Public Defender System Research Articles

형사소송법상 ‘피고인이 구속된 때’에 있어서 구속 개념의 해석 및 입법론 - 대법원 2024. 5. 23. 선고 2021도6357 전원합의체 판결

Korean Criminal Procedure Act establishes “when the defendant is in custody” as one of the grounds for appointing a public defender. (Article 33, Paragraph 1(1)) The Supreme Court has traditionally viewed this as a case in which the defendant is detained and on trial in the criminal case in question. It may be reasonably concluded, therefore, that being detained in a separate case or being convicted and sentenced in another criminal case does not qualify as a reason for the appointment. However, in May 2024, the Supreme Court reconsidered its position to include cases where a warrant of arrest has been issued and executed in a separate case or where the defendant has been convicted in another criminal case and is in custody as a result of the execution of the judgment. This artice reviews the decision to reconstruct the contents of its majority opinion, separate opinion, and supplementary opinion by interpreting the legal textual meaning of the concept of restraint, interpreting the purposive meaning, and policy interpretation issues. It will then evaluate them together with related laws and theories, with a view to seeking a legislative solution to the interpretation controversy. While the existing precedents did not present the interpretation arguments in detail, the individual opinions of the judgments indicate that the arguments were based on the stable utilization of the current system and practice on public defenders and the right to counsel, as well as the efficient allocation of judicial resources. There is a difference of opinion as to whether the expansion of the right to counsel and the necessary expansion of the public defender system should be achieved by changing case law or by amending the law. Thus, the author propose the amendment of paragraph 1(1) of the Article 33, “When the criminal defendant is placed under detention”to “When the criminal defendant is placed under custody”.

아동보호 목적에 부합하는 아동학대 초기대응 및 피해자지원에 대한 소고

An effective response to child abuse is a coordinated response by all agencies involved in preventing abuse and supporting children. Our legal system is very similar to that of the United Kingdom, which responded to child abuse early on by enacting the Children Act. It is very important to make child protection a nationwide goal and set a specific action plan for it, and to create a system that overhauls the relevant legal system and makes the many organizations involved in child abuse work together organically. The interviews with child abuse officials also highlighted a number of shortcomings in cooperation with other organizations, especially the police, which are involved in handling child abuse cases. The reasons for this include the lack of a complete legal system for information sharing and the lack of a higher authority to mediate conflicts. It is necessary to revise the law to substantially improve cooperation between organizations in the child abuse legal system. In addition, the victim's public defender system is being introduced to provide practical support to victims of child abuse, but it was found that there are limitations in the legal system for victim's public defenders to obtain information on child abuse. In this regard, it can be said that a prerequisite for receiving practical help for the healthy growth and protection of children is to obtain detailed information about the child and the environment in which the child is placed, so the law should be amended to give them practical authority in this regard.

The Unconstitutionality of Underfunded Public Defender Systems

The Unconstitutionality of Underfunded Public Defender Systems

범죄피해자 국선변호인 제도 활성화 방안에 관한 연구

Criminal justice procedures have historically been centered on punishment for crimes, and proof and defense of crimes have been key. The ideology of the Criminal Procedure Act, which is the principle of discovery of substantive truth, proper procedure, and prompt trial, was also established in this dimension. However, as the interest in criminal law expanded to the area of recovering criminal damage, many academic theories and legislation for this came to fruition. The need for social support for crime victims is also gaining a lot of support from the international community. The UN adopted the SDGs and suggested equal access to justice as one of the international community's efforts, and recently, “The Kyoto Congress” emphasized the need for compensation and compensation beyond the victim's participation in criminal justice procedures. Legal assistance and assistance from lawyers are essential to enable crime victims to recover to their daily lives. Currently, Korea guarantees this right to victims of crime under a special law. However, the reality is that support for crime victims is insufficient because the types of crimes that can be assisted by lawyers are limited. Therefore, there is a need to expand the scope of crime victims to use the public defender system. Currently, the system stipulated only in the special law should be stipulated in the Criminal Procedure Act, a general corporation, and there should also be legislation for the elderly who are socially vulnerable. In addition, from the beginning of the criminal damage, the effectiveness of the recovery of the damage should be secured with the assistance of a lawyer. In addition, it is necessary to clearly define the role of public defenders who have suffered criminal damage and prepare a plan that enables legal support from the investigation stage to the process of receiving damages. In order to guarantee the defendant's right to defend, the Korean Criminal Procedure Act recognizes various rights and operates a system. If so, it is appropriate to provide the same level of support to victims who have been victimized by the accused. Anyone can unintentionally become a victim of a crime, and the cause of the crime is also in the social environment. If so, the state is obligated to establish a social system so that the daily life, which has been painful due to criminal damage, can be restored to the time before the damage situation. In addition, the prerequisite of such a system is to be able to receive assistance from public defenders.

