The purpose of a public defender

The purpose of the public defender is to provide some sort of assurance that no one is convicted of a crime without due process, which generally means a fair trial with conviction only to be obtained on proof beyond a “reasonable doubt”. This was a big deal to the “Framers”, the people who came up with the constitution and the bill of rights. Although generally at common law there had been a right to be represented in court, there had been certain types of cases prior to the American Revolution where that right had been abridged in the name of security or expedience. Thus it was written into the United States Constitution in the form of the Sixth Amendment, which reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

If the defendant were too poor to afford counsel, at first they might have been out of luck. Individual states had a patchwork of policies and sometimes provided appointed counsel, but sometimes did not. By the mid-twentieth century, the United States Supreme Court had construed the Sixth Amendment to mean that counsel must be provided—in Federal criminal cases—if the defendant did not “intelligently” waive the right, and that the Government would pay the attorney if the defendant were unable to.

In 1961, a prisoner named Clarence Gideon had been convicted after a trial in Florida, which at that time would only provide state-appointed counsel in capital-murder cases. He wrote a petition to the United States Supreme Court, arguing that the latter court’s “incorporation” doctrine required something akin to the Federal policy be imposed on all state-court prosecutions as well. The Court, after consideration, agreed. Gideon v. Wainwright 372 U.S. 335 (1963). Thus, in any criminal case, counsel must be made available to the defendant regardless of the defendant’s ability to pay. The defendant does not have an unlimited choice of counsel; appointed counsel must be “competent”, but all licensed attorneys are presumed competent.

In some courts this right is entirely fulfilled by ad hoc appointments of lawyers in individual cases. However, the majority of courts now have public defenders. The public defender is an official appointed to provide representation to indigent defendants (and such other defendants as the court may feel are in particular need of representation) on a consistent basis for a particular judicial district. This makes the private bar happy (court-appointed criminal work, which is a little random, is usually unprofitable, and you get no choice as a rule about the appointments; merely being a lawyer in a particular court will make you eligible to be considered for them), and as a matter of judicial administration, it is more efficient to have a salaried PD office who can deal with the majority of Sixth Amendment appointment cases than to have to deal with each one individually. Appointments of private counsel in lieu of the PD do still happen to avoid conflicts of interest. I get perhaps two such appointments a year, as do most of my colleagues in the bar here. For the purpose of these appointments, I am the deputy of the public defender.

Is preventing the client from criminal penalty the primary aim or to challenge the state’s case as a check against tyranny?

The aim is to provide due process as alluded to above. Making the state always have to prove its case is considered a “check against tyranny”, if you want to use those words. However, PDs are lawyers, as well, and any lawyer is bound by a fiduciary responsibility to present a case in as vigorous a manner as is necessary and reasonable to guard the client’s interests. In the case of a criminal defendant, it’s clearly in their interest not to be convicted, or to receive as light a penalty as possible. PDs, unlike prosecutors, do not have the discretion or responsibility to abandon cases “in the interest of justice”.

In the case of plea deals, it may prevent the client from a harsher penalty but further enables the deterioration of the check on the prosecutors by prematurely ending the case.

The existence of plea deals as a way for resolving cases is a sheerly pragmatic matter. It can certainly be argued quite cogently that the ubiquity of disposition by plea is indeed a “deterioration” of the notion of making the State prove cases “beyond a reasonable doubt.” However, plea deals primarily exist because the courts don’t have the resources to try every criminal charge that gets lodged. They don’t exist because of public defenders; and eliminating the public defender would not improve the system too much on this score. It’s possible that more cases would go to trial—we’ve all had criminal cases where the prosecution turns over its disclosures and we think to ourselves “there’s no way we’re getting this person off”, and then attempt to talk the defendant into pleading—but those defendants wouldn’t likely fare too well at trial either without representation. One important function of lawyers in general is not only “advocacy” but “counsel”—we are there to tell the defendant when it might be good to throw in the towel.

Do we get it wrong sometimes? It’s certainly possible, but then again neither PDs nor appointed defense counsel often have a huge amount of money or manpower available to exhaustively re-investigate each case. Fixing the “plea deal” problem would involve a significant investment in the court system in general, not limited to the defender’s office.