By Steven K. Smith

Carol J. DeFrances

BJS Statisticians

Court-appointed legal representation

for indigent criminal defendants plays a

critical role in the Nation's criminal justice system. In 1991 about threequarters of State prison inmates and

half of Federal prison inmates reported

that they had a court-appointed lawyer

to represent them for the offense for

which they were serving time. In 1989,

nearly 80% of local jail inmates indicated that they were assigned an attorney to represent them for the charges

on which they were being held. This

report presents selected findings

drawn from Bureau of Justice Statistics

(BJS) surveys containing information

related to indigent defense for criminal

defendants. 

Types of delivery systems

Although the U.S. Supreme Court has

mandated that the States must provide

counsel for indigents accused of crime,

the implementation of how such services are to be provided has not been

specified. The States have devised

various systems, rules for organizing,

and funding mechanisms for indigent

defense programs. As a consequence, each State has adopted its

own approach for providing counsel for

poor defendants.

Three systems have emerged throughout the country as the primary means

to provide defense services for indigent defendants.

Public defender programs are public or

private nonprofit organizations with fullor part-time salaried staff. Local public

defenders operate autonomously and

do not have a central administrator.

By contrast, under a statewide system,

an individual appointed by the governor, a commission, council, or board is

 charged with developing and maintaining a system of representation for each

county of the State. In 30 States a

public defender system is the primary

method used to provide indigent counsel for criminal defendants. (For a

more detailed description see Statewide Defender Programs: The Lay of

the Land, National Legal Aid and Defender Association, 1992.)

Assigned counsel systems involve the

appointment by the courts of private

attorneys as needed from a list of

Bureau of Justice Statistics

Selected Findings

 States and localities use several

methods for delivering indigent defense services: public defender programs, assigned counsel, and

contract attorney systems. 

 Twenty-eight percent of State court

prosecutors reported that their jurisdictions used public defender programs exclusively to provide indigent

counsel. 

 In 1990 State and local governments spent approximately $1.3 billion on public defenders services. 

In 1979 this figure was about $300

million. 

 About three-fourths of the inmates

in State prisons and about half of

those in Federal prisons received

publicly-provided legal counsel for the

offense for which they were serving

time. 

 In 1992 about 80% of defendants

charged with felonies in the Nation's

75 largest counties relied on a public

defender or on assigned counsel for

legal representation.

 Little current information is available regarding the workload, staffing,

procedures, or policies for indigent

defense services across the Nation.

Highlights

U.S. Department of Justice

Office of Justice Programs

February 1996, NCJ-158909

Indigent Defense 
available attorneys. Assigned counsel

systems consist of two types. Ad hoc

assigned counsel systems are those in

which individual private attorneys are

appointed by an individual judge to

provide representation on a case-bycase basis. Coordinated assigned

counsel systems employ an administrator to oversee the appointment of

counsel and to develop a set of standards and guidelines for program

administration.

Contract attorney systems involve governmental units that reach agreements

with private attorneys, bar associations, or private law firms to provide indigent services for a specified dollar

amount and for a specified time period.

Use of different types of counsel 

for indigent defense

Traditionally, assigned counsel systems and public defenders have been

the primary means to provide legal

representation to the poor. In 1992,

64% of State court prosecutors' offices

nationwide reported a public defender

program in their jurisdiction and 58%

indicated an assigned counsel system.

In 1992, 25% of prosecutors' offices 

indicated that their district contracted

with law firms, private attorneys, or 

local bar associations to provide 

services to indigent offenders.

In 1992 virtually all of the State court

prosecutors' offices nationwide (98%)

had some felony cases in which an indigent defendant was provided an attorney. A majority of prosecutors'

offices (59%) reported only one

method was used in their jurisdiction to

provide services to poor offenders (table 1).

Among all prosecutorial districts, a

public defender program was used exclusively in 28%, an assigned counsel

system in 23%, and a contract attorney

system in 8%. Forty-one percent of

the prosecutors' offices reported a

combination of methods were used in

their jurisdiction. The most prevalent

was a combination of an assigned

counsel system and a public defender

program reported by 23% of the

offices. 