A Study on the Legal Aid Services-Provisions and the Defence Legal Aid Scheme

India is regarded amongst the top countries in the Asian continent in terms of the recent technological, economic developments. The country with the most population is still striving to get rid of illiteracy which is now a major problem faced by the rural population in the country. Legal Aid Defense Counsel Scheme 2022 FOR PROVIDING LEGAL AID, ASSISTANCE & REPRESENTATION IN CRIMINAL MATTERS IN LINE WITH "PUBLIC DEFENDER SYSTEM" aims to provide legal aid to poor and needy in criminal justice system. The scheme aims at providing legal aid, assistance & representation in criminal matters in LINE with a public defender system. At present, Assigned Counsel System of dispensation of Legal Aid is being followed in India. This will create institutional capacity to effectively provide Legal Aid to poor, needy, and poor in the criminal justice systems. To have a successful legal aid movement in India, the government needs to take appropriate steps by spreading awareness and educating the people about their basic fundamental rights.

Precarious Legal Patchworking: Detained Immigrants’ Access to Justice

AbstractAs immigration enforcement increases, so does the detention of immigrants facing the threat of deportation. Detained without the support of a public defender system—a feature of U.S. immigration law—immigrants face a complex immigration court that is adversarial and can produce dire consequences, including family and community exile, violence, or even death, if they are deported. This paper chronicles the experiences of formerly detained immigrants and how they sought to access justice through multiple means while detained. To win their freedom from detention, they engaged in “precarious legal patchworking” (PLP), during which they haphazardly cobbled together legal resources and assistance from multiple sources, including pro-bono aid, Jailhouse Lawyers, and social networks. PLP speaks to the person’s tenacity amidst precarity, but it also unveils the fragility of this strategy because patchworking can extend detention or complicate one’s case. The lack of access to counsel is a form of legal violence, and stratifying access to representation in this way creates an underclass of people who are systematically denied justice.

The Problematic Structure of Indigent Defense Delivery

The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense. In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems. In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders. In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal cases as quickly as possible. Those incentives fuel mass incarceration because the lawyers put less time into each case than their public defender counterparts and achieve poorer outcomes for their clients. Moreover, empirical research shows that assigned-counsel and flat-fee contract systems are economically more costly to the public fisc than public defender systems. This Article collects data from across the country to show how prevalent assigned- counsel and contract systems remain, explains why arguments in favor of substantial reliance on the private bar to provide for indigent defense are outdated, argues that more states need to move toward state-structured public defender models, and outlines how it is politically possible for stakeholders to get there.

Giving the Fourth Amendment Meaning: Creating an Adversarial Warrant Proceeding to Protect From Unreasonable Searches and Seizures

For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or even eviscerated by the Supreme Court. Some suggest that in order to revitalize the Fourth Amendment, the United States should make it easier to secure civil damages after Fourth Amendment rights have been violated. Others have argued that the United States must guarantee stronger ex ante protections to uphold fundamental privacy rights before they are violated. This Note argues that, while warrant requirements do need to be more stringent to safeguard Fourth Amendment rights, warrant requirements cannot on their own sufficiently protect such a sacred right. This Note proposes the adoption of adversarial warrant proceedings, designed to ensure police and prosecutors meet their probable cause burden and to ensure that any lies or sloppy investigative work are rooted out from a warrant application before a warrant is granted. False searches and arrests can be deeply traumatizing and have excruciating and long-term impacts. For the Fourth Amendment to have any meaningful affect, the People must have an advocate—a Warrants Counsel— fighting for their right to be free from unreasonable searches before that right is violated. The Roberts Court’s destruction of the Fourth Amendment leaves little reason to expect protection from unreasonable search and seizure through litigation. Instead, Congress must create the Warrants Counsel program legislatively. Congress should look to the major success of the Federal Defenders program as a blueprint for zealous advocacy and protection of rights. A Warrants Counsel, like a public defender, would be a government paid attorney, present to argue against probable cause before a magistrate whenever police or prosecutors seek a warrant. Like the Sixth Amendment before the public defender system, the Fourth Amendment desperately needs some structure to give its language meaning; the Warrants Counsel system would counterbalance over-powered police and prosecutors in favor of the People.

