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Research Report

Eligible for Justice: Guidelines for Appointing Defense Counsel

  • Brennan Center for Justice
Published: September 16, 2008

For more than four decades, the Supreme Court has been clear: the Constitution requires states to provide a lawyer to people facing criminal charges who are unable to afford their own counsel. Unfortunately, neither the Supreme Court, nor any other source, has detailed how communities should determine who can afford counsel and who cannot. As a result, eligibility is determined differently almost wherever one looks: some communities don’t have any official screening processes at all, while others apply widely varying criteria and procedures.

The result has been a policy disaster.

Without fair standards for assessing eligibility, some people who truly cannot afford counsel without undue hardship are turned away. This may be because a relative posted bond for them, or they have a house or a car that they could sell to pay for a lawyer. 

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Yet these arbitrary assumptions about who can pay and who cannot are devastating to families and communities. Families that truly cannot afford to pay for counsel may have to go without food in order to pay legal fees. Wage-earners forced to sell the vehicle they use to commute to work, in order to pay for counsel, may lose their jobs. People who simply cannot come up with the necessary resources end up trying to represent themselves, often pleading guilty because they are not aware of their rights.

On the other hand, some individuals receive counsel who should not. In these times of fiscal austerity, every dollar spent representing someone who can afford to pay for counsel robs resource-poor indigent defense systems of money that could be better spent representing people who are truly in need. The result is that indigent defense systems already stretched to their breaking points—with enormous caseloads for each attorney, and no funding for essential functions such as investigators and experts—are stretched further. This, too, results in constitutional violations, as people entitled to adequate representation end up getting a lawyer who cannot provide them with a meaningful defense.

Finally, without clear guidelines for how to determine who should be appointed counsel, decisions whether to appoint counsel hang on the serendipity of where an individual lives, the personal characteristics of the decision-maker, institutional conflicts of interest, or any of the other improper factors that substitute for more reliable standards and procedures.