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Careers in Criminal Justice: Law - Criminal Defense

attorneys public defender defenders

Individuals who enter the field of criminal defense have a strong interest in helping people, and believe in safeguarding the Constitution. Such individuals generally have a dedication to serving the underrepresented and to protecting individuals against the power of the state. The majority of criminal defense lawyers work as public defenders, contract attorneys, or assigned counsel, and serve those too poor to retain private counsel. This is primarily because the majority of those accused of crime are poor people. According to a 1997 National Legal Aid and Defender Association report, public defenders and court appointed counsel typically represented over 75 percent of the criminally accused in the United States (Hartmann, p. 2).

While taken for granted today, the right to counsel for indigent defendants is a relatively new concept and arose over a long period of time. The Sixth Amendment of the Bill of Rights of the U.S. Constitution grants any individual accused of a crime the right to effective assistance of counsel. However, for many years this constitutional guarantee applied only to criminal defendants who had the financial resources to hire a private attorney. It was not until 1963, in the case of Gideon v. Wainwright, 372 U.S. 335 (1963), that the right to appointed counsel was extended to all indigent defendants facing a felony in state court, and it was not until 1972 that this right was extended to misdemeanor cases involving a sentence of imprisonment (Argersinger v. Hamlin, 407 U.S. 25, 1972).

In response to these decisions, federal and state governments have devised a variety of means to provide legal services to indigent criminal defendants. There are three basic models for the delivery of legal services to the indigent criminally accused. Public defender programs are public or private nonprofit organizations with a staff of full-time attorneys who provide defense services to indigent defendants. Some of the larger defender organizations have specialized practices in areas such as juvenile defense, capital defense, and appellate work. The second model is the assigned counsel system, in which individual criminal cases are assigned to private attorneys on a systematic or ad hoc basis. In this system, the judge assigns the case either to an attorney in the courtroom, one who is on a special list, or the first attorney who comes to mind. The state or county compensates these attorneys on a case-by-case basis. The third model is that of a contract system in which states contract with an individual attorney, group of attorneys, or some other entity to provide representation in a certain number of cases or all cases within a jurisdiction. Many states use a combination of these models.

Representation on the federal level is similar to that on the state level. There are assigned counsel, contract attorneys, and federal public defender organizations. Attorneys hired to work as federal defenders are experienced criminal or trial attorneys from state or local public defender organizations or large private firms. This is because federal criminal cases tend to be complex, requiring more sophisticated trial skills. Federal defenders work on issues involving organized crime, large-scale drug cases, white-collar crime, or fraud cases.

Attorneys in all three types of defender systems have suffered the consequences of under-funding by both state and federal governments. A 1992 report revealed that the defense function received less than one-third of the federal, state, and local funds expended by the prosecution (Bureau of Justice Statistics, p. 2). A 1997 report by the National Legal Aid and Defender Association concluded that "[t]here is a crisis in defender services. Historically underfunded, the strain on the indigent defense component of the criminal justice system has been exacerbated by the federal government's declared 'war on drugs' fought with a zero tolerance policy that promotes the criminalization of more behavior and Draconian penalties (such as 'three strikes' and mandatory sentencing laws) . . . . This failure to fairly fund the indigent defense component of the criminal justice 'eco-system' has resulted in 'overburdened public defenders, the incarceration of the innocent, court docket delays, prison overcrowding, and the release of violent offenders into the community' " (Hartman, p. 1).

Despite the financial concerns of public defender organizations, they have long been recognized as a training ground for criminal defense attorneys. Many of the larger offices provide excellent training programs and ongoing supervision. Moreover, because most courts require contract or assigned attorneys to have some experience, most defense attorneys begin their careers at public defender offices. Public defender organizations hire graduates out of law school and seek those who have had internships in similar organizations, trial skills, and a demonstrated commitment to public interest law. Salaries for entry-level public defenders range from $29,000 to $44,000 (National Law Journal, 1 June 1998, p. B14). New public defenders have a great deal of early responsibility, and handle their own cases from the beginning. Typically, new public defenders handle misdemeanors for several years and then advance to felonies.

Defense attorneys spend most of their day in court. They represent their clients at arraignment, bail hearings, pretrial motions, plea bargaining, trials, and sentencing hearings. Defense attorneys also evaluate the strengths and weaknesses of the prosecutor's case and advise their clients about the legal consequences of certain actions. They are called upon to listen closely to the client and explain the law and the development of the case and strategies in terms the client can understand. Defense attorneys also engage in plea bargaining and can negotiate for probation, a drug treatment program, or other alternatives to incarceration. Trial work is also an important part of the defender's job, and they use cross-examination and other techniques to reveal weaknesses in the state's case. Criminal defense attorneys also conduct investigations of crime scenes, interview witnesses, and perform legal research. They draft motions to suppress evidence or confessions, and conduct suppression hearings.

In United States v. Wade, 388 U.S. 218, 256 (1967), Supreme Court Justice White, comparing defense attorneys with prosecutors, stated that "defense counsel has no comparable obligation to ascertain or present the truth. Our system assigned him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty." This duty to prevent conviction and fight against violations of the defendants' rights must not, however, exceed the attorney's ethical obligation. Defense attorneys cannot mislead the court by providing false information, nor can they knowingly allow the use of false testimony. This weighty responsibility is clearly stressful and, combined with heavy caseloads and limited resources and the knowledge that the client's freedom is at stake, leads to tremendous burnout in the field. A 1978 study of criminal defense attorneys found that those who enjoyed their role of defender in criminal cases stayed with the public defender's office because of the financial security. Those who left did so after two to three years, and far more went to the prosecutor's office than to private practice in the criminal field (Wice, p. 85). Some public defenders, however, move on to the appellate or federal level. Many of those who stay on as public defenders at the trial level are sustained by the fact that they are playing an essential role in the adversarial system of this country and, in so doing, are protecting the rights of all citizens.

Careers in Criminal Justice: Law - Bibliography [next] [back] Careers in Criminal Justice: Law - The Prosecuting Attorney

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