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Summary findings

Right to counsel | State public defender programs | County-based and local public defender offices | Indigent defense services in populous counties | Federal and state indigent criminal defendants

Right to counsel and methods for providing indigent criminal defense

The Sixth Amendment to the U.S. Constitution establishes the right to counsel in federal criminal prosecution. Through a series of landmark decisions by the U.S. Supreme Court, the right to counsel has been extended to all criminal prosecutions, state or federal, felony or misdemeanor, that carry a sentence of imprisonment.

States and localities use several methods for delivering indigent criminal defense services:

  • public defender programs
  • assigned counsel programs
  • contract attorneys

The federal system also has several types of programs to deliver indigent criminal defense:

  • public defender organizations
  • community defender organizations
  • panel attorneys

Public defender offices in the 22 states with state-funded and administered public defender programs

In 2007, 22 states had a central administrative office that oversaw the operations and funding of all public defender offices within the state. Data from the 22 state programs are reported at the state-level because within each state, state-based offices often share resources and caseloads, as needed. State public defender programs employed 4,300 (29%) of the nation’s 15,000 public defenders and received 1.5 million (27%) of the nearly 5.6 million cases received by public defenders nationwide in 2007.

Caseload

  • Misdemeanors and ordinance violations accounted for more than 40% of the cases received. Felony non-capital cases made up a quarter of the incoming cases.
  • Public defender programs in the 13 states that had the death penalty received 436 death-penalty eligible cases in 2007.
  • Numeric caseload standards recommend that a public defender should carry no more than 150 felony, 400 misdemeanor, 200 juvenile-related, or 25 appellate cases in a year. In 2007, four of the 17 state public defender programs reporting complete caseload data had a sufficient number of attorneys to handle the number of cases received in their office according to this guideline.

Staffing

  • State public defender programs reported a median of 163 litigating attorneys, 12 chief public defenders, and 5 supervisory attorneys in 2007.
  • Each state reported having at least 1 managerial attorney for every 10 staff attorneys.
  • State public defender programs in 20 reporting states employed nearly 3,000 support staff—such as clerical and administrative staff, paralegals, investigators, social workers, indigency screeners, and interns—to provide case assistance for public defenders. States employed a median of 85 support staff in 2007.

Expenditures

  • The 22 state programs spent over $800 million on public defender programs, about 35% of the $2.3 billion spent by public defender offices nationwide in 2007.
  • Public defender expenditures for the 22 states accounted for a median of 15% of state judicial and legal expenditures in 2007.

Trends in state public defender programs, 1999 to 2007

  • Seventeen of the 22 states with a state public defender program in 2007 also had a state program established in 1999. Overall, total expenditures, cases received and full-time equivalent (FTE) public defenders increased in the 17 states from 1999 to 2007.
  • Expenditures increased by 19% in state public defender programs after 1999 expenditure data was adjusted for 2007 inflation.
  • Criminal caseloads increased by 20% while the number of public defenders employed in state programs increased by 4% from 1999 to 2007.

Public defender offices in 27 states and the District of Columbia with county-based public defender offices

The 27 states and the District of Columbia with county-based public defender offices operated a total of 530 offices in 2007. Public defender offices administered at the local level and funded principally by the county or through a combination of county and state funds are referred to as county-based offices. County-based public defender offices employed about 10, 700 (71%) of the nation’s approximately 15,000 public defenders and handled more than 4 million (73%) of the 5.6 million cases received by public defenders nationwide in 2007.

Caseload

  • County-based public defender offices received a median of approximately 2,500 cases.
  • Misdemeanors and ordinance violations accounted for the majority (56%) of all cases received.
  • Numeric caseload standards recommend that a public defender should carry no more than 150 felony, 400 misdemeanor, 200 juvenile-related, or 25 appellate cases in a year. In 2007, 27% of county-based public defender offices reported a sufficient number of attorneys to handle the number of case received in their office.
  • Public defender offices in the 25 states that had death penalty statutes received 1,210 death penalty eligible cases in 2007.

