CNEJL has compiled a brief history of the public defender in the US. Published November 2022, this is a companion to our Brief History of Civil Legal Aid.
The full document can be downloaded here (81-page PDF).
Introduction
The average working or middle class American may never think about whether they could afford a competent criminal defense lawyer. But, if accused of a crime, they or someone they care about may have to rely on a public defender. Certainly, millions of fellow Americans rely on public defenders.
At its best, the institution of the public defender is the result of 900 years of struggle in England and America that culminated in the promise of a lawyer for every defendant who cannot afford a lawyer and who is facing jail. In the landmark Gideon case in 1963, the US Supreme Court mandated that criminal defendants be provided free counsel by the court unless they waive the right. In the Miranda decision in 1966, the Supreme Court required that every suspect in custody be warned, “If you cannot afford a lawyer, one will be provided for you at government expense.” Familiar from TV police shows, this Miranda warning is almost as iconic as the Pledge of Allegiance.
In a few places, the court appoints an attorney who works pro bono or for a fee. But mostly these attorneys are salaried public defenders working either directly for the government or for a government contractor. The lawyers who regularly represent indigent defendants are called public defenders. Most are competent and dedicated professionals. They have helped millions of low-income Americans suspected or accused of crimes. Public defenders have succeeded in displacing shyster jail lawyers who besmirched the profession. Public defenders have helped free the innocent, reduce penalties, and affirm and broaden constitutional rights for all Americans.
More can and must be done to fulfill the promise of Gideon. The quality of many public defender programs must be improved. Public defenders need to handle fewer cases and receive more resources. Public defenders must be able to provide crucial early representation, investigate compelling defenses, and challenge prosecutorial abuse. More resources are crucial to handle misdemeanor cases. Reports regularly find that thousands of Americans are convicted of crimes each year with “either no lawyer at all, or with a lawyer who does not have the time, resources, or in some cases, the inclination to provide effective representation.” The NLADA and other organizations have offered recommendations to move toward justice.
The continuing struggle for justice should take inspiration from the challenges and victories of the past. This document tells the story of how we got here, and the heroes who made it happen.
The full document can be downloaded here (81-page PDF).