Since the landmark Supreme Court decision Gideon v. Wainwright (1963) every state has developed a system of public defense. The decision guaranteed that those accused of felony offenses are entitled to a lawyer under the rights outlined in the 6th Amendment, which include, the right to a jury trial, a public trial, and pertaining to Gideon, “to have the assistance of counsel for his defense.” In the wake of the Gideon decision each state was required to develop a system of public defenders to represent those who did not have a legal counsel, and especially those who could not afford a lawyer. Because of low funding for public defense, and the increasing number of cases filling courtrooms, more states are requiring defendants to pay a fee for their assigned defender—whether they are found guilty or not.
An April 2016 New York Times article Fordham University Law professor John Pfaff, highlights more weaknesses in the public defense world and in the odd funding mechanism. Forty-three states now require defendants to pay for a public defender, even though the only reason they have a public defender in the first place is because they cannot afford a lawyer. The Times article highlights the current policy in South Dakota where a defendant is required to pay $92 dollars an hour regardless of the verdict. The result of this policy is that the defendant might have to pay hundreds of dollars a day to be proven innocent for a crime for which he or she was mistakenly arrested.