This Saturday marks the 60th anniversary of Gideon v. Wainwright. This landmark Supreme Court decision established a constitutional right to counsel for defendants in state criminal courts, even if they cannot pay. In California, the right to legal representation dates back to 1872, and the way the state’s 58 counties have ensured it has shifted over time. Today, California’s indigent defense system is poised for more change.
The Sixth Amendment to the United States Constitution—ratified in 1791—grants defendants in federal courts the right to counsel. In 1963, the Supreme Court extended this right to state courts by ruling unanimously that Florida’s failure to provide an attorney for Clarence Earl Gideon violated the constitution and prevented him from receiving a fair trial.
California established the right to counsel nearly a century before the Gideon ruling. The state’s 1872 penal code guaranteed criminal defendants legal representation—but lawyers for the poor went unpaid. In a speech at the 1893 Chicago World’s Fair, Clara Shortridge Foltz, the state’s first female attorney, spearheaded the movement to create agencies charged with representing the poor in court.
After two decades of advocacy, the first public defense agency in the nation was established in Los Angeles County in 1913. In 1921, the state legislature authorized the creation of public defender offices, and California counties established nearly half of the 34 currently operating public defender offices before the Gideon ruling. Santa Cruz County founded the state’s newest public defender office in 2022.
Today, approximately 9 in 10 criminal defendants in the US cannot afford to hire a lawyer. California is one of a minority of states that makes the counties responsible for providing indigent defense—and the counties spend more on prosecutors than on public defenders. The Legislative Analyst’s Office found that public defender offices receive 82% less funding than district attorneys. This leaves them outmatched in overall budget, spending per arrest, and attorney-to-staff ratios.
This funding disparity starts at the top: public defenders earn less annually than district attorneys in 27 counties—and only Napa County pays each official exactly the same salary. Across the state, public defenders—who are appointed except in San Francisco—receive salaries that average 8% less than those of district attorneys, all of whom are elected.
The 24 counties that do not have public defender offices contract with law offices or individual attorneys to provide indigent defense. Research indicates that people represented by public defenders experience better outcomes: they are less likely to be convicted and they receive shorter sentences if found guilty.
Some counties may soon change the way they provide indigent defense. Recent evaluations recommended that Lake and Del Norte Counties move from contractual to institutional models. However, the Lake County study also concluded that all California counties need more state support to adequately serve poor defendants. Indeed, public defender offices in Lassen and Fresno Counties have been criticized for failing to provide effective counsel.
The state is already changing its role in providing indigent defense. In settling the Fresno lawsuit, the state pledged to help counties handle their indigent defense caseloads. Beyond allocating additional funding, it is not yet clear how the state will meet this mandate. Fulfilling this obligation could lead to increasingly centralized oversight of indigent defense in California.