in felonies. 
3 In two cases, Argersinger v. Hamlin, 407 U.S. 25 (1972) and Scott v. Illinois, 440 U.S. 367 (1979), 
the Court tied the right to counsel in misdemeanor cases to the defendant’s actual incarceration. Because 
it is difficult to predict when a judge will want to incarcerate a person convicted of a misdemeanor, this 
approach is difficult to implement. 
4 
5Many states instead appoint counsel to an indigent defendant charged 
with a crime where a possible term of incarceration could be imposed. 
The Court left it for the lower courts to decide when a person is indigent. Lower courts have generally 
held that the financial resources of a family member cannot be considered. Also, courts cannot merely 
conclude that because a college student is capable of financing his or her education that he or she is capable 
of hiring an attorney. A person does not have to become destitute in order to be classified as indigent. An 
indigent defendant may have to pay back the court-appointed attorney’s fees if they are convicted or enter 
a plea. In practice, most courts collect appointed attorneys’ fees at a standard rate and much reduced from 
the actual costs of representation as part of the fines that a convicted defendant must pay. When acquitted, 
defendants are not required to pay the state back for the attorney fees. 
Public Defenders, Assigned Attorneys, and Defense Attorney Associations 
Most states now have public defenders’ offices. Because public defenders and assistant public defenders 
handle only criminal cases, they become the specialists and have considerable expertise in representing 
criminal defendants. Public defender offices frequently have investigators on staff to help the attorneys 
represent their clients. In some states, courts appoint or assign attorneys from the private bar (not from the 
public defender’s office) to represent indigent defendants. The mixed system uses both assigned counsel, 
or associations of private attorneys who contract to do indigent criminal defense, and public defenders. 
For example, the public defender’s office may contract with the state to provide 80% of all indigent 
representations in a particular county. The remaining 20% of cases would be assigned to the association of 
individual attorneys who do criminal defense work- some retained clients, some indigent clients-or private 
attorneys willing to take indigent defense cases. 
In practice, there is no purely public defender system because of “conflict cases.” Conflicts exist when one 
law firm tries to represent more than one party in a case. Assume, for example, that Defendant A conspired 
with Defendant B to rob a bank. One law firm could not represent both Defendant A and Defendant 
B. Public defender offices are generally considered one law firm, so attorneys from that office could not 
represent both A and B, and the court will have to assign a “conflict” attorney to one of the defendants. 
3. Gideon v. Wainwright, 372 U.S. 335 (1963) 
4. Argersinger v. Hamlin, 407 U.S. 25 (1972) 
5. Scott v. Illinois, 440 U.S. 367 (1979) 
Introduction to the American Criminal Justice System
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