Press Release: Booker and Durbin Introduce Legislation Aimed at Increasing Membership within U.S. Sentencing Commission (November 30, 2021)

Research Article| April 01 2022 Press Release: Booker and Durbin Introduce Legislation Aimed at Increasing Membership within U.S. Sentencing Commission (November 30, 2021): Currently, the Commission fails to include representation from the public defender system Federal Sentencing Reporter (2022) 34 (4): 217. https://doi.org/10.1525/fsr.2022.34.4.217 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Press Release: Booker and Durbin Introduce Legislation Aimed at Increasing Membership within U.S. Sentencing Commission (November 30, 2021): Currently, the Commission fails to include representation from the public defender system. Federal Sentencing Reporter 1 April 2022; 34 (4): 217. doi: https://doi.org/10.1525/fsr.2022.34.4.217 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2022 Vera Institute of Justice. All rights reserved.2022 Article PDF first page preview Close Modal You do not currently have access to this content.

Ensuring the right to ‘effective’ assistance of counsel in criminal proceedings

Ensuring the right to ‘effective’ assistance of counsel in criminal proceedings

A Study on the Public Defender

A Study on the Public Defender

"It's Not You, It's Your Caseload": Using Cronic to Solve Indigent Defense Underfunding

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen out of twenty-two statewide public defender systems operate with yearly caseloads that are significantly higher than the ABA recommends. This Note argues that courts should utilize the procedural ineffectiveness presumption that the Supreme Court made available in United States v. Cronic to find state defense counsel carrying caseloads above the ABA-recommended maximums constitutionally ineffective. Thus, defendants could not be tried until caseloads in the locality fell within the maximums. This would incentivize state and local legislatures to spend more money on indigent defense.

Challenges Faced by the Clayton County, Georgia Public Defender’s Office

While the Sixth Amendment to the U.S. Constitution guarantees indigent defendant’s legal representation in state and federal courts, public defenders’ offices are challenged by the lack of resources to represent an endless flow of clients, attract and retain talented counsel, enlist the help of expert witnesses, as well as deliver the best quality defense. This study addresses the daily strain of defending clients who are not always the most cooperative in helping their own defense, but it also reveals the struggles and challenges faced by an urban southern public defender’s office and what changes need to be implemented to improve the public defender system. In the end, this study finds that public defender programs need adequate funding to fully deliver a quality legal defense.

The Public Defender System: A Comparative Assessment

In 2013, the United States District Court for the Western District of Washington issued a stunning decision. The Court handed down a ruling that found a broken indigent defense system to “an extent that ‘the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.’”2 In this decision, the Court intended a strong message to the nation: “If you’re not running a public defense system that complies with the constitution, you’d better fix it.” There are three types of indigent defense models used throughout the United States. They are: “1) public defender systems; 2) assigned counsel; and 3) contract counsel.”3 The type discussed mainly in this Note is the public defender model. The state or county is the primary funding source in the public defender model.4 A public defender’s job is to represent indigent defendants. “Indigent defense involves the use of publicly financed counsel to represent criminal

Comparative study on the Public Defender System for Crime Victims in the process of criminal trial

Comparative study on the Public Defender System for Crime Victims in the process of criminal trial

