Indigent Defense

Despite the right to counsel guaranteed in the Sixth Amendment of the U.S. Constitution, in many places economically disadvantaged defendants still are not represented or are underrepresented. Indigent defendants are often forced to wait in jail for long periods of time before ever meeting with an attorney. Heavy caseloads, insufficient resources, and inadequate oversight make it difficult for many attorneys representing indigent clients to completely fulfill their legal and ethical obligations.

The defense of indigent juveniles poses its own unique problems for the proper and fair functioning of the justice system. Youth defendants are often encouraged (to their disadvantage) to waive the right to counsel. Many courts accept these waivers with little challenge.

Background

Since the 1963 Supreme Court Gideon v. Wainwright ruling, states, counties, and local jurisdictions have established varying means of providing public representation for defendants unable to afford a private attorney.??To determine whether a defendant qualifies as indigent, states and localities may consider the defendant’s income level, eligibility for public assistance, and debt levels.??Indigent defense is then typically provided through one or a combination of three methods: a public defender office, an assigned counsel system, or a contract system.

The diversity of indigent defense services across the nation makes it difficult to evaluate the current state of indigent defense and collect timely, national information.??The report of a recent Bureau of Justice Statistics (BJS) study, Public Defender Offices, 2007, highlights the heavy caseloads and limited resources of public defender offices nationwide; in some areas, the basic foundation for an indigent defense system does not exist.

What OJP Is Doing

The Bureau of Justice Assistance (BJA) has instituted a number of projects, programs, and funding opportunities to support and assist state and local indigent defense systems. BJA launched an Indigent Defense Hiring Project to reduce caseloads and improve the quality of representation available to indigent defendants. BJA also provides seed money for a national fellowship program aimed at increasing the number of qualified public defense lawyers. BJA’s Improving Court Communication program works to increase indigent defendants’ understanding of the judicial process and their rights. Finally, BJA is providing funding to expand the Bronx Defender Holistic Advocacy Program, which is working to create an online resource and technical assistance center.

The Office of Juvenile Justice and Delinquency Prevention supports a Juvenile Indigent Defense National Clearinghouse program. This program provides a broad range of activities to improve the overall level of systemic advocacy, improve the quality of representation of indigent juveniles, and ensure ongoing technical support to the juvenile indigent defense bar.

In addition to these programs and the comprehensive analysis conducted by BJS, OJP participated in the Department of Justice’s (DOJ) National Symposium on Indigent Defense in 2010. The symposium was called to focus on the stagnation that has occurred in addressing this issue during the past several years. Following the symposium, the Attorney General launched the Access to Justice Initiative (ATJ), which aims to improve indigent defense, enhance access to legal services for the economically disadvantaged, and promote alternatives to court-intensive solutions.

In January 2011, the National Institute of Justice (NIJ) and ATJ co-hosted the Indigent Defense: International Perspectives and Research Needs workshop to identify both domestic and international best practices for representing low-income defendants and to devise a robust research agenda on criminal indigent defense in the United States. The Expert Working Group Report generated from the workshop, which will inform DOJ priorities and NIJ’s future research agenda on indigent defense, was issued in September 2011.