...And Justice for All
The State of Indigent Defense
The Right to Counsel
● Sixth Amendment, guarantees all citizens the right to be represented by a
lawyer.
● Fourteenth Amendment, protects all citizens from being deprived of life,
liberty, or property without due process of law.
● Gideon v. Wainwright 1963, requires states to provide legal counsel to
defendants charged with felonies who cannot afford it.
● Argersinger v. Hamlin 1972, Alabama v. Shelton 2002 extends provision
to misdemeanor cases in which imprisonment is imposed and to
misdemeanors in which a suspended sentence is imposed. (“Gideon’s Broken
Promise” 2004)
Gideon’s Broken Promise
● 2004 American Bar Association’s Standing Committee on Legal Aid and
Indigent Defendants holds extensive hearings to determine the adequacy
of indigent defense services.
● Report published concludes that indigent defendants were regularly
assigned underfunded, overworked, or inexperienced counsel or not
assigned counsel at all.
● Too often innocent defendants utilizing indigent defense services accepted
guilty plea bargains or were convicted in trial due to incompetent
representation.(“Gideon’s Broken Promise” 2004)
Critiques and Causes
● Inadequate attorney compensation
o Inability to recruit qualified career attorneys
o Disincentive to vigorously represent
● Lack of access to forensic and investigative experts and support services
o Inability to mount adequate defense
● Prosecutor - defender salary and resource disparity
o Creates imbalance in adversarial legal system, gives defendants a
disadvantage
o England spent twice as much on public defense as it did on
prosecution while the reverse was true for the U.S.(“Gideon’s Broken Promise”
2004)
Critiques and Causes
● Absence of oversight
o Lack of accountability
o Inability to identify and fix shortcomings
● Incompetent and inexperienced representation
o Lack of standard specifying requirements for levels of
representation(“Gideon’s Broken Promise” 2004)
● Excessive caseloads
o Wilbur v. City of Mt. Vernon 2013, two part time public defenders
were handling over 2000 cases, spending half an hour or less on some
cases (“A Landmark Case”)
Critiques and Causes
● Lack of contact with client or continuity of representation
o Causes attorney to have little knowledge of client’s case
● Failure to recognise mentally ill clients
o Attorney’s responsibility to identify
o Defendants unaware of charges brought against them
● Failure to accommodate non-english speaking clients (“Gideon’s Broken Promise”
2004)
Marion County Public Defenders
● Quality representation
o Met with clients in advance
o Well prepared in trial
o Knowledgeable about own cases as well as other defender’s
● Good motivations
o “To me it’s more satisfying to deal with the kinds of problems where
people’s liberties are at issue and they’re being wronged by their
government.”
● Handles about 30% of indigent defense cases
o 70% are assigned to the private counsel consortium
Funding
Median Salaries for Attorneys by Type of Organization and Years of Experience 2004, 2008, and 2012 ("New Public Interest and Public Sector Salary Figures from NALP Show Little Growth Since 2004 ")
Years of
Experience
Public Defenders
Local Prosecuting Attorneys
2004
2008
2012
2004
2008
2012
Entry-level
$39,000
$47,000
$50,500
$40,000
$45,700
$50,000
5 years
50,000
60,000
62,800
52,000
60,000
61,400
11-15 years
65,000
75,000
78,600
69,300
77,500
76,700
● Prosecutor-defender pay parity - “We’re not even close”
o Most recent legislative session, money was earmarked for achieving parity
● Total state funding remains unequal
o 2.4 billion for public defense (2012) -5.8 billion for prosecution (2007)(Herberman &
Kyckelhahn, 2014; Perry & Banks, 2011)
o Public defense is partially funded by county governments in some states
Resources and Services
● Full time public defenders office has advantage of in house investigators
and support staff
o Three investigators and two paralegals
o Private attorneys assigned indigent defense must request money to
hire experts or investigators
 Small allowance: $25-30 an hour
● Prosecutor’s office has advantage of cooperating with entire police
departments for investigative work
Oversight and Competency
● Office of Public Defense Services (OPDS) administers and oversees
public defense contracts in Oregon.
o Sets standards for minimum attorney qualifications by case type
 ex: for capital murder, “has acted as lead counsel or co-counsel in
at least five major felony cases tried to a jury, which include at
least one murder case that was tried to a jury.”
● Excessive caseloads
o Responsibility of director and individual attorneys to limit caseloads
to manageable sizes
o OPDS has no numerical standard but may intervene if ethical
standards are not being self-regulated
o Have been attempts to create a standard for 20 years,
recommendations are 200-300 cases a year
Client Accommodation
● Continuity of representation
o Assigned counsel will almost always appear at court
 Unless the sentence is stipulated and the client agrees
 Or if a minor action is all that is needed in which case other attorneys
from the office may stand in
● Treatment of mentally ill clients
o “80 percent of our clients [are either mentally ill, developmentally disabled,
or have impaired mental functioning due to substance abuse}.”
o Attorney’s responsibility to identify; very important function of defense.
● Non-english speaking clients
o “40 percent of our clients are spanish speaking. And one percent [speak
chuukese and another one percent speak russian].”
o Full time court spanish interpreter
o In house spanish speaking lawyers
o Oregon Judicial Department provides certified interpreters in all languages
Concluding Thoughts
● Marion County Public Defenders is able to provide quality representation
likely due to improvements made in the areas highlighted and criticized by
the ABA
● Oregon is among a minority of states with centralized and overseen state
public defense, wherein the state funds 100% of public defense costs, and
where spending on public defense is above the national median. (Allison, W. et
al.)
● Prospect of prosecutor-defender parity remains difficult
o Tough-on-crime culture
o Difficult for legislature to justify public defense funding
References
-A landmark case of indigent defense: Defending the right to a fair trial. Retrieved from https://aclu-wa.org/landmark-caseindigent-defense-infographic
-Allison, W., Davies, A., & Brown, E. (2011). A Patchwork of Policies: Justice, Due Process, and Public Defense Across American
States. Albany Law Review, 74(3), 1423-1463.
-American Bar Association, Standing Committee on Legal Aid and Indigent Defendants. (2004). Gideon's broken promise:
America's continued quest for equal justice. Chicago, IL: American Bar Association.
-Herberman, E., & Kyckelhahn, T. U.S. Dept. of Justice, Bureau of Justice Statistics. (2014). State government indigent defense
expenditures, fy 2008-2012 - updated (NCJ 246684). Washington, DC.
-New Public Interest and Public Sector Salary Figures from NALP Show Little Growth Since 2004. (2012, October 18). Retrieved
November 20, 2014.
-Perry, S., & Banks, D. U.S. Dept. of Justice, Bureau of Justice Statistics. (2011). Prosecutors in state courts, 2007 - statistical
tables (NCJ 234211). Washington, DC: