What is Indigent Defense? - Definition & Types

Instructor: Jessica Mercado

I completed my BA in Criminal Justice in 2015. Currently working on my MS in Homeland Security Management.

In this lesson you will learn, through examples, what indigent defense is, and how it is applied. An actual case example will be provided to provide further understanding of the objective.

Everyone Has the Right to Counsel

Everyone may have the right to a defense counsel, but what if they can't afford it? That's where the indigent, or public defense steps in. Suppose you're a college student and you get into a scuffle at a bar. The police are called and you are taken to jail. You started the fight and the other individual wishes to press charges. You realize that you have no way of paying for a lawyer because you are currently not working. You inform the judge at your first hearing that you cannot afford counsel. The judge appoints you a defense attorney because of your indigence.

So, what does it mean to be indigent, and what are the different types of defenses available to those considered indigents?

What is the Definition of Indigent Defense?

Since there is no actual definition for the term indigent defense, we have to put one together based on the individual terms. When someone is described as indigent, they are considered unable to pay the fees required to hire a defense lawyer. If a person requires a defense lawyer but does not have the funds to pay for one on their own, one is hired for them. This would be considered an indigent defense, or in other terms, a public defender.

In the example at the beginning of the lesson, you were considered an indigent because you did not have the money to pay lawyer fees. Since you could not pay for your own lawyer, one was hired for you. This means you have an indigent defense lawyer because you did not pay for them out of your own pocket, the court did.

The Case of Gideon v. Wainwright (1963)

In this court case, Gideon was charged with breaking and entering. He had the intention to commit a misdemeanor, which made his crime felonious, under the Florida law. He had requested that he be provided legal counsel because he could not afford it himself. The judge denied his request because at that time, under Florida law, legal counsel was only provided to those being charged with a capital crime.

Gideon filed a petition to the Florida Supreme Court but was denied. He next filed a petition with the United States Supreme Court, who agreed to hear his case. The court decided to overrule a previous ruling, Betty v. Brady, that stated that it was not a violation of the 14th amendment to deny counsel to indigent defenders. The new ruling determined that anyone without counsel, while in court, is not guaranteed a fair trial.

Because the above case was overruled, indigent defense services became available to everyone who cannot afford a defense counsel on their own.

What are the Different Types of Indigent Defense?

Public Defender Programs This type of program allows for public defenders to work independently without having to report to someone. Public defenders, within this program, are court appointed to cases. These programs are non-profit and can be considered public or private programs.

Assigned Counsel Systems This type of program involves a list of available attorneys. The judge will then go through the list and determine the best counsel for the defendant. This is the most commonly used system when providing a defense counsel for a defendant. There are two parts to this program:

  • Ad hoc assigned counsel system- Attorneys are hired on a case by case basis by a judge.
  • Coordinated assigned counsel system- An administrator oversees the hiring of attorneys for cases. The administrator will set guidelines for the case hiring process.

Contract Attorney Systems This provides a government agreement with private law firms, private lawyers, and the bar association. The lawyers in each of these categories are hired as indigent defense lawyers for a certain time frame and amount.

Is Indigent Defense Beneficial?

While indigent defense lawyers ensure that everyone is represented equally in court, there can be a downside to its services as well. Below is a list of advantages for indigent defense and some of its limitations:

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