A Three-Part Examination of Public Defense in America
Rationing Justice is a 50-state survey of assigned counsel rates that identifies the current hourly rates paid to private attorneys who represent the indigent in criminal cases as well as the maximum fee that can be earned by those attorneys. The ABA Ten Principles of a Public Delivery System calls for the active participation of the private bar in indigent defense, even in areas where the volume of cases is sufficiently high to warrant the establishment of a public defender's office. Private attorneys must be available to handle case where the public defender's office has a conflict and to handle cases when public defender caseloads become excessive. Without their participation, our nation's indigent defense systems cannot guarantee that all defendants will receive equal justice under the law.
This project was made possible in part by support from the Foundation for Criminal Justice (FCJ). Read more about the work of the FCJ and opportunities to support its efforts.
Part I - Rationing Justice: The Underfunding of Assigned Counsel Systems
This report documents the unreasonably low rates of compensation paid to private attorneys who represent indigent defendants in state courts. The lack of adequate funding restricts the pool of attorneys willing to represent indigent defendants and creates conflicts of interest for attorneys by encouraging them to limit the amount of work they perform on a case for an indigent client. More experienced attorneys refuse to participate in assigned counsel systems that pay hourly rates far below the market rate while younger attorneys, who are often burdened by student loans, never even consider joining the defense bar. Even more troubling is the possibility that low hourly rates will encourage some attorneys to accept more clients than they can effectively represent in order to make ends meet. The result is an inadequate, inexperienced, overworked and inherently conflicted pool of attorneys accepting court appointments in our criminal courts.
Part II - Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel
This 50-State Survey of Financial Eligibility Guidelines for Assigned Counsel documents how states decide who is “too poor” to hire a lawyer. The survey looks at how states define “indigency” and whether or not that definition is consistent with ABA standards for providing defense services. It identifies which states rely on the Federal Poverty Guidelines when determining eligibility for assigned counsel, and explains the origin of the Federal Poverty Guidelines and how they cannot accurately predict who is “too poor” to hire a lawyer. The survey then looks at the fees and costs imposed on supposedly indigent defendants who are assigned counsel. These include application fees, payable at the time a request for counsel is made, and reimbursement fees, payable at the conclusion of the case or over time. The report concludes that in adopting unduly restrictive eligibility criteria and other policies, too many states have been able to ignore the central premise of Gideon that “lawyers in criminal courts are luxuries, not necessities.”
Part III - Representation in All Criminal Prosecutions: The Right to Counsel in State Courts
This survey of the Right to Counsel Standards in the 50 States documents how states decide when a qualifying individual charged with criminal wrongdoing is entitled to receive appointed counsel. Some states only appoint counsel in cases of actual incarceration following conviction, while others mandate appointed counsel based solely on the fact that a defendant has been charged with a crime. Other states fall in between these two standards and appoint counsel when a sentence of incarceration is authorized or likely to be imposed following conviction. The survey also examines how states determine when in the trial process to appoint counsel, and in particular it explains the importance of counsel at first appearance. The report concludes that while a majority of states go beyond the “actual incarceration” standard for appointing counsel under the Sixth Amendment, there is still much work left to be done to ensure that states comply with the right to counsel statutes or court interpretations in place.
NACDL's Public Defense Resources