Indigent Defense Crisis in the U.S.


In criminal cases in the United States, those who are too poor to hire a private attorney will have an attorney provided for them. In many jurisdictions, these attorneys are from a public defenders’ office, wherein all attorneys are paid by the government to represent these indigent individuals. The prominence of public defender’s offices is largely a result of the 1963 Supreme Court case known as Gideon v. Wainwright.

Clarence E. Gideon (pictured) was a man who lived in poverty and had been committing crimes of theft since he was a teenager. After being arrested in Florida for petty larceny in 1961, Gideon had no money for a private attorney and argued at his trial that he was entitled to be represented by counsel. The court declined to provide counsel for Gideon, and the court stated “Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense.”[1]

Gideon was forced to represent himself. The jury in the Florida court found Gideon guilty and Gideon was then imprisoned. From prison, Gideon wrote a handwritten petition to the Supreme Court. It was riddled with spelling and grammatical errors. Amazingly, the petition caught the attention and interest of the United States Supreme Court. The Court examined Gideon’s case and in a unanimous decision decided that the right to counsel applied both to capital and non-capital cases.[2] Gideon was re-tried, this time a lawyer was provided and the trial ended in an acquittal for Gideon.[3] The Sixth Amendment provides crystal clear justification for the Court’s landmark decision. It entitles the accused to “have the Assistance of Counsel for his defence.” It makes no distinction between capital and non-capital offenses.[4]

Despite the court’s revolutionary decision that afforded an attorney to every defendant in misdemeanor and felony cases and continues to be celebrated by public defenders, indigent defense in criminal courts is weak in the United States. The poor do not receive the same quality legal defense as those wealthy enough to hire a private attorney. The dire condition of indigent defense in the United States can be attributed to many different causes.

Public defenders are burdened with caseloads so immense they can only afford to spend minimal time meeting their clients and discussing their case. The vast majority of cases in which a defendant is represented by a public defender are not taken to trial but are plea bargained away.[5] In a plea bargain, the prosecution is guaranteed a conviction as the defendant, acting on the advice of their counsel, pleads guilty to charges somewhat less serious than the initial charges. This still results in serious consequences for the defendant, and many are incarcerated without a full trial.[6]

Public defenders are often very motivated to plea bargain because it saves them a great deal of time and they are simply unable to take every case to trial. The caseloads of public defenders have been so overwhelming that the U.S. Justice Department declared a “crisis” in the country’s courts. Their 2001 report “Keeping Defender Workloads Manageable” drew on reports from around the country, documenting how public defenders were handling anywhere from 200 to 2,225 felony and misdemeanor cases a year.[7] On the other hand, private attorneys would consider even 100 clients an enormous workload. This is because they can refuse to provide counsel, especially to those who cannot afford it.

The Constitution Project released a 2009 report stating that “sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric.”[8] The Constitution Project’s allusion to the decision’s “soaring rhetoric” is a reference to such statements from Justice Hugo Black’s majority opinion as “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has” and “…lawyers in criminal courts are necessities, not luxuries.” [9] The Constitution Project wrote in their report that public defenders are now providing second-rate defense for their clients, but through no fault of their own. Due to their enormous caseloads the attorneys were simply unable to provide the same quality defense for their clients as private attorneys. The report reads,

“Sometimes the defenders have well over 100 clients at a time, with many clients charged with serious offenses, and their cases moving quickly through the court system. As a consequence, defense lawyers are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources.”

The lack of resources afforded to public defender’s offices is the primary reason they are perpetually understaffed and their employees are overworked. There is no law regarding how much a state must pay into public defender programs, and some states place the burden of funding entirely on the county in which the public defender’s office operates.[10] The understaffed offices must see their attorneys burdened with absolutely crushing caseloads so every defendant may have counsel. Amazingly, 80% of all criminal defendants in the United States are represented by public defenders.[11] The Constitution Project report stated that failing the poor by underfunding indigent defense would ultimately cost society a great deal in the long run. They noted that “state and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and lack of public confidence in our justice systems.” Further, “in the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever.”[12]

NOTE: My objectives in writing this piece were to dispel the myth that public defenders tend to get inferior results because they are inherently inferior attorneys, to point out the disparity in quality of defense obtained by rich and poor defendants, and to highlight the need for more resources, funding and staffing to be directed to pubic defenders’ offices in order to provide desperately needed caseload relief and raise the quality of defense provided to each individual defendant.


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