Indigency

The word indigent refers to someone who is poor or disadvantaged. In legal terms, a person who is indigent lacks the financial means to pay for something. Indigency, therefore, refers to the state or condition of being indigent.

IndigencyFor example, someone who claims Indigency may be eligible for free government services or programs. An indigent person who is involved in a legal dispute may be eligible for free legal representation, based on their inability to pay for such a service.

The Sixth Amendment, Due Process and Indigency

The Sixth Amendment to the Constitution provides access to legal representation to everyone accused of a crime regardless of an individual’s financial status. This is why there are public defenders available to provide counsel to those who cannot afford to hire an attorney on their own. If you are charged with a crime and deemed to be indigent by the court, a judge will appoint a public attorney to represent you.

Additionally, the U.S. Constitution guarantees the right to due process of law for all citizens. This means that everyone is afforded the same protections and access to the judicial system, no matter their social or financial standing.

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In the U.S., certain rights and privileges are afforded to everyone — even those accused of crimes. The Sixth Amendment to the Constitution sets forth the rights guaranteed to people who are facing criminal charges.

If you have been charged with a crime, the Sixth Amendment states that you have the right to a public trial, the right to have that trial heard by an impartial jury, the right to know what crime you are being charged with and who is accusing you of the crime, and the right to have an attorney represent you at trial.

The Sixth Amendment and Public Defenders

Although the Sixth Amendment guarantees defendants and persons accused of a crime the right to legal counsel, it does not specifically address persons who are not financially able to afford an attorney on their own.

In 1893, attorney Clara Shortridge Foltz addressed this problem by proposing legislation to institute a public defender’s office, in order to ensure that indigent defendants received legal counsel and representation at trial.

Although it took nearly 30 years, California Legislature finally passed Foltz’s bill in 1921. Thanks to her efforts, defendants today are ensured legal representation, even if they are unable to afford a lawyer on their own.

When Does the Right to Counsel Not Apply?

Over the years, the Supreme Court has had to further define exactly when the Sixth Amendment right to counsel applies and when it does not. For instance, until the 1963 Supreme Court case of Gideon v. Wainwright, the right to counsel did not necessarily apply to all state-level criminal cases.

Because of the Supreme Court’s ruling in that landmark case, the right to counsel now applies to any case – state or federal, misdemeanor or felony – in which the defendant faces the possibility of jail time.

How is Indigency Determined?

In order to claim indigency, a person’s financial status must be verified. Although there are different regulations and income thresholds at the federal, state, and local levels, government administrators typically consider factors such as whether the applicant’s income exceeds the federal poverty level, whether paying the associated fee would create undue hardship for the applicant or his or her dependents, and whether the applicant receives any form of government assistance.

Affidavit of Indigency

An Affidavit of Indigency is a legal document used to establish that an individual cannot afford the costs associated with legal proceedings, such as court fees, filing fees or other related expenses. The purpose of this affidavit is to request a waiver or reduction of these fees based on the person’s financial hardship.

To obtain an Affidavit of Indigency, an individual typically completes a form provided by the court or legal authority handling the case. The Affidavit of Indigency form usually requires the person to provide information about their income, assets, expenses and other financial obligations.

This information helps assess the person’s financial situation and determine whether they qualify for fee waivers or reductions. Once the affidavit is completed, it is typically signed under oath, affirming the truthfulness and accuracy of the information provided.

Some jurisdictions may require additional documentation or evidence to support the claims of indigency, such as pay stubs, tax returns, bank statements or proof of government assistance. The Affidavit of Indigency is then submitted to the appropriate court or legal authority along with any required supporting documents.

The court will review the affidavit and make a determination regarding the individual’s eligibility for fee waivers or reductions. If approved, the person may be granted exemptions from certain fees or be allowed to pay reduced fees based on their financial circumstances.

It’s important to note that the specific procedures and requirements for obtaining an Affidavit of Indigency may vary depending on the jurisdiction and the type of legal proceedings involved. It is advisable to consult with a legal professional or contact the relevant court or authority for accurate and up-to-date information regarding the process in a particular area.

One of the cornerstones of the American judicial system is the promise to provide due process to all persons, regardless of citizenship. In fact, the guarantee to due process of law is the only right explicitly stated twice in the U.S. Constitution — once in the Fifth Amendment and again in the Fourteenth Amendment. But what exactly is due process?

Due Process Defined

Essentially, due process refers to the enforcement of laws. There is a distinction between the Fifth and Fourteenth Amendments treatments of due process, though. The Fifth Amendment’s guarantee to due process only applies to the federal government, which has resulted in the unfair application of Constitutionally-guaranteed rights for citizens throughout the nation’s history. The Fourteenth Amendment seeks to remedy this problem by extending the right of due process to all state governments and courts.

