12.4: Crime and Criminal Defense

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The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to an attorney, and that attorney must provide "effective assistance of counsel."²⁶ This is true regardless of the financial status of the defendant. This right to effective assistance has two aspects. First, the attorney must have the unrestricted ability to exercise his or her duties in order to appropriately and vigorously represent a client. Second, a defense counsel should do nothing to deprive his or her client of effective assistance of counsel by failing to provide competent representation that is adequate to ensure a fair trial and a just outcome.²⁷ People accused of crimes can be represented in five possible ways.

Self-Representation

Defendants may represent themselves when a judge determines that they are competent to do
so. Judges and lawyers refer to defendants who represent themselves with the terms pro se defendants since the terms originates from a Latin phrase meaning “for one’s own person.” To determine competence, the judge often weighs factors such as the defendant’s age, level of education, familiarity with English, and the seriousness of the crime with which the defendant is charged.

Pro Bono Representation

Pro bono publico (English: "for the public good"; usually shortened to pro bono) is a Latin phrase for professional work undertaken voluntarily and without payment. Unlike traditional volunteering, it uses the specific skills of professionals to provide services to those who are unable to afford them.²⁸ Typically, there is no right to a free lawyer in non-criminal (or “civil”) cases. However, there are many legal aid and pro bono programs that provide free legal help for the poor in these situations. These programs typically help people with very low income (those whose income is less than 125 percent of the federal poverty level), but sometimes they will help those with slightly higher income levels. These programs also help those who are elderly and disabled.²⁹

Alternatively, attorneys throughout the country and state are strongly encouraged to contribute hours of service to pro bono programs or to financially contribute to organizations that provide legal services to the poor and underserved. Because most pro bono programs are dramatically underfunded, clients are often chosen on the likelihood that cases will succeed. For this reason, many prospective clients’ cases are not seriously considered.³⁰

Retained Counsel

Criminal defendants may retain a private criminal defense lawyer to represent them if they are financially able. In these situations, a lump sum of money paid to a lawyer to secure his or her services and to cover legal fees and other future expenses of a legal action (referred to as a retainer fee). On occasion, a defendant will be required to provider a retainer fee before the parties sign a retainer agreement.

The use of an attorney or lawyer provides numerous benefits to any criminal defendant.

It prompts greater cooperation and negotiations with a prosecutor, who often decline to deal with defendants who represent themselves.
It allows a defendant to possibly enter a diversionary program before trial (which is sometimes offered to defendants who have committed minor offenses or may be first- time offenders) as an alternative remedy instead of participating in a normal criminal case process.
It provides defendants with a comprehensive and objective view of the potential fallout and other aspects of their criminal charges and pending cases.
It provides the defendant with the legal expertise of an attorney who may have substantial criminal law experience, including the attorney’s full understanding and interpretation of the law and his or her strategy relating to the development and implementation of defenses based on the lawyer’s legal experience and research.
It fully informs the defendant of the consequences of a guilty plea, including possibility civil liability arising from the criminal case, loss of future income earning ability, and other negative, post-process effects upon those who have been criminally convicted.
Objectively present expert witnesses, contradicting statements made by prosecution witnesses, and even independently interview eyewitnesses and victims.³¹

However, retaining a private attorney can be quite costly. Hourly fees are by far the most common type of fee arrangement utilized by criminal defense attorneys. Hourly billing rates can range from $150 to $700 per hour. For even the most routine case, legal costs could easily exceed thousands of dollars.³²

Court-Appointed Attorney

In 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that criminal defendants who might be sent to prison if convicted are entitled to legal representation even if they cannot afford to hire an attorney.³³ Most of that representation in Texas is provided by court-appointed attorneys. In 2019, there were approximately 474,000 indigent defendants in the state. Texas counties are responsible for the costs of appointed counsel for most of these indigent defendants. Counties are authorized to deliver indigent defense services through a system that best meets local needs. Providing court appointed counsel for indigent defendants is a major uncontrollable expense in county budgets. Since 2001, indigent defense costs have increased 228 percent from $91.4 million in 2001 to $299.9 million in 2019. In fiscal year 2019, the state funded only about $28.5 million of the total statewide indigent defense costs, while counties contributed approximately $271.4 million (about ninety percent of the total costs).³⁴

With most court appointments, a judge will appoint a private lawyer to represent an indigent person accused of a crime. However, the court is only required to appoint an attorney at public expense when the defendant, if convicted, can be sentenced to incarceration and the defendant is unable to afford his or her own attorney. Even when an attorney is court-appointed, there is no guarantee that legal services will be completely free. Some courts use a sliding scale – based upon the defendant’s income—to determine a sum which the judge believes the defendant is capable of paying and to order a defendant’s repayment of some of the costs of an appointed attorney. Attorneys are often appointed as a reward for providing good representation of their previous clients. For example, attorneys may be appointed to represent clients in serious felony cases if they have demonstrated a historical track record of competent trial or negotiating work on behalf of their clients.

