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The Need for and Role of Public Defenders


The Sixth Amendment of the Constitution of the United States guarantees any person accused in a criminal prosecution the right to access a counsel’ assistance. In Gideon V. Wainwright case of 1963, the Supreme Court of the United States held that an accused person should have access to the assistance of an attorney even in cases where that person cannot afford to hire the services of that counsel (Hoffman, Rubin, & Shepherd, 2005). Since that time, courts have interpreted the right to counsel as meaning that the accused should have access to a competent counsel who will provide them with effective assistance. The institutionalization of the right guaranteed by the Supreme Court of the United States of America in different states led to the formation of public defenders.

The Need for and Role of Public Defenders

According to Mars (1955), a public defender is a term used to refer to a public official who is either appointed or elected to serve as an attorney and assigned by courts to defend the accused persons that cannot afford to hire the services of a private attorney. Usually, the accused may request the court to provide him or her with a public defender during his or her first appearance before a magistrate or judge. To determine eligibility, that person may be required to provide his or her financial declaration. Once assigned to the client, these officials advise their clients on matters relating to law and provide defenses relating to their clients’ cases. The main role of a public defender is to represent the defense that cannot afford to hire legal counsel. They provide a varied range of related duties including interviewing possible defense witnesses, preparing legal documents, representing the defense, preparing and trying criminal cases.

Public Defender Effectiveness

Since the formation of the public defender office, the effectiveness of public Defender system has been greatly debated. Most of these discussions have involved empirical studies in which a comparison of the effectiveness of the private criminal defense lawyers and public defenders has been carried out. While early results indicated both public and private defenders were equally effective, the studies conducted after the 1980s demonstrated the opposite: public defenders were less effective compared to the private counsels.The Need for and Role of Public Defenders

One econometric study that was conducted in 2002 and that investigated all felony cases in Denver revealed that public defenders are less effective than private counsels when the comparison is made on the basis of actual sentences that the accused received. Furthermore, the study revealed that the traditional explanations for this variation such as overburdened public defender system and underfunding do not tell the whole truth. Hoffman et al. (2005) who conducted the study established a new segment of defendants that they referred to as “marginally indigent”. Hoffman et al. described this segment as consisting of people that are in a position to hire private counsel when faced with serious charges. Therefore, the researchers concluded that one reason that makes public defenders perform poorly is that, by self-selection, the majority of their clients have cases that are less defensible.

However, it is important to point out that any measure of effectiveness tends to have built-in biases cutting against public defenders. For instance, there is a high possibility that clients of public defenders are likely to be in custody rather than being freed on bond. This puts substantial pressure on the defendants to take a plea bargain. Moreover, public defender clients are likely to have prior felonies, which are likely to contribute to greater penalties in the event of conviction taking place. Therefore, it is important for researchers studying the public defender system to be cautious before making any conclusions about the effectiveness of the systems.

One of the most debated comments on the effectiveness of public defender has been made by Stuntz (1997). In a paper titled “The Uneasy Relationship Between Criminal Procedure and Criminal Justice,” Stuntz approached the issue of public defender effectiveness from the point of the broader criminal justice system rather than looking at it in isolation. He argued that overburdened public defenders and prosecutors made the entire criminal procedure intended to provide protection to criminal defendants to disadvantage the indigent defendants. According to him, the public defenders of the accused fail to frequently litigate pretrial motions. According to his view, indigent defenders are disadvantaged by procedural protections since they are coaxed to plead guilty. Hoffman et al. (2005) tested the hypothesis suggested by Stuntz by analyzing sentence outcomes involving all the felony cases that were prosecuted in courts across Denver, Colorado in the year 2002. The results obtained indicated that public defenders in Denver performed poorly compared to private defense counsel. The sentence outcomes of these public officials were worse than those of private attorneys. The findings are in line with those suggested by Stuntz. Additionally, Hoffman et al. (2005) found that the number of procedural motions filed by public defenders exceeded that of private counsels. The existence of marginally indigent defenders who turn to public defenders whenever faced with less serious chargers but retain private counsel when being faced by more serious charges skews effectiveness results to the disadvantage of public defenders. Since private counsels are assigned more serious cases, they have more pressure to achieve effectiveness in their sentences. Hoffman et al. (2005) concluded that neglecting controls for crime seriousness, their study indicated that public defenders tend to be less effective compared to their private counterparts.

The challenges of being a public defender-the Need for and Role of Public Defenders

The work of a public Defender is highly challenging and over the years, most of the difficulties faced by these officials have been documented. Their job tends to be highly stressful as a result of factors such as unsupportive criminal justice system, huge caseloads, and uncooperative clients. Moreover, while considerable support has continued to be provided to states in form of resources required to discharge the responsibilities associated with the criminal justice system, there is lack of corresponding support aimed at increasing the resources required by public defenders. The challenges encountered by public defenders can be summarized as follows.

