At felony case termination, court-appointed counsel represented 82%
of State defendants in the 75 largest counties in 1996 and 66% of
Federal defendants in 1998
Percent of defendants
Felons Misdemeanants
75 largest counties
Public defender 68.3% --
Assigned counsel 13.7 --
Private attorney 17.6 --
Self (pro se)/other 0.4 --
U.S. district courts
Federal Defender Organization 30.1% 25.5%
Panel attorney 36.3 17.4
Private attorney 33.4 18.7
Self representation 0.3 38.4
Note: These data reflect use of defense
counsel at termination of the case.
--Not available.
* Over 80% of felony defendants charged with a violent crime in the
country's largest counties and 66% in U.S. district courts had publicly
financed attorneys.
* About half of large county felony defendants with a public defender
or assigned counsel and three-quarters with a private lawyer were
released from jail pending trial.
Defendants with publicly financed or private attorneys had
the same conviction rates
Case Public Private
disposition counsel counsel
75 largest counties
Guilty by plea 71.0% 72.8%
Guilty by trial 4.4 4.3
Case dismissal 23.0 21.2
Acquittal 1.3 1.6
U.S. district courts
Guilty by plea 87.1% 84.6%
Guilty by trial 5.2 6.4
Case dismissal 6.7 7.4
Acquittal 1.0 1.6
* In State courts in the largest counties, 3 in 4 defendants with
either court-appointed or private counsel were convicted; in Federal
courts 9 in 10 felony defendants with public or private attorneys were
found guilty.
* In Federal court 88% of felony defendants with publicly financed
attorneys and 77% with private lawyers received a prison sentence.
Except for State drug offenders, Federal and State inmates received
about the same sentence on average with appointed or private legal
counsel
State prison Federal prison
inmates inmates
Public Private Public Private
Offenses counsel counsel counsel counsel
Total 155 mo 179 mo 126 mo 126 mo
Violent 223 231 164 162
Property 118 128 59 59
Drug 97 140 126 132
* Three-fourths of State and Federal inmates with an appointed
counsel and two-thirds with a hired counsel had pleaded guilty.
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Almost all persons charged with a felony in Federal and large State
courts were represented by counsel, either hired or appointed. But
over a third of persons charged with a misdemeanor in cases terminated
in Federal court represented themselves (pro se) in court proceedings
prior to conviction, as did almost a third of those in local jails.
Indigent defense involves the use of publicly financed counsel to
represent criminal defendants who are unable to afford private counsel.
At the end of
their case approximately 66% of felony Federal defendants and 82%
of felony defendants in large State courts were represented by public
defenders or assigned counsel.
In both Federal and large State courts, conviction rates were the same
for defendants represented by publicly financed and private attorneys.
Approximately 9 in 10 Federal defendants and 3 in 4 State defendants in
the 75 largest counties were found guilty, regardless of type of attorney.
However, of those found guilty, higher percentages of defendants with
publicly financed counsel were sentenced to incarceration. Of defendants
found guilty in Federal district courts, 88% with publicly financed counsel
and 77% with private counsel received jail or prison sentences; in large
State courts 71% with public counsel and 54% with This report uses
information from Bureau of Justice Statistics (BJS) data collections
that, although gathered for wider purposes, present information about
the type of counsel defendants and inmates used in their criminal case.
Data are from --
* U.S. district court statistics for persons accused of Federal crimes
(fiscal year 1998),
* pretrial records for felony defendants in the Nation's 75 largest
counties (1992-96),
* State court prosecutors' information gathered nationwide (1990-94),
* the Administrative Office of the U.S. Courts (1998), and
* personal interviews with nationally representative samples of
inmates in local jails (1996) and State and Federal prisons (1997).
For more information on the data used in this report, see Data sources,
page 11.
In this report the type of counsel for Federal and State defendants
was the type at case termination. Other counsel may have represented
the defendant earlier. Data describing counsel at filing or initiation
were not used because they were incomplete or unavailable. The terms
"publicly financed attorneys," "public attorney," and "appointed attorney"
used in this report include public defenders, panel attorneys, assigned
counsel, contract attorneys, and any other government-funded attorney
programs for those unable to provide their own attorney.
Right to counsel is in the U.S.
Constitution
The sixth amendment to the U.S. Constitution, a part of the Bill of
Rights, provides that "In all criminal prosecutions, the accused
shall...have the Assistance of Counsel for his defence."
