In Your State
The Gideon decision states that the United States Constitution mandates that all individuals accused of serious offenses be provided with zealous and effective counsel.
Yet no direction was given as to how states were to meet this constitutional obligation, resulting in a chaotic and patchwork landscape. For the first time, this interactive map provides the public and policy-makers with a birds-eye view of some of the most critical aspects of the provision of public defense. Choose an option from the menu below for a comparison of how services are provided across the nation. Then, click on a state to learn more about the services provided in this jurisdiction, or contact the National Legal Aid & Defender Association (NLADA). You may also visit the state reform page for a brief overview of key reform efforts around the country.
While this map provides the most up-to-date information currently available, the terms and definitions included are dynamic, not static, with a large number of variables involved. There is no standardized method of collecting this sort of data, as there is in most other fields, which can lead to variations in how categories are defined and reported. This underscores the problem of fragmentation and disarray that has resulted from decades of neglecting this constitutional mandate.
Select a Map:
While true “independence” of public defenders from governmental influence is difficult to measure, the presence of independent statewide commissions administering services is the best general structural indicator of independence. It is for this reason that the first of the American Bar Association’s Ten Principles explicitly calls for the limitation of direct governmental oversight. This is to be achieved by the establishment of an “independent oversight board” whose members are appointed by diverse authorities, so that no single official or political party has unchecked power over the public defense function.
Independent Statewide Commissions are shown on the map above, indicating a structure that is most-conducive to independence. Non-Independent Commissions shows states in which a statewide body exists to oversee the administration of public defense, but these commissions are led by direct governmental appointees. Partial Commissions denote the presence of a statewide entity, but one which lacks the authority to oversee the entire state or whose scope is limited to certain classes of cases.
A lack of independence negatively affects public defense systems in a variety of ways. In jurisdictions with public defender offices, independence is necessary to ensure that a chief public defender can promote the true level of zealous advocacy for individuals accused of crimes that the constitution demands in an adversarial system of justice. When public defenders are a part of the executive branch of government, the officials who are in charge of prosecution are also in control of public defender offices, creating a tension between interests. As a result, chief public defenders in these jurisdictions can be removed at the whim of government officials, and states often lack sufficient protection to prevent retaliatory firings. In the case of judiciary oversight and control, a tension exists between the ever present pressure to move cases along on the docket and the dictates of effective advocacy, which include adequate time to investigate and prepare for trial. If a judicial authority is also the appointing authority for the public defender, the court can remove the chief defender if it is not satisfied with the agency’s performance in case processing and, in some instances, appoint a leader more apt to do business in a manner suitable to the government.
Political pressures, administrative priorities, and publicity generated by high-profile crimes can make it difficult for even the most well-meaning officials to maintain the appearance of neutrality. Further, defenders practicing in these jurisdictions are left uncertain as to whether their ethical obligations to clients will subject them to removal or office budget cuts. Therefore, all pertinent national standards call for the independence of the defense function.
Generally speaking, there are three basic models by which public defense can be provided: Public Defenders, Assigned Counsel, and Contract Attorneys. Public Defender offices are governmental or non-profit agencies that operate solely to provide representation to individuals who are unable to retain attorneys. Assigned Counsel refers to jurisdictions in which a court appoints private attorneys for representation in a specific case in which counsel is needed. These systems often operate on a case-by-case basis, with judges appointing individual attorneys ad hoc, through there are also coordinated assignment systems overseen by a centralized administrative agency. Contract Defenders describes jurisdictions in which local or state governments enter into contracts with individual attorneys, non-profit organizations, or law firms, to provide representation to those individuals who cannot hire counsel. These contracts are often defined by a specific time period and/or monetary amount. A hybrid system refers to a state which employs a mixture of any of the three primary models of delivery.
