Most states house the public defender under either the judicial or executive branch, and each placement provides its own unique challenges. The executive branch has a clearly articulated objective of enforcing a jurisdiction’s laws. This role is in some ways similar to the public defender’s role of ensuring that law enforcement complies with both constitutional and statutory law, but it also contradicts the mandate of the public defender to protect the individuals charged with violating those laws.
The state judicial branch is tasked with advancing the resolution of the courtroom process neutrally, efficiently, and fairly. This role can sometimes lead courts to deprioritize the public defender’s needs in larger decisions about the courtroom process, as when judges feel they must support the requests of others involved in the criminal process, such as prosecutors and victims. Courts can also punish the public defender who acts in a manner inconsistent with the court’s view of how the process should evolve.
In order to see the dynamics at play, it is crucial to understand how the modern conception of the public defender originated. The institution was developed through a series of Supreme Court cases in the 1930s and ’40s interpreting the Sixth Amendment right to the effective assistance of counsel. The process culminated in the 1963 Supreme Court case Gideon v. Wainwright, which held that indigent defendants accused of felonies in state court must be appointed counsel. But in practice, that right can lose its efficacy at the whim of other actors in the criminal process who have conflicting interests.
Read: How Americans lost the right to counsel, 50 years after 'Gideon’
One consequence of this system is chronic underfunding with limited paths for redress. For example, Bennett J. Baur, the chief public defender for the New Mexico Law Offices of the Public Defender, an institution managed through the state judicial branch, recognized his professional duty to ensure legal representation for all qualified defendants. Lack of adequate funding, however, created a difficult choice: provide representation that was constitutionally and ethically deficient, or risk the ire of the system’s management (and possibly his job) by not providing any representation to some defendants. When Baur’s funding requests were denied, he chose the latter option, and ordered one of his county offices to stop accepting new clients. A New Mexico district-court judge deemed Baur’s refusal to represent indigent clients a violation of a court order to participate in the criminal process and held him in contempt of court.
The obvious solution would be to make the public defender an independent institution, so it could define its own structure to best suit the needs of its client base without fear of reprisal. But doing so would overlook the need to secure funding in a government system where all actors must compete for limited resources. While the public defender plays an important role in the criminal-justice system and protects the rights of the public at large, its influence and political efficacy are often smaller in comparison to other executive or judicial agents. To secure a seat at the table, the public-defender institution requires an authoritative presence that can effectively pursue its agenda within the state structure.