In the 1960's and 1970's, the Supreme Court expanded this clause by
recognizing a constitutional right to counsel at public expense for
those unable to pay a private attorney. In Gideon v. Wainwright
(372 US 335 (1963)) the Supreme Court held that the sixth amendment
requires indigent defendants in State court proceedings to have appointed
counsel. Gideon involved a felony, but in another case, Argersinger
v. Hamlin (407 US 25 (1972)), the Court ruled that an indigent defendant
may not be imprisoned, even for a misdemeanor, unless afforded the right
to counsel.
Two types of programs provide
indigent representation in Federal
cases
Pursuant to the Criminal Justice Act of 1964 (18 USC ' 3006 A), the
Defender Services Division of the Administrative Office of the U.S.
Courts oversees spending for Federal defendants through two types of
programs:
* Panel attorneys, appointed by the court from a list of private
attorneys on a case-by-case basis. At the end
of 1998 all 94 U.S. district courts used such panels, including 20
districts in which only panel attorneys were used.
* Federal defender organizations (FDO's), take one of two forms:
--Federal public defender organizations staffed with Federal
Government employees and headed by a public defender appointed by
the court of appeals
or
--Community defender organizations that are incorporated, nonprofit
legal service organizations receiving grants from the Administrative
Office of the U.S. Courts.
At the end of 1998, 63 Federal or community defender organizations
served 74 of the 94 U.S. district courts.***Footnote 1: Administrative
Office of the U.S. Courts, Judicial Business of the United States
Courts, 1998.***
Workloads rose more than
spending for the Defender
Services Division
The panel attorney and FDO programs can represent defendants at any
time from arraignment through appeal and during supervised release.
The Defender Services Division counts use of these publicly financed
attorneys in terms of representations.
Total representations by panel attorneys and FDO's rose 26% from
80,200 in fiscal year 1994 to 101,200 in fiscal 1998. The number of
criminal representations grew substantially during the period (25%),
with the FDO workload increasing 35% and the panel attorney workload 17%.
The Defender Services Division estimates that court-appointed counsel
represent 85% of criminal defendants at some time during the conduct of
their case (unpublished correspondence).
From fiscal year 1994 through fiscal year 1998, spending grew 20% in
constant 1998 dollars from $293 million to $353 million.
Criminal Justice Act obligations, 1994-98 (in
1998 dollars)
1994 $293,342,000
1995 $296,794,000
1996 $316,884,000
1997 $338,028,000
1998 $352,837,000
Note: An obligation is generally defined as a
legal commitment for goods or services ordered
or received by the government.
Source: Unpublished data, Administrative Office
of the U.S. Courts, Defender Services Division.
All felony defendants in cases
terminated in U.S. district court
had an attorney in 1998
Nearly all defendants facing a felony charge terminated in U.S.
district court in 1998 and almost two-thirds with a misdemeanor charge
had lawyers to represent them in court. Felony defendants were more
likely than misdemeanants to have publicly financed counsel. Sixty-six
percent of those facing a felony charge and 43% with a misdemeanor
charge had used either a FDO or panel attorney.
Defendants charged with a felony (33%) were also more likely than those
charged with a misdemeanor (19%) to have private representation. About a
third of misdemeanants represented themselves during judicial proceedings.
White collar Federal defendants
most likely to use private counsel
Most likely to have a private attorney were defendants charged with a
white collar offense, primarily fraud or a regulatory offense. Having
private counsel were 43% of fraud defendants and 63% of those charged
with a regulatory offense -- violations of laws pertaining to agriculture,
antitrust, food and drug, transportation, civil rights, communications,
customs, and postal delivery. By contrast, about 2 in 10 defendants
charged with a violent crime used private attorneys.
Type of counsel
Disposition Public* Private
Guilty
By plea 87.1 % 84.6 %
By trial 5.2 6.4
Acquittal 1.0 1.6
Dismissal 6.7 7.4
Number of
defendants 37,188 18,709
*Includes Federal Defender Organizations
(FDO's) and panel attorneys.
Source: Administrative Office of the U.S.
Courts, Criminal Master File, FY 1998.
9 in 10 Federal defendants found
guilty regardless of type of attorney
In 1998, 92% of defendants with public counsel and 91% with private
counsel either pleaded guilty or were found guilty at trial.
Type of counsel
Sentence Public* Private
Incarceration 87.6 % 76.5 %
Probation only 12.1 22.4
Fine only 0.3 1.1
Number of defendants 33,068 16,622
*Includes Federal Defender Organization
(FDO's) and panel attorneys.
Source: Administrative Office of the U.S.
Courts, Criminal Master File, FY 1998.