The Public Defender System and the Indigent's Right to Counsel

The Public Defender System and the Indigent's Right to Counsel

Court Budgets and the Mootness Doctrine

In times of budget crises, the judiciary, like any government organization, may be subjected to dramatic reductions in operating budgets. Unlike funding for many other government organizations, however, funding for some court programs, such as defense of indigent criminal defendants, implicates important constitutional obliga tions. For example, a state decision to "defund" its public defender system obviously would create enormous Sixth Amendment difficulties. But what happens if a state defunds part of its public defender system, places selected defendants' trials on hold, is sued by these defendants?and then reinstates funding so as to allow the criminal trials to proceed? The answer, according to a recent Ninth Circuit Court of Appeals decision, is that the challenge to the defending is moot. In response to a severe economic downturn and rising state government budget deficits, the chief justice of Oregon in early 2003 issued a "Budget Reduction Plan" (BRP). This suspended criminal trials for some misdemeanors and all adult drug possession felonies in Oregon state courts until July 1, 2003, when the next fiscal biennium was to begin. The BRP's practical result was to shut down temporarily both criminal trials and access to public defenders for designated types of defendants from March through June 2003. As soon as Oregon trial judges implemented the BRP, they were subjected to lawsuits from a collection of public defenders, criminal defen dants, and even the Lane County district attorney. The plaintiffs alleged violations of the First and Sixth Amendments, the Fourteenth Amendment Due Process and Equal Protection Clauses, and the Oregon State Constitution and Oregon state statutes. After the Oregon State Supreme Court refused to invalidate the BRP, State ex rei Metropolitan Public Defender v. Courtney, 335 Or. 236, 64 P3d 1138 (2003), the plaintiffs brought suit in federal district court. By the time the suit had reached the U.S. District Court, June had passed, the chief justice had lifted the BRP, and funds were being provided for indigent defense. Consequently, the district court dismissed the plaintiffs' lawsuit as moot. Plaintiffs appealed to the Ninth Circuit Court of Appeals. In Foster v. Carson, 347 F.3d 742 (9th Cir. 2003), Judge Graber began by noting that as a matter of jurisdiction, feder al courts cannot hear moot cases, and "if there is no longer a possibility that an appel lant can obtain relief for his claim, the claim is moot." Id. at 745. The plaintiffs had not requested monetary damages, but had sought simply a declaratory judgment invalidating the BRP, as well as attorney fees. Inasmuch as the BRP already had been revoked, declaratory relief was not possible; as Judge Graber noted, "we cannot undo the past," id. at 746, and previous caselaw clearly established that an action for attor ney fees does not revive an otherwise moot action. Plaintiffs asked the court of appeals to invoke the "capable of repetition, yet evading review" exception to the mootness doctrine to reach the merits of the claim.

Optimal Deterrence with Legal Defense Expenditure

Legal defense expenditure by honest and dishonest accused can increase or reduce the amount of crime, and deterrence can decrease when punishment is increased. Unregulated expenditure of innocent and guilty defendants is inefficient whether or not there is a direct social harm from type I and II errors. The circumstances in which the optimal fine bankrupts convicted dishonest or honest defendants, regulation to limit defense expenditure and a tax‐financed public defender system are also investigated.

A Comparison of Sentencing Outcomes for Defendants with Public Defenders Versus Retained Counsel in a Florida Circuit Court

The Sixth Amendment to the U.S. Constitution states that a criminal defendant has the right to counsel for his defense, and the Fourteenth Amendment states that defendants must be provided due process and equal protection under law. Despite this, it is unclear whether indigent defendants in the United States-who are disproportionately ethnic minorities-are receiving such protections when it comes to the defense of their criminal cases. Approximately 80 percent of criminal defendants require court-appointed counsel because they are indigent. Many have questioned whether the case outcomes of defendants with court-appointed counsel are equivalent to those of defendants with retained counsel (Marcus, 1994).The focus of this note is a public defender system. Public defender systems have been subject to much criticism because of the problems that some jurisdictions face. Many systems are underfunded, resulting in low salaries for attorneys and insufficient legal and support staff. The lack of funds and staff can result in overwhelming caseloads (Calogero, 1995; Drecksel, 1991; Marcus, 1994; Ogletree, 1995). It appears that one of the biggest problems facing all indigent defense systems is funding. Funding can affect the quality of services provided if there are not enough resources to do the job adequately. The current study addressed this issue by examining the public defender system in a northern Florida county. Effectiveness can be measured in a number of ways, including client satisfaction, number of dismissals, and favorable outcomes. This study focused simply on whether public defenders are able to obtain similar sentences for their clients when compared with private attorneys, controlling for relevant case characteristics such as charge seriousness and prior record. The state of Florida is considered to have an above-average public defender system (Spangenberg Group, 1996); therefore, negative results attributed to a good public defender system could have strong policy implications.

Counsel for the poor: An evaluation of contracting for indigent criminal defense

This paper examines the cost-effectiveness of contracting as an alternative to traditional assigned counsel and public defender systems for providing representation to poor people accused of crimes. Contracting has been endorsed by many as a means of conserving public resources while providing experienced counsel; it also has been criticized as a means of ensuring that minimal public investment, and hence minimally qualified representation, is offered to the poor. This study tests the hypothesis that contracting, particularly competitively bid contracting, is less costly than the alternatives, and offers some observations about variation in types of contract and the consequences of this variation for program costs. This study differs from most research on indigent defense in that it is based on survey data from all felony court jurisdictions in a single state, Michigan. The results suggest that competitive bidding is indeed less expensive than the alternatives, but simultaneously raise questions about the...