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Indigent Defense

Resource Guide

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Gregory Hurley

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Center on Court Access to Justice for All

Backed by the Sixth and Fourteen Amendments respectively, indigent defense involves the constitutional mandated free representation of those accused of certain crimes required by both federal and state constitutions. Because defendants are entitled to “effective” assistance of counsel, which varies from state to state, common issues for the courts include: the qualifications of counsel, particularly in capital cases; who pays for indigent defense; who qualifies as indigent; and how the defender system is administered.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.

General

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. (February 2003). Approved by the House of Delegates, this rewrite includes requirements for appointment of mitigation specialists.
ABA Juvenile Justice Committee`s National Juvenile Defender Center. The ABA Juvenile Justice Committee’s National Juvenile Defender Center has assessed access to counsel and quality of representation in delinquency proceedings for the following states: Georgia, Kentucky, Louisiana, Maine, Maryland, Montana, North Carolina, Ohio, Pennsylvania, Texas, Virginia, and Washington. Each state page contains the report, FAQs, press releases, fact sheets, press coverage, updates, summaries, and other relevant information.
Rodney Uphoff. Broke and Broken: Can We Fix Our State Indigent Defense System?. (Summer 2010). Missouri Law Review 75, no. 3.

Too many indigent defendants in state courts are represented by undertrained, under resourced lawyers who are  under prepared – or at times totally unprepared – to conduct the defense of their clients’ cases. In light of all of the reports describing the crisis in the delivery of indigent defense services throughout the United States, including news stories of the serious problems in Missouri, the Missouri Law Review decided to focus its attention on indigent defense for its 2010 Symposium.
Wool, Jon, K. et al. Improving Public Defense Systems: Good Practices for Federal Panel Attorney Programs. (June 2003). New York, NY: Vera Institute of Justice Requested by the U.S. Courts, the Vera Institute looked at how to improve upon panel attorneys.  The report addresses issues, such as selection, management, appointment, and compensation.
National Survey of Indigent Defense Systems. The Bureau of Justice Statistics (BJS) implemented a national-level data collection program to measure how states and localities provide legal services for indigent criminal defendants, their caseloads, and related costs and policies and practices.
Office of Justice Programs -- Indigent Defense. U.S. Department of Justice's web page provides information on fielding programs, funding, conferences, training, research, and statistics.
Dottie Carmichael, et al. Representing the Mentally Ill Offender. (April 2010). This document describes the study objectives, methods, and findings, and draws conclusions about emerging roles for the defense community in improving legal and therapeutic outcomes for people with mental illness.
DeFrances, Carol J. State-Funded Indigent Defense Services, 1999. (September 2001). Bureau of Justice Statistics Special Report This ten-page report examines indigent programs in the United States.  This report includes statistical data and information on whether the programs are fully funded by the states. 
Strategic Plan as Approved by the State Public Defender Commission on April 21, 2006. (2006). Helena: Office of the State Public Defender Effective July 2006, Montana moved to a statewide system of public defense. Their strategic plan includes their mission statement; goals; plans to coordinate with tribal governments; organization and administration; financial information; staffing; and pros/cons of various aspects of the new system. 
Ten Principles of a Public Defense Delivery System. (February 2002). This brief document describes the ten principles of an effective public defense delivery system.
The Justice Policy Institute System Overload: The Costs of Under-Resourcing Public Defense. (2011).

"System Overload: The Costs of Under-Resourcing Public Defense" found that public defense systems across the country are overburdened, and considers how the busting-at-the-seams systems affect state and county budgets, the lives of those behind bars, the impact on their families, and the challenges of re-entering communities after serving time. The study further looks at why dedicated public defenders do not have enough time to conduct thorough investigations, or meet with and provide quality representation for their clients,many of whom are low-income earners and people of color, contributing to disparities in the criminal justice system.
Wendy L. Watson. The U.S. Supreme Court's In Forma Pauperis Docket: A Descriptive Analysis. (2006). Justice System Journal 27, no. 1.

This article compares a sample of the unpid petitions for review filed with the U.S. Supreme Court from the 1976 through 1985 terms to a similar sample of paid petitions to determine whether and how the two dockets differ.

Compensation for Attorneys

Colorado Compensation Rates. (July 2009). These are the rates compensation rates for court-appointed attorneys and other appointees that are paid by the state's Justice Department.
Phyllis E. Mann. Ethical Obligations of Indigent Defense Attorneys to their Clients. (2010). Missouri Law Review.

This Article is a basic introduction to the provision of indigent defense services in state courts throughout the country and the ethical obligations of the attorneys who provide those services.
Rates of Compensation Paid to Court Appointed Counsel in Non-Capital Felony Cases: A State by State Overview. (2002). American Bar Association, Bar Information Program This web link sends users to the Spandenburg publications list.

