One of the glories of the American Constitution is its commitment to the protection of individual rights, particularly when those rights are threatened by the state. Among the most powerful embodiments of this commitment is the declaration made in a series of Supreme Court decisions in the nineteen sixties and seventies that United States citizens have a constitutional right to legal representation when the state threatens imprisonment. Further, the Supreme Court concluded that this constitutional right exists independently of a person’s ability to pay for it. In the words of the Miranda warning, “If you cannot afford a lawyer, one will be provided for you.” It is a remarkable commitment of constitutional authority to the protection of individual rights. Once the Supreme Court established such a right, however, all federal, state, and local governments faced the problem of how, in particular, to secure it. Some local governments, under the authority of state statutes or constitutions, had already established public defender offices. For example, the Los Angeles County Public Defender has existed since 1914. However, states without any statutory or constitutional mandates were now required to comply with the federal constitutional requirements articulated in U.S. Supreme Court rulings that all states must provide counsel regardless of a person’s ability to pay. These states had to decide who was eligible, how legal representation was to be provided, and who would pay for the representation. In effect, it was necessary to combine public money with the articulated constitutional authority in order to secure the right to counsel. The states responded to this challenge in a variety of ways. Some states left the issue up to local courts. Typically, the local courts responded by making arrangements with private attorneys who served indigent clients on either a pro bono or paid basis. Appropriated tax dollars provided the money required to support the system. Other states created statewide or local offices of public defenders, also supported by appropriated tax dollars. In these public defender offices, lawyers were employed by the state specifically to represent defendants who were too poor to hire their own lawyers. Still other states opted to contract with individual lawyers, legal partnerships, or nonprofit legal organizations to provide legal representation to indigent defendants on some basis (a fee per case or a commitment to cover all cases referred to them for a given budgetary allotment). For the purposes of this paper, I refer to the whole set of the state institutional arrangements mentioned above as “indigent defense systems” or “public defense systems.” I refer to the subset of state institutional arrangements that involve the creation of publicly financed, publicly staffed agencies or publicly financed, privately staffed, nonprofit organizations as “public defender offices.”
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