Make-or-Buy? The Provision of Indigent Defense Services in the U.S.

Most criminal defendants cannot afford to hire an attorney. To provide constitutionally mandated legal services, states commonly use either private court-appointed attorneys or a public defender organization. This paper investigates the relative efficacy of these two modes of indigent defense by comparing outcomes of co-defendants assigned to different types of attorneys within the same case. Using data from San Francisco, I show that in multiple defendant cases public defender assignment is plausibly as good as random. I find that public defenders reduce the probability of any prison sentence by 22% and the length of prison sentences by 10%.

From Charity to Right

Using a case study of Massachusetts, this chapter traces a shift between the 1930s and the 1950s in how elite lawyers framed the problem of indigent defense—from a problem for private charity to a constitutional right requiring public support. By the 1930s, lawyers in several cities had established voluntary defender organizations as a private charitable alternative to the public defender. Meanwhile, a series of Supreme Court cases, interpreting the due process requirement of the Fourteenth Amendment, steadily expanded the constitutional right to counsel in criminal trials, culminating in the 1942 decision of Betts v. Brady. Voluntary defenders typically had volatile funding, and lawyers increasingly worried that these private organizations lacked adequate resources to fulfill the expanding constitutional mandate to provide counsel for indigent defendants. By the 1950s, many lawyers worried that private charity was inadequate to satisfy a constitutional right, and increasingly viewed the public defender as preferable to the voluntary defender.

Free Justice

This chapter describes Progressive Era debates within the legal profession over proposals to establish a “public defender” in the criminal courts—a public official who would represent criminal defendants and counterbalance the public prosecutor. It describes different versions of the public defender idea, as developed by California lawyer Clara Foltz, New York lawyer Mayer Goldman, and the prominent Massachusetts lawyer Reginald Heber Smith, author of Justice and the Poor. Leaders of the bar, often affiliated with corporate law firms, expressed concerns that the public defender represented a step towards socialization of the legal profession. Instead, they preferred to handle indigent defense and other forms of legal aid through private charity. In 1917, New York lawyers rejected proposals for a government-controlled public defender and instead established a criminal branch of the Legal Aid Society.

Epilogue

This chapter provides a brief overview of post-1970s developments in indigent defense. The crisis of overwhelming caseloads and inadequate funding for public defenders has continued to the present day. As a result, many advocates argue that the promise of Gideon v. Wainwright and the Sixth Amendment right to counsel has never been fully realized in criminal courts around the United States. New models of advocacy, like the holistic defense approach, seek to make public defenders more representative of, and responsive to, the communities they serve, and public defenders increasingly connect their work with racial justice, particularly with the rise of the Black Lives Matter movement.

Introduction

Today, thousands of public defenders around the United States represent indigent defendants in criminal proceedings. At a moment of widespread concern about mass incarceration and racial and class inequality, public defenders are seen both as participants in, and adversaries of, the carceral state. The introduction to this book provides an overview of how public defenders became so widespread in American courtrooms. At the turn of the twentieth century, many elite lawyers expressed skepticism about the public defender. They posited that the legal profession should remain independent from the state as much as possible, and that indigent defense was better handled by private charity. They established voluntary defender organizations. But by the 1960s, prevailing views had changed. Many elite lawyers now endorsed the public defender, especially after the Supreme Court decided the landmark case of Gideon v. Wainwright, which expanded the Sixth Amendment right to counsel. The book argues that these developments can be explained by shifts in liberalism and how lawyers conceived of the profession’s place within liberal democracy.

A Permanent Crisis

This chapter traces the rocky implementation of Gideon v. Wainwright between 1963 and 1973, continuing the Massachusetts case study begun in chapter 2 and also addressing developments in Philadelphia and other localities. Although states could technically comply with Gideon in a variety of ways (e.g. appointing private counsel case-by-case),many lawyers and reform organizations interpreted Gideon as a broader mandate to establish and expand institutionalized public defender offices. The Ford Foundation and the National Legal Aid and Defender Association (NLADA) embarked upon the National Defender Project, an ambitious nationwide effort. As a result of such efforts, the 1960s witnessed change and growth in public defender offices around the country. In Massachusetts, for example, the organization initially founded as a voluntary defender was converted from a private charity into a statewide public defender agency, hired dozens of new lawyers, and was soon handling tens of thousands of cases each year. Yet, criticisms quickly emerged that public defenders had overwhelming caseloads and resorted too often to plea bargaining, rather than trial advocacy. Reformers diagnosed a new problem, the “indigent defense crisis” that persists today.

Local Injustice

With snapshots of Massachusetts and Mississippi, among other examples, this chapter continues to trace how the implementation of Gideon v. Wainwright fell short of expectations in local communities. In particular, it examines some of the efforts funded by the National Defender Project, an initiative of the Ford Foundation and the National Legal Aid and Defender Association (NLADA). This initiative funded the establishment and expansion of public defender offices around the country. Yet many challenges remained. Criminal defendants themselves complained that public defenders did not sufficiently understand their circumstances—spurring new experiments like the “community defender,” a new model of public defender with stronger ties to the neighborhoods where many defendants lived. By the early 1970s, as indigent defense reformers continued to navigate these challenges, the government had declared “War on Crime” and criminal caseloads had begun to rise—early harbingers of the phenomenon later labelled mass incarceration. Over the course of the twentieth century, lawyers had coalesced in theory around the idea of the public defender as a means to guarantee equality in the criminal courts, but remained unsuccessful at fully implementing that idea around the country.