Determining Indigency

Affidavit: Eligiblity for Appointed or Public Defender Counsel. This affidavit serves as the sworn application for court appointed in a criminal cases.
McCormick, Terri. Expanding Eligibility for Public Defender Representation. (December 2003). Wisconsin Lawyer: 33 This article discusses how financial eligibility standards for public defenders' offices are often outdated.  The McCormick Plan for Justice would expand the financial eligibility standards.
Hoffman, Morris. Free-Market Justice. (January 2007). The New York Times According to a study by this op-ed's author, Paul Rubin, and Joanna Shepherd, an econometric study of the effectiveness of public defenders showed that public defenders performed worse than privately-retained counsel. The full study, "An Empirical Study of Public Defender Effectiveness," can be found in the Ohio State Journal of Criminal Law.
Indigency Questionnaire. This form requests financial information from indigents.
Standards for Determining Indigence. (February 2006). In these standards, there is a definition for indigency, information on appealing, and how closed cases should be resolved.
Update on Criteria and Standards for Determining and Verifying Indigency. (October 2007). This report discusses the unified rules for determining indigency which were established in 2001 and the extent to which the are being effectively applied.

Indigent Defense Funding and Caseloads

Darryl K. Brown Epiphenomenal Indigent Defense. (2010). Missouri Law Review.

This Article describes why we can add state funding for indigent defense counsel to the list of social events that have proven intractable to explanation and prediction, and what this conclusion means for indigent defense funding policy.
McCauley, James M. Excessive Workloads Create Ethical Issues for Court-Appointed Counsel and Public Defenders. (October 2004). Virginia Lawyer 53, n. 3: 27 (Scroll to page 2.)  Over nine months, the Spandenberg Group studied Virginia's indigent defense system and found that the system did not adequately protect indigents.  Lack of oversight and necessary resources were the primary factors cited in the study.
Lisa R. Pruitt and Beth A. Colgan. Justice Deserts: Spatial Inequality and Local Funding of Indigent Defense. (2010). Arizona Law Review.

This Article maps legal conceptions of (in)equality onto the socio-geographic conception of spatial inequality in relation to the funding and provision of indigent defense services in the State of Arizona.
Keeping Defender Workloads Manageable. (2001). Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance Provides information on strategies for making workloads manageable; withdrawal form cases; caseload standards; and caseload versus workloads.
Susan Herlofsky and Geoffrey Isaacman. Minnesota's Attempts to Fund Indigent Defense: Demonstrating the Need for a Dedicated Funding Source. (2011). William Mitchell Law Review.

While the courts have expanded the right to counsel, they have provided no guidance to states on how to deliver indigent defense or how to pay for indigent defense.
Minor Crimes, Massive Waste: The Terrible Toll on America`s Misdemeanor Courts. (April 2009). This report takes the position that the significant rise in misdemeanor cases nationally has created inequities by overloading criminal defense systems in some jurisdictions.
John A. Rogers. Provisions of Indigent Defense in West Virginia. (2008). National Center for State Courts, Future Trends in State Courts 2008.

Expenditure on indigent defense continues to be a national problem. West Virginia's administrative structure delivers quality defense with very low administrative costs.
Armstrong, Ken, and Justin Mayo. Public Defense Alternatives. (April 2004). Seattle Times This article includes a map of Washington state by county and type of indigent defense system used.  Caseloads are also discussed.
Wallace, Scott and David Carroll. The Implementation and Imapct of Indigent Defense Standards. (December 2003). This study evaluates the impact that standards of indigent defense have on the overall quality of defense that is offered to low income criminal defendants.
Skove, Anne. Who Pays for Indigent Defense?. (January 2000). Knowledge and Information Services Office, National Center for State Courts, Williamsburg, VA This chart lists the courts and what percentage of the indigent programs the states' pay.

Public Defenders Offices Organizations

ABA`s Standing Committee on Legal Aid and Indigent Defense. SCLAID examines issues relating to the delivery of civil legal services to the poor, and criminal defense services to indigent persons accused of crimes.
Association of Federal Defense Attorneys. Formed in 1994, AFDA is the only association devoted exclusively to the interests of federal criminal defense attorneys. The organization has been formed with a commitment to provide attorneys with the educational resources and support that are essential to represent defendants in federal district and appellate courts effectively.
National Association of Criminal Defense Lawyers. NACDL advances the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's more than 10,000 direct members—and 79 state and local affiliate organizations with another 28,000 members—include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors, and judges committed to preserving fairness within America's criminal justice system. The site is designed as both an open forum for the discussion of criminal justice policies and practice and a private online service for members of NACDL. 
National Legal Aid and Defender Association. NLADA is the oldest and largest national, nonprofit membership association devoting 100 percent of its resources to serving the broad equal justice community. NLADA represents legal aid and defender programs, as well as individual advocates serving the equal justice community, in two major ways: by providing first-rate products and services and serving as a leading national voice in public policy and legislative debates on the many issues affecting the equal justice community. They also serve as a resource for those seeking more information on equal justice in the United States.
Spangenberg Group. A nationally recognized research and consulting firm specializing in improving justice programs.
Matthew Kleinman and Cynthia G. Lee Virginia Indigent Defense Commission Attorney and Support Staff Workload Assessment. (March 2010). National Center for State Courts, Research Division.

A comprehensive and objective assessment of attorney and staff resources in Virginia public defender offices.

Right to Counsel

Skove, Anne. Alabama v. Shelton: The Right to Counsel in Misdemeanor Cases Resulting in Suspended or Probated Sentence. (August 2003). This brief looks at the legal implications of Alabama v. Shelton on states, includes a list of relevant resources, and offers potential solutions to courts.
History of Right to Counsel. (2004). Washington, DC: NLADA Traces the right to counsel in criminal cases from the U.S. Constitution, caselaw throughout the past century, and future challenges.  Links to opinions of important cases.