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 clarified Gideon’s scope over time but has left decisions about the administration, funding, and oversight of public defense to the states, which have created a variety of models.
In collaboration with the U.S. Department of Justice’s Office for Access to Justice (ATJ), the National Institute of Justice (NIJ) sponsored this 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 currently used for adult, trial-level, criminal cases in U.S. state, local, and tribal jurisdictions. Key research questions were to identify the prevalence of different models, factors contributing to how jurisdictions select different models, and variations in case and other outcomes associated with each model. Findings are based on (1) a review and synthesis of publicly available materials, including research reports, law review articles, government agency websites, and news accounts, and (2) interviews with 17 subject matter experts, including academics, researchers, civil rights advocates, a representative of people directly impacted by the criminal legal system, indigent defense commission staff and members, public defense program staff, a current court administrator, a former prosecutor, a former judge, and a former legislator (some stakeholders reflect multiple roles).
The researchers find that 60 years on, whether Gideon has been fulfilled is, at best, an open question in most state and local criminal courts. Highlights of the findings, which are detailed in the full report, are:
- 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 (attorneys accept case-by-case appointments or work under contracts). For succinctness, this report uses two categories: public defenders, who are employees of a government or nonprofit office under the direction of a chief public defender, versus private assigned counsel, who accept indigent defense cases while working under contract arrangements or on case-by-case appointments. All states use a mix of these delivery models, especially to provide counsel when there are legal conflicts of interest.
- 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. Although some tribes have opted to create public defense systems that resemble those found in state courts, many have not. Entry of uncounseled pleas in tribal court cases can harm American Indians in state and federal court if they face prosecution for the same or other charges.
- 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.
- The chief mechanism for state oversight is creation of an independent oversight commission that sets policy, often carried out by a small administrative office. Of the 33 states that have a commission, about half (17) have a commission with only limited authority — which means, for example, that it oversees only certain case types (as in Kansas, where the commission oversees felonies but not misdemeanors). In other states, such as Indiana and Georgia, limited authority stems from the fact that counties can opt out of commission oversight (and forego state funding).
- 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. Delivery and payment methods administered by elected or independent directors, working under oversight boards and commissions whose members are appointed by different types of stakeholders, minimize such conflicts.
- 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. Forthcoming BJS census and survey projects will provide updated information about public defender offices nationwide.
- Without independent defense providers and statewide oversight, some local courts deny access to counsel to people who should qualify for it. In Texas, for example, people in many small counties do not have appointed counsel for misdemeanors.
- Nationally accepted key performance measures for public defense are lacking. Furthermore, performance measurement of access to, quality of, and effect of public defense counsel suffers from missing or inaccurate data. A 2023 investigation found, for example, that only four of 17 western states could report on case totals by counsel type for all cases.
- To detect and address access to counsel deficiencies, public defense system experts recommend that states collect data on something that has not been systematically tracked: the percentage of people who enter uncounseled guilty pleas, particularly those who plead guilty without assistance of counsel at their initial court appearance and those who are sentenced to jail. Also, information on defendant characteristics not limited to race and ethnicity need to be examined for equitable access to counsel.
- Failure to provide access to quality counsel tracks larger systemic inequities, disproportionately affecting people of color and people in rural areas.
- 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. These states have begun to see improvements to oversight, independence, access to counsel, and quality of counsel. In other states, like Georgia and Montana, reforms have been undone and state oversight has been reduced.
- Experts stressed that lack of political power, federalism, and insufficient funding pose persistent challenges to reform. Individuals directly impacted by public defense, particularly former clients and their families, have not had sufficient power to shape public defense systems but are becoming more involved in oversight, outreach, advocacy, and research roles.
- Federal support for state and local public defense already exists in the form of census and survey projects through the Bureau of Justice Statistics, research and evaluation projects through the National Institute of Justice, technical assistance and program grants administered by the Bureau of Justice Assistance, litigation assistance by the Civil Rights Division, and broad and diverse efforts of the Office for Access to Justice.
- Interested groups believe increased federal efforts — especially expanded congressional authorization for Department of Justice Sixth Amendment litigation and supplemental, standards-based funding — could accelerate full state compliance with constitutional requirements.
Although findings are based on analysis of extant materials and a convenience sample of interview subjects, the report is a national and current scan of public defense models. It is intended to complement research based on more rigorous statistical surveys and program evaluations that may be dated or limited in coverage of jurisdictions.
The majority of people accused of crime in the United States are unable to afford a lawyer and so require assistance by government-paid counsel. Guidance for structuring effective public defense systems exists, such as the American Bar Association’s Ten Principles of a Public Defense Delivery System. States like Michigan and New York show how transformational, standards-based reform can be achieved. This report offers considerations for other states seeking to make similar progress.
Read the full report Gideon at 60: A Snapshot of State Public Defense Systems and Paths to System Reform.