One approach is generally employed to provide primary representation and another one or two are used to handle cases in which conflicts of interests arise. A county based system refers to states in which multiple delivery models are employed, with this decision and oversight left to the discretion of the varying localities. In two states, Tennessee and Florida, public defender offices are the primary model of delivery, but are distinct in that the offices are headed by elected county public defenders. The effectiveness of counsel does not necessarily hinge on a specific model of delivery. However, the presence of the factors that most often affect quality – independence, funding level, and oversight – are generally less common in jurisdictions that employ a patchwork of varying models throughout the state.
Public defender systems face large numbers of cases each year. Due to a limited number of attorneys available and tight budgetary restraints, an excessive number of cases may be placed on one attorney. While advisory national caseload limits for public defense attorneys were initially created only a decade after the Gideon decision, surprisingly few jurisdictions have since adopted any enforceable limitations on defender workloads. As a result, the number of individuals a defender must represent is most often limitless – dictated by arrest and prosecution numbers rather than any realistic assessment of the time and staffing available.
Other system actors, such as police, prosecutors, and courts, have some level of discretion inherent in their function. This serves as a potential “release valve” for excessive workloads. However, public defense attorneys rarely have this ability, as they are assigned their caseload by the court and are ethically bound to provide the same level of service and guidance to each of the individuals they represent. For these reasons, Principle #5 of the American Bar Association’s Ten Principles of a Public Defense Delivery System states unequivocally that defense counsel’s workload must be “controlled to permit the rendering of quality representation” and that “counsel is obligated to decline appointments” when caseload limitations are breached.
State Funding Level
The right to be represented by an attorney was deemed fundamental to a fair trial by the U.S. Supreme Court in the Gideon decision. In state prosecutions, state governments are responsible for ensuring this fundamental constitutional right. As stated in Gideon, governments “spend vast sums of money to establish machinery to try defendants accused of crime[s].” The state is similarly responsible for ensuring that the public defense function is properly funded to ensure a fair and accurate process.
The onus on state government to fund 100 percent of indigent defense services is further supported by American Bar Association (ABA) and National Legal Aid & Defender Association (NLADA) criminal justice standards. The official commentary to the ABA 10 Principles states: “[s]ince the responsibility to provide defense services rests with the state, there should be state funding and a statewide structure responsible for ensuring uniform quality.” Despite this obligation, many states left the burden on counties and local governments to establish and pay for the costs of protecting the right to counsel. This “hands off” approach is responsible for much of the disarray that developed in the decades after the Gideon decision. Without adequate state financial support, counties must rely on property tax generated income to support public defense services. In localities with poor economic bases, the counties are hard-pressed to provide adequate services (and are more likely to have a higher percentage of people qualifying for such services). When property values are depressed because of factors such as high unemployment or high crime rates, poorer counties find themselves having to dedicate a far greater percentage of their budget toward criminal justice matters than more affluent counties. This, in turn, limits the amount of money these poorer counties can dedicate toward education, social services, healthcare, and other critical government functions that could positively impact and/or combat crime rates.
The map above indicates the level to which states have met (or failed to meet) the obligation to fund indigent public defender services.
Per Capita Spending
Comparing indigent defense systems across state lines is difficult due to a wide array of jurisdictional differences, including: delivery models, population, types of cases, geographical expansiveness, crime rates, funding source, sentencing laws and other variables. As a result, while per capita spending can provide a useful data point for beginning comparisons, such figures should not be seen as a reliable isolated indicator of the quality of services being rendered to individuals. This is especially the case when the demand for public defense is created by governmental spending in other areas (such as law enforcement, prosecution, and corrections) which also vary from state to state. For example, while the state of Alaska has the highest cost per capita on indigent defense spending ($40.96), this is largely due to the fact that public defenders must travel by air for many court appearances due to the low population density and expansiveness of the state. As a result, the high per capita cost is not solely indicative of direct service, but also incidental travel costs. However, given the consistently low priority governments have demonstrated for public defense services in criminal justice spending, a low indigent defense cost per capita can be a strong indicator of a problematic system in need of improvement.
*Spending Figures are calculated from data for fiscal year 2008, the most recently available national spending data. (Source: State, County, and Local Expenditures for Indigent Defense Services in Fiscal Year 2008, American Bar Association).