Understanding the comparison of budgets for prosecutors and budgets for public defense

From watching crime shows on television, we would all have the impression that a prosecutor stands on one side and a public defender stands on the other in every case, giving the appearance that their roles are exact mirror images of each other. But this is not true, for several reasons.

Prosecutor systems and public defense systems are responsible for different types of cases, with each having responsibility for some that the other does not handle.

Some criminal cases do not carry jail or prison as a potential sentence. While a person may hire an attorney to defend them in these cases, they are not entitled to have a publicly financed attorney to represent them.  So, in all criminal cases that do not carry jail or prison as a possible sentence, prosecutors will be involved, but the public defense system will not be.

In every criminal case where a person can be sent to jail or prison, the person is entitled to have publicly financed counsel if they cannot afford to hire their own private attorney. Although there is no concrete data nationwide, we do know that a significant number of defendants waive their right to counsel altogether and plead guilty while in jail immediately after their arrest or at their first court appearance. So, the public defense system is not involved in these cases, while the prosecutor's office is. Of those defendants who do not waive their right to counsel, it is generally the case that 85% to 90% of them will be unable to afford private counsel and will be represented by the public defense system, while 100% of those cases will involve the prosecutor's office

A single prosecutor can prosecute a case that involves multiple defendants. For the prosecutor office, there is one prosecution with the same facts and the same evidence. For the public defense system, this is known as a conflict situation, because each defendant must have their own independent defense attorney. And each of those attorneys must work independently and investigate their own client's case independently. So, if there are five co-defendants in a case, this is one prosecution for the prosecutorial system but it is five defendants for the defense system.

Public defense systems, over the years, have typically been tasked with providing counsel to people who cannot afford to hire their own attorney in many kinds of cases thought of as involving civil law. These can include, for example: representing parents who are facing loss of custody of their children; representing children who may be removed from the custody of their parents; representing people whose mental capacity is in question and who are facing losing the right to control their own affairs. And, the public defense system often is responsible for providing counsel to more than one person in these kinds of cases. For example, in a case involving removing a child from the custody of parents, the public defense system may be responsible for providing an attorney to represent the father, another to represent the mother, another to represent the child, and perhaps even other attorneys to represent grandparents or aunts & uncles. While there is often an attorney from some state agency who is involved in these cases, that attorney is not normally employed in the prosecutor office system, so the funding for the state agency attorney comes out of some budget other than that of the prosecutor.

Prosecutor systems and public defense systems acquire their evidence differently.

In most criminal cases, the prosecutor is not involved in the case until the investigation is complete and a suspect has been arrested by law enforcement, though prosecutors may be consulted by law enforcement earlier in a high-profile or legally complex case.  At the time of arrest, a prosecutor will be assigned to the case and will receive the law enforcement file containing the investigative materials prepared by law enforcement.  If further investigation is needed in the state’s case, the prosecutor can ask the law enforcement agency to conduct that investigation.  Most prosecutor offices also have a small number of investigators on their staff, but for the most part the cost of investigation on behalf of the prosecution is borne by the law enforcement agency budgets.

The arrest of a person triggers the right to appointment of counsel.  If a person is indigent and asks for counsel to be appointed, they will receive publicly financed counsel.  And after counsel is appointed, only then will the defense investigation of the case begin.  Because our laws presume a person to be innocent unless and until they are convicted, the defense attorney must conduct an independent investigation of the case.  The full cost of the defense investigation is borne by either the public defense system within which the attorney works or by the defense attorney personally.  Defense counsel cannot use law enforcement agencies to conduct the defense investigation.

Many criminal cases involve scientific evidence such as drug analysis or rape kit analysis or fingerprint identification or ballistics analysis.  For the prosecution, this scientific work is typically performed by a state or federal crime lab, with the costs being paid by the budget of that state or federal crime lab rather than out of the prosecutor’s budget.  The defense must evaluate all of the scientific evidence that the prosecutor intends to use in the case, and to do that the defense must hire independent scientists, with the costs being paid either by the public defense system or by the defense attorney personally.

Funding for prosecutor systems and public defense systems is provided in different ways.

The majority of prosecutors in the country are elected on a county-wide basis and serve a single county or multi-county district.  So the first input to the prosecutor’s office is generally some amount of funding from the general budget of the county being served.  Then, the state typically provides additional budget amounts, also normally from the state’s general budget, to each prosecutor office within the state.  And, the federal government provides funding for special projects to prosecutor offices, and most prosecutors apply for and receive these funds.  Finally, prosecutor offices are able to generate additional funding for their offices through distinct programs, such as creating a diversion program that requires a defendant to pay a fee to the prosecutor’s office in exchange for being placed on pretrial supervision that may result in charges being dismissed, or through the sale of assets seized in forfeiture proceedings.

By contrast, public defense systems are organized and funded in a variety of ways.  A single statewide system may be responsible for providing the defense of every indigent person charged with a crime anywhere in the state, such as in Massachusetts, Minnesota, and Colorado.  Even in these statewide systems, the funding of the defense system may not come from the general budget and may instead be primarily dependent upon the imposition and collection of fines to fund the system, such as in Louisiana.  In many states, responsibility for providing indigent defense lies with the counties.  In county-based jurisdictions, each county may make its own decision about how to fund indigent defense and the county may not receive any financial assistance at all from the state.  Examples of this are Utah and Pennsylvania.  By contrast, indigent defense representation in Alabama is provided primarily by lawyers appointed case-by-case, yet all of the funding comes from the state.  Or, the state may provide some funding with the counties individually deciding whether and how much to contribute, such as in Georgia.  Rarely if at all does the federal government provide funding for indigent defense representation in states’ courts.

Parity, Not Equality

Because of all of these differences between prosecutorial systems and public defense systems, we cannot simply look at a state’s budget for prosecution and a state’s budget for public defense and say they should be exactly the same.  This is the reason that national standards call for parity, rather than for equality.  The ABA Ten Principles of a Public Defense Delivery System, Principle 8, provides in relevant part:

There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.  There should be parity of workload, salaries and other resources (such as benefits, technology, facilities, legal research, support staff, paralegals, investigators, and access to forensic services and experts) between prosecution and public defense.  . . .  No part of the justice system should be expanded or the workload increased without consideration of the impact that expansion will have on the balance and on the other components of the justice system.  Public defense should participate as an equal partner in improving the justice system.  This principle assumes that the prosecutor is adequately funded and supported in all respects, so that securing parity will mean that defense counsel is able to provide quality legal representation.

There is little doubt that many, if not most, of the prosecutorial systems in our country are not adequately funded and supported – they need more resources to prosecute all of the behavior that has been criminalized by our lawmakers.  As the ABA Principle 8 points out, achieving parity with a prosecutor who lacks sufficient resources will just result in both the prosecutor and the defense lacking sufficient resources; neither will be able to fulfill their civic duties.  Instead, in comparing the resource needs of these two systems – prosecutor and defense – we must acknowledge the ways in which their responsibilities, spending requirements, and sources of funding are different, and we must provide adequate resources for both.

Author/Organization: Phyllis E. Mann
Publication Date: 02/09/2011