Study Exposes Lack of Standards for Appointing Defense Counsel

Today the Brennan Center for Justice at NYU School of Law releases a new report, "Eligible for Justice," exposing the lack of standards for determining who is eligible for court-appointed defense counsel. In a national study, the Brennan Center found that many jurisdictions use flawed screening processes to separate those who can afford counsel from those who cannot, and as a result are denying government-funded defense counsel to people who should receive it. The report covers unfair practices in effect in states including Florida, Tennessee, Ohio, and Nebraska, and highlights best practices in others, like Massachusetts, Washington, and Vermont.

The landmark Supreme Court case Gideon v. Wainwright requires that states provide counsel to all persons who are charged with felony crimes and who are unable to afford it without substantial hardship. Wrongful denials violate the Sixth Amendment to the United States Constitution. Yet the states (and their subdivisions) have been provided with little instruction on how to determine which individuals are genuinely unable to pay for counsel.

"Eligibility for defense counsel is determined differently almost everywhere we looked," says Laura Abel, an author of the report and Deputy Director of the Brennan Center's Access to Justice Program.
"It depends on the county you live in, or the judge hearing your case,
or the mood of the prosecutor that day. The result is a policy
disaster."

In Florida, Tennessee and Wisconsin, courts routinely deny requests for counsel if a defendant posts bond, regardless of whether he has money left over to pay for counsel. In Arizona; Collin County, Texas; Florida; or New Hampshire counsel may be denied because a defendant has a house or car, regardless of whether he can sell it to pay for counsel. In too many places, conflicts of interest among prosecutors, defense attorneys, and judges also influence who receives an attorney.

"When a court makes unwarranted assumptions about who can pay for an attorney, it can be truly devastating. People may have to go without food, or sell the car they use to get to work, in order to pay for the lawyer that our Constitution says should be provided to them," says Ms. Abel. Some individuals are forced to proceed without a lawyer. "A simple, consistent screening process can protect people who need counsel and save money in the long run."

The report pulls together existing standards, the views of public defenders, and court decisions to provide an easy-to-follow blueprint for government officials who want to run a screening process that complies with the Sixth Amendment, can be adapted to different jurisdictions, and conserves taxpayer dollars.