American Judges Association


Date of this Version



Published in Court Review: The Journal of the American Judges Association, 43:1 (2007). Copyright © [year] National Center for State Courts. Used by permission. Online at


The Sixth Amendment to the Constitution guarantees all people accused of a crime the right to legal counsel. In the landmark 1963 decision Gideon v. Wainright, 1 the United States Supreme Court affirmed the right of indigent defendants to have counsel provided. But Gideon did not end the Supreme Court’s discussion of the circumstances in which the state is required to provide defendants with an attorney when they claim not to have the means to pay for one. 2 Nor did it end the states’ examination of the requirement of any legal assistance paid for by taxpayers. 3 Moreover, it is not mandated by constitutional law, congressional statute, or U.S. Supreme Court interpretation how states will fund these programs (will it be a state or local, e.g., county, responsibility?) or the procedures by which a defendant will be deemed indigent. States and counties have developed a range of programs designed to provide counsel to indigent defendants (the most well known is the public defender model; other examples are the appointment from a roster of practicing attorneys and contracts with willing practitioners). States and counties have also developed a range of procedures to assess whether a defendant is unable to afford an attorney without assistance. 4 A 2002 report by the Spangenberg Group documents the variability across states with regard to various aspects of indigency determinations, including how presumptions of indigency are determined (i.e., what factors are taken into consideration, such as the defendant’s income in relation to federal poverty guidelines, assets, complexity of the case, resources of relatives and friends, whether the defendant can afford to pay bail, etc.), whether or not formal guidelines are in place, who makes the determination (the public defender’s office or the court), whether the court utilizes a financial questionnaire or affidavit, whether the client’s claim is investigated, and so on. 5 The specific purpose of this article is to report on an evaluation of a pilot program implemented in Lancaster County (Lincoln), Nebraska, designed to change the way in which a defendant’s claim of indigence is assessed by the legal system. Regardless of whether a jurisdiction uses public defenders or another form of retaining defense counsel for indigent defendants, a determination must be made regarding a defendant’s indigency status. Given the increasing caseloads for court systems and public defender offices6 and given the interest in ensuring that governmental procedures are optimized for efficiency and fairness, specific counties or even statewide judicial systems may choose to assess, reform, or implement new systems for determining indigence. There are a myriad of interests in assessing indigency determination programs. For instance, these programs have the potential to increase fairness and consistency in indigency appointments, increase the efficiency of the system, and defray costs of the justice system. Thus, the general purpose of this article is to provide courts with evaluation input into this important public function.

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