There are three primary models for providing representation to those accused of crimes and unable to afford counsel: assigned counsel, contract, and public defender programs. States usually employ some combination of these models. For example, in states with a statewide public defender system, private attorneys may be appointed in cases presenting a conflict of interest or to alleviate burdensome caseloads. In states where there is less uniformity, there may be contract counsel in one county, assigned counsel in a second county, and a public defender office in yet a third county.

The assigned counsel model involves the assignment of indigent criminal cases to private attorneys on either a systematic or an ad hoc basis. The contract model involves a private bar contract with an attorney, a group of attorneys, a bar association, or a private nonprofit organization that will provide representation in some or all indigent cases in the jurisdiction. The public defender model involves a public or private nonprofit organization with full- or part-time staff attorneys and support personnel. Assigned counsel programs use private attorneys to represent indigent defendants.

Indigent defense systems may be organized at the state level, at the county and regional level, or in some other form that does not fit neatly into the two previous categories. More than half the states have some form of statewide indigent defense program. These statewide systems have varying degrees of responsibility and oversight, but provide some degree of uniformity to the delivery of indigent defense services statewide. Seventeen states operate indigent defense programs using a state public defender with full authority for providing defense services statewide: Alaska, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, Rhode Island, Vermont, Wisconsin, and Wyoming. 

Twelve states use indigent defense commissions to set guidelines for the provision of services statewide: Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, and Tennessee. The distinction between having a "state commission" or a statewide public defender system can be subtle. Frequently, in the state commission model, local jurisdictions are authorized by statute to determine the type of program (public defender, assigned counsel, contract) that best suits their needs within the promulgated guidelines. They then operate the program independently. 

County and regional systems delegate the responsibility to organize and operate an indigent defense system to the individual county or group of counties composing a judicial district. Thirteen states follow this pattern:  Alabama, Arizona, California, Idaho, Maine, Michigan, Mississippi, New York, North Carolina, South Dakota, Texas, Utah, and Washington.

Nine jurisdictions do not fit neatly into state or county and regional systems: the District of Columbia, Florida, Illinois, Iowa, Nevada, Oregon, Pennsylvania, Virginia, and West Virginia. In Illinois, every county with a population of 35,000 or more must have a local public defender program. In less populous counties, public defender programs are optional. (This information is in large part from the Spangenberg Group.)

Pay for attorneys varies across states, counties, and other jurisdictional districts. Attorneys may be paid on an hourly basis; for example, $30 an hour for work out of court and $40 an hour for work in court. In some states, attorneys are provided a flat fee per case.

In a contract attorney program the state, county, or other jurisdictional district enters into contracts with private attorneys, law firms, bar associations, or nonprofit organizations to provide representation to indigent defendants. Such arrangements may pay attorneys in different ways. In a fixed-price contract program, the lawyer, firm, or bar association agrees to accept an undetermined number of cases within an certain period of time, frequently one year, for a single flat fee. In a fixed-fee-per-case contract program, a private lawyer, firm, or organization provides representation for a predetermined number of cases for a fixed fee per case. Frequently, funds for support services, investigation, secretarial services, and expert witnesses are included in the contract. Many jurisdictions have adopted the fixed-price contract model solely as a means to cut costs and to predict the cost of litigation going into the fiscal year. 

A 1999 survey conducted by the Bureau of Justice Statistics found that an estimated $1.2 billion was spent to provide indigent criminal defense in the nation's 100 most populous counties. About 73 percent of the total was spent by public defender programs, 21 percent by assigned counsel programs, and 6 percent on awarded contracts. This $1.2 billion represents an estimated 3 percent of all local criminal justice expenditures used for police, judicial services, and corrections in these counties. For an analysis of the amount of pay public defenders receive across jurisdictions, see NCSC’s Indigent Defense Resource Guide—Compensation for Attorneys.

Twenty-three states fund their trial system exclusively through state funds, 11 states exclusively through county funds, and 16 states through a combination of state and county funds. A 1999 survey conducted by the Bureau of Justice Statistics found that the 100 largest county governments provided 60 percent, and state governments 25 percent, of total funding used by indigent criminal defense service providers.  In addition, a growing number of states rely on filing fees, cost recovery, or court costs assessments from civil litigants and criminal defendants to help fund indigent defense.  For more information see Table 17, "Trial Court Expenditures and Funding Sources for Selected Expenditure Items," David B. Rottman, et al, State Court Organization 2004.

Between 80 and 90 percent of all people charged with criminal offenses in America qualify for indigent defense.  It is the constitutional responsibility of the government to provide counsel, to ensure that criminal proceedings are fair and constitutional, and to protect the innocent. Each state has different guidelines for determining who qualifies for indigent defense representation. For a list of resources, please see NCSC’s resource guide concerning determining indigence.

To see a list of links to county, state, and federal public defender offices and assigned counsel offices, and links to organizations for public defenders, please see Indigent Defense State Links. 

The death penalty is legal in 37 states. Each state has different qualifications and generally specifies different qualifications for lead trial counsel and co-counsel in capital cases. The following states have standards for the appointment of counsel to handle cases on behalf of indigent defendants: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming. To access state-specific information regarding requirements to litigate indigent capital cases, see Madelynn Herman, "Indigent Defense Capital Case Representation Memorandum". This memorandum provides statutes or rules on standards of qualification for attorneys to handle capital cases on behalf of indigent defendants in 35 states. Links to online statutes and public defender agencies are also provided.