Public Defender

Public Defender in the United States

An attorney employed by the government for the purpose of representing indigent criminal defendants. In jurisdictions with a public defender system, the trial judge appoints a specific person to serve as the public defender. He or she, in turn, recruits assistants to the extent budget limits allow. The public defender is a public agent and the office of the public defender exists as a government department in much the same way as the office of the prosecuting attorney. Some public defender systems could be found prior to 1960, but they spread rapidly following the U.S. Supreme Court decision in Gideon v. Wainwright (372 U.S. 335: 1963), which required representation of indigent felony defendants at the state level as a matter of constitutional right. This principle was extended to certain misdemeanors in Argersinger v. Haynlin (407 U.S. 25: 1972). Federal law provides public defenders through the Federal Public Defender Organization. Many states have similar programs. The public defender system is used in about a third of all state jurisdictions, but can be found in virtually all large urban jurisdictions. The principal alternative to the public defender approach is an assignment system. Under the assignment system, lawyers are appointed by trial judges on a case-by-case basis, either from a list of all attorneys in the jurisdiction or from a shorter list of attorneys who wish assignment. (1)

Analysis and Relevance

The public defender system is a reasonably effective means of providing legal representation to indigent criminal defendants. As a salaried attorney with no outside practice, the public defender is generally able to devote greater attention to individual cases than some assigned counsel. While public defenders may be young and inexperienced when they begin, they typically become competent criminal defense attorneys because of their large caseloads and exclusive focus on criminal trial work. Assigned counsel are not always as knowledgeable or experienced in criminal defense. Public defenders are more likely to be aware of local and informal operating practices because of their frequent interaction with the judges and prosecutors of the jurisdiction. This enhances their capacity to represent clients effectively. There is criticism of the public defender approach, how-ever. Some believe that public defenders, as locally paid government staff, come to share the values and objectives of others in the courtroom work group. As a result, it is contended that the public defender is less likely to defend vigorously. Further, public defender offices typically suffer from budget limitations, high caseloads, and marginal support staff. Nonetheless, a number of studies comparing performances of public defenders and privately retained counsel show that there is little difference in terms of case outcomes. (2)

Public Defender in Practice

By Michael Estrin. He is a Los Angeles-based freelance writer and attorney.

All indigent criminal defendants since the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright (372 U.S. 335 (1963)), have the right to counsel assigned for them.

(…) Inside jail, court-appointed lawyers are commonly known as “public pretenders,” the subjects of skepticism and derision – which can make it hard to earn a client’s respect. (…)

The public defenders I talked to say they do the job for a variety of reasons. Some cite a commitment to social justice; others say they just like sticking up for the little guy. One lawyer who primarily handles drug cases says he thinks that most of the time, he and his clients hold the moral high ground.

“Public defenders are a pretty self-selecting bunch,” says Kelly G. Emling, chief deputy public defender at the office’s 19th-floor headquarters. “If there’s a common denominator, it’s that we genuinely care about helping people. We’re also all trial lawyers, because you can’t be an effective public defender if you don’t have trial skills.”

Jobs at the public defender’s office in Los Angeles, for example, are hard to come by. Recent hiring data shows that only 10 percent of applicants make the cut. And while pay for the most experienced lawyers like Saris tops out around $150,000 a year, Emling says retention is strong, in large part because the office places a premium on career development. New lawyers start with a one-year trial skills program, and all public defenders are offered extensive and ongoing training. Thirty-eight managing attorneys supervise various sections that break down by the type and location of offense. Often supervisors are on hand to mentor younger lawyers through trials. Combined experience in the office adds up to 7,000 years’ worth of institutional knowledge, according to the public defender’s website.

“What people often fail to appreciate is that public defenders are an elite, talented group of criminal defense lawyers,” says one public defender with 20 years of experience.

(Nearly all the public defenders I interviewed for this story spoke anonymously, citing concerns that for-attribution comments might hinder their ability to represent clients effectively.) (…)

Plea Bargains

In a system where personalities heavily influence case outcomes, the assignments of prosecutor and public defender can be just as important as the facts in the file. In a recent podcast on plea bargains, Saris says, “I know [private] defense lawyers in the courtroom where I work who everyone knows are never going to trial. … They’re not going to reject the plea bargain; they’re going to talk their client into it.”

For public defenders, striking a deal can be further complicated by the ingrained biases of their clients, who may believe that their appointed lawyer is too chummy with the DA to cut a decent bargain, or not good enough to win at trial.

