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Gideon at 60

Summarizing A Snapshot of State Public Defense Systems and Paths to System Reform
Date Published
November 15, 2023
Attorney General Merrick B. Garland Delivers Remarks at the Office of Access to Justice's Gideon Celebration
Attorney General Merrick B. Garland Delivers Remarks at the Office of Access to Justice's Gideon Celebration Read the Attorney General's remarks.

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.[1] The Court has clarified Gideon’s scope over time[2] 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.[3] All states use a mix of these delivery models, especially to provide counsel when there are legal conflicts of interest.[4]
  • 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.[5] 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.[6]
  • 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.[7] 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.[8] 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.[9] Recent state-based studies have found that attorneys should handle far fewer cases than those guidelines would allow.[10] A 2023 national workload study reinforces these findings.[11] Forthcoming BJS census and survey projects will provide updated information about public defender offices nationwide.[12]
  • 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.[13]
  • 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.[14]
  • 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[15] and people in rural areas.[16]
  • 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.[17] 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,[18] research and evaluation projects through the National Institute of Justice,[19] technical assistance[20] and program grants administered by the Bureau of Justice Assistance, litigation assistance by the Civil Rights Division[21], and broad and diverse efforts of the Office for Access to Justice.[22]
  • 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.[23]

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.[24] Guidance for structuring effective public defense systems exists, such as the American Bar Association’s Ten Principles of a Public Defense Delivery System.[25] States like Michigan and New York show how transformational, standards-based reform can be achieved.[26] 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.

Date Published: November 15, 2023