In the Nation's 75 largest counties,

43% of the State court prosecutors' offices reported both an assigned counsel system and a public defender

program operating in their jurisdiction.

State and local expenditures for

public defense 

In 1979 State and local governments

spent more than $350 million to provide legal counsel to indigent defendants (table 2). This included

expenditures for civil litigation. In

1990, State and local governments

spent an estimated $1.3 billion for

these services. In constant 1990 dollars, the State and local expenditures

doubled for public defense from 1979

to 1990. In 1979, State-level expenditures represented about 36% of the

overall spending for public defense. In

1990, State contribution accounted for

45% of the State and local total. 

Type of legal representation reported by prison and jail inmates 

State prison inmates

Ninety-seven percent of inmates in

State correctional facilities reported

that they had an attorney to represent

them for the offense for which they

were incarcerated. Seventy-six percent of those who had an attorney

were represented by a public defender

or assigned counsel. Counsel assigned by the court may include legal

representation provided by a public

agency or by private attorneys whom

the court pays (table 3).

Among those represented by counsel,

79% of black State prison inmates re2 Indigent Defense

Table 1. Indigent defense delivery

systems used by local jurisdictions,

1992

Type of system

Percent of prosecutors' offices 

indicating the 

type of counsel

provided by their

jurisdiction

Total 100%

Public defender 

 program only 28

Assigned counsel 

 system only 23

Assigned counsel 

 and public defender 23

Contract attorney

 system only

 

8

Public defender 

 and contract

 

8

Assigned counsel, public

 defender and contract 6

Assigned counsel 

 and contract

 

3

Other 1

Number of offices 2,352

Note: Data on type of counsel provided were

reported by 98.2% of the prosecutors' offices.

Data source: National Prosecutors Survey,

1992.

Legal mandate

The sixth amendment to the U.S.

Constitution establishes the right to

counsel in Federal criminal prosecution. Through a series of cases, the

U.S. Supreme Court has extended

the right to counsel for indigent defendants to State criminal prosecution. A landmark decision was

made in 1963 when the Court held in

Gideon v. Wainwright1 that a defendant charged with a felony, including

state crimes, had the right to counsel. Almost ten years later, Argersinger v. Hamlin2

 extended an

indigent's right to counsel to all criminal prosecutions, felony or misdemeanor, which carry a sentence of

imprisonment.

1

Gideon v. Wainwright 372 U.S. 335 (1963).

2

Argersinger v. Hamilin 407 U.S. 25 (1972).

Federal Defender Services

The Federal justice system provides

indigent defense to eligible defendants through the Federal Defender

Services, community defender organizations, and private attorneys as

established by the Criminal Justice

Act of 1964, as amended. For more

detailed information see, Federal

Defender Services: A Status Report, Administrative Office of the

U.S. Courts, 1993.
ported they had been represented by

an assigned attorney. Among white

State prison inmates, 73% said they

had been represented by an assigned 

attorney. 

Among State prison inmates incarcerated for property offenses, 85% had 

an assigned counsel; for violent offenses, 74%; and for drug offenses,

70% (table 4).

Federal prison inmates

Ninety-nine percent of Federal inmates

reported that they were represented by

counsel. Forty-three percent of those

who had an attorney, hired private

counsel (table 3). Nearly 50% of white

Federal inmates hired private counsel,

as did 33% of black Federal inmates.

Almost two-thirds of black Federal 

inmates were assigned counsel by the

court.

Overall, among those Federal inmates

serving time for violent offenses, 72%

had court assigned counsel; for property offenses, 53%; and for drug offenses, 48% (table 4).

Local jail inmates

Eighty-three percent of jail inmates

said they had a lawyer to represent

them for the offense for which they

were being held. Among those who

had legal representation, about threefourths had assigned counsel (table

5). About three-fourths of those in jail

for a drug or violent offense relied on

assigned counsel. Among those

charged with property offenses, 85%

had assigned counsel (table 6). 

