For over 50 years now, indigent defendants—that is, those accused of crimes but unable to afford an attorney—have had the right to obtain legal counsel at no cost to themselves by making use of state public defender systems. With that central point settled, the controversies in this area revolve around a number of other issues. For instance, when does the right to use a state-appointed attorney come into play in the state’s intervention into a person’s life as law enforcement attempts to find culpability for a criminal offense? Is there an appropriate time when the right to counsel may be waived by an accused indigent? Answers to these questions affect the lives of most persons accused of a criminal offense in the United States. For example, in 1998, two-thirds of federal felony defendants could not afford to retain their own counsel, and in 75 of the most populous counties in the United States the figure was 82 percent (U.S. Department of Justice 2001). Other issues have to do with such questions as what is the best way to provide legal services for the indigent and what level of poverty qualifies one for assigned counsel. Are we reaching indigents who reside outside of the most populous areas in the country? Finally, and overarching most or all of these issues, is the public defender system capable of handling the task we have assigned it using the resources we have provided?
II. Legal Developments
III. Indigent Defense Services
IV. Stresses to the System
The Sixth Amendment to the U.S. Constitution provides that “[I]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.” Even earlier than that, Benjamin Austin argued at the Constitutional Conventions, “As we have an Attorney General who acts in behalf of the State, it is proposed that the Legislature appoint another person (with a fixed salary) as Advocate General for all persons arraigned in criminal prosecutions; whose business should be to appear in behalf of all persons indicted by the State’s Attorney.” (Smith and Bradway 1936, 53). But the idea remained dormant for the next 100 years.
In 1896, however, bills were introduced in 12 state legislatures to establish public defender officers. By 1917, public defender bills had been introduced in 20 states. By 1926, there were 12 working public defender offices, and by 1933 at least 21 offices were up and running in the United States (Barak 1980). However, the right to have such a defense was pretty much a hollow one until the middle of the 20th century, as the vast majority of defendants who were too poor to hire a lawyer on their own came from other jurisdictions. Indeed, the National Legal Aid and Defender Association reports on their Web site that, until the middle of the 20th century, most criminal defense lawyers worked on a pro bono basis even in capital cases after being appointed by the individual trial judges; and although there were a few programs to provide representation (i.e., the New York City Legal Aid Society starting in 1896 and the Los Angeles Public Defender in 1914), such services were limited to the largest cities in the country.
In 1932, the U.S. Supreme Court began a many-year process to change the law to require the appointment of counsel to indigents, first in state capital cases (Powell v. Alabama) and then, six years later, to all federal prosecutions ( Johnson v. Zerbst). When faced with the question of requiring counsel for indigents in state noncapital cases in 1943, however, it refused to do so (Betts v. Brady). It was not until 1963, in Gideon v. Wainwright, that the right was extended to state felony cases, and in 1972 (Argesinger v. Hamlin), the Supreme Court held that there was a right to assigned counsel for an indigent in any type of criminal proceeding in which there was a possibility of incarceration. In 1961, the right was extended to pretrial situations at the very beginning of the judicial process (Hamilton v. Alabama) and even before, in post-arrest interrogations (Miranda v. Arizona 1966) and lineups (United States v. Wade 1967), as well as after conviction on appeals (Douglas v. California 1963).
With the issue of an indigent’s right to assigned counsel settled, there now is a vast and continually developing body of law, both federal and state, setting forth the parameters of exactly when the right to counsel attaches and whether and when it can be waived.
Counsel can be waived at any stage of the proceedings; however, the right to counsel attaches at the time of arraignment and even before if the police intend to conduct an interrogation or a lineup. The developing body of law primarily focuses on the factual circumstances surrounding whether there was a valid waiver or not. The controversy revolves around the facts. Did what happen amount to a waiver or not? Did the questioning start before the Miranda warnings; did they precede the questioning, or did they come afterward? Was the person in custody so as to require warnings?
A prime example would be as follows: A detective asks a defendant in custody if he wants to tell his side of the story. The defendant says yes, and before any Miranda warnings are given, the defendant starts to incriminate himself, at which point the officer finally gives Miranda warnings. The question is whether what took place before the warnings were given was substantive in nature or even whether it was a question to ask at all. There is no such thing as a little bit of questioning; you either are questioned or are not, and this is where controversy lies.