Incarceration more likely for Federal
defendants with public counsel than
for those with private attorneys
Defendants found guilty after using a FDO or panel attorney were
more likely to be sentenced to prison (about 88% of defendants found
guilty) than those with private attorneys (77%). The difference in
incarceration rates is explained in part by the likelihood of prison
after conviction for different types of offenses. As has been shown,
public counsel represented a higher percentage of violent, drug, and
public-order (excluding regulatory crimes) offenders, who were very
likely to receive a sentence to serve time, and private counsel
represented a higher percentage of white collar defendants, who are not
as likely to receive incarceration sentences.***Footnote 2: Compendium
of Federal Justice Statistics, 1998, BJS report, NCJ 180258, table 5.1.***
Federal defendants with private
attorneys had longer average
sentences than defendants
with publicly financed attorneys
Defendants with private attorneys were sentenced to an average of 62
months in prison, and those with publicly financed attorneys, to 58
months. The primary differences in average sentence length were between
offenses, not between the types of attorney. Other factors not shown
may also have had a role.
Among those sentenced to incarceration, drug offenders who used
publicly financed counsel had shorter sentences on average than
those who used private attorneys -- an average of 75 months compared
to 84 months.
Among Federal violent and regulatory offenders, those with private
attorneys received shorter sentences than those with public lawyers.
Violent offenders who used private attorneys were given 74 months on
average, and those with public counsel, 84 months. Similarly, those
sentenced for a regulatory offense with a private lawyer had an average
sentence of 23 months, and those with a public attorney, 33 months.
Most criminal defendants are tried
in State courts
The bulk of the task of providing counsel for the indigent has fallen
to lawyers working in State courts. Approximately 95% of criminal
defendants are charged in State courts, with the remainder tried in
Federal courts.
Two-thirds of State prosecutors
reported that their courts used
public defenders
Three systems now serve as the primary means for providing defense
services to indigent criminal defendants charged in State court.
* Under a public defender system, salaried staff attorneys render
criminal indigent defense services through a public or private non-
profit organization or as direct government employees. In 1994, 68%
of State court prosecutors reported that a public defender program was
used to defend indigents in cases they prosecuted.
* In an assigned counsel system, courts appoint attorneys from a
list of private bar members who accept cases on a judge-by-judge,
court-by-court, or case-by-case basis. About 63% of prosecutors
in State criminal courts reported an assigned counsel program in
their jurisdiction.
* In contract attorney systems, private attorneys, bar associations, law
firms, groups of attorneys, and nonprofit corporations provide indigent
services based on legal agreements with State, county, or other local
governmental units. Approximately 29% of prosecutors indicated that in
their jurisdiction contracts were awarded to attorney groups to provide
indigents with legal representation.
Although the Supreme Court in Gideon mandated that the States must provide
counsel for indigents accused of serious crimes, the court did not specify
how such services were to be provided. State court prosecutors increasingly
report that their jurisdictions use more than one type of program to defend
indigents. In 1990, 31% of prosecutors' offices reported that their courts
used a combination of public defenders, assigned counsel, and contract
attorneys; in 1994 -- the last time BJS asked prosecutors about their
indigent defense systems -- 53% of the courts relied on more than
one program.
In 1994 about 6% of prosecutors reported the court of their jurisdiction
using all three systems: public defenders, assigned counsel, and contract
attorneys. The most prevalent combination of two programs was public
defenders and assigned counsel -- indicated by almost a third of
prosecutors' offices.
8 in 10 felony defendants in large
State courts used publicly financed
attorneys
In 1992 and 1996 about 80% of defendants charged with a felony in
the Nation's 75 most populous counties reported having public defenders
or assigned counsel while nearly 20% hired an attorney. Between 1992
and 1996 the percentage of felons in large counties using public defenders
increased from 59% to 68% and the percentage with assigned counsel
decreased from 21% to 14%.
Defendants charged with violent, property, and drug crimes were more
likely to have been represented by public defenders or assigned counsel
(81%-84%) than those charged with public-order offenses (73%).
Public-order offenses include weapons, driving-related, flight/escape,
parole or probation, prison contraband, habitual offender, obstruction of
justice, rioting, libel, slander, treason, perjury, prostitution/pandering,
bribery, and tax law violations.
State defendants with a criminal
record more likely than other
defendants to use public counsel
Felony defendants with prior convictions were more likely than those
without a criminal record to have used a publicly financed lawyer.
According to criminal history records available to the court, 86% with
a previous conviction and 77% without had public defenders or assigned
counsel. When arrested for their current charge, about 86% of those
already on criminal justice status -- for example, on pretrial release,
probation, or parole and 79% not on criminal justice status used
appointed counsel.
