13 Big Pros and Cons of Public Defenders

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A public defender is an attorney who is employed at the expense of the public. Their job is to represent individuals who have been charged with a crime, or may need assistance in certain civil matters, when the defendant is unable to afford their own legal assistance for some reason. Courts assign the attorney to defendants that have a proven inability to afford a private attorney for their defense.

In the United States, the Supreme Court ruled in 1963 in the Gideon vs. Wainwright case that the 6th Amendment in the Bill of Rights requires the government to provide legal counsel, free of charge, if needed for criminal cases.

Although there is a societal stigma for defendants who use public defenders, their success rates are comparable to private attorneys. In 1992 study by the National Center for State Courts, 26% of private counsel clients were able to successfully defend themselves in court. 24% of public counsel clients were able to successfully defend themselves as well.

There are several important pros and cons of public defenders that must be evaluated to make improvements to this system of defense. With a better system, we can then create a fairer system of justice.

List of the Pros of Public Defenders

1. They provide free legal representation to those accused.
People who are assigned a public defender are not required to pay their attorney for the assignment. The public defender earns a salary that is usually paid by a county or state government. In the United States, the average salary for an entry-level public defender is about $48,000. Experienced public defenders, with 15+ years of experience, average a working salary of $76,000 per year. Many are state employees who qualify for pensions and other benefits as well.

2. They must have the same knowledge to work in public court as private attorneys.
To become a public defender, an attorney must graduate from law school and pass the state bar exam – just like any other private attorney. Many employers will look at an attorney’s grades in specific areas, such as criminal law or evidence awareness, as part of the hiring process. They must also maintain their membership with their state bar, in the United States, as an active or emeritus status to practice.

3. They have large amounts of working experience.
Public defenders may be handling more than a dozen active cases that are headed for court at any given time. The average public defender spends more than 50% of their working time at their local courthouse. That means they gain a tremendous amount of working experience with judges and how to work cases, helping their clients with the best defense possible. A public defender may represent the same number of cases in 6 months that a private attorney may represent in 6 years.

4. They provide legal aid to those who are poor or needy.
Being poor should not exclude an individual from receiving a professional defense when they are accused of a crime. Public defenders provide legal aid to those who would not normally be able to afford an attorney to represent them. Although individuals can represent themselves in court, there are certain factors that are evaluated to determine a person’s competency, such as age, education level, language comprehension, and crime severity. Public defenders can step in, providing a legal resource, without placing another worry on the defendant.

5. Many work within a niche area of the law.
Public defenders will often specialize in one specific offense to make their caseloads become more manageable. That might mean domestic violence, DUIs, or drug-related offenses, depending upon the preference of the attorney. That means defendants can have confidence that their public defender is up-to-date on current rulings and theories that may be applicable to their case. Specializing also allows public defenders to immediately know what will work for a defense in some cases and what will not.

6. They are there because they want to be there.
Public defenders represent people that society views negatively. In the U.S., an adversarial form of justice requires a defense. The family and friends of a public defender often question their choices, wondering how they can sleep at night defending people who hurt others. The reputation of public defenders is often quite low, yet they are still there, doing their best to help. When people are employed in positions that they are passionate about, they find ways to get things done.

List of the Cons of Public Defenders

1. They are often overworked and underpaid for the work they do.
Private attorneys in the United States earn an average salary of $78,500 if they focus on criminal law only. Private criminal lawyers may be the lowest paid attorneys, on average, in the United States, but they still earn more and work less than public defenders. Since 2008, public defenders have refused new cases because of their existing workload. In Louisiana, a 2017 finding showed that the state had 363 FTE public defenders, but their current workload required 1,769 FTE public defenders to provide an adequate defense.

Interestingly enough, however, the lawyers who make the least amount of money are also the happiest in their profession. A 2015 survey in The New York Times of 6,200 lawyers found that public defenders were the most likely to report feeling happy about their job.

2. They may carry more than 100 cases at any given time.
The number of cases that public defenders carry can be extraordinarily high. Some public defenders have been known to carry more than 100 cases at the same time. In Florida, the average annual felony caseload for an individual public defender is 500 cases per year. That same individual will also represent over 2,200 misdemeanor cases in the same year. In Tennessee, there are six public defenders that handle over 10,000 cases each year.

3. They have fewer time resources to commit to any one case.
Using the above example from Tennessee, the average amount of time that the attorneys spend on their misdemeanor cases, per cline, is less than one hour. When public defenders are assigned these massive caseloads, it becomes difficult for them to commit more time resources to cases that may need them. That also means more criminal cases end in plea bargaining. 95% of criminal cases in the U.S. that have a public defender end in a plea deal.

4. They may be unable to properly advocate for some defendants.
Public defenders may be a 6th Amendment resource, but that doesn’t mean they are receiving the funding that they require. There are 10 judicial districts in Louisiana that almost ran out of money in 2015 to pay their public defenders, despite assigning them with new cases. States like Alaska look at the budget of their public defenders as a first-line cut if a budget needs to be balanced. With all of these issues facing them, there are some attorneys, who have good intentions, that are unable to be the proper advocate their client requires.

5. They might not be able to afford an investigator.
Many public defenders rely on the investigation that is completed by law enforcement to form the foundation of their defense. There isn’t enough time or money for them to be able to hire an independent investigator to do work on their behalf. That means evidence that might be available in some cases is never collected as part of the defense, which could affect the outcome of the case.

6. They usually do not handle civil matters.
If a defendant is assigned to a public defender because of a DUI charge, the attorney would handle the criminal proceedings. For hearings that are related to the case, but not part of the criminal proceeding, a private attorney may still be required. Many public defenders are unable to represent clients in civil law.

7. They usually stay your attorney, no matter what.
Many public defenders do an incredible job under extraordinarily difficult circumstances. They work late, sacrifice their weekends, and perform their own investigatory work to advocate for their clients. Not every public defender is that passionate. There are times, in fact, when defendants feel like their assigned attorney is not representing their best needs at all. Unless the attorney loses documents, misses deadlines, ignores evidence, or attempts to force a plea deal, the court isn’t going to assign another attorney to the case.

These pros and cons of public defenders show us that it is a system in crisis and has been for some time. African-Americans, who represent less than 15% of the total population in the U.S., constitute 30% of the defendants for property offenses and 38% of the defendants in violent cases that are sent to public defender offices each year. To bring this service up to manageable standards may require an annual $100 million investment by each state. That means we must take a new look at our societal priorities when it comes to law enforcement and justice, especially in the United States.