Is the Public Defender a Real Lawyer?

Public Defenders vs. Private Attorneys: Any Difference in Quality?

Public defenders usually provide representation that is at least as competent as that provided by private defense attorneys. This was demonstrated by a 1992 study conducted by the National Center for State Courts entitled, "Indigent Defenders Get the Job Done and Done Well." The study concluded that public defenders and private counsel achieve approximately equal results. For example, in the nine counties surveyed in the study, 76% of public defender clients were convicted, compared to 74% of private counsel clients. A 2012 study came to a similar conclusion regarding conviction and sentencing outcomes between private attorneys and public defenders. (Thomas Cohen, Who's Better at Defending Criminals?, Crim. Just. Policy Rev. (2012).)

So many lawyers want to be public defenders in states like California and in the federal system that public defense offices hire only highly qualified candidates. True, many public defenders stay for a few years, gain intensive experience, and then leave for the supposedly greener pastures of private practice. However, most public defense offices offer excellent training programs, so that even recently arrived public defenders can rapidly build expertise. Also, public defenders often appear in the same courtrooms day in and day out and, therefore, know the ins and outs of the courthouse better than other criminal defense attorneys in the area. In some large metropolitan areas (in New York, for example), the public defense offices are well respected, giving their clients representation that only an experienced (and expensive) private attorney could match.

What Are the Disadvantages of Working With a Public Defender?

Despite these good points, the reality remains that indigent defense programs suffer from underfunding and high caseloads.

Too much work, not enough money. Regardless of the competence of individual court-appointed attorneys, they are often asked to perform too much work for not enough money. Local politicians don't win many votes by expanding the budget for court-appointed lawyers to keep up with the growth in criminal prosecutions. For example, civil rights lawyers in Louisiana filed a class action lawsuit alleging officials are denying poor people their constitutional right to counsel by failing to establish an effective statewide public defense system.

Defendants don't get to pick their public defender. One of the advantages of working with a private attorney is that a defendant get to choose which attorney to hire. Defendants who don't qualify for a public defender can (and should) consult with several private attorneys and hire the one that feels like the best fit for their case and budget. Defendants don't, on the other hand, get to choose which public defender is assigned to their case, which can be challenged. Defendants sometimes ask judges to fire their public defender, but those requests are rarely granted.

Contract attorneys vs. public defenders. Public defense offices represent just one type of indigent defense program. Other types include the use of contract attorneys or panel attorneys. Public defenders are salaried, government employees, whereas contract and panel attorneys are private attorneys who take cases on a contract basis. While studies show similar case outcomes between public defenders and private attorneys, the same is not necessarily true for contract or panel attorneys. A 2018 study by the California Policy Lab found that criminal defendants represented by public defenders in San Francisco were 6% less likely to be convicted and 22% less likely to be sentenced to prison than defendants represented by private court-appointed attorneys.

For those jurisdictions that employ contract or panel attorneys, each does so differently. But often the court has a list of private attorneys that can be called upon to represent defendants for a certain rate. These contract systems are criticized for using less-experienced attorneys and, in some jurisdictions, incentivizing attorneys to churn through cases as quickly as possible to keep costs low. However, in some jurisdictions, panel attorneys tend to be experienced private criminal defense lawyers who take on indigent clients to supplement their work.

Getting a Lawyer for Your Criminal Case

One key fact to remember: criminal defense attorneys are there to fight for you. And no matter if your attorney is a private, public, or contract attorney, they all have the same legal and ethical obligations to their clients.