public defender

 

governmental official who represents indigent persons accused of crime. U.S. Supreme Court decisions expanding the right to counsel to pretrial proceedings and holding that a person cannot be sentenced to even one day in jail unless a lawyer was provided have created a need for more lawyers to represent the indigent. Proponents of the public defender office claim that it is the most efficient and effective method of protecting the indigent. Other systems include court-appointed counsel from the local bar, clinics operated by law schools, and legal aid societies. The societies are privately funded and offer civil and criminal representation.

In the United States, a public defender is an attorney whose duty is to provide legal representation to indigent defendants who have been charged criminally and who are unable to pay for an attorney. The state and federal government, respectively, pay for the public defender agencies that they employ to provide indigent defense. Appointed attorneys are required for anyone accused in a criminal case who is exposed to any likelihood of imprisonment. The Supreme Court's most important decision in this area of law held that the Sixth Amendment required that governments afford indigent defendants with competent counsel. Different jurisdictions have gone about providing such counsel in different ways. By far, the most common is a public defender office, though a substantial minority comply with Gideon by using a panel of private attorneys who are compensated for their appointed work.

Legal background and history

The neutrality of this article is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved.

The landmark case that helped pave the way for all Americans to be guaranteed an attorney at trial was the case of Gideon v. Wainwright, 372 U.S. 335 (1963) Mr. Gideon was a middle-aged Florida man who was charged with breaking into a bar and stealing money and beer. He argued at his trial that he could not adequately defend himself, and that a system that puts an uneducated man against a trained attorney is fundamentally unfair. The Supreme Court agreed.

Although there had been some provisions for free attorneys prior to Gideon, it was 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 virtually all criminal defendants 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 crude system. See Stanford Law. As a result of Foltz's energetic lobbying, Los Angeles County established the first public defender's office in the United States in 1914 [1]. In 1921, the California Legislature extended the public defender system to all state courts. [2]

State Public Defender Systems

Not all jurisdictions have public defender offices, per se. In some areas, indigent defendants are represented by legal aid attorneys whose offices have contracts with the court. In other areas, representation is provided by attorneys in private practice who are appointed and paid by the court. Defense services can also be provided by lawyers employed by private corporations that receive government grant money for this purpose.

Public defender agencies of all kinds are supported by public funding, but do not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys.

State public defender offices can vary widely from county to county, and from federal defender organizations. In state offices, issues often arise in jurisdictions with public defenders over appropriate levels of funding. If attorneys are under funded, their case loads can climb to levels where 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. To avoid these problems the American Bar Association has promulgated standards as to appropriate case loads for public defenders. Problems of excessive case loads and low salaries still plague many state public defenders' offices. Research has indicated that indigents receive the highest level of representation when assisted by a well funded professional office dedicated to criminal defense. 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. However, these orders, when issued, are largely unenforceable, and do not reflect the real cost of defense, since the defendant is, by his nature, without funds.

Few public defender offices are headed by elected officials. One notable exception is the San Francisco Public Defender, which is elected. There are often debates about whether a public defender agency should be headed by an elected official. Average people often do not understand or care about the importance of having decent indigent representation. In conservative areas, it is quite possible that a public defender might be elected on the platform of providing "the bare minimum defense." In any event, funding is always a problem for public defender agencies. County and state governments are generally reluctant to fully and adequately fund indigent defense because it is politically unpopular to do so.

Full-time public defenders are specialists who only handle criminal matters (although some public defender officials handle quasi-criminal civil cases, on 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 also belong to unions. These protections can allow public defenders more freedom in vigorously handling their caseloads. Thus, areas with vigorous public defenders may be more able to challenge the system and give defendants more of a fighting chance when charged with a crime. Unfortunately, because of the wide variance of criminal justice systems between states, and even between jurisdictions in each state, no reliable large study has been performed to show how effective having a public defender system is versus a private or appointed system.

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.^[1] Public defenders in Missouri can spend about six hours per case regardless of whether it is a misdemeanor or a murder case. For indigent criminal defendants, low-paying assigned-counsel systems offer the worst of all possible worlds. They virtually guarantee sub-par representation, given that low assigned-counsel rates almost always imply huge caseloads—a nightmare for poor defendants desperately in need of legal attention.^[2]

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.

Federal Public Defender Systems

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. The second model is that of the community defender. Although similar to a federal public defender, technically it is actually a corporation that receive 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 Federal Public Defender offices are well-funded. 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 decent 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.

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.

Comparison of State and Federal PD Systems

A federal defender's case load is usually substantially lower than 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, a very manageable amount, 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. That said, 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.

Furthermore, 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. In this federal system, the title of Assistant can create a belief in some clients that their attorney is new. The title has nothing to do with the attorney's experience or ability. There is only one United States Attorney for a district (all the other federal prosecutors are called Assistant United States Attorneys), and there is only one Federal Public Defender for a district. Thus, an attorney with thirty years experience, who supervises twenty other attorneys, could still be an Assistant Federal Public Defender.

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 in the general public. The horror stories have created a frequent public perception that all* defenders are over-worked and have to "dump cases". "Dump truck" and "public pretender" are terms sometimes used by defendants when complaining about their public defender. (The origins of the phrase "dump truck" are somewhat obscure, however it probably means that in the eyes of the defendant, the public defender is simply trying to "dump" him by encouraging a guilty plea rather than afford him a vigorous defense.) Ironically, particularly in the federal system, it is the public defender, free of the pressures of hourly billing, who can actually afford to spend time developing unusual issues, motions, and trial strategies. Nevertheless, client-attorney relations are frequently strained by that perception and the horror stories. Although public defenders are available because of the United States Constitution's 6th Amendment right to counsel guarantee, they are perceived as being a form of welfare, and like anything else that comes for free, are looked upon with some distrust. It is a sad truth that many criminal defendants would prefer to have any private counsel rather than a public defender, regardless of comparative competence.

Legal Issues

Conflict of Interest

Because conflict of interest problems could exist where multiple defendants participated in a single crime, such as a bank robbery or a drive-by shooting, 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.

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.[3]

In Civil Law Jurisdictions

In civil law countries, following the model from the 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. In Brazil, however, the constitution provides for a public defender's office at both state and federal levels. In some states, like Rio de Janeiro, the public defender's office 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. There the federal public defender's office has only recently began hiring attorneys and lacks in infrastructure, 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)

Criticism

One major criticism is that public defenders tend to be less competent than private criminal defense attorneys, and that a rich person has a better chance of being found not guilty in a criminal proceeding than a poor person as a result. These criticisms may be unfounded, however, since public defenders tend to have more experience with criminal law and practice almost exclusively in one courthouse, whereas “private” attorneys must divide their time and resources as necessary to pay for staff and overhead. Likewise, larger public defender organizations have offices dedicated to training and investigation, whereas attorneys in private practice are not part of an organized office. Moreover, some have argued that people that many that do not qualify for public defenders, yet are not legally sophisticated, are simply unable to judge whether potential lawyers would competently represent them in the first place.

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's public defender office is called the Department of Public Advocacy. For federal matters, look under US government listings in the telephone directory, or contact the clerk's office of the nearest US Courthouse for information. 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.

Notes

Donate to Wikimedia