Public defense: State and local

State Funding of Public Defense, Sixth Amendment Center
Criminal Legal Aid in the United States: Sub-Federal Systems

Landscape of public defense
The landscape of modern American public defense systems was largely shaped by the landmark case Gideon v. Wainwright. In Gideon, the Supreme Court unanimously declared that defendants facing serious criminal charges are owed the right to counsel, at a state’s expense, if they cannot afford an attorney.1 The court acknowledged that “even the intelligent and educated layman has small and sometimes no skill in the science of law.”2 While Gideon imposed the right to indigent defense on states, the case did not impose specific obligations or standards on states for funding or the extent of services to be provided for indigent defendants.3 Historically, funding for public defenders and prosecutors has been largely disproportionate. Funding for defenders is significantly lower and resource needs are an ongoing challenge, with high caseloads and low numbers of attorneys and other necessary staff support to provide effective representation, despite being constitutionally obligated to represent.4

Scope of Criminal Legal Aid

The Sixth Amendment to the United States Constitution guarantees, inter alia: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”5 This right was guaranteed in state-level prosecutions by the Supreme Court’s 1963 decision in Gideon v. Wainwright.6 This constitutional mandate underpins the right to counsel and access to criminal legal aid throughout the United States.

The presence of legal aid during the criminal investigation phase is not universal across the country. The Supreme Court has required law enforcement to respect a criminal defendant’s right to counsel during custodial interrogation in Miranda v. Arizona.7 Additionally, the right to counsel extends to ongoing police investigations once someone has invoked their right.8 In practice, however, the presence of effective legal counsel during the investigation phase may be limited due to a lack of funding for public defender offices.9 Even when legal aid is available during the investigation phase, lack of funding means that public defenders are often juggling many cases at once and do not have the capacity to conduct the extensive investigation necessary to provide effective defense.10

The Supreme Court has established a right to counsel during trial, sentencing, and other critical stages.11 These critical stages have included custodial interrogations, arraignments, pre-trial periods, initial appeals, and probation/parole revocation proceedings.12 The right to counsel does not extend to every stage of the criminal procedure, such as pre-indictment plea negotiations or additional appeals after the first appeal in all states.13 States are also required to provide legal counsel during post-conviction proceedings that affect “fundamental rights.”14 It should be noted that the extent of legal representation that criminal defendants receive from indigent legal services varies across the country because of funding. While legal representation must be made available at “critical stages,” the quality of indigent legal services is at risk from low funding.15

While states are required to provide legal counsel at “critical stages” of the criminal procedure, victims and witnesses are not provided the same right to counsel under the Sixth Amendment. There are various organizations and funds across the country that seek to provide legal counsel for victims and witnesses of crime. For example, the Legal Assistance for Victims Grant Program seeks to provide funding to organizations across the country to provide comprehensive, free, or low-cost civil legal and advocacy services for victims of domestic violence, sexual assault, and stalking.16
Eligibility Criteria for Criminal Legal Aid

There is no uniform method for determining eligibility for indigent legal services in the United States. Typically, eligibility is determined by an individual’s financial capacity to hire an attorney. This is usually determined through financial records. Approximately eighty percent of felony defendants in large state courts were represented by public defenders or assigned counsel pursuant to a federal government study conducted in 2013 and updated in 2016.17 Many state, county and municipal jurisdictions rely on federal poverty guidelines issued by the Health and Human Services Department, while some systems promulgate their own eligibility criteria. By way of example, the federal poverty guideline for a person living alone in 2020 is $12,260.00 U.S. dollars. The gross amount of income is adjusted upward for each additional member of a family. For example, a family size of four in 2020 with an income at or below $26,200.00 is eligible for the appointment of counsel.

Most states also have various fees that courts charge indigent defendants when they request indigent legal services.18 When a defendant requests the assistance of counsel, judges are authorized to compel criminal defendants to pay a fee for those services. Failure to pay fees, however, does not permit counsel to be denied and nearly all states allow trial judges to waive these fees when a defendant is unable to pay.19 Additionally, most states authorize some form of recoupment that is at the discretion of a trial judge after trial. Some recoupment statutes apply only to convicted defendants; however, others impose recoupment on defendants even if they are acquitted.20

Process for Obtaining Criminal Legal Aid

The process for obtaining criminal legal aid is initiated when a person charged with a crime invokes their right to counsel, when being taken into custody or at any time after charges are brought. In 1966 the U.S. Supreme Court ruled that when a suspect is being taken into custody certain rights and warnings must be given to them. The essential rights and warnings include the right to remain silent, the right to talk to an attorney before you answer any questions and if you cannot afford a lawyer, the right to have one appointed for you. Additionally, suspects must be advised that anything they say can be used against them in court. This decision was handed down in the case of Miranda v. Arizona and is referred to as Miranda rights.21

Generally, a judge will determine whether a person facing charge is eligible to receive indigent legal services and those legal services will either come from a state-sponsored public defender organization or private attorneys that are acquired through contract. A defendant usually can request a court-appointed attorney during arraignment. Each state, and sometimes each county, has its own procedure and rules to determine whether a criminal defendant qualifies for indigent legal services. Many jurisdictions rely on the federal government’s poverty guidelines as illustrated above.
The method for providing criminal legal aid attorneys varies by state. Some states provide indigent legal services through statewide, countywide, or citywide public defender offices.22 Other states don’t have public defender offices, but instead, a contract system, where various private attorneys and law firms bid for contracts to represent a certain amount of cases at a set price.23

Generally, a court will contact one of these offices to assign the case to an attorney. A criminal defendant will not be able to pick their appointed counsel24; however, the Sixth Amendment includes the right to “effective” counsel and, in limited circumstances, a criminal defendant may request a replacement for their appointed attorney. Lastly, a defendant has the constitutional right to refuse counsel and represent themselves in state criminal proceedings so long as the judge determines that the defendant is competent to understand and participate in court proceedings.25 In a study conducted in 2013, the federal Bureau of Justice Statistics found that there were 2,696,710 cases closed that involved the aid of state-administered indigent legal services in twenty-eight states, and the District of Columbia.26 States that did not participate include: Alabama, Arizona, California, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Michigan, Mississippi, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington.

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