization attorneys may not engage in the private practice of law. Those accused who are found to be indigent in jurisdictions without a Federal or Community Defender, and those for whom there is a conflict or those charged at a time the Defender in their jurisdiction is short staffed or has a full caseload, will be appointed private counsel who are paid an hourly rate from an approved list of qualified lawyers who have the requisite experience to handle a federal criminal case.
Pay
By law, lawyers employed by Federal Public Defender offices have salaries set to match those of lawyers in the U.S. Attorney's office. The combination of salary, benefits and support team tends to attract, and more importantly retain, highly qualified attorneys. Especially in more rural areas, where federal criminal work is considered well-paid, many federal defenders have risen up through the state systems before becoming federal defenders. However, since each judicial district has a separate Federal Public Defender who administers and staffs each office in their district and manages the budget, the quality of representation varies from district to district. For example, their approval of the expenditure of funds for expert witnesses and training is up to each individual Federal Defender in their respective district and a few defenders are known to withhold those funds for important matters like those experts or transcripts that are critical for effective trial preparation Therefore, though rare, in some jurisdictions an indigent defendant may be better represented from appointed counsel who can petition the Court for the expenditure of expert witness funds and funds for critical items like official transcripts of hearings for use at trial.
Comparison of state and federal systems
A federal defender's case load is usually substantially lower than her or his state counterpart's. While a state public defender may have to juggle over one hundred cases, an Assistant Federal Public Defender routinely has 30-50 cases, though the severity and complexity of such cases may be greater. The federal system has over 4,000 separate offenses, and uses a very mechanistic, sentencing scheme based on a set of "advisory" sentencing guidelines.State public defenders (as well as state prosecutors) often begin their careers handling misdemeanor cases. Since misdemeanors generally do not involve serious injuries, the parties are often more willing to ask that charges be dismissed, and less likely to appeal a dismissal by a judge. Therefore, although the volume may appear high, the work-per-case is significantly lower for misdemeanors.
In jurisdictions without an organized public defender agency, some courts and legislatures in some states tend to "cap" the amount a panel attorney who does not work for a public defender agency can receive in compensation on a case, there is much more pressure on the "panel" attorneys to resolve a case or issue quickly than there is for a full-time Federal Public Defender, who can afford to invest all the time necessary to fully develop an unusual motion or issue.
There remain some perceived differences between the quality in state versus federal public defenders offices, and the difference between poorly supported state programs versus properly supported state offices has caused much confusion amongst the general public. The stories have created a perception that all defenders are overworked and have to "dump cases". "Dump truck" and "public pretender" are terms sometimes used by defendants when complaining about their public defender. The California Court of Appeal
California Court of Appeal
The California Courts of Appeal are the state intermediate appellate courts in the U.S. state of California. The state is geographically divided into six appellate districts...
has explained:
Conflict of interest
Because conflict of interest problems could exist where multiple defendants participated in a single crime, only one person in a group of co-defendants will be assigned an attorney from a public defender office. For many defendants, it is in their best interest to testify against co-defendants in exchange for a reduced sentence. To ensure that each defendant is afforded his constitutional right to an effective defense, jurisdictions may have several public defender entities, or a "conflict panel" of private practice attorneys. This enables the court to assign each defendant an attorney from a completely separate office, thereby guarding against the risk of one client's privileged information accidentally falling into the hands of another client's attorney. Some jurisdictions, like in Los Angeles County, employ a separate entity for legal representation called the Alternate Public Defender's office. Any further conflicts are handled by court-appointed private attorneys. Recently, Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
instituted an Office of Criminal Conflict and Civil Regional Counsel in each of its five appellate districts to afford indigent codefendants
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
this need for due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
of law.
A recent study by postdoc fellow Radha Iyengar of Harvard University
Harvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
found that private attorneys appointed under the federal Criminal Justice Act fare worse than their Federal Public Defender counterparts, often leading to sentences averaging eight months longer and costing taxpayers $61 million a year more than salaried public defenders would cost.
Appeals
Notably, the landmark Gideon case only gives an indigent criminal defendant a right to be represented at trial and upon the first appeal as of right. But the Supreme Court has held that there is no right to representation for discretionary appeals or postconviction collateral attacks like habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
and coram nobis
Coram nobis
Coram nobis or coram vobis also known as error coram nobis or error coram vobis is a legal writ issued by a court to correct a previous error "of...
. In other words, an indigent convicted criminal who loses his trial and first appeal of right, if one is available (three states do not even allow an appeal of right), is on his own afterwards.
Of course, an appellate public defender, upon reviewing the trial record, will often find overwhelming evidence of the client's guilt and conclude there are no reasonable grounds for an appeal. The dilemma is obvious: On the one hand, they have a duty to diligently represent their client and honor their client's right to a first appeal, but on the other, they have a duty to not file frivolous appeals.
In 2000, the U.S. Supreme Court upheld as constitutional the so-called Wende procedure implemented by California to resolve this situation. The appellate public defender files a brief summarizing the procedural and factual history of the case, indicates that he has explained his evaluation of the case to his client and told the client of his right to file a pro se supplemental brief, asks that the court independently examine the record for arguable issues, and expresses his availability to argue any issues on which the court desires briefing. However, the appellate brief never expressly indicates that the appeal is frivolous, though the implicit message is obvious. The California Court of Appeal then undertakes its own review of the record. If it finds a possible issue, it directs the parties to brief and argue it. If it finds none, it issues an opinion (usually unpublished) affirming the conviction.
Miscellaneous
If a concern involves a local matter, local court staff can provide direction to the appropriate public defender organization. Note that in some states, the office is not titled as "Public Defender"; for example, Kentucky'sKentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
public defender office is called the Department of Public Advocacy. Federal Public Defender offices are customarily located in larger metropolitan areas of the district, but serve clients throughout their assigned area.
If a concern involves a civil case (e.g., personal injury or a landlord-tenant dispute), as opposed to a criminal case, one needs to contact a legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
office, as public defenders are typically prohibited from taking civil cases, although public defenders may be appointed in civil cases that are quasi-criminal in nature (e.g., removal of children from parents and civil commitments for alleged sexually violent predators) or in highly unusual situations where the civil proceedings may be highly connected to criminal proceedings.
In Hungary, either the police, the public prosecutor or the court (depending on what individual cases require) appoints a criminal defender at the state's cost to defend those that can not afford a chosen lawyer. The defence counsel's participation is required by the Criminal Procedure Act. Usually a private lawyer is appointed, one for each defendant, and conflict of interest between contradicting suspects is observed, e.g. not the same lawyer is to represent two contradicting suspects. If convicted, the defender's fee is to be borne by the defendant afterwards, but is rarely sought after.
See also
- Legal aid in the United StatesLegal aid in the United StatesLegal aid in the United States appeared as early as the 1870s, but for the most part, the U.S. legal aid system remained piecemeal and underfunded until well into the 20th century....
- Duty solicitorDuty solicitorIn the several Commonwealth countries, including the United Kingdom, Australia, New Zealand and Canada, a duty solicitor is a solicitor whose services are available to a person either suspected of, or charged with, a criminal offence free of charge if that person does not have access to a...
- Duty counselDuty counselIn Ontario, Canada a duty counsel is a lawyer paid by Legal Aid Ontario who provides limited legal services in criminal, family law and child protection matters to people who arrive at court without representation, mainly in the Ontario Court of Justice....
- Legal AidLegal aidLegal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...