Developments in Indigent Defense

Calls for reform to indigent defense systems have begun to resonate with some state governments.

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As the 50th anniversary of the Supreme Court’s decision in Gideon v. Wainwright approaches, there is ample evidence to suggest that the nation’s indigent defense systems fail to provide the type of meaningful representation guaranteed by the Sixth Amendment.1 There is an unfortunate tendency to characterize Gideon as a failure or, at the very least, as an unfulfilled promise. However, the Sixth Amendment right to counsel, which Gideon guaranteed to all criminal defendants, is no different than any other constitutional right. Like all rights, it cannot defend itself. Nor does it become the law in practice simply because it is declared to be the law in principle. The fight to secure the right to counsel in all criminal proceedings is not a fight that will ever end. The overburdened criminal justice system will continue to put a premium on efficiency instead of fairness, and the chief obstacle to increased efficiency will be perceived as counsel for the defense. If the promise of Gideon were fully realized tomorrow, that would not make the right to counsel free from attack in the future. We would do well to remember that eternal vigilance is the price of liberty.

Improving County-Based Systems

Two of the most persistent problems in indigent defense have been the lack of state funding and oversight of indigent defense delivery systems. The response of many states to the Supreme Court’s mandate in Gideon was to simply delegate the responsibility of providing indigent defense to individual counties. Almost 50 years after the requirement that indigent defendants be provided counsel, some of the most populous states, such as Michigan, Pennsylvania, New York and Texas, leave the complex task of ensuring adequate representation to individual counties. The resulting patchwork of indigent defense systems has contributed to the systemic problems many states are now facing.

Perhaps due in some part to the continuing economic crisis, calls for reform to indigent defense systems have begun to resonate with some state governments. Several states have made efforts to create statewide guidelines for indigent defense and have promised to assist counties in implementing those guidelines. Other states have started to question the way in which indigent defense services are provided and are now seeking ways to make structural changes to those systems in the hopes of increasing the quality of representation.

Mississippi has taken the first step toward a unified statewide system for providing indigent defense. The Office of State Public Defender was created by consolidating the existing Office of Indigent Appeals and the Office of Capital Defense Counsel. The new office will provide training and services to public defenders practicing in all state, county, and municipal courts and will make recommendations for a future unified, statewide trial-level system. Alabama also joined the majority of states in the country by creating a state-administered right to counsel system. While Alabama already funds indigent defense at the state level, the new system creates centralized oversight of right to counsel services, requires the promulgation of standards, and seeks to expand the number of staffed public defender offices.

Following years of criticism - including reports from the ACLU and the Spangenberg Group documenting his state’s systemic failure to honor the right to counsel in criminal cases - Michigan Gov. Rick Snyder issued an Executive Order establishing an Indigent Defense Advisory Commission. The commission is charged with making recommendations to the governor and legislature for statewide “improvements to the system of providing legal representation for indigent criminal defendants.”

In Pennsylvania, another state that delegated the creation, oversight and funding of indigent defense services to individual counties, the Pennsylvania Joint State Government Commission issued its report, A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, which concluded that public defense providers labor “under an obsolete, purely localized system,” and that the structure of services “impedes efforts to represent clients effectively.” More recently, the ACLU of Pennsylvania filed a class action lawsuit against Luzerne County alleging that underfunding of its Office of the Public Defender has led to widespread violations of poor criminal defendants’ constitutional right to adequate counsel. Hopefully the report and the lawsuit will serve as catalysts for change.

In New York, where individual counties select which type of indigent defense delivery system to use and where state funding for indigent defense is extremely limited, the New York Legislature has created a statewide Office of Indigent Legal Services charged with monitoring, studying, and improving the quality of indigent defense services. In addition to providing funding to counties for the provision of indigent defense, the office is currently attempting to ensure that every defendant has representation at the first appearance when pretrial liberty may be at stake and that every defendant receives accurate information regarding the potential immigration consequences of a conviction as required by the Supreme Court in the Padilla decision.

The Texas Indigent Defense Commission (formerly the Texas Task Force on Indigent Defense) continues to change the way indigent defense is provided by encouraging counties to adopt evidence-based standards for the improvement of indigent defense. After over a decade of work, the legal landscape in Texas has markedly improved for indigent defendants with the creation of managed assigned counsel programs. In 2011, for the first time, the State Bar of Texas adopted performance guidelines for noncapital criminal defense representation. With 254 individual counties, indigent defense reform in Texas is a daunting challenge. Nevertheless, the improvements over the last decade in Texas demonstrate that, even in places where there is entrenched resistance to reform, new indigent delivery systems can be created that provide cost-effective, quality representation that meets the requirements of the Constitution.