Pretrial release less common for
State defendants with public
attorneys
About half of defendants using a public defender or assigned counsel,
compared with over three-quarters employing a private attorney, were
released from jail prior to trial.
Release on bail, a payment to a court to guarantee the defendant's
appearance at subsequent court dates, was awarded to 57% of defendants
with public counsel and to 65% with a private lawyer. Of those allowed
bail, about a third with a public attorney and three-quarters with a hired
attorney were released before adjudication.
About 3 in 4 State defendants with
public or private attorneys were
found guilty
Conviction rates were about the same for defendants with court-appointed
attorneys (75%) and for those who hired private counsel (77%) . Of those
convicted, about 8 in 10 were convicted of a felony and the remainder of a
misdemeanor, regardless of type of attorney.
Almost a quarter of defendants with publicly financed or private attorneys
had their cases dismissed or were acquitted. Just over a fifth had charges
dismissed and around 2% were acquitted.
State defendants with public
counsel sentenced more often to
prison or jail but for shorter terms
than those with private lawyers
Convicted defendants represented by publicly financed counsel were
more likely than those who hired a private attorney to be sentenced to
incarceration. About 7 in 10 with appointed counsel and 5 in 10 with a
private attorney were sentenced to a prison or jail term.
Of defendants sentenced to serve time, those using publicly financed
attorneys had shorter sentences than those with private counsel. Those
with publicly financed attorneys were sentenced to an average of 2 1/2 years
of incarceration and those with private counsel to 3 years.
Similar to drug offenders convicted in Federal court, those sentenced
for drug offenses with court-appointed attorneys had shorter sentences
(2 years) than those who hired their attorneys (3 years). For other
offense categories, sentences were about the same for defendants with
public and private attorneys.
Local jail inmates described their
experiences with the criminal justice
system
In addition to gathering information on defendants in Federal and State
courts, BJS sponsors interviews of inmates in local jails and State and
Federal prisons. Nationally representative samples of inmates describe
their personal experiences with the criminal justice system. Jail inmates
either may be awaiting trial or sentencing or may be serving their sentence;
prison inmates are serving a sentence.
In the 1996 Survey of Inmates in Local Jails, most inmates charged with a
felony reported they were represented by counsel; 97% had an attorney --
77% a court-appointed counsel and 20% a private attorney. Over a quarter of
jail inmates charged with a misdemeanor had no attorney, and over half used
public counsel.
The percent of all jail inmates who had been represented by a publicly
financed attorney rose from 64% in 1989 to 68% in 1996.
Defendants in jail for homicide most
likely to hire their own attorneys
About 40% of jail inmates charged with homicide hired their own attorney,
as did 25% charged with rape or sexual assault, 28% driving while
intoxicated, and 25% weapons offenses.
Public-order defendants were more likely than other defendants to represent
themselves in legal proceedings. About 4 in 10 charged with a public-order
offense such as obstruction of justice, a traffic violation, drunkenness,
or a violation of probation or parole represented themselves. Two in ten
charged with driving while intoxicated reported that they had no lawyer.
1 in 4 convicted jail inmates with
public counsel and with bail set
were released before trial
Whether their attorney was appointed or hired, about three-quarters of
convicted jail inmates charged with a felony had bail or bond set for them.
Of inmates with bail set, a quarter with a court-appointed attorney and
two-thirds with hired attorneys were released on bond before their trial.
The lack of financial assets that prevented hiring a private attorney may
have also impeded posting bond.
Convicted jail inmates with a public attorney were more likely than those
with private counsel to have entered a guilty plea after reaching an
agreement with the prosecutor to plead guilty to a lesser charge or fewer
counts. An estimated 54% with a publicly financed attorney and 49% with a
hired attorney plea bargained.
Prison inmates -- those already
convicted -- reported their
experience with their attorneys
In 1997 publicly financed attorneys had represented in court proceedings
3 in 4 inmates in State prison and 6 in 10 in Federal prison. About 1%-2%
represented themselves rather than using a lawyer.
From 1991 to 1997 the percentage of State inmates with appointed counsel
remained the same, while that of sentenced Federal inmates increased from
54% to 60%.
Prison inmates spoke to court-
appointed lawyers later and less
often than to private attorneys
Of inmates with court-appointed counsel, 37% of State inmates and 54% of
Federal inmates spoke with their attorneys within the first week. In
contrast, of those with hired counsel, about 60% of State inmates and 75% of
Federal inmates had contact with their attorneys within a week of arrest.
