Bad news, you’ve just been arrested. As the friendly police officer officer gently guides you into the backseat of his police cruiser, he begins reading you those famous words that you’ve heard so often on your favorite crime TV shows.
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be provided for you.”
As the officer finishes reading, it dawns on you. You can barely afford to fill up your gas tank, let alone an attorney. Am I really going to get a free lawyer? Do I have to ask for one? Can I even trust the one they give me? How do they know whether I can afford one? And why are these handcuffs so darn tight!?
These are some of the very important questions that you could find yourself asking if you are unlucky enough to find yourself in this situation. Fortunately, by simply reading this brief and informative blog, you will be empowered with the answers to all of these questions, and more!
Do They Really Give Away Free Attorneys?
It sounds too good to be true! But, yes, some people charged with a criminal offense will, in fact, be given the option of having the court appoint an attorney to represent them in their criminal case, free of charge. These no-cost attorneys are usually government employees responsible for representing people with limited financial means in certain types of court proceedings. In New York, they are generally referred to as a “public defender,” but could also be referred to as “assigned counsel”, a “court appointed” attorney, or a “conflict defender” in certain circumstances. However, despite the different terms that can be used, they all refer to an attorney that the court has assigned to represent a person accused of committing a crime (the “defendant”), without cost. For clarity, we will simply refer to them as a “public defender” in this article.
Does Everyone Charged With A Crime Get To Have A Public Defender If They Want One?
No, a defendant will only be eligible for a public defender if they lack the financial resources considered reasonably necessary for them to afford to hire an attorney.
The Sixth Amendment of the U.S. Constitution provides that any person charged with a crime has the right “to have the assistance of counsel for their defense.” Until the early 1960s, many courts interpreted this language to simply mean that the government could not prevent a defendant from having an attorney represent them. However, in 1963, the U.S. Supreme Court held in Wainwright v. Gideon that that Constitution further provided that any defendant who wanted an attorney’s assistance could not be denied that right merely because he or she did not have enough money to hire one. This landmark decision led the federal government, states, and municipalities to create public defender offices to provide legal representation for defendants unable to afford an attorney. Today, courts continue to assign public defenders to represent defendants, but only in circumstances where it is determined the defendant cannot reasonably afford to hire an attorney.
Will The Court Automatically Assign Me A Public Defender?
No. Whether a defendant can afford to hire an attorney is determined based upon the court’s consideration of their financial circumstances and the cost of retaining an attorney. Prior to, or during, a defendant’s initial court appearance the defendant will be asked if they wish to have a public defender appointed to represent them. A defendant that seeks to have a public defender appointed will ultimately be required to provide the court (or its designated screening entity) with information about their financial situation, such as their income, household size, and expenses. That information will then be used to determine their eligibility. If the defendant demonstrates financial need, a public defender will be assigned to represent them. However, if the court determines that the defendant can afford to hire a private lawyer, a public defender will not be assigned.
How Does Someone Qualify For A Public Defender In New York State?
In the New York State Unified Court System, a defendant will be presumed to be eligible for a public defender if they meet any one of the following four criteria:
- They have a net income at or below 250% of the Federal Poverty Guidelines. As of 2022, that means that an individual in a one-person household must have a net annual income (i.e., take-home) of $33,975 or less to qualify for a public defender under this criteria. That number increases to $69,375 or less for someone in a four-person household; or
- They are currently serving a jail/prison sentence, detained, or committed to a mental health institution; or
- They are receiving, or have been deemed eligible to receive, certain types of need-based public assistance (i.e. welfare), including Medicaid, SSI, public housing assistance, TANF, SNAP, etc.; or
- They were deemed eligible for a public defender within the prior six months.
A defendant that meets one of these criteria will, in almost all state court cases, be deemed eligible for a public defender. The few exceptions generally involve situations where the court learns that a defendant has knowingly and intentionally misrepresented their financial circumstances in an attempt to meet the eligibility requirement.
Even if a defendant does not meet any of the four requirements for presumptive eligibility, the court or screening agency must still examine the specific details of the defendant’s financial circumstances, including the typical cost of retaining a qualified attorney and the expenses associated with their case, including any bail or bond. If the court finds that the defendant cannot afford his or her own attorney, the defendant will be found eligible for a public defender, even if the defendant did not meet any of the four criteria necessary to be presumptively eligible.
The procedures applied in federal court to differ from those used in the state court system, but the federal courts largely weigh the same factors when determining if a defendant is financially unable to obtain counsel, and thus eligible for a public defender.
Is It Better To Get A Private Attorney Than To Use A Public Defender?
A defendant found to be eligible for a public defender is not required to accept one, and the question is often asked whether it is better to pay for one’s own private attorney rather than rely upon a public defender. Without a doubt, one of the biggest drawbacks of utilizing a public defender is that a defendant is typically not permitted to choose the specific attorney appointed. Unfortunately, this absence of client choice and lack of cost for their services, has led to some unfair assumptions and misconceptions about public defenders, and their skills and abilities as compared to private attorneys. These beliefs, however unfair, are nevertheless pervasive enough to have made their way into popular media. For instance, who can forget the hapless, but unceasingly confident public defender in “My Cousin Vinny”? or the horrendous public attorney in the true crime documentary, “Making a Murderer”, who sought to persuade his own client to confess to a crime he insisted he didn’t commit (sadly, that one was real).
As in any profession, there will always be “bad apples”, but the reality is that the vast majority of public defenders are competent, dedicated, and passionate public servants that are fully qualified to advocate for their clients. The truth of the matter is that an attorney’s skills and abilities are not products of who pays their salary, or what office they happen to work in. Rather, the quality of legal representation you can expect to receive from an attorney will be a function of a wide range of factors, including the time and attention they are able to devote to your case, as well as the quality and amount of experience they have, their education, and work ethic, to name just a few.
It is unfortunately true that many public defenders’ offices are forced to carry large caseloads due to the immense number of defendants that require their services. In offices with limited resources, this can have the potential to limit the amount of time available for any single case or client. Yet, these are concerns that are not exclusive to public defenders’ offices. The same can also be true for private attorneys or law firms, particularly those with a business model focused solely on obtaining as many clients as possible, at the cost of individualized, personal attention. Thus, one of the most important factors to consider when deciding between a public defender or a private attorney – and when choosing between private attorneys — is the time, attention, and resources they are willing and able to devote to your case.
When investigating the possibility of retaining a private attorney, it can be helpful to seek out reviews and client testimonials from past and current clients. Taking the time to speak with the criminal defense attorney you are considering – whether public or private — is also crucial prior to making a final decision on who will represent you. The length and quality of your initial discussions with an attorney can provide useful insight into how much personal attention you might expect to receive as a client.
When Deciding Who To Choose As My Lawyer, What Questions Should I Ask?
It wise to ask the attorney questions that will help you gauge the level of personal attention you can expect to receive. For instance: How easy is it to reach them about your case? Can you contact the attorney directly? Will they respond to email? How about text messages? What happens if you need to reach them after business hours or on the weekend? Do they work alone, or do they have a team of other attorneys and staff to assist them? By obtaining answers to these sorts of questions you can put yourself in a better and more informed position to determine who to entrust with your defense.
Whether you are considering utilizing a public defender or hiring a private attorney, the factors that will determine the quality of the representation you ultimately receive are much the same. By taking the time to fully investigate and consider your options, you can be confident that the attorney you ultimately select to stand up for you is ready, able, and willing to fight for the best possible result on your behalf.
