Gideon made his promise a long time ago and States began providing indigent defendants with counsel in criminal cases. Much has been said over the years about the promise being fulfilled and states not providing counsel, but the Brennan Center for Justice at NYU Law tackles the flip side of the problem in a new report [pdf]: just who is eligible for counsel?

The report examines guidelines across the nation and determines that there is no one consistent standard for determining eligibility. People who really should get counsel don’t and people who shouldn’t, do. SCOTUS has never defined what the eligibility standards should be, so States have been free to set their own. I know CT follows the Federal Poverty Guidelines, but other states do not. Some states disqualify defendants if they own a home or a car. Given the cost of private counsel, it may not be feasible for even people with “equity” to hire their own attorneys. This results in them either hiring bad lawyers or representing themselves and taking bad deals.

The report makes several recommendations and offers guidelines for eligibility determination:

• Screen people seeking the appointment of counsel to ensure that they are financially eligible.
• Apply screening criteria and processes uniformly, and commit them to writing.
• Ensure that screening is performed by someone who does not have a conflict of interest.
• Ensure that counsel is provided to those unable to afford it.
• Streamline screening to speed up the process and save money.
• Ensure that required procedural protections are in place.

The third recommendation above is the product of some interesting findings. For example, in some jurisdictions, prosecutors make the initial eligibility determination. (!) In other jurisdictions, they can challenge a determination of eligibility.

The report also suggests that it is unethical for the public defender’s office itself to make eligibility determinations, because it creates a conflict of interest.

Defenders’ personal interests come into play in several ways when they are asked to screen their own clients. For example, in order to provide adequate representation to their clients, public defenders must maintain manageable caseloads. For salaried defenders, and defenders with a contract to represent all defendants in a given geographic area, this may create an incentive to conclude that potential clients are ineligible for representation. Thus, an assistant public defender in Schuyler County, New York, told investigators from the NAACP Legal Defense and Education Fund “that he uses eligibility requirements to limit the number of clients he will represent.” Defenders may also have an incentive to reject cases that are time-intensive, controversial, or undesirable in some other way. The Schuyler County defender exemplifies this risk, too – he reported “telling eligible defendants that if they are willing to work out a deal with the DA that day, he will represent them.”

This is interesting and I’m not sure I agree. In CT, usually it is the investigator from the public defender’s office who does the intake and determines eligibility. This job is also charged to the public defender’s office by statute. I’ll have to give this conflict angle more thought.

The report does recommend, however, that if public defenders are making eligibility determinations, such determination not be made by the attorney who will represent the client.

Overall, I think these are good recommendations and my experience in CT has been that we err on the side of caution and try to represent as many clients as possible. It’s not like this will get any easier. According to a new report, prosecutions are up.

What’s your experience in other states?