Gideon’s Heroes

Honoring Those Who Do Justice To Gideon’s Promise

Public Defense Fact Sheet

Indigent Defense Basics

What is indigent, or public, defense?
An accused person’s right to an attorney in criminal cases comes from the Sixth Amendment to the United States Constitution. The courts have ruled that the right to the "assistance of counsel" means counsel must be provided to people who cannot afford to pay, in many different types of cases, at both the federal and state level.

How are criminal defense services provided to people who cannot afford an attorney?
There are three basic models for such defense services:

·   Public defender offices, with employees on salary. Most urban areas of the country have public defenders.

·   Court-appointed private attorneys, who are assigned by a judge to provide defense services either from a list maintained by the courts or through some other system.

·   Contracts with individual attorneys, firms or nonprofit corporations that provide some or all of a jurisdiction's indigent defense services.

How is someone determined to qualify for a court-appointed lawyer?
It varies from state to state, and sometimes from county to county. Generally, though, the test is whether you can afford to pay a private attorney. You don't have to be poverty-stricken or unemployed to qualify; 70 percent of all defendants receiving court-appointed lawyers have a job at the time of their arrest.

Most jurisdictions do not have enforceable standards to ensure competent representation or adequate resources.  This leads to poor representation, including attorneys who do not have appropriate access to training, legal research, investigators, experts or scientific testing.

There is usually a disparity of resources between the prosecution and indigent defense. Governments commonly spend three times as much on prosecution as on public defense. [1] And local prosecutor offices have access to many resources not available to public defenders, like state and federal crime labs, psychiatric and mental health experts, forfeiture funds, grant programs, and free congressionally-funded training.

Public defenders’ caseloads frequently far exceed national standards – up to 5-10 times higher than for prosecutors.[2] Unmanageable caseloads mean that many defenders simply don’t have time to do the most basic tasks, such as talk to their clients and prepare a defense. Many clients get nothing more than a few minutes of the defender’s time and a hurried guilty plea.