Federal versus State Work

Federal Indigent Defense Delivery Systems

In 1964, Congress enacted the Criminal Justice Act, 18 U.S.C. § 3006A, which required federal district courts to adopt a local plan for furnishing counsel to indigent defendants. The Act mandated that the plans include the appointment of “private attorneys,” but also allowed almost all districts to add an alternative delivery system of a Federal Public Defender Organization (a governmental entity established within the judicial branch) or a Community Defender Organization (a private, non-profit organization, established by the local legal aid society or local bar association). All but a handful of the 94 federal judicial districts have used this alternative (with a substantial majority opting for a public defender organization). The Criminal Justice Act precludes, however, utilizing the public or community defender organization as the exclusive or almost-exclusive provider of government-funded representation, as it requires that “private attorneys shall be appointed in a substantial portion of the cases.” Those private attorneys (commonly described as “panel attorneys,” because they are selected from a court-approved panel of “qualified attorneys”) typically are used in a “substantial minority” of the indigent-defense cases. They usually are assigned to the individual case by the clerk of the court or the defender organization, rather than by a judge.

State Indigent Defense Delivery Systems

State structures used to provide government-funded counsel tend to vary in several respects from the structure of the federal Criminal Justice Act. Initially, the choice of delivery system commonly is made by the governmental unit providing the funding, rather than the local court. That governmental entity traditionally has been the county, but over the past few decades, many states have shifted to primary or exclusive state funding. The three most common indigent defense delivery systems are: (1) individually appointed private attorneys, (2) public defender offices, and (3) contract-attorney organizations (typically a private law firm or a non-profit entity, sponsored by the local bar association or legal aid society, which contracts to provide representation for a large group of cases).

Public defender agencies have long been favored in metropolitan areas, and a fairly recent survey of the 100 most populous counties found that 90 percent had public defender programs. Where states provide the funding, they commonly establish a statewide program, with regional offices (and, in some instances, a separate appellate agency). Other public defender offices are local agencies. The staff of larger offices commonly includes investigators and social workers as well as lawyers and paralegals. Systems using defender offices typically assign to those offices almost all indigent-defense cases, with the primary exceptions being (1) cases in which a potential conflict of interest precludes defender representation, and (2) “overflow cases” (where additional cases would exceed an agency-imposed caseload limit). Representation in these non-defender cases typically is provided through individual appointments, although some jurisdictions use a contract attorney program for such cases.

A substantial number of mid-size counties and most smaller counties do not have public defender offices. Here, indigent defense needs traditionally have been filled through individual appointments. In some judicial districts, appointment is made by the court, with the judge either exercising discretion in choosing counsel or relying upon a “neutral rotation system.” In other districts, the court is removed from the appointment process, with a rotation system administered by an independent official. In recent years, a growing number of mid-sized and small counties have moved to the contract system, with the contract firm agreeing to cover almost the entire indigent-defense docket, or a specific number of cases, for a flat fee or an hourly fee with caps (the typical fee system for individually appointed counsel).

Thus, if you have specific geographic ties that require you to be in a certain state, you may need to investigate what type of indigent defense delivery system exists in that area. Can you be a public defender? Would you have to be a panel attorney to do indigent defense work? We will talk more later about how to pick the right office for you, but it is helpful to have this background understanding of how indigent defense delivery systems in the states are structured when thinking about where you should apply.

Federal versus State​

The job of federal defenders is, in many respects, quite different from that of their state counterparts. First, almost all federal defender work is felony work. Aside from minor offenses committed on federal park lands, there are not too many misdemeanor prosecutions. In contrast, a large part of a state public defender office’s caseload is going to consist of misdemeanor offenses.

Even at the felony level, the types of offenses often differ in state and federal jurisdictions. State defenders will handle everything from public urination to petty theft to serious homicide cases over the course of their careers. There will be public order offenses, theft offenses, drug offenses, weapon offenses, and violent offenses in state systems. There is a lot of variety in state systems.

In contrast, much of the federal criminal code focuses on drug offenses, weapon offenses, and economic crimes (money laundering, fraud, etc.). That is not to say that there is no violence. Obviously, combating organized crime, terrorism, and gang violence is part of the mission of federal prosecutors. However, federal defenders don’t typically deal with run-of-the-mill murder, rape, assault, or theft crimes.

A second difference between federal and state defender offices relates to the quality of the police force. Federal defenders represent individuals who have been the subject of federal investigations. Federal law enforcement agents tend to be more highly educated and better trained than many of their state counterparts. And they often make arrests after extensive and lengthy investigations. Warrants are more common in federal cases than in state cases. The practice of “snitching” – where a client agrees to cooperate and provide information to the prosecution in exchange for more lenient treatment – is much more common in the federal system than the state system. Part of a federal defender’s job involves counseling clients about when and how to snitch.

Federal defenders are paid more on average than state-level defenders and the judges before whom they appear are (again, on average) more educated and willing to entertain defense arguments than some of their peers on the state bench. Federal defender caseloads also tend to be smaller than state defender caseloads. There is just not as much federal criminal enforcement as there is state enforcement. That is not to say that federal defenders don’t have heavy caseloads, because they do. But they are more manageable than those in many state offices.

The smaller caseloads and lack of misdemeanor docket, coupled with the more professional and complete felony investigations and the draconian penalties that many federal defendants face if convicted means that there are far fewer trials in the federal system than in the state systems. Federal defenders tend to do a lot of motion practice – meaning that they often litigate complicated suppression motions based on alleged Fourth, Fifth, and Sixth Amendment violations. When there is cutting edge investigative technology, it is often the feds who are using it so a lot of those suppression issues arise in federal courts. But trials are relatively rare. In contrast, entry-level state public defenders will have a fair number of trials as they begin with misdemeanor dockets.

State public defender offices tend to hire entry-level defenders directly from law school whereas most federal defender offices don’t hire lawyers right out of law school. (The San Diego Federal Defenders is a notable exception to this rule.) Many federal defender offices do have Research and Writing Attorney positions that law students can apply for. These positions can often translate into full-time attorney positions after a year or two if there is enough funding.