Assigned Counsel vs. Public Defenders

Instructor: Kenneth Poortvliet
Both assigned counsel and public defenders get assigned cases by the court; however, assigned counsel are private attorneys while public defenders are paid a salary by the government. In this lesson, learn more about the differences between them, and their role in the justice system.

Who's a Court-Appointed Attorney?

Darnell sat in the courtroom waiting for his case to be called so he could meet his court-appointed attorney today. The bench he was on emptied as the other defendants paired up with their finely dressed attorneys. Then he saw a young looking attorney in khakis and a blazer. Darnell assumed that was his court-appointed attorney. But the judge called his name, and an older attorney stepped up to him and handed him a raised letter, glossy business card from some high-powered firm. Was this Darnell's lucky day? Maybe a mistake?

It wasn't a mistake. Darnell lived in a county that used both public defenders and assigned counsel when a court-appointed attorney was needed. A public defender is a criminal defense attorney who gets paid a salary by the government (federal, state, or local) to argue the cases of indigent or poor defendants who have been charged with a crime and cannot afford a lawyer. Assigned counsel also defends those who can't afford an attorney, but these lawyers work in private practice, and the government pays them on a case by case basis.

Why Do We Pay For Attorneys for the Indigent?

The Sixth Amendment to the Constitution says anyone charged with a crime has the right to counsel. At the founding of this country, that meant that the government couldn't prohibit you bringing your own attorney; it didn't mean the government paid for an attorney for anyone who couldn't afford one. This interpretation started to evolve in the 1930s, when the Supreme Court made its landmark ruling that extended the right to an attorney to those who couldn't afford one in federal criminal cases, and was expanded by the Supreme Court again in the 1960s to apply to state cases, too.

Gideon v. Wainwright

Clarence Earl Gideon, a career petty criminal, broke into a pool room, took some cash and a bottle of wine. He was charged with breaking and entering to commit a misdemeanor, which was a felony. The judge denied his request for an attorney, and he was convicted and sentenced to five years in jail. He appealed all the way to the Supreme Court, which in 1963 held that it was a violation of due process (Fourteenth Amendment) and the right to an attorney (Sixth Amendment) to not provide every indigent defendant charged with a felony at the state level with an attorney paid for by the state. Prior to this decision, most states only provided an attorney to defendants who couldn't afford one in capital offenses where life imprisonment or the death penalty were possible sentences.

Clarence Earl Gideon of Gideon v Wainwright
Gideon v Wainwright

How Does a Poor Defendant Get an Attorney?

In most counties across the U.S., it works like this: A defendant is charged with a crime that could result in a 'significant loss of liberty' (typically jail) and applies for a court-appointed attorney. The court determines if he or she qualifies, then an attorney is appointed. In many states, if the defendant ends up pleading guilty or loses at a trial, then he or she would have to reimburse the attorney fees. Usually the amount due is lessened based on the level of poverty of the defendant.

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