Few inmates said they never spoke to their attorneys. Of those with
appointed counsel, about 5% of State inmates and 2% of Federal inmates
did not discuss their cases with an attorney; of those with hired
attorneys, 1-2% never spoke to them.
Inmates with appointed lawyers spoke to them less frequently than inmates
with private lawyers. About 26% of State inmates and 46% of Federal inmates
with court-appointed attorneys discussed their cases with counsel at least
four times. An estimated 58% of State inmates and 65% of Federal inmates who
employed their own attorneys talked with them four or more times about their
charges.
Inmates who used public counsel were less likely to proceed to trial than
those employing private attorneys. A quarter of both State and Federal
inmates with public counsel pleaded not guilty, as did about a third of
those with hired attorneys.
In an Alford plea the defendant agrees to plead guilty because he or she
realizes that there is little chance to win acquittal because of the strong
evidence of guilt. About 17% of State inmates and 5% of Federal inmates
submitted either an Alford plea or a no contest plea, regardless of the type
of attorney. This difference reflects the relative readiness of State courts,
compared to Federal courts, to accept an alternative plea.
State and Federal inmates who used public attorneys were less likely than
those with private attorneys to have been tried by jury. Among State inmates
17% who used appointed counsel and 22% who employed a private lawyer were
tried before a jury. Among Federal inmates 21% of those with appointed
lawyers and 27% with privately hired counsel had jury trials.
State and Federal inmates with public attorneys and those with private
lawyers were equally likely to have pleaded guilty to a lesser offense or
fewer counts than originally charged. About half had plea bargained,
regardless of the type of attorney or the jurisdiction of the court.
State inmates with public attorneys
had shorter sentences than inmates
with private counsel
On average State inmates who used appointed counsel expected to serve over 7
years on sentences of 13 years, while those who hired their attorneys expected
to remain in prison 8 years on sentences of 15 years. Federal inmates
expected to serve an average of almost 9 years for sentences of 10 1/2 years,
whether they had appointed attorneys or hired their own.
Drug offenders in State prison who had appointed counsel expected shorter
prison stays on shorter sentences than those who hired their own lawyers. The
average length of stay expected by State drug offenders who used appointed
counsel was 4 years while that expected by those who employed their own
lawyers was almost 5 years.
Federal public-order offenders with appointed counsel had on average shorter
sentence lengths than those with private counsel (9 versus 10 years).
Minority inmates were more likely
than whites to have appointed
counsel
In State prisons, while 69% of white inmates reported they had lawyers
appointed by the court, 77% of blacks and 73% of Hispanics had public
defenders or assigned counsel. In the Federal system, blacks also were more
likely to have public defenders or panel attorneys than other inmates; 65% of
blacks had publicly financed attorneys. About the same percentage of whites
and Hispanics used publicly financed attorneys (57% of whites and 56% of
Hispanics).
Lower educational attainment among inmates was associated with higher use of
court appointed attorneys. Over 7 in 10 with less than a high school diploma
or GED used government financed attorneys. Sixty-one percent of State inmates
and 50% of Federal inmates who had attended at least some college also had
appointed lawyers.
Inmates who were unemployed were
more likely than other inmates to
use court-appointed attorneys
About 8 in 10 State inmates without a job before their most recent arrest,
compared to 7 in 10 employed full time, had appointed counsel. Among Federal
inmates two-thirds who were not employed and half who were employed full time
had publicly financed attorneys.
Over three-quarters of State inmates with monthly personal incomes of less
than $1,000 had publicly financed defenders. Less than two-thirds of those
with incomes of $2,000 or more per month had publicly financed lawyers. Over
two-thirds of Federal inmates with incomes less than $1,000 and nearly half
with incomes of $2,000 or more per month had publicly supported attorneys.
For both State and Federal inmates, 9 in 10 who were homeless at any time in
the year before their most recent arrest had court-appointed counsel.
Type of counsel for prison inmates
varied by conviction offense
Among State offenders, those serving sentences for burglary, larceny, fraud,
or robbery had relatively high rates of court appointed attorneys; about 8 in
10 had publicly financed counsel. Similarly in the Federal system, 8 in 10
robbery or burglary offenders used public defenders or panel attorneys.
State inmates convicted of serious violent and drug offenses made less use of
publicly financed attorneys. Approximately two-thirds of those convicted of
homicide, sexual offenses, drug trafficking, and drug possession reported
using public defenders or assigned counsel.
Among Federal offenders about half convicted of fraud (46%), drug trafficking
(55%), or drug possession (56%) reported using public defenders or panel
attorneys. Over 8 in 10 sentenced for rape or other sexual crime, robbery,
and burglary used publicly financed attorneys.
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