Public Defenders, Assigned Counsel, and Other Ways Indigent Defendants Get A Lawyer

If you’ve watched more than a handful of crime dramas on TV, you’re familiar with the Miranda warning given when someone is arrested. The exact words may vary a little from state to state, but it’s usually very close to this:
“You have the right to remain silent. Anything you say can and will be held against you in court. You have the right to an attorney, and if you cannot afford an attorney, one will be appointed for you.”

The Fifth Amendment of the U.S. Constitution’s Bill of Rights guarantees (among other things) that no person may be compelled to be a witness against himself; the Sixth Amendment guarantees the right of a criminal defendant to be represented by an attorney.

A series of Supreme Court decisions have interpreted those amendments to mean that anyone accused of a crime for which imprisonment may be imposed is entitled to an attorney, and that the government must appoint an attorney if the defendant can’t afford one. The 1966 case Miranda v. Arizona, from which the familiar warning takes its name, clarified that the defendant must be informed of those rights.

Since many criminal defendants are indeed indigent, where does the government get all those appointed attorneys? The answer varies from state to state, but there are three basic arrangements.

Public Defender offices are government agencies that may be county-specific as in Los Angeles or statewide as in Montana, but always have a dedicated office and salaried staff. Some jurisdictions use different terminology, e.g. Public Advocate in Kentucky or Indigent Defense in North Carolina. Public Defender offices are the most common arrangement nationwide.

Assigned-counsel systems utilize a list of local attorneys available for criminal defense cases, from which the court makes appointments as needed. This may be done on an ad-hoc basis by each judge in each case, or it may involve a formal program with an administrator who sets standards and coordinates appointments. The program may be statewide as in Maine or local as in New York’s Cayuga County.

Contracted services are used in a few jurisdictions with neither a Public Defender nor an assigned-counsel system; the courts contract with private law firms or bar associations to provide indigent representation. In some jurisdictions with busy courts, more than one method may be used, most commonly a combination of Public Defenders and assigned counsel. New York State has all three methods: contracted non-profits such as those in Manhattan and Brooklyn, assigned-counsel programs such as Erie County’s, and county Public Defender offices such as those in Genessee and Wayne counties.

A defendant who requests an appointed attorney must convince the court that they really cannot afford one. In practice this is accomplished when the Public Defender or assigned counsel organization interviews the defendant and obtains information about their employment, income, assets, debts, family size, and similar criteria. In most jurisdictions, a defendant with some assets or income may have to pay a fee or some portion of the costs of the defense. This will always be much less than the cost of hiring a private attorney, and may be waived if the defendant is destitute.

In most jurisdictions, the Public Defender office also represents juvenile defendants in delinquency cases and mentally-disabled individuals in commitment cases. In some jurisdictions, the office may also represent people in domestic cases such as termination of parental rights, child custody, and child support; examples may be found in Delaware and in New York’s Monroe County.

Whichever type of indigent defense services are available in your area, you can find them at CourtReference by choosing your state and checking the Legal Aid and Lawyer Referral category of court resources.

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