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DOJ: 'Open Question' Whether Gideon's Public Defense Vow Works

Photo Courtesy: Department of Justice

In 1963, the Supreme Court decided in Gideon v. Wainwright that, for criminal cases to be fair, defense lawyers are “necessities, not luxuries.” States must ensure that people who cannot afford defense lawyers are provided with them at government expense


The Court has left decisions about the administration, funding, and oversight of public defense to the states, which have created a variety of models. With the U.S. Department of Justice’s Office for Access to Justice (ATJ), the National Institute of Justice (NIJ) sponsored a new report on contemporary public defense system models in recognition of the 60th anniversary of Gideon.


The report presents findings from a national scan of the models used for adult, trial-level, criminal cases in state, local, and tribal jurisdictions. Key research questions were to identify the prevalence of different models, factors contributing to how jurisdictions select odels, and variations in case and other outcomes associated with each model.


Researchers found that whether Gideon has been fulfilled is, at best, an open question in most state and local criminal courts. Highlights of the findings:


--States’ service delivery models for providing attorneys vary widely, with a mixture of staff models (attorneys are employees of the government or nonprofit offices) and private practice models.


--American Indians who face prosecution in tribal courts, which operate under separate mandates from those for U.S. federal, state, and local courts, have no right to counsel provided at the tribe’s expense.


--Administration and funding for most states’ public defense systems are a mix of state and local government responsibility. In only five states are administration and funding handled entirely by local governments. Two-thirds of states (34) do not have full statewide oversight of public defense, meaning they do not set standards or monitor whether people receive counsel in all cases where they have a right to it.


--Political and financial conflicts of interest are built into many models. Quality of counsel can suffer when defense attorneys working under flat fee payment schemes balance their clients’ interests against their own financial interests.. It can also suffer when attorneys balance clients’ interests with those of the judges who appoint and pay them, or county commissioners who hire and fire them.


--Lack of oversight means few controls on quality of counsel, such as caseload limits. The Bureau of Justice Statistics (BJS) estimated that 73% of county-based and 79% of state-based public defender offices in 2007 exceeded national caseload guidelines from 1973. Recent state-based studies have found that attorneys should handle far fewer cases than those guidelines would allow.A 2023 national workload study reinforces these findings.


--At least a dozen states have made noteworthy changes to their public defense system models in the past 15 years. States like New York, Nevada, and Michigan have achieved significant reform following pressure from combined litigation, research, and advocacy efforts that drove creation of state oversight agencies and new state funding for public defense.


--The majority of people accused of crime in the U.S. are unable to afford a lawyer and so require assistance by government-paid counsel.

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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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