A prime example of the unfair application of due process rights is the history of court-appointed attorneys for indigent persons. The Sixth Amendment states that all defendants shall be afforded the right to a speedy trial by a jury of their peers, the right to know what the alleged crime is and who has accused them, and the right to an attorney — even if they cannot afford to hire one.

However, until the case of Gideon v. Wainwright, the state of Florida interpreted this Constitutional right to apply only to defendants charged with capital crimes. In other words, Florida would only appoint an attorney to an indigent person if he or she had been charged with a crime which could result in the death penalty.

This interpretation of the U.S. Constitution by the state of Florida was clearly a violation of certain indigent persons’ rights to due process. As a result, in 1963 the Supreme Court ruled that all states must appoint an attorney to all indigent defendants facing any charge that could result in jail time.

If you have been charged with a crime and deemed indigent by the court, state is required by law to provide you with legal representation. There are two types of lawyers who represent indigent clients: public defenders and panel attorneys.

Public Defender vs Panel Attorney

Some states maintain public defender offices, each staffed with a chief public defender and several assistants. The chief public defender may be elected or appointed; all of the attorneys working in public defender offices are fully-qualified and licensed lawyers.

If a jurisdiction does not have a public defender office — or if a public defender is not available — the judge may assign a panel attorney to represent an indigent defendant. Panel attorneys are lawyers who work for private firms and have signed up for the court’s indigent defense panel.

The Sixth Amendment to the Constitution provides the right to an attorney for all persons accused of a crime. A defendant who is not able to afford an attorney on his or her own is referred to as indigent.

If an indigent defendant has been charged with a crime which could result in jail time, then the court must appoint an attorney to the case; such an attorney is referred to as a public defender.

Sometimes, a judge may appoint a panel attorney to a case even if a public defender is available. Generally this happens when an apparent conflict of interest exists between the public defender and the particular case or defendant.

Horizontal and Vertical Representation

If your case has been assigned to a public defender, you may experience either horizontal or vertical representation. Vertical representation means that the same attorney will handle your case from start to finish. With horizontal representation, your case may be handled by different attorneys at different stages of the legal process.

For example, one lawyer may handle your arraignment and another lawyer may take over at the time of the trial. Generally, in a horizontal representation system, less experienced lawyers handle the bail motions and arraignments while the more senior attorneys step in when it is time for trial.

Do I Qualify for a Public Defender?

Generally speaking, courts determine indigency based on income level. Different courts have different procedures for determining indigency; some judges may require you to provide documentation to prove your lack of financial means. The criteria for determining indigency will vary between county, state and federal jurisdictions.

The Public Defender

While some jurisdictions maintain a public defenders office, others may simply appoint a private attorney to handle your case. Regardless of whether the attorney works for the government or a private firm, he or she has the same obligation to defend your interests with vigor.

In legal terms, you may experience vertical or horizontal representation. Vertical representation means that the same attorney handles your case throughout its duration, while horizontal representation means that different lawyers may step in at different phases of the case.

Although having the same attorney represent you for the duration of your case may seem preferable, horizontal representation may actually result in a more senior-level attorney stepping in for the more serious phases of your case.

Gideon vs Wainwright

The Sixth Amendment to the Constitution was designed to protect citizens from unfair or unbalanced judicial proceedings by affording all people certain rights — including the right to an attorney at trial. However, this right has not always been applied equitably.

Throughout our nation’s history, those who were indigent — that is, too poor to afford an attorney—often went to trial with no representation, simply because of their financial status. This was due to the way certain states interpreted the Sixth Amendment’s provisions.

In Florida, for example, state law said that indigent defendants would only have an attorney appointed to them if they were charged with a capital offense – a charge which could result in the death penalty. This all changed, however, in 1963, when the Supreme Court ruled in the Florida case of Gideon vs Wainwright.

Clarence Earl Gideon was charged with breaking and entering with the intent to steal — a felony charge under Florida state law. Because he was indigent, Gideon asked the judge to appoint an attorney to represent him; the judge denied his request, based on Florida’s interpretation of the Sixth Amendment right to counsel.

Gideon proceeded to represent himself at the trial, only to be found guilty and sentenced to five years in prison. Gideon appealed the decision to the Florida Supreme Court, which upheld the lower court’s decision. He next filed an appeal to the U.S. Supreme Court.

Gideon’s appeal required the Supreme Court to review its decision in another case — the 1942 case of Betts vs Brady, in which the Court ruled that states could refuse to appoint counsel to indigent defendants without violating their due process rights.

After reviewing this case and hearing Gideon’s petition, the Supreme Court unanimously overturned the Betts vs Brady decision, thereby ensuring that all indigent defendants facing the possibility of jail time — regardless of the crime they have been charged with — would be appointed legal counsel.

Indigency and Appeals

The Sixth Amendment to the Constitution guarantees that all persons have the right to legal counsel if criminal charges are brought against them. Through several landmark cases in the early 20th century, the Supreme Court decided that this right extends even to low-income or under-privileged people who cannot afford to hire an attorney on their own.

