Reviewed: The State of the Nation 40 Years Later
In the landmark case Gideon v. Wainwright,1 the U.S. Supreme Court
unanimously concluded that states have a constitutional obligation under the Sixth and
Fourteenth Amendments to provide counsel to indigent defendants in felony cases. Over the
ensuing 40 years, the right to counsel has been consistently extended to any case that may
result in a potential loss of liberty.2
However, only 22 states administer and fund all indigent defense services at the
The remaining states rely either in part or entirely on local funding and/or court costs
to fulfill their constitutional obligation. Local funding, which is primarily derived from
property taxes, tends to constrict in inverse proportion to the demand for indigent defense
services (i.e., a weakened local economy causes increases in unemployment, worker flight,
demands for other county services, and crime), producing instability in funding and wide
fluctuations in the quality of indigent defense.
- As one of only two states that provide no state funding of indigent defense services
4 , Pennsylvania’s counties fail numerous standards relating to
attorney performance. Venango County (Franklin) attorneys work in excess of national
workload/caseload standards for full-time attorneys despite their part-time status and
ability to carry private cases.
5 Similar practices in Allegheny County (Pittsburgh) resulted in a successful
class action lawsuit brought by the American Civil Liberties Union alleging that indigent
defendants do not received constitutionally guaranteed right to counsel. A 2003 report of
the Pennsylvania Supreme Court Committee on Racial and Gender Bias found that this funding
structure disproportionately and adversely affects indigent defense services rendered to
people of color.
- Counties throughout the state of Nevada have been cited for assigning
attorneys to serious felony and murder cases for which the attorney is not qualified. Most
recently, the 9th Circuit Court of Appeals allowed a defendant who was exonerated from
death row after fourteen years to sue the Clark County (Las Vegas) public defender
administrator for appointing an attorney just out of law school who had never handled a
murder case to represent him on capital charges.
- In direct violation of the mandate to provide counsel in misdemeanor cases carrying a
potential loss of liberty,
Georgia counties routinely deny counsel to indigent defendants in non-felony
cases. Although inappropriate misdemeanor convictions may not generally result in lengthy
incarceration, the life consequences of convictions can be severe, including job loss,
family breakup, substance abuse and deportation – factors that tend to foster recidivism.
- Until 2003 when an appellate judge stepped in to order the state
of New York to pay attorneys representing indigent defendants in New York City a
reasonable fee, attorneys received $25 hour. This rate is below the presumptive $30 per
hour figure that the Alabama Court of Criminal Appeals determined is a “reasonably incurred”
expense to cover overhead costs in their state alone. By comparison, the State of Alabama
now pays attorneys $90 per hour for in-court work – a figure that equals the U.S.
Government’s assigned counsel compensation rate for federal cases.
- North Dakota relies extensively on flat-fee contracts entered into with
attorneys to represent all non-conflict defendants in a given jurisdiction. Since these
contracts do not have caps on the number of cases to be represented, attorneys may have a
financial incentive to cut corners. Moreover, there are no safeguards regarding when cases
are assigned during the contract. Thus, an attorney may be assigned a serious felony on the
last day of his/her contract and is expected to continue representation in that case until
disposition with no further compensation.
- Low salaries of public defenders in South Carolina have been cited as a
predominant cause of high employee turnover. Many attorneys leave law school with six-digit
student loan debt that is difficult to re-pay on $27,000 per year salaries. High turnover
contributes to the inefficient use of limited resources as the office is in constant circle
of hiring and training new staff.
- Despite a statewide, state-funded study of public defender caseloads
in Tennessee in 1999 that found indigent defense providers carry twice the
recommended number of cases and cannot provide constitutionally adequate services, the
legislature has not funded the recommended 56 staff attorney positions despite an increase
in case filings during the ensuing three years.
- Louisiana is one of only two states that rely extensively on court costs to
fund indigent defense services.6
Unfortunately, there is no correlation between a parish’s ability to
assess/collect court costs and the resources levels needed to ensure adequate
counsel. Services are rendered only to the degree affordable through
court-cost revenues. Many parishes have instituted assembly-line justice in which
a single attorney handles all cases at a single hearing and then passes along the case to
another attorney to handle the next hearing. This is called “horizontal” representation and
it is strictly forbidden under ABA and NLADA standards.
- The Mississippi legislature created a statewide, district-based public
defender system that mirrored the system for prosecutors in the state, but never funded it.
Last year, the legislation creating the system was rescinded. Quitman County is currently
suing the state for passing its constitutional obligation onto its counties because the
county essentially went broke trying to pay for indigent defense services on a serious
Even in states that do oversee and fund indigent defense services at the state level,
the failure of most to both enact measurable indigent defense standards and to establish
methods to monitor compliance therewith has produced indigent defenses systems across the
country that deliver unfair justice to those of limited means.
- Though Wisconsin funds and administers indigent defense services at the state level, the financial eligibility threshold is set below the Federal Poverty guidelines. This means that a person who is deemed poor enough to be eligible for Medicaid coverage and/or Food stamps may be deemed by the state to be able to fund and mount their own defense in criminal proceedings.
- Despite being recognized as one of the few states that ensures quality indigent defense services through the inclusion of national caseload standards, early appointment of counsel standards, and attorney performance standards, among others, the
Oregon legislature is in the process of seriously de-funding the system to the point whereby there will be no funds available for the majority of indigent defense clients after this month. If successful, the District Attorneys offices throughout the state have been instructed to only prosecute those individuals charged with the most serious and violent crimes. Since the police will still be making arrests, the whole endeavor calls into question indigent defense clients right to a speedy trial. Public Defender offices across the state anticipate massive lay-offs under this plan.
- Massachusetts now holds the distinction of offering the lowest compensation rates to assigned counsel attorneys in the country. A lawsuit challenging the low rates has already been filed.
- Though the State of Maine funds 100% of indigent defense funding, services are provided 100% through ad-hoc assigned counsel systems with no state oversight. Attorneys are not provided on-going training or professional development opportunities, and are not monitored for compliance with the most basic attorney performance standards.
- In Colorado, indigent defense clients are ordered by the courts to speak to a prosecutor to see if a plea bargain agreement can be reached before the client can be assigned a public defender.
- Virginia has established absolute, mandatory and unwaivable caps on the amount
of money an assigned attorney can bill for in indigent defense cases. These caps are
so low -- for example, no more than $395 for a serious felony punishable by 20 years in
prison -- as to effectively require either pro bono services of indigent defense attorneys
or have them provide ineffective assistance of counsel.
 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963).
 Gideon established the right to counsel for felony trials. Subsequent cases extend that right to: direct appeals - Douglas v. California, 372 U.S. 353 (1963); custodial interrogation - Miranda v. Arizona, 384 U.S. 436 (1966); juvenile proceedings resulting in confinement - In Re Gault, 387 U.S. 1 (1967); critical stages of preliminary hearings - Coleman v. Alabama, 399 U.S. 1 (1970); misdemeanors involving possible imprisonment - Argersinger v. Hamlin, 407 U.S. 25 (1972); and misdemeanors involving a suspended sentence – Shelton v. Alabama, 535 U.S. 654 (2002).
 Alaska, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, West Virginia, Wisconsin, and Virginia.
 North Dakota is the other.
 See Indigent Defense Services in Venago County. March 2002. Prepared on behalf of Venango County by NLADA
 Alabama is the other.