Indigent Defense Services
To implement the now required delivery of indigent criminal defense services, several different programs have developed within most localities. They presumably handle conflicts (i.e., multiple defendants or conflicting loyalties such as prior representation of the victim now accusing the defendant), keep costs down, or provide work for private lawyers.
One method of delivery is by means of a public defender who is a government official, either appointed (i.e., New York) or elected (i.e., Florida) in a particular locality, who—along with his or her staff of lawyers, investigators, and so forth—provides representation to the indigent with a government budget line usually much lower than that of the district attorney. In some localities, such as New York City and its neighboring counties of Nassau and Suffolk, private and separate legal aid societies contract with the local government to provide the major representation in the same manner and structure as a public defender.
Service delivery may also be made with an assigned counsel panel of private lawyers who have agreed to provide representation, as selected, for a previously agreed and usually hourly fee set by a governmental body. The fee usually paid to the assigned counsel is much lower than the normal fee for the service. Indeed, in New York State, the hourly fee was raised to $75 in 2003, having been at $40 per hour since 1985. Another option to provide the required legal services is through a contract with one or more lawyers to handle a specific number of cases for a set fee.
Determination of indigence varies by locality and is usually done by the court making the assignment, the agency or lawyer to be assigned, or by some screening agency set up for that purpose or is a part of some other branch of the executive department of the locality.
According to the Bureau of Justice Statistics, 964 public defender offices across the nation handled 5.8 million indigent defense cases in 2007, at a total expenditure of $2.4 billion (U.S. Department of Justice 2009). This cost, however, is mostly a local one, with county governments in the 100 most populous counties picking up about 60 percent of the tab, although in some states such as New York it is a completely local cost. Maine is the only state having no public defender offices; it provides indigent defense services through private attorneys.
Misdemeanors accounted for about 40 percent of all cases handled by state-based public defender offices and about 50 percent of the cases handled by county-based offices. Misdemeanors were followed by non–capital felony cases (25 percent of state cases and 32 percent of county cases) and by appeals cases (1 percent and a negligible fraction, respectively) (U.S. Department of Justice 2009).
As for staffing and caseloads, the same statistics indicate that more than 17,000 attorneys were employed by public defender offices in 2007, some 4,000 at the state level and nearly 13,000 at the county level. Each state public defense attorney handled, on average, 147 misdemeanor cases, 88 felony cases, and 3 appeals cases in 2007. County-based public defenders handled, on average, 164 misdemeanors and 2 appeals. Half of all state-based public defender offices had formal caseload limits in place in 2007, whereas less than one fifth of county-based programs had the same limits. (In nearly 40 percent of the county-based programs, however, attorneys had the authority to refuse appointments because of caseload.) (U.S. Department of Justice 2001).
Stresses to the System
Over the past several years there have been an increasing number of cases in which public defenders’ offices, underfinanced and overburdened with cases, have failed to meet expectations. Indigent defense programs in Louisiana, Florida, Georgia, Missouri, Kentucky, New York, and Michigan, among others, have been identified as needing overhaul. Indeed, in some cases it is the public defenders themselves who have sued for changes, as they recognize that they no longer can manage high caseloads and at the same time provide adequate representation to each of their clients. Often, there is pressure on defendants to plead guilty to lesser charges in exchange for lighter sentences—one way to avoid the time and expense of a trial. This and other forms of “rushed justice,” along with instances of faulty lawyering (stemming from unmanageable caseloads and/or inadequate training and experience), have produced a rise in the number of wrongful convictions. State budget cuts across the nation in the wake of the 2008–2009 financial crisis have only made matters worse (Eckholm 2008; “Hard Times” 2008; Glaberson 2010).
Whether the trend will turn around anytime soon is an open question at this point. Louisiana, for one, has implemented large-scale changes intended to ensure that both the letter and spirit of Gideon v. Wainwright are addressed. New York only recently (2010) was ordered by the state supreme court to fix its broken public defender system, and what that state does may serve as a model for other states. Meanwhile, several states and districts faced with challenges to their public defender systems have already begun the process of self-examination and public discussion.
Roslyn Muraskin and Matthew Muraskin
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