Public Defender and Legal Aid Systems

Background

In many countries the right to counsel requires the creation of public defender and legal aid systems because most criminal defendants are from low-income backgrounds and cannot afford a paid attorney.

The first public defender

United States

The first state to recognize the right to counsel for indigent defendants was Indiana:

"It is not to be thought of in a civilized community for a moment that any citizen put in jeopardy of life or liberty should be debarred of counsel because he is too poor to employ such aid . . . No court could be expected to respect itself to sit and hear such a trial. The defense of the poor in such cases is a duty which will at once be conceded as essential to the accused, to the court and to the public."

Despite this case, public defender offices were not organized for another 50 years. Private organizations such as the Legal Aid Society in New york were formed as early as 1896. The first public defender office opened in Los Agneles in 1914, established by Clara Shortridge Foltz, California's first female attorney. By 1921, the right to counsel was widespread in California.

The creation of public defender offices began to increase in the early 20th century but it was not until the U.S. Supreme Court ruled that indigent defendants had a Constitutional right to counsel at the state's expense that these institutions began to proliferate. Justice Black rendered the decision:

"A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama: "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be [372 U.S. 335, 345] heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." 287 U.S., at 68 -69"

After Gideon the state was required to provide assistance to counsel at the request of an indigent defendant. It provided little instruction as to how that counsel was to be provided. As a result, several models exist in different jurisdictions around the country.

Public Defender's remain unique in that they are government employees whose job it is to challenge and work "against" the government's case. Because of their special role in the criminal justice system, courts have concluded that public defenders are immune from public prosecution for civil rights violations. They may still be liable for malpractice or ineffective assistance of counsel.

Government-Run Public Defender Offices

Typically found in large urban areas, government-run public defender offices are often said to be more effective. Run like small law-firms, these offices operate with the public defender being the lead partner. Most public defenders are appointed to head these offices, although a few -- San Franciso Public Defender,