Staffing

  • County-based public defender offices employed a total of 490 chief public defenders, 185 managing attorneys, and 958 supervisory attorneys in 2007.
  • County-based public defender offices employed a median of 7 FTE litigating attorneys.
  • Four in 5 (84%) county-based public defender offices met the professional guideline of 1 managerial attorney per 10 staff attorneys.
  • In 2007, county-based public defender offices employed 7,514 support staff (clerical and administrative staff, paralegals, investigators, social workers, indigency screeners, training staff, and interns) to provide case assistance to public defenders. About three-quarters of all support staff were employed in the 153 highest caseload offices which received more than 5,000 cases in 2007.

Expenditures

  • The 530 county-based public defender offices in 27 states and the District of Columbia spent nearly $1.5 billion (65%) of the $2.3 billion spent in 2007 providing public defender representation nationwide.
  • County-based public defender offices served a median population of about 117,000 residents with a median operating budget of about $708,000 in 2007.

Indigent criminal defense services in the Nation's 100 most populous counties

Among the Nation's 100 most populous counties in 1999, public defender programs were operating in 90 counties, assigned counsel programs in 89 counties, and contract programs in 42 counties.

Expenditures and funding sources

  • In 1999 an estimated $1.2 billion was spent to provide indigent criminal defense in the Nation's 100 most populous counties. About 73% of the total was spent by public defender programs, 21% by assigned counsel programs, and 6% on awarded contracts. This $1.2 billion represents an estimated 3% of all local criminal justice expenditures used for police, judicial services, and corrections in these counties.
  • County governments provided 60% of all funds for indigent criminal defense services in the largest 100 counties followed by state governments providing 25%.

Caseload

  • Indigent criminal defense programs in the largest 100 counties received an estimated 4.2 million cases in 1999. About 80% were criminal cases, 8% juvenile related, 2% civil, and 9% other types of cases dealing with issues such as juvenile dependency, abuse and neglect, and contempt.
  • Public defenders handled 82% of the 4.2 million cases in these counties, court appointed private attorneys 15% and contract attorneys 3%.

Public defender staffing and private attorney appointments and awarded contracts

  • Public defender offices in the largest 100 counties employed over 12,700 individuals during 1999, including over 6,300 assistant public defenders, 1,200 investigators, 300 social workers, 2,700 support staff, and nearly 400 paralegals.
  • Over 30,700 private attorneys were appointed through assigned counsel programs to represent indigent defendants in the largest 100 counties during 1999.
  • Over 1,000 contracts for indigent defense services were administered by contract attorney programs.

State and federal indigent criminal defendants

Publicly financed counsel represented about 66% of federal felony defendants in 1998 as well as 82% of felony defendants in the 75 most populous counties in 1996.

Conviction rates

  • Conviction rates for indigent defendants and those with their own lawyers were about the same in state and federal courts. About 90% of the federal defendants and 75% of the defendants in the most populous counties were found guilty regardless of the type of their attorneys.
  • Of those found guilty, however, those represented by publicly financed attorneys were incarcerated at a higher rate than those defendants who paid for their own legal representation 88 percent compared to 77% in federal courts and 71% compared to 54% in the most populous counties.

Sentence length

  • On average, sentence lengths for defendants sent to jail or prison were shorter for those with publicly-financed attorneys than those who hired counsel. In federal district court those with publicly financed attorneys were given just under 5 years on average and those with private attorneys just over 5 years. In large state courts those with publicly financed attorneys were sentenced to an average of 2½ years and those with private attorneys to 3 years.

Racial disparity and the use of publicly financed counsel

  • While 69% of white state prison inmates reported they had lawyers appointed by the court, 77% of blacks and 73% of Hispanics had publicly financed attorneys. In federal prison black inmates were more likely than whites and Hispanics to have public counsel 65% for blacks, 57% for whites and 56% for Hispanics.

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