“Client bias against Public Defendants can be a major hurdle to our job,” says one public defender with six years of experience. “If you can afford Clarence Darrow, then get him. Otherwise, know that private lawyers may not have the same level of training and experience as we do – and they have a profit motive to plead as quickly as possible.” (…)

Many public defenders I spoke with expressed tremendous concern that they had represented clients who took a deal just to get out of jail. But when I asked former prosecutors if they thought a defendant’s inability to make bail gave them unfair advantage, some were unsympathetic.

“It’s true … that having a defendant in custody gives prosecutors leverage in forcing a plea bargain,” says former deputy DA Gorin. Still, “I do not believe many innocent people plead guilty just to get out of jail.”

“Economic inequality is a philosophical issue,” Santini says. “It’s not a problem the criminal justice system is meant to deal with.” She notes that many defendants choose to delay going to trial – whether they’re in custody or out on bond – because criminal cases often weaken over time. “It’s a perfectly valid and common defense tactic,” she says. (…)

Plain-English Law Definition

Public Defender as defined by Nolo’s Encyclopedia of Everyday Law (p. 437-455):

A lawyer appointed by the court and paid by the county, state, or federal government to represent clients who are charged with violations of criminal law and are unable to pay for their own defense.


Notes and References

  1. Definition of Public Defender from the American Law Dictionary, 1991, California


See Also

Further Reading (Articles)

Public defenders in S.B. County short on client ‘face’ time, Inland Valley Daily Bulletin (Ontario, CA); May 7, 2006; Jeff Horwitz

Public defenders to start refusing cases next year, St. Louis Daily Record; November 5, 2007; Kelly Wiese

Public defenders likely to refuse cases in 2008, Daily Record and the Kansas City Daily News-Press; November 5, 2007; Kelly Wiese

Public defenders await special master’s report; in Jefferson County, a ‘success story’: defender caseloads dip, Missouri Lawyers Media; December 30, 2010; Allison Retka

Defenders of Wildlife, Environmental Encyclopedia; January 1, 2003; Smith, Douglas

Public Defender Elections and Popular Control over Criminal Justice, Missouri Law Review; June 22, 2010; Wright, Ronald F.

Public Defenders Turn to Lawmakers to Try to Ease Caseloads, Honolulu Star – Advertiser; February 19, 2014; Eckholm, Erik

PUBLIC DEFENDERS FREE AT LAST, Post-Tribune (IN); February 8, 1998

Defenders buried by caseloads; As more jobless people qualify for public defenders, the courts feel the squeeze.(NEWS), Star Tribune (Minneapolis, MN); March 29, 2009; Powell, Joy



Public defenders seek lighter load; With its attorneys overworked, the Board of Public Defense has asked the state’s high court for help.(NEWS), Star Tribune (Minneapolis, MN); August 30, 2003; DeFiebre, Conrad

Public defenders seek more money to ease workload. Daily News (Bowling Green, KY); January 12, 2006

Defender bill goes to Missouri Gov. Nixon, Missouri Lawyers Media; May 14, 2009; Jason Rosenbaum


Missouri Public Defender Commission could be nation’s first to close system to new indigent clients, St. Louis Daily Record; March 2, 2007; Scott Lauck

Missouri public defender caseload rule struck down, Missouri Lawyers Media; April 14, 2009; Scott Lauck

Federal public defenders warn of dire budget cuts, AP Online; July 2, 2013; By GENE JOHNSON

Public defender proposal moves in Missouri Senate, Daily Record and the Kansas City Daily News-Press; March 2, 2009; Jason Rosenbaum

For Fairfax Public Defenders, a Tough Job-and a Mission, The Washington Post; April 9, 1990; DeNeen L. Brown






One response to “Public Defender”

  1. Charles

    The writer fails to mention that the services of the Los Angeles County Public Defender are not free. At the end of the case you are financially assessed, and if you are found to have an ability to pay, you are required to reimburse the County for the cost of your defense. The Public Defendant’ $150K annual salary has to come from somewhere, and it is not just from county property tax revenue. For a case you may be paying the Public Defender’s Office something like $80 per hour. And if you fail to pay, the court system will take your state tax refund. Instead of being personally assigned a top level Death Penalty qualified defender, the vast majority of defendants like him will be represented by one attorney at arraignment, a different one at early disposition, another one at their preliminary hearing, and yet another one for pretrial and trial. And they will not receive personal visits while they are in jail — instead they will be given video conferences with “their” attorney.