  1. Inadequate Institutional Support

Compared to other legal professionals, public defenders are burdened by factors such as limited training, lack of sufficient resources, lack of supervision, and overwhelming caseloads. Apart from being subjected to unhealthy working conditions, public defenders often encounter other members of the legal practice including judges, jurors, and witnesses that are unsympathetic. Different studies conducted in this area over the years reveal that a significant proportion of public defenders become disillusioned and suffer from a sense of cynicism as a result of the cumulative effect of inadequate training, overburdening caseloads, limited resources, and tremendous pressure to deliver on their case outcomes.

  1. Critical Public-the Need for and Role of Public Defenders

Research has shown that the general public tends to hold public defenders in low esteem (Davies & Moore, 2016). Often times. The public tends to view public defenders as either immoral or incompetent in their work. In the past, these professionals have been criticized in equal measure for either doing their work properly or doing it improperly. For instance, some people have said that public defenders cross-examine truthful witnesses thereby making their testimony appear unreliable. Other individuals have felt that public attorneys are responsible for suppressing probative as well as incriminating evidence leveled against their clients. Today, it is normal to hear people criticize public defenders yet the Supreme Court has underscored their importance in the adversarial system of Justice.

  1. Critical Clients

Public defenders have shielded unduly harsh criticism from their clients as well. According to Ogletree (1995), some clients have in the past leveled unfair charges on these professionals as a result of poor understanding of the criminal justice system. One such common accusation is the close alliance of public defenders with the different court agent including the police, jurors, prosecutors, and even judges. Apart from the fact that they receive their salary from the same coffers as the other agents, ther offices tend to be located within the courthouse compound and some of them strike deals with their prosecutors that often end in the clients being sent to jail. Although the deals are made out of necessity, many of the clients fail to realize it and instead accuse their public attorney working in hand with the criminal justice system.

  1. The psychological toll

The inadequate institutional support combined with criticism from both the public and clients, public defenders tend to be highly dissatisfied with their job. These members of the legal practice have to bear with emotional as well as physical toll of discharging their responsibilities. Over the years, some of them have made a decision to bring their careers of serving as public defender to an end (Davies & Moore, 2016).

America’s View of Public Defenders-the Need for and Role of Public Defenders

Despite the challenges highlighted above, a study conducted by Right to Counsel in 2016 found that a significant proportion of the American public considered it important to make justice more accessible by people earning a low income across America (Right to Counsel, 2016). According to the research finding, 66% of the people that were interviewed supported the use of tax dollars by the government to fulfill the right to counsel by providing public defense for individuals facing prosecution and who, because of their economic status, cannot afford to hire a lawyer. The finds showed that 61% of those interviewed favor the use of more tax dollars by states to fund public defense (Right to Counsel, 2016). The perception of most Americans is that a significant proportion of people arrested and accused of taking part in a felony are not in a position to afford a counsel. The survey results indicated that 87% of Americans hold this view.

While 71% believe that their states have made fair or no effort at all to improve access to counsel, only a mere 36% consider their states to be fully committed to providing excellent access to justice. Regarding the level of qualification, 61% of those interviewed are of the view that most public defenders have the expertise and experience required. However, 53% are of the view that public defenders tend to have little interest in matters relating to their clients (Right to Counsel, 2016). Moreover, half of those interviewed are of the opinion that generally, public defenders provide unsatisfactory legal representation. Consequently, this interview indicated that the majority of Americans consider the public defender system to be inadequate. Apart from blaming the lawyers alone, a significant proportion of Americans think that public defense system is overburdened. 80% indicated that public defenders had little time to attend to each client. Another 55% were of the view that public defenders are not given the resources they required to discharge their duties. Consequently, a large majority of those interviewed in this research expressed their support for various proposals aimed at improving the system.

Proposals to Address the Need For Reforms-the Need for and Role of Public Defenders

From the studies conducted by different scholars and that have been detailed in this paper, it is evident that there are several factors that weaken the capacity of public defenders to effectively represent defendants. As indicated above, public defenders have to bear with scarce resources and heavy workloads. Moreover, their roles are clouded in pervasive and negative images in the face of the public. The right to access counsel, according to the Supreme Court, is a concept that is constantly evolving. As time goes by, it is necessary that society re-evaluates its definition. It is time that we look at the meaning of the term “the right to counsel” and redefine it to imply that the accused person who is eligible to receive the services of a public Defender should be granted access to a highly qualified and competent lawyer with sufficient resources at his disposal so as to ensure effective representation.

The proposed ideal of ensuring that the indigent is provided with competent representation by ensuring that the public defender system is given enough resources should not be viewed as either being partisan or ideological. Provision of all indigent defenders with effective representation is a concept that is consistent with the responsibilities of defense counsel and prosecutors. According to the views held by courts in both Canada and the United States, prosecutors should seek justice rather than convictions. In recent years, policymakers, legal scholars among other stakeholders have come to realize the gravity of issues that hinder the effectiveness of public defenders. One such individual is John Cleary who previously worked as a criminal defense lawyer. According to him, a Federal Defender Services Center should be established and equipped with resources similar to those that are provided to the Department of Justice to strengthen the criminal justice system. John processes that the same establishment should be replicated at the state level. Apart from ensuring greater resources at the disposal of public defenders, his proposal to have criminal Justice centers at both state and federal level will offer an opportunity to establish a public defender system that functions independently of the judiciary.