[note 1] 372 U.S. 335, 344 (1963).
[note 2] The Court has, for example, found that the right to counsel applies to delinquency proceedings in juvenile court (in In re Gault, 387 U.S. 1 (1967) and misdemeanors (in Argersinger v. Hamlin, 407 U.S. 25, 36 (1972)) and attaches at the first appearance before a judicial officer (in Rothgery v. Gillespie County, 554 U.S. 191, 199 (2008)).
[note 3] The Bureau of Justice Statistics has used five delivery model descriptions: governmental public defender office, governmental conflict public defender office, nongovernmental public defender office, contract system, and assigned or appointed counsel system. “Types of Indigent Defense Systems,” Suzanne M. Strong, State- Administered Indigent Defense Systems, 2013, Bureau of Justice Statistics (2016): 2, https://bjs.ojp.gov/content/pub/pdf/saids13.pdf.
[note 4] Conflicts of interest can arise from the lawyer’s responsibilities to another or former client (e.g., multiple defendants or victims) or from the lawyer’s own interests, and independent judgement may be compromised; see American Bar Association Rule 1.7 Conflict of Interest: Current Clients – Comment https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7/.
[note 5] Steven W. Perry, Michael B. Field, and Amy D. Lauger, “Table 7, Tribal court systems with prosecutor and public defender programs, by resident population, 2014,” Tribal Courts in the United States, 2014 – Statistical Tables, Bureau of Justice Statistics (2021): 9, https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/tcus14st_0.pdf.
[note 6] Barbara L. Creel, “The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative,” Michigan Journal of Race and Law 18 (2013): 351, https://repository.law.umich.edu/mjrl/vol18/iss2/4.
[note 7] “Defense counsel makes an enormous difference in the outcome of cases. … We found that compared to the [public defenders], appointed counsel are impeded by conflicts of interest on the part of both the appointing judges and the appointed counsel, limited compensation, incentives created by that compensation, and relative isolation.” James Anderson and Paul Heaton, Measuring the Effect of Defense Counsel on Homicide Case Outcomes (2012): 3, https://www.ojp.gov/pdffiles1/nij/grants/241158.pdf (supported by NIJ Award Number 2009-IJ-CX-0013).
[note 8] See Anderson and Heaton, Measuring the Effect of Defense Counsel on Homicide Case Outcomes; Irene Oritseweyinmi Joe, “Structuring the Public Defender,” Iowa Law Review Vol. 106 (2020): 135, https://ssrn. com/abstract=3556223; and Neena Satija, “How Judicial Conflicts of Interest are Denying Poor Texans Their Right to an Effective Lawyer,” Texas Tribune (August 19, 2019), https://www.texastribune.org/2019/08/19/unchecked-power-texas-judges-indigent-defense/.
[note 9] Lynn Langton and Donald Farole, Jr., Census of Public Defender Offices, 2007: County-Based and Local Public Defender Programs, 2007 (2010): 1, https://bjs.ojp.gov/content/pub/pdf/clpdo07.pdf; and Lynn Langton and Donald Farole, Jr., Census of Public Defender Offices, 2007: State Public Defender Programs, 2007 (2010): 1, https://bjs.ojp.gov/content/pub/pdf/spdp07.pdf.
[note 10] For example, the 1973 standards set a limit of 400 misdemeanors per attorney per year. “Standard 13.12 Workload of Public Defenders,” National Advisory Commission on Criminal Justice Standards and Goals (1973), https://www.nlada.org/defender-standards/national-advisory-commission/black-letter. A 2022 study in Oregon found that attorneys should spend, on average, 22.3 hours on a low-level misdemeanor, translating to a caseload of 83 misdemeanors per year (assuming 1,850 client hours per year). The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workload Standards, American Bar Association Standing Committee on Legal Aid and Indigent Defense and Moss Adams LLP (2022): 71, https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls-sclaid-or-proj-rept.pdf.
[note 11] For example, the study finds that attorneys should spend, on average, 13.8 hours on a low-level misdemeanor, translating to a caseload of 134 misdemeanors per year (assuming 1,850 client hours per year). Nicholas M. Pace et al., National Public Defense Workload Study, RAND Corporation (2023): 100, https://www.rand.org/pubs/ research_reports/RRA2559-1.html.
[note 12] A census will describe operations and structures, numbers and types of cases handled, staff size, and funding streams. “FY2022 Census of Public Defender Offices,” Bureau of Justice Statistics, https://bjs.ojp.gov/funding/opportunities/o-bjs-2022-171331. A survey will address compensation, client communication mediums, training, and access to resources. “FY2019 Survey of Public Defenders,” Bureau of Justice Statistics, https://bjs.ojp.gov/funding/opportunities/bjs-2019-15744 .
