Few rights are as fundamentally American as the Sixth Amendment's promise that when the government brings its power to bear against an individual, that government also bears the responsibility to ensure the accused has a zealous and dedicated advocate to defend them. A robust defense function helps mitigate against wrongful convictions of the innocent and unjust, excessive sentences for those who are guilty; ensure the Constitution's protections and prohibitions are maintained; shines a light on government overreaches and abuses of power; and protects both the accused and the community.
There is no universal model for providing public defense services. Some jurisdictions have agencies that provide holistic services while others rely exclusively on flat fee contracts to provide representation for every person who qualifies. Regardless of the form they take, across the country public defense systems and the attorneys who work in them are being stretched to their breaking point, jeopardizing the promise of equal justice for all.
Nationally a patchwork of statutes, court rules, and local practices determines how attorneys handling assigned counsel cases are compensated, although virtually all share a core problem: the rates paid are abysmal, often failing to cover basic expenses. NACDL works to ensure court-appointed counsel receive prompt payment, fair hourly rates that take into account overhead and reasonable fees, and end the use of fee caps which can be barriers to meaningful representation.
While Gideon did not describe how each state was to fulfill its 6th Amendment obligations, the Court did make clear the ultimate responsibility for providing public defense lies with the state. States may elect to delegate decisions about public defense structure, oversight, and funding to their counties, but doing so does not absolve them of their responsibility to assure every public defense system has the resources, support, and structure to provide a constitutionally effective defense. Currently many barriers prevent jurisdictions from meeting their constitutional obligation. Through its reports, policies, testimony, and litigation NACDL works to challenge systemic deficiencies and offer resources to create strong public defense delivery systems.
- Collateral Consequences
- Federal Indigent Defense
- Misdemeanor Cases
- Pretrial Advocacy
- Public Defense System
- Rhode Island
- South Carolina
- Trial Penalty
NACDL works to improve and support public defense at the state and local level. From legislative advocacy to litigation support, commenting on court rules to systemic evaluations, NACDL is committed to insuring every person who faces a criminal accusation has meaningful access to an attorney with the time, resources, and expertise needed to provide an effective defense at all stages of the proceedings; has all relevant information needed to make informed decisions about their case; is not subjected to excessive penalties, fines, or fees; and has access to the support personnel needed to fully investigate the government's accusation, challenge questionable forensic practices, and present meaningful evidence in mitigation.
Federal Public Defense
Often considered the gold standard of public defense because of its lower caseloads and better resources than its state level counterparts, the federal public defense system has a number of fundamental systemic flaws that must be corrected for it to serve as the role model it should be. When Congress first authorized the creation of federal public defender offices in 1970, it recognized "the desirability of eventual creation of a strong, independent office to administer the federal defender program," but felt it premature to do so until there was an opportunity to view the operation of the office "over the course of a few years". Report of the Committee to Review the Criminal Justice Act at 9-10 (1993) (Also known as the Prado Report), quoting Senate Report No. 91-790, 91st Cong. 2d Sess. April 23, 1970 at 18). Nearly 5 decades later the federal public defense program remains wholly under the thumb of the judiciary, but spurred on by NACDL and others there are efforts underway to change that.
In May Senator Kamala Harris and Rep. Ted Deutch introduced the EQUAL Defense Act. The Bill aims to bring a measure of parity to the criminal legal system by supporting state and local public defense providers. Among the Bill's goals are:
- Establishing workload limits for public defenders
- Promoting pay parity for public defenders and prosecutors
- Increasing court appointed counsel fees to meet federal rates
- Increasing defender training
- Reauthorizing and increasing funding for student loan repayment
The Bill is supported by NACDL, the ACLU, Color of Change, Gideon's Promise, Lawyers Committee for Civil and Human Rights, Leadership Conference on Civil and Human Rights, NAACP Legal Defense Fund, NAPD, NLADA, and Project on Government Oversight.
Continue reading below
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
Race matters in our criminal legal system. It pervades every aspect of a case, from how likely you are to be stopped by the police, whether you will be subjected to a search, how high your bail is, how likely the state is to seek the death penalty, and how long your sentence may be. NACDL is committed to combating racial bias and racial disparity in the criminal legal system.
A meaningful defense includes a public defense bar who are skilled and knowledgeable. To help public defense attorneys have access to information on core and evolving issues NACDL offers a variety of webinars, trainings, and other resources. On a rotating basis, NACDL will highlight some of these materials.
No skill is more fundamental to the success of the adversarial system than cross-examination. Emanating from the Sixth Amendment's guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him," the Confrontation Clause ensure a defendant the right to put the honesty, truthfulness, and accuracy of a witness's assertions to the test through cross-examination Mattox v. U.S., 156 US 237 (1895)) Defense attorneys must constantly work to hone their craft and NACDL has resources to help.
- Learn the history of Clarence Earl Gideon
- Read the transcripts from his original trial
- Explore the work of the lawyers
- See Gideon's legacy today
More NACDL Public Defense
Scholarship Opportunities: NACDL offers scholarships to assist public defense attorneys (including public defenders and members of the private bar accepting court appointments) to attend national trainings.
Award: NACDL honors individuals and organizations for exceptional efforts in making positive changes to local, county, state, or federal public defense systems with its Champion of Public Defense Award. In 2019, NACDL honored the Civil Rights Corps and the San Francisco Public Defender's Office for their joint work pursuing pretrial reforms in the state of California.