Indeed, it is important to have the independence of structures are suggested by John. This is because, in some instances, it is difficult for judges to possibly understand the needs of an accused or the function of the defense in individual cases. Such a scenario, if it occurs, will mean that the judges are not in a position to decide who is hired to represent a client or determine the allocation of resources. Apart from upholding the integrity of the judicial system, the establishment of the suggested independent centers will serve to protect criminal defendants’ interests.

Analysis of the public defender service in Washington D.C

Washington D.C is one of the states that have ensured consistent provision of effective and competent representation to all public defender clients. Although there are several facets that have contributed to this development, the two most significant ones are effective office culture and excellent training of public defender (Ogletree, 1995). These two facets could serve as a blueprint especially when designing and developing a public defender system in the future.

  1. Public Defender Training The Need for and Role of Public Defenders

Adequate training forms an integral component that is essential in ensuring effective and high-quality representation for criminal defendants. Unfortunately, only a few public defender systems incorporate such training of their attorney before they can engage clients in actual representation. In D.C. public defender system, training has been structured to include thorough training and preparation focused on carrying out a detailed investigation. It also includes lessons that are taught by experts in the field and practical exercises.

Focus by the D.C public defender service on practical and experts training has made the state’s public defender system to be one of the most effective in North America. The agency sought help from local judges who are asked to volunteer their time and take part in training exercises (Ogletree, 1995).  Experts in different areas including fingerprint identification, blood analysis, insanity defense, and fiber examination are also included in the training program. By the time the program comes to an end, the lawyers working for the public defender service have handled every significant aspect of criminal litigation. More important, they have acquired relevant knowledge and applied their expertise in real cases. The practice exercises included in the program are geared towards teaching the attorneys ways to competently handle every case. The efficacy of these programs have contributed to the success achieved by the trainees as evidenced by the number of motions, legal arguments, and appears that they’ve won in court.

Additionally, the D.C training program emphasizes on thoroughness. The impacts of the services become evident in the manner in which attorneys practice law. The public defender attorneys from Washington DC routinely incorporate every relevant information that they could gather from the law enforcement agency

  1. Office Culture in Public Defender System of Washington D.C.

Apart from the excellent training of public defenders in Washington D.C, the prevailing office culture in the state has nurtured a sense of commitment from every attorney to their clients (Ogletree, 1995). Consequently, the quality of representation has improved significantly compared to the years past. The public defender system in this state strives to develop the ability of public defenders to not only understand but also sympathize with the accused through identification of some of the social ills that put their clients in the situations that they are presently facing. Public defenders that develop an understanding of these ills tend to be more committed to their clients. Additionally, it allows attorneys to ensure a more insightful representation in similar cases that they encounter in the future. In Spite of this sympathy, public defenders are taught to remain informed of the seriousness of the crimes committed by clients and the adverse effects that they have on the community.

Recommendation and Conclusion-the Need for and Role of Public Defenders

The high ineffectiveness of public Defenders compared to private counsels is alarming and is a problem that should arouse the interest of different stakeholders in the criminal justice system. From the research that was carried out, it became evident that the sentence outcomes of private defense lawyers exceed that of public defenders. The difference between them is statistically significant and cannot be ignored. The current situation is troubling. Although it may be as a result of gross underfunding of public defense system or ineffectiveness that characterizes most of the government-run systems, the research carried out by scholars indicate that the variation in outcome effectiveness of public defenders and private counsels reflect, to some extent, the nature of their cases.  Public defenders tend to handle theless serious and less defensible cases. Before rushing to increase the budgetary allocation for public defenders as a remedy to the situation, it is important to determine the influence of accused self-selecting representation on the aforementioned differences. If this phenomenon is a major contributor to the differences in sentence outcome between public defenders and private counsel, the most appropriate remedy will be to review the criteria used to determine indigency. The other alternative would be to have criminal Justice centers at both state and federal level so as to establish a public defender system that functions independently of the judiciary.





Davies, A. L., & Moore, J. (2016). Critical Issues and New Empirical Research in Public Defense: An Introduction. Ohio St. J. Crim. L.14, 337.

Hoffman, M. B., Rubin, P. H., & Shepherd, J. M. (2005). An empirical study of public defender effectiveness: Self-selection by the marginally indigent. Ohio St. J. Crim. L.3, 223.

Mars, D. (1955). Public defenders. J. Crim. L. Criminology & Police Sci.46, 199.

Ogletree Jr, C. J. (1995). An essay on the new public defender for the 21st century. Law & Contemp. Probs.58, 81.

Right to Counsel. (2016). Americans views on public defenders and the right to counsel. Retrievedfrom .

Stuntz, W. J. (1997). The uneasy relationship between criminal procedure and criminal justice. Yale LJ107, 1.