Cutting Costs

While some states used the current financial crisis to seek greater accountability from their indigent defense systems, which in turn raised the issue of the quality of indigent defense services that are provided, other states simply sought to reduce the level of spending on indigent defense. Several states that have statewide indigent defense delivery systems along with well-defined performance standards have had to deal with funding cuts that have the potential to diminish the quality of the services they provide.

The Tennessee Supreme Court proposed a new rule change that attempts to find an easy answer to controlling indigent defense costs by allowing flat-fee contracting for right to counsel services, but the court neglected to provide institutional safeguards that would protect the adequacy of representation. At the same time, the Tennessee Office of Court Administration recently held an Indigent Defense Summit where stakeholders from across the state were invited to express their views on potential reforms to the current system for providing indigent defense.

Due to budget reductions, the Connecticut Public Defender’s Office laid off public defender employees, including almost two dozen attorneys. In Massachusetts, structural changes were proposed to the state’s indigent defense delivery system that would have reduced the independence of the Committee for Public Counsel Services and would have dramatically increased the workload of public defenders. The Iowa State Public Defender announced that the indigent defense fund used to pay private and contract attorneys was out of money. In Missouri, the State Public Defender continues to deal with excessive caseloads because of inadequate funding. North Carolina’s General Assembly passed a budget bill that cut annual funding for the statewide Indigent Defense Services (IDS) by roughly $11 million, or more than nine percent of the previous year’s budget. A report by the Utah ACLU revealed local prosecutors routinely are responsible for hand-selecting opposing defense counsel and often help to negotiate the terms of defender contracts. And in New Orleans, lack of funding and inadequate staffing forced the Public Defender to turn away eligible defendants. The problems resulted, in part, from the fact that funding for the Public Defender’s Office is derived from fees imposed on defendants that are collected by the court.


A lawsuit is pending in Colorado that challenges the constitutionality of Colo. Rev. Stat. § 16-7-301(4), which provides that, in misdemeanors, petty offenses and traffic offenses, an indigent defendant’s “application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant.” The statute then requires the prosecuting attorney to “tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time.” It also permits the prosecuting attorney to “engage in further plea discussions about the case” and charges the prosecutor with advising defendants that they have “the right to retain counsel or seek appointment of counsel.”

The Maryland Court of Appeals ruled in DeWolfe v. Richmond that the Public Defender Statute requires representation at a defendant’s first appearance before a court commissioner who has the power to set bail.2 This decision prompted the Maryland Legislature to amend the Public Defender Statute to explicitly deny the right to representation at a defendant’s first appearance before a commissioner, delaying the appointment of counsel until a subsequent hearing before a district court judge. However, the legislation also called for the creation of an Indigent Defense Task Force to study Maryland’s system for providing indigent defense to make recommendations for improving that system.

Federal Support

U.S. Attorney General Eric Holder announced his support for indigent defense reform at the ABA annual Summit on Indigent Defense Improvement in February of this year. “Across the country, public defender offices and other indigent defense providers are underfunded and understaffed,” Holder said. “Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads and inadequate oversight.” He also announced two new Department of Justice grant programs that focus on indigent defense reform, one designed to assist jurisdictions in improving their indigent defense delivery systems and the other to fund research into the systemic factors that contribute to the waiver of counsel in state courts. At the same time, a recent Government Accountability Office report to Congress concluded that the DOJ could do more to meet the needs of indigent defense providers.

Gideon’s Impact

Efforts to make the Sixth Amendment right to counsel a reality are ongoing, and it is encouraging to see that some states, like Michigan and Pennsylvania, are finally coming to the realization that the systems currently in place are failing to provide adequate representation. The recognition that changes are necessary to the existing public defense delivery system is a victory in itself. While there have been many instances over the past year in which financial pressures have led states to attempt to limit the right to counsel, it is encouraging that, even in difficult economic times, there are states willing to re-evaluate their existing public defense delivery systems.


  1. National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (April 2009).
  2. DeWolfe v. Richmond, 2012 WL 10853 (Md. Jan. 4, 2012).

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