Read about public defense news and issues in NACDL's The Champion magazine.
NACDL News Releases on Public Defense
News Release ~ 09/13/2018
Judicial Conference Takes Steps Toward Greater Independence for Federal Public Defender System; Nation’s Criminal Defense Bar Encouraged by Progress – Washington, DC (Sept. 13, 2018) – Today, the Judicial Conference of the United States, the national policymaking body for the federal court system, publicly released the 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (CJA Review Committee) and issued a statement approving 19 of the Committee’s 35 Interim Recommendations (See CJA Review Committee Report at XXXVI to XL)...
Defenders Becoming DAs: Unpacking the Tension in Our Community
On January 27th, 2022, NACDL partnered with the National Association for Public Defense (NAPD), Gideon’s Promise and the National Legal Aid & Defender Association (NLADA) to host a conversation about public defense, elected prosecutors, and the power to transform the criminal legal system. The discussion featured Professor Angela J. Davis, Distinguished Professor of Law, American University Washington College of Law; Jonathan Rapping, Founder & President, Gideon’s Promise; and Manohar Raju, San Francisco Public Defender; and Akhi Johnson, Acting Director, Reshaping Prosecution, Vera Institute for Justice.
A New Generation of Prosecutors is Leading the Charge to Reimagine Public Safety, Data for Progress, November 2021.
For the People: A Conversation with Larry Krasner, Brennan Center for Justice and John Brademas Center of NYU, May 25, 2021.
Johnson, Akhi, What’s in a Name? A Small Step Prosecutors Can Take to Build a More Humane System,Vera Institute of Justice, July 24, 2020.
Davis, Angela J., Reimagining Prosecution: In Search of the True Progressive, 3(1) UCLA Criminal Justice Law Review (2019).
Davis, Angela J., The Progressive Prosecutor: An Imperative for Criminal Justice Reform, Fordham Law Review Online 87, 8 (2018).
Rapping, Jonathan, The Power to Transform is Stronger than the Power to Punish: Public Defenders are the Key to Equal Justice, Los Angeles Public Interest Law Journal, Vol. 6 (2017).
Rapping, Jonathan, Who’s Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect, Washburn Law Journal, Vol. 51 (2012).
Race and Public Defense (SCJN 2021)
When people think of public defense, they often think of it as a service provided in the context of criminal representation. However, historically lawyers who represent indigent defendants have sometimes served a hybrid function as both legal advocates and community organizers.
- Kenitra Brown, Founding Board Member & Criminal Justice Committee Co-Lead, Power in Action; Staff Attorney and Director of Engagement, The Deason Criminal Justice Reform Center
- Emily Coward, Project Attorney, North Carolina Racial Equity Network, UNC-Chapel Hill School of Government
- Johanna Jennings, Founder & Executive Director, The Decarceration Project
- Kimberly O'Neil, CEO, Giving Blueprint; Founding Director, Power in Action
- Moderated by: Monica Milton, Public Defense Counsel, NACDL
Race + Criminal Legal System: Public Defense
A discussion with Matthew Clair, PhD of Stanford University as we dissect his recent book Privilege and Punishment: How Race and Class Matter in Criminal Court (Published by Princeton University Press, November 2020), moderated by Travis County Chief Public Defender Adeola Ogunkeyede and joined by Porsha-Shaf’on Venable, Supervising Attorney at the Bronx Defenders and Director of Membership for the Black Public Defender’s Association.
- Privilege and Punishment: How Race and Class Matter in Criminal Court by Matthew Clair
- Matthew Clair and Amanda Woog, Courts and the Abolitionist Movement, 110 Cal. L. Rev. (forthcoming 2022)
- Unequal Before the Law: How did we end up with our current system of public defenders? by Matthew Clair, The Nation (December 14, 2020)
- Alexis Hoag, Black on Black Representation, 96 NYU L. Rev. (forthcoming 2021)
- Shaun Ossei-Owusu The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, 167 U. Pa. L. Rev. 1161 (2019)
- Do Public Defenders Spend Less Time on Black Clients?, by Maurice Chammah, The Marshall Project (May 2, 2016) (there are some studies, etc. within this article to look at as well)
- Andrea Lyon, Racial Bias and the Importance of Consciousness for Criminal Defense Attorneys, 35 Seattle U. L. Rev. 755 (2012)
- L. Song Richardson and Phillip A. Goff, Implicit Bias in Public Defender Triage, 122 Yale L.J. (2013)
- Gonçalves, Walter, Narrative, Culture, and Individuation: A Criminal Defense Lawyer’s Race-Conscious Approach to Reduce Implicit Bias for Latinxs, 18 Seattle J. Social Just. 333 (2019)
- Race Matters: The Impact of Race on Criminal Justice (2017) (free video content)
- Race Matters II: The Impact of Race on Criminal Justice (2019) (free video content)
- Race Matters III: The Intersection of Race and Criminal Justice (2020) (recorded CLE product)
- Black Public Defender Association, follow on Twitter: @BPDA_Justice
- Principles for Creating Sustainability in Public Defense, National Association for Public Defense (March 2021)
- "Hundreds Have Left N.Y. Public Defender Offices Over Low Pay,"
- "Public Defenders Are About to Be on the Front Lines for Protecting Abortion Rights,"
- "Cases are being delayed across the country due to a shortage of defense attorneys,"