This means that indigent defendants must have a defense attorney appointed to their case from the time the charges are brought against them until the conclusion of the trial. But what about post-trial proceedings such as appeals? Does the Constitutional right to representation extend past the initial trial?

Right to Representation in Post-trial Proceedings

In the U.S. judicial system, there are several avenues for appeal following a conviction. If a non-indigent defendant has hired private representation, his or her attorney may choose to pursue any number of these avenues.

However, for the indigent defendant who has been represented either by a public defender or panel attorney, the Constitutional right to legal counsel extends only to the first post-conviction appeal, also known as the appeal as a matter of right.

In other words, if an indigent defendant is found guilty at trial, he or she may be appointed an attorney for representation in the first appeal. The appointed attorney may or may not be the same lawyer who represented the defendant in the first trial; this depends on the local jurisdiction’s procedures and whether there is a local public defender’s office or panel of court-appointed attorneys.

Inadequate Representation

All defendants — that is, persons who have been charged with a crime — are entitled by the Sixth Amendment to the right to a speedy trial by an impartial jury, the right to know who is accusing them and what the charges are, and the right to legal representation. Although not explicitly stated in this Amendment, the Supreme Court has ruled that the rights to legal representation and a fair trial include the right to adequate representation.

Adequate representation essentially means that your attorney must have a basic level of competency in regards to legal defense and judicial proceedings. The right to adequate representation is guaranteed to all defendants, whether they have hired a private attorney on their own or have been appointed a public defender based on a claim of indigency.

Claims to Inadequate Representation

If a defendant is found guilty and feels that the lawyer did not do an adequate job, he or she may submit a claim of inadequate representation. If a judge finds the claim to be true, then the results of the trial may be thrown out and a new trial may be granted. A claim of inadequate representation must meet two requirements before it can be approved.

First, it must be shown that the attorney’s performance was so deficient that it did not meet the standard of counsel as guaranteed by the Sixth Amendment. This can be done by showing that the lawyer made egregious errors or simply did not give the case adequate time and attention.

Second, it must be shown that the attorney’s deficient performance led to an unfairly prejudiced defense—in other words, that the lawyer’s performance was so bad that the defendant was unable to receive a fair trial.

Inadequate Representation and Guilty Verdicts

In today’s society, the term public defender often is attached to connotations of government-employed, overworked and underpaid lawyers, toiling away under mounds of case files that will receive far less time and attention than they deserve.

While this may be an over-exaggeration, it is true that both the number of indigent defendants and the need for adequate public defense have risen since the 1963 Supreme Court ruling in Gideon vs Wainwright.

A study conducted by the U.S. Department of Justice found that criminal defendants were found guilty at nearly the same rate regardless of whether they hired a private attorney or were appointed a public defender by the court. However, the defendants who were represented by public counsel were statistically much more likely to face jail time as a result of their conviction than those who retained private attorneys.

Caseloads of Public Defenders

A separate study, conducted by the Constitution Project, the National Legal Aid & Defender Association, and the National Right to Counsel Committee found that some public defenders carry as many as 500 felony and 2,225 misdemeanor cases at a time. The recommended caseload from the American Bar Association is 150 felony cases and 400 misdemeanor cases for any one lawyer at any given time.

These statistics suggest that the portrayal of the public defender as severely overworked may not be so far off base. If an indigent defendant is found guilty and feels that the public defender did not do an adequate job of defense, he or she may file a claim of inadequate representation.

Resources for Clients Who Cannot Afford a Lawyer

Indigency does not solely affect people who have been accused of a crime. There are numerous instances in which a low-income individual may require legal assistance but cannot afford to hire an attorney. For example, if you and your spouse have filed for divorce, if you find yourself in a dispute with your landlord or if you need to file suit in an unemployment case you may need legal representation.

Legal Aid Near Me

For civil cases such as the ones mentioned above federal grants are available to help indigent clients obtain legal assistance. If you fall into this category, you should contact your local public defender’s office or make a search in Google for “legal services near me” “indigency lawyer near me” or “legal aid near me”.

You can also check with any local bar associations in your area, as these organizations often provide pro bono programs to assist indigent clients. Ask your local, county, or regional bar association about any self-help clinics or low-cost legal programs that may be available. You may be able to get your questions answered at a clinic or find an affordable program that will suit your needs.

Qualifying as indigent – Legal assistance for Indigent Criminal Defendants

If you have been charged with a crime and cannot afford a lawyer, the court should assign a public defender to your case. If a public defender is not available, you may be represented by a panel attorney.

In order to be eligible for any of the above-mentioned programs and services, you must qualify as indigent. Most judges and attorneys will want to see documentation supporting your claim of indigency — in other words, you must prove that your income is below a certain level.

For more information about free legal services and our indigent legal services, please visit Indigency.com.

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