In response to its discovery that low-income defendants in some parts of Texas were remaining in jail for lengthy periods of time before obtaining a court-appointed attorney and learning that some of those attorneys were not professional competent to handle these types of cases, the Texas legislature passed the Fair Defense Act of 2001 (FDA). The act changed when and how lawyers are appointed to represent indigent defendants in the state. The act required all criminal courts in Texas to adopt and implement procedures for providing appointed lawyers to indigent defendants.³⁵

Public Defender

Public defenders are among the options available to a small percentage of the state’s poorest defendants. A public defender is an attorney appointed by the court. However, this individual is different than the court-appointed attorneys mentioned above. Public defenders are full-time attorneys employed by the state or federal governments—not private attorneys—to represent and advise those who cannot afford to hire a private, retained attorney. In conjunction with the FDA, greater attention has been given to improving the quality of indigent defense services while also containing costs. The use of public defender systems is increasingly being considered as a strategy to meet these dual objectives. Prior to the FDA, only five Texas counties operated public defender offices serving adult defendants. These included Colorado, Dallas, El Paso, Webb, and Wichita Counties.³⁶ Since the passage of the Act, that number has risen to nineteen public defender's offices, which thirty-nine counties rely on in some capacity.³⁷

These newest public defender offices are not sufficiently established to generate evidence of their cost-effectiveness.³⁸ In addition, this system is not without critics beyond the criminal justice system. Opponents of the current public defender system contend that offenders often do not receive proper representation because public defenders have too many cases to be able to perform investigations and conduct their own discovery in cases. In addition, defendants claim that they do not have sufficient communication with those representing them and that they are pressured by their public defender into a plea agreement to resolve their case.³⁹

In addition, public defenders are express grave reservations about the quality and quantity of representation provided by system in which they work. For example, they argue that public defender systems are plagued by underfunding and excessive caseloads. Even though funding for indigent defense systems vary by state, it is undisputed that public defender systems are funded with far less money than is needed. This underfunding prevents defense attorneys from conducting what they call the “core functions” of their jobs. The predictable result, some claim, of excessive caseloads and a lack of resources is that ninety-five percent of criminal cases in which public defenders are involved end in a plea bargain. Those within the profession acknowledge the existence of this “meet ‘em and plead ‘em” system of justice, in which clients may have little more than a brief conversation in the courtroom with a public defender before entering a guilty plea.⁴⁰

26. Justia, “Effective Assistance of Counsel” (2020), https://law.justia.com/constitution/...f-counsel.html.

27. Justia, “Effective Assistance,” https://law.justia.com/constitution/...f-counsel.html.

28. Sally Kane, “What Is Pro Bono and How Do Pro Bono Services Work?” The Balance Careers, upd. July 18, 2020, https://www.thebalancecareers.com/wh...o-mean-2164411.

29. “What Are the Conditions Needed to Qualify for a Pro Bono Lawyer?” HG.org Legal Resources (2020), https://www.hg.org/legal-articles/wh...o-lawyer-35351.

30. “Conditions Needed to Qualify,” https://www.hg.org/legal-articles/wh...o-lawyer-35351.

31. “Private Criminal Defense Attorneys, Court Appointed Attorneys and Self Representation,” LawFirms (2020), https://www.lawfirms.com/resources/c...e-attorney.htm.

32. “Criminal Defense Attorney Fees,” LegalMatch, Mar. 18, 2019, https://www.legalmatch.com/law-libra...wyer-cost.html.

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

34. Texas Association of Counties, “Indigent Defense” (2020), https://www.county.org/Legislative/C...digent-Defense.

35. “Fair Defense Act,” Texas Appleseed (2020), https://www.texasappleseed.org/fair-...t%20defendants.

36. Texas Department of Criminal Justice, “Evidence for the Feasibility of Public Defender Offices in Texas” (2019); Restoring Justice, “Request for Immediate Implementation of Court-Appointed Attorney Caseload Standards,” (Sept. 23, 2020).

37. Neena Satija, “How Judicial Conflicts of Interest are Denying Poor Texans their Right to an Effective Lawyer,” Texas Tribune, Aug. 19, 2019, https://www.texastribune.org/2019/08...igent-defense/.

38. Texas Department of Criminal Justice, “Evidence for the Feasibility of Public Defender Offices in Texas” (2019).

39. Annie Goeller, “Public Defender System Criticism Grows,” Daily Journal, July 17, 2016, http://www.dailyjournal.net/2016/02/...iticism_grows/.

40. Alexa Van Brunt, “Poor People Rely on Public Defenders Who Are Too Overworked to Defend Them,” Guardian, June 17, 2015, https://www.theguardian.com/commenti...too-overworked.