The right to counsel in criminal cases is fundamental to a fair trial. The Universal Declaration of Human Rights was the first instrument of international law to set forth this right; it was later affirmed in multiple international conventions and national constitutions. In 2012, the United Nations promulgated Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and encouraged member states to create an effective legal aid system for the indigent.
Most nations recognize the obligation to provide publicly funded legal representation for indigent criminal defendants. The scope and implementation of public defense vary by country and the availability of resources.
Models for Providing Access to Counsel
Public DefenderPublic defender offices are financed by the government (national, regional, or local) and have staff that includes full-time attorneys and investigators. Public defender systems seek to foster an institutional commitment to accountability by providing training and supervision and holding attorneys to high standards. However, in most parts of the world defender offices face insufficient funding and excessive caseloads. These challenges are often exacerbated by low pay and security threats to staff.
Assigned CounselIn the assigned counsel model, the government appoints lawyers in private practice to criminal cases; they are usually compensated pursuant to a fee schedule. This approach is similar to the duty solicitor or duty counsel model used in the United Kingdom and many Commonwealth countries.
Pro BonoAttorneys in private practice—whether in solo practice or at a law firm—may agree to represent indigent criminal defendants without compensation. Pro bono counsel may be assigned by a court, contacted directly by defendants, or affiliated with an NGO.
Law ClinicsIn some countries, law schools and universities have criminal law clinics that provide services pro bono. The clinic director is usually a faculty member who supervises student case work. Students gain experience with research, writing, and client advocacy. Local legislation may provide judges the discretion to assign cases to the law clinic.
Implementing the Right to Counsel
The AmericasOver the last twenty years, countries throughout Latin and South America have undertaken ambitious criminal justice reforms. In many countries these efforts included a transition from the inquisitorial to adversarial system, the introduction of oral trial testimony, expanded procedural rights for the accused, and the right to counsel. The right to legal aid was included in Brazil’s 1934 Federal Constitution. Amendments to the 1988 constitution granted financial autonomy to public defender offices. There are both federal and state public defender offices across the country. Public defenders provide legal assistance to Brazilian citizens, in the country and abroad, as well as to refugees and asylum seekers.
In Chile, the establishment of Defensoría Penal Pública was part of post-dictatorship reforms. Although there are offices in many parts of country, Defensoría Penal Pública relies on private companies to provide representation for most indigent criminal defendants. The performance of these companies has been uneven, with some declaring bankruptcy.
Argentina recognized the right to legal aid in 1886. The Federal Public Defender’s Office, an autonomous institution, was added to the Constitution in 1994. If an accused requests an attorney, the government is obliged to provide legal aid, regardless of the individual’s potential sentence and income.
In Canada, the constitution guarantees the right to a fair trial. The government created a system for providing indigent criminal defense to ensure this constitutional guarantee. Canada has a federal system, and the mechanics of legal aid varies by jurisdiction, with a mix of state-funded private practitioners and public defender offices. Most defender offices are run by provincial and territorial authorities rather than the federal government.
The United StatesIn 1963, the United States Supreme Court decided Gideon v. Wainwright, finding that the constitution requires states – not just the federal government – to provide legal counsel for indigent criminal defendants. There are different models used throughout the country and in some regions, only those charged with felonies are provided an attorney. The first public defender agency opened in Los Angeles, California, in 1913 and there are now state and county public defender offices throughout the country. In 1970, federal defender organizations were created to serve the federal courts. Most states and the federal government also have a system of court-appointed counsel. Public defender offices and assigned counsel systems struggle with insufficient funding, leading to high caseloads. In 2013, the Attorney General observed that the nation’s system of indigent defense is “in a state of crisis.” Organizations like Gideon’s Promise provide training and resource support to public defenders throughout the United States.
China recognizes a right to counsel and the government must provide legal aid to indigent defendants, as well as children, persons with disabilities, and defendants facing life imprisonment or the death penalty. Japan has recognized a right to legal aid since 1880, and the government provides counsel to any defendant who cannot secure their own lawyer, whether because of inability to pay or other reasons. The Ministry of Justice, along with an independent self-governing legal aid body, administers legal representation using a duty roster system. Attorneys in private practice are assigned to cases; some are compensated by the government, and others work pro bono.
The constitution of India includes the right to legal aid. Initially this right was conditioned on income level, but a series of reforms in the latter half of the 20th century eliminated the means test. The National Legal Services Authority oversees legal aid services around the country and distributes funds to state and local agencies as well as to NGOs that provide legal aid services.
The European Charter and the European Convention on Human Rights (ECHR) guarantee criminal defendants the right to a lawyer. The European Court of Human Rights has ruled that the right to counsel is a fundamental procedural safeguard and attaches as soon as an individual is notified that they have been accused of a crime.
There is considerable variation as to how member countries implement this right. Some countries have a centralized entity providing defender services to the entire country through nationally funded local offices. This is the case in Great Britain, Finland, and the Netherlands. The Netherlands and Scotland have an independent board for legal aid; in England, Wales, and Finland, the Ministry of Justice is responsible for the legal aid system. In contrast, France, Germany, and Poland have decentralized legal aid systems with local councils responsible for administration. In Belgium, legal aid councils are controlled by regional bar associations. In Georgia, the Legal Aid Service is a public entity within the Ministry of Corrections.
In Russia, indigent public defense is provided for in the criminal procedure code. If an accused cannot afford an attorney, the investigative agency or court contacts the local bar association. The head of the association distributes these appointments among its members. Periodic pro bono representation is mandatory for all members of the bar. In Denmark, legal aid is provided by the private bar. The government subsidizes some legal aid offices, enabling them to expand income eligibility.
Free legal representation is available to all Danish citizens regardless of income. However, those convicted of crimes may be required to reimburse the government.
Middle East and North Africa
In Saudi Arabia, the 2002 criminal procedure code guarantees the right to a fair trial and the right to counsel. Indigent defendants have a right to assigned counsel at the trial stage, but only in major cases (as defined by the Ministry of the Interior).
In Jordan, state-funded legal aid is available only for the most serious crimes, such as those carrying a sentence of life imprisonment or death.
The Egyptian bar association is required by statute to create local committees to provide legal aid services on a pro bono basis. Limited legal aid services are provided through Egypt’s Ministry of Justice.
In Morocco, the government must provide counsel for indigent defendants who face a possible penalty of more than five years in prison. Legal aid services are coordinated through individual lawyers or the bar association on a pro bono, and largely ad hoc, basis. Bar associations are mostly organized at the regional level.
In Ghana, the Ministry of Justice has primary responsibility for managing the legal aid program. Publicly funded defense counsel work alongside state-funded private practitioners who provide their services pro bono. These services are available to criminal defendants in detention, victims of crime, witnesses, juvenile offenders, and defendants facing the possibility of life imprisonment or the death penalty. Counsel is also provided should a court deem legal aid would be in the interests of justice.
Kenya’s 2010 constitution recognizes a limited government-funded right to counsel. Courts have interpreted this provision to require court-appointed counsel for indigent criminal defendants charged with murder, a capital offense.
South Africa first recognized a right to legal aid in 1970 and reorganized delivery of legal services in the early 2000s. The government is obligated to provide counsel to indigent defendants, as well as children, defendants with disabilities, defendants facing a prison sentence, or in cases that are exceptionally complex or notorious. These services are provided by salaried lawyers. South Africa has legal aid/defender offices in some regions.