About two-thirds of those jail inmates

with hired counsel said they first met

with their attorney either before admission or during the first week after admission (table 7).

 Indigent Defense 3

Table 4. State and Federal inmates assigned counsel, 

by race and type of offense, 1991

Percent of inmates 

with court assigned counsel

Most serious

offense

State Federal

All* White Black All* White Black

Violent 

 offenses 74% 71% 77% 72% 67% 75%

Murder 66 65 67 74 66 70

Negligent

 manslaughter 64

59

67 -- -- --

Rape 73 67 80 -- -- --

Robbery 81 80 82 82 83 81

 Assault 78 73 82 63 -- --

Property 

 offenses 85%

 

 83%

 

88% 53% 44% 70%

Burglary 86 84 89 80 -- --

Larceny 85 82 88 62 -- --

Motor 

 vehicle theft 89 87 93 -- -- --

Drug 

 offenses 70% 65% 74% 48% 43% 60%

Drug 

 possession 73 71 75 49 47 53

Drug

 trafficking 68 62 73 49 42 61

Other drug 73 52 83 45 36 59

Public-order 

 offenses 75% 72% 78% 55% 50% 63%

Weapon 72 65 78 60 53 65

Other 75 74 79 49 47 57

Other 

 offenses 83% 81% 84% 45% 39% --

Number of 

 inmates 675,659 334,165 317,889 52,485 33,228 16,508

Note: Current offense data were available for 99.4% of State prison inmate and 99.7% of Federal prison inmates who had legal representation. Does not include 2% of State and 3% of Federal inmates with

counsel who used a combination of assigned and private counsel. Also

excludes those inmates who said they did not have counsel. Table

does not present all individual offense categories.

*Includes all races.

--Sample size was too small to yield statistically reliable results.

Data sources: 1991 Survey of Inmates in State Correctional Facilities

and 1991 Survey of Inmates in Federal Correctional Facilities.

Table 3. Type of counsel representing inmates 

in Federal and State correctional facilities, 1991

State Federal

Percent with lawyers Percent with lawyers

All* White Black All* White Black

Counsel

Hired 22% 25% 19% 43% 49% 33%

Assigned 76 73 79 54 48 64

Both hired 

 and assigned 2 2 2

 

3 3 3

Number 

 of inmates 679,590 336,492 319,324 52,645 33,299 16,578

Note: Data on type of legal representation available for 99.8% of

State prison inmates and 99.7% for Federal. Totals do not include 3.1% State prison inmates and 1.2% of Federal who did

not have legal representation. 

*Includes all races.

Data sources: 1991 Survey of Inmates in State Correctional Facilities and 1991 Survey of Inmates in Federal Correctional

Facilities.

Table 2. State and local expenditures (in thousands) for

public defense,* 1979-1990

1979 1985 1988 1990

Total $357,030 $711,243 $1,012,831 $1,336,266

State 127,892 297,555 427,788 603,674

Local 239,159 433,068 617,910 788,437

Counties 196,296 350,603 480,515 605,708

Municipalities 44,638 85,782 142,946 189,362

Note: Expenditures presented are not adjusted for inflation.

*Public defense includes legal counsel and representation 

in either criminal or civil proceedings as provided by public 

defenders and other government programs. Detail may not 

add to total because of rounding.

Sources: Justice Expenditure and Employment in the U.S., 1979

(table 40); 1985 (table 35); 1988 (table 35); 1990 (tables 2 and 4).

Table 5. Type of counsel representing inmates in local jails, 1989 

Percent of local jail

inmates with counsel

Inmates All* White Black

Counsel

Hired 22% 25% 19%

Assigned 78 75 81

Number of 

 inmates 308,976 169,219 130,341

Note: Data on type of counsel were reported

for 99.9% of inmates who had some type of

legal representation. 

*Includes all races.

