What is a public defender? A public defender is an attorney who represents people charged with crimes who cannot afford their own attorney.
Well, that’s the quick answer. But, today there is so much more to the job. The role of a public defender has been evolving over time.
In this post we will talk about the job of a public defender. We will also talk about how the role differs based on where you practice. This is an important consideration for you as you decide where you want to apply.
IN GENERAL
Simply put, a public defender is an attorney who represents “indigent” persons that are accused of committing a crime. Any person, who could go to jail if convicted, is entitled to an attorney.
This is all thanks to Mr. Gideon. Gideon v. Wainwright.
The definition of “indigent” in this context however is much more broad than your ordinary definition, which is “poor” and “needy.”
I represent people from all walks of life and not all of my clients are “poor.” What defines a person as indigent in the criminal justice system, is their ability to pay for an attorney of their own choosing.
Every state is different. When a person applies for a public defender they will be required to fill out a financial affidavit, like this one.
In the federal system they will fill out this affidavit.
The court will review the affidavit and may have additional follow up questions. If the person is deemed eligible, counsel will be appointed.
BAR COUNSEL vs. PUBLIC DEFENDER AGENCIES
Every state system is different. Most states have public defender agencies that handle the majority of indigent criminal cases.
Other states heavily rely on private attorneys, taking indigent criminal cases on a contract basis. These we generally refer to as “bar counsel” or “contract counsel.”
In Massachusetts, for example, there is a state public defender agency called the Committee for Public Counsel Services. In New Hampshire, the public defender agency operates as a non-profit law firm; The New Hampshire Public Defender.
Other states operate on a county based system such as in California and Florida. (It actually appears Florida is based on “circuits” which are comprised of multiple counties).
The type of system you want to work within should certainly be a consideration as you begin to apply for internships and jobs.
Bar counsel positions are certainly honorable. And, being in private practice allows you to have more financial freedom.
Members of the bar all have an obligation to make sure that the criminal justice system is fair. Bar counsel helps ensure that people without resources are not receiving unequal treatment.
That of course is not the case in our current system. However we need to strive every day to rectify that inequality.
THE BENEFITS OF BEGINNING YOUR CAREER AS A PUBLIC DEFENDER
Public Defender Offices Come With Moral Support
Jonathan Rapping, the founder and president of Gideon’s Promise, hit the nail on the head in his book “Gideon’s Promise: A Public Defender Movement To Transform Criminal Justice.”
“[I]t takes a supportive community to help you continue to care when you work within a system that encourages you not to.”
Without my colleagues, I am not sure I would have made it these last 12 years. Heck, I am not sure I would have made it past my first 3 years. Every day you see your clients get hammered down by a system that is designed to oppress and dehumanize, all in the name of “justice.”
It becomes difficult to look yourself in the mirror some days. You can’t tell if you are fighting the system, or acting as the grease to keep it moving. Without the support of your fellow public defenders, you might just start believing that it is true.
Public Defender Agencies Will Help You Become An Effective and Zealous Advocate
Many public defender agencies also have amazing training programs. For example, my employer, the New Hampshire Public Defender, is nationally known for its training program. And this is key.
You want to try to avoid going to a public defender agency that does not provide you with adequate training. Being thrown into the ring without proper training puts a lot of stress on you. More importantly, it hurts your clients. (Thanks to Gideon’s Promise, this problem will hopefully become a distant memory).
Research and compare the different training programs before deciding on where to apply.
This is not to say that you should start your career as a public defender so that you may one day go off and be a big time private defense attorney.
Should you be building your career off the backs of the poor? Absolutely not. If this is a career path you want to pursue, you should be going in with an eye towards doing this work for a minimum of 5 years, if not longer.
Being a part of a law practice where, the motivation to work hard and fight for your clients is not financial has many benefits. The job is difficult and being surrounded by people who all believe in the same mission helps make those tough days in court, there are many, easier to handle.
THE MANY TYPES OF PUBLIC DEFENDERS
Are there different types of public defenders? You bet! You need to think about this as you plan your career and where you want to end up.
Public defenders traditionally represent indigent adults accused of violating state or federal law. However, public defenders also represent juveniles charged with acts of delinquency, AKA crimes.
Juveniles are guaranteed the right to counsel and the same due process rights as adults. This guarantee was established by the United States Supreme Court In re Gault.
At some public defender agencies, you will represent both adults. At other agencies however, that work is handled by a specific juvenile defense unit. You should consider this when applying to a public defender agency, as an intern or a staff attorney.
Do you only want to represent adults? Do you only want to represent juveniles? Do you want to have an opportunity to represent both adults and juveniles?
The answer to these and other questions, will dictate where you apply.
STATE PUBLIC DEFENDERS vs FEDERAL PUBLIC DEFENDERS
Public defender agencies are divided into two classes; state and federal. Most new lawyers fresh out of law school will not be considered for a federal position.
In Boston for example, you will need at least 5 years of trial experience before you are even considered for an interview. Even then, you likely will not be hired until you have closer to a decade of trial experience.
Some federal defender agencies may consider hiring people fresh out of law school. However, it is likely that you will find yourself in a state agency for your first job.
The stakes are extremely high in federal court and the work is generally much more complicated than the work at the state level.
For the benefit of your clients, begin your career as a dedicated state public defender. Work your way up to federal work after you have at least 5 years of trial experience under your belt.
PUBLIC DEFENDERS DO MORE THAN JUST CRIMINAL LAW
Public defender agencies have also evolved over the decades, especially the last decade, and now provide other types of services to indigent persons.
For example, in Massachusetts the public defender has a mental health litigation division which represents clients in matters involving involuntary civil commitment and guardianship. There is also a child and family law division where attorneys represent children and parents in cases involving guardianship and termination of parental rights.
Similarly, the San Francisco Public Defender’s Office and the Bronx Defenders have a number of specialized units which are designed to provide services to clients based on their unique circumstances. There is a juvenile unit, mental health unit, immigration unit, and a specialty court unit.
Again, the type of work a public defender agency does and how the organization is structured is important. Do your homework and compare different public defender agencies. This will ensure that you find yourself at an agency where you will be happy doing the kind of work you want to do.
You will also be ready at your interview when asked the question, “Why do you want to work here?” You likely won’t be getting past your first interview without a good answer.
Thanks and be sure to read my post on 10 Common Public Defender Interview Questions