[note 13] In 2021, in Texas counties below 50,000 population, 60% of people who pleaded guilty to misdemeanors did not have counsel. Annual Report for Fiscal Year 2021, Texas Indigent Defense Commission (August 2022): 18, http://www.tidc.texas.gov/media/oxmjox34/tidc-annual-report-fy21_final.pdf. A recent article cited data showing that, in 2021, 51 Texas counties had appointment rates below 10%, and quoted an expert who said, “It’s incredibly shocking to me to be able to say that in parts of Texas, there is no real right to counsel in misdemeanor court.” Rob D’Amico, “Defense Denied,” Texas Observer (February 22, 2023), https://www.texasobserver.org/texas-public-defenders-defense-denied/.
[note 14] Emily Hamer and Caitlin Schmidt, “‘America’s Dirty Little Secret’: Thousands of Misdemeanor Defendants Don’t Get Attorneys,” The Daily News ( January 30, 2023).
[note 15] “Race and Public Defense,” National Association of Criminal Defense Lawyers (November 2022), https://www. nacdl.org/Content/Racial-Disparity-and-Public-Defense.
[note 16] Pamela R. Metzger et al., Greening the Desert: Strategies and Innovations To Recruit, Train, and Retain Criminal Law Practitioners for STAR Communities, Deason Criminal Justice Reform Center (September 2020): 5, https://doi.org/10.25172/dc.1
[note 17] Since 2013, for example, Michigan went from 0% to 78% state funding and from three to 32 public defender offices (for 83 counties) and created a statewide commission to set and enforce standards. David Carroll and Aditi Goel, “The State of the Nation on Gideon’s 60th Anniversary,” Pleading the Sixth Blog, Sixth Amendment Center (March 14, 2023): https://sixthamendment.org/the-state-of-the-nation-on-gideons-60th-anniversary/. Due to these changes, between FY 2019 and FY 2021, local use of expert and investigative services has increased by 49% statewide in Michigan. Annual Impact Report 2021, Michigan Indigent Defense Commission (2022): 11, https:// michiganidc.gov/wp-content/uploads/2022/04/MIDC-2021-Impact-Report.pdf.
[note 18] “FY2022 Census of Public Defender Offices,” Bureau of Justice Statistics, https://bjs.ojp.gov/funding/opportunities/o-bjs-2022-17133; and “FY2019 Survey of Public Defenders,” Bureau of Justice Statistics, https://bjs.ojp.gov/funding/opportunities/bjs-2019-15744.
[note 20] “Sixth Amendment Training and Technical Assistance Initiative,” Bureau of Justice Assistance, https://bja.ojp.gov/program/sixthamendment/sixth-amendment.
[note 22] In 2023 the Office for Access to Justice conducted a national outreach tour of defender programs and added a senior counsel position dedicated to supporting, collaborating with, and engaging the state and local public defense. “Readout of Director Rachel Rossi of the Office for Access to Justice’s Participation in the 2023 American Bar Association Public Defense Summit,” U.S. Department of Justice, Office of Public Affairs (Thursday, April 13, 2023), https://www.justice.gov/opa/pr/readout-director-rachel-rossi-office-access-justice-s-participation-2023-american-bar.
[note 23] Court Filings in Support of Access to Justice,” U.S. Department of Justice Archives, accessed May 2023, https:// www.justice.gov/archives/atj/court-filings-support-access-justice.
[note 24] Recommendations for the Biden Administration,” National Association for Public Defense (2020), https://www.publicdefenders.us/files/NAPD%20-%20Presidential%20Transition%20Recommendations_WITH%20LOGO.pdf; “Recommendations for the Biden Administration,” National Legal Aid & Defender Association (November 2020), https://www.nlada.org/sites/default/files/NLADA%20Recommendations%20to%20the%20Biden-Harris%20Administration.pdf; and Actual Denial of Counsel in Misdemeanor Courts, Sixth Amendment Center (May 2015): 13, https://sixthamendment.org/wp-content/uploads/2015/05/Actual-Denial-of-Counsel-in-Misdemeanor-Courts.pdf.
[note 25] American Bar Association, Ten Principles of a Public Defense Delivery System (August 2023): https://www.
principles-2023.pdf. References to the ABA Ten Principles in this report track the original 2002 version of the
Ten Principles; an updated version was adopted in 2023 after research for this report concluded. American Bar
Association, Ten Principles of a Public Defense Delivery System (2002): https://www.americanbar.org/content/dam/
[note 26] In Michigan, for example, “the passage of the reform bill is the culmination of many, many years of
hard work by many advocates and organizations. Simply put, the reform would not have been possible
without each of these efforts.” David Carroll, “Michigan Passes Public Defense Reform Legislation,”
Pleading the Sixth Blog, Sixth Amendment Center ( June 19, 2013), https://sixthamendment.org/