Data source: 1989 Survey of Inmates in Local Jails.
Felony defendants

The BJS State Court Processing Statistics program collects data on a

sample of felony defendants in State

courts in the Nation's 75 largest counties. Data from 1992 indicated that

about 80% of the felony defendants

relied on a public defender or on assigned counsel for legal representation

(table 8). 

Table 6. Jail inmates assigned 

counsel, by race and offense, 1989

Most serious

offense

Percent of jail inmates with

court assigned counsel

 All* White Black

Violent offenses 77% 76% 78%

Murder 70 74 68

Negligent

 manslaughter 52 54 --

Rape 86 87 --

Robbery 82 84 81

 Assault 77 77 77

Property 

 offenses 85% 83% 87%

Burglary 86 84 88

Larceny 86 84 88

Motor 

 vehicle theft 88 84 93

Drug offenses 74% 70% 78%

Drug possession 74 72 76

Drug trafficking 74 69 79

Other drug 79 75 89

Public-order 

 offenses 71% 68% 78%

Weapon 64 55 78

Other 71 69 78

Other offenses 77% 82% 73%

Number of 

 inmates 308,486 168,812 130,258

Note: Current offense data were available for

99.8% of local jail inmates with representation.

Table does not present all individual offense

categories.

*Includes all races.

--Sample size was too small to yield statistically

reliable results.

Data source: 1989 Survey of Inmates in Local

Jails.

Table 7. When jail inmates first

talked with lawyer by type of 

counsel, 1989

Percent of jail

inmates

First met 

with lawyer

Hired

counsel

Assigned

counsel

Before admission 28% 13%

During 1st week

 after admission 41 34

During 2nd week 

 after admission 10 15

More than 2 weeks

 after admission 19 34

Don't know 3 4

Number of inmates 68,409 230,599

Note: Data available on when first met with

lawyer for 98.9% of those with hired counsel and 96.3% of those with assigned counsel. Detail may not sum to 100% because

of rounding.

Data source: 1989 Survey of Inmates in

Local Jails.

Table 8. Type of counsel at 

adjudication for felony defendants

in the Nation's 75 largest counties,

1992

Counsel

Percent of felony

defendants

Public defender 59%

Assigned counsel 22

Hired counsel 18

Pro se 1

Other 1

Number of defendants 33,017

Note: Data available for 59.8% of the 55,246

cases. Detail may not sum to 100% because

of rounding.

Data source: State Court Processing Statistics program: National Pretrial Reporting

Program, 1992.

Sources and methodological notes

Findings are drawn from BJS surveys: the Survey of Inmates in Local Jails, 1989; the Survey

of Inmates in State Correctional Facilities, 1991;

and the Survey of Inmates in Federal Correctional Facilities, 1991. 

Respondents in State and Federal correctional

facilities and in local jails were asked “Did you

have a lawyer for any of the offenses?” and if so,

“Did you hire your own lawyer or was one assigned by the court?" Respondents in local jails

were asked “When did you first talk to a lawyer

about the charge?” 

Data on felony defendants in the Nation’s 75

largest counties in table 8 were obtained from

the State Court Processing Statistics program.

This series tracks felony defendants through the

criminal justice system including type of legal

representation the defendant had at adjudication.

In 1992 National Survey of State Court Prosecutors asked "Were any felony defendants in your

districts provided an attorney on grounds of indigency?" and if so, "Which type of defense delivery system was used?"

The Bureau of Justice Statistics is the statistical arm of the U.S. Department of Justice. Jan

M. Chaiken, Ph.D., is director. BJS Selected

Findings summarize statistics about a topic of

current concern from both BJS and non-BJS

datasets. Priscilla Middleton and Tom Hester

edited the report. Tracy Snell provided statistical review.

February 1996, NCJ-158909

_____________________________________________________________________________________________________ __

Washington, DC 20531

Indigent Defense

BULK RATE

POSTAGE & FEES PAID

DOJ/BJS

Permit No. G-91

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Statistics

Official Business

Penalty for Private Use $300