Why does Florida have public defender elections?

AuthorPhillips, Zachary
  1. Introduction II. A Historical Overview III. The Debate over Public Defender Elections A. The Argument for Elections B. The Argument against Elections IV. Analysis A. The Florida Supreme Court's Opinion B. The Florida Bar C. The Majority Appoints V. Conclusion I. INTRODUCTION

    The Sixth Amendment to the Constitution guarantees that anyone within the borders of the United States who is accused of a crime will have effective assistance of counsel. (1) The Supreme Court of the United States has deemed this principle as so fundamental to our society that it is mandated in all criminal trials. (2) The public defender system was implemented by every state to accomplish this noble goal. (3)

    The state of Florida is different from all other states, with the exception of Nebraska, Tennessee, and parts of California, in its implementations of this mandate. (4) Florida uses an election process to determine who will take the position of public defender in each of its judicial districts. (5)

    Section II of this article provides a brief overview of the history of the right to assistance by counsel. (6) This background information is crucial in evaluating the arguments in favor and against popular elections for public defenders. (7)

    Section III of this article discusses why Florida elects its public defenders and the arguments for and against this election system. (8) Determining these reasons is crucial in understanding whether Florida has a system that is in the best interest of the public and strikes a balance with the preservation of our adversarial system. (9) This section also addresses the advantages and downfalls of this election system. (10) Additionally, this section explores some strategies and campaign tactics that previous public defender candidates have used in the past in order to determine whether this system establishes the goals it was set out to meet. (11)

    Section IV discusses the Office of Criminal Conflict and Civil Regional Counsel ("OCCCRC"). (12) The Florida legislature has now passed into law essentially a second public defender's office. (13) This has come to light in view of the conflict of interest that sometimes exists when the public defender's office is assigned to two co-defendants. (14) This piece of legislation raises a significant issue because the OCCCRC is appointed by the governor whereas the public defenders are elected. (15)

    The importance of this issue is a matter of public policy. (16) The office of the public defender is essential to our adversarial system. (17) In order for an indigent individual to have a fair trial, it is imperative that the public defender office be free from any outside influences. (18) The purpose of this article is to explore whether an appointed public defender is less capable of guaranteeing the Sixth Amendment to the Constitution's promise of effective assistance of counsel when compared to an elected public defender. (19) This is very important to the public as a whole, especially in the state of Florida. (20) Finally, Section V argues that the Florida Constitution should be amended to provide for the appointment of public defenders. (21)


    The right to have counsel has been a fundamental part of our nation for almost its entire existence. (22) The Sixth Amendment to the Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (23) However, this guarantee was not mandated for indigents until 1932. (24) In Powell v. Alabama, (25) the Supreme Court of the United States recognized the need to provide assistance to indigents for capital cases. (26) The Court executed this mandate by applying the Due Process Clause of the Fourteenth Amendment to the Sixth Amendment and thus making it a right protected by the Constitution. (27) However, the Court did not decide whether an indigent should be provided assistance of counsel in non-capital cases. (28) It was not until six years later when the Court decided Johnson v. Zerbst, (29) that the Court broadened this mandate to all federal courts. (30) However, in 1942, in its decision in Betts v. Brady, (31) the Court declared that the right to assistance of counsel to indigents was not a fundamental right. (32) The Court reviewed all of the original thirteen states' constitutions and determined that they did not include an inherent right to the assistance of counsel. (33) The court looked at the constitutions of all of the states and determined that in a majority of states, while a defendant could not be denied the option to appoint counsel, a defendant was not entitled to assistance of counsel. (34) This case was the law for more than twenty years. (35)

    In 1963, the Supreme Court of the United States decided Gideon v. Wainwright was decided. (36) This landmark case established that assistance of counsel is a right guaranteed to indigent individuals who face criminal charges. (37) The petitioner Gideon was charged with a misdemeanor for breaking into a pool hall with intent to commit a misdemeanor within, (38) a felony under Florida law. (39) When Gideon appeared at trial, he had no funds to hire a lawyer and requested that one be appointed to him. (40) The court responded that it could not appoint a lawyer under the laws of the state of Florida. (41) Gideon had no choice but to represent himself. (42) He argued and conducted his defense as well as could be expected from a person who was not an educated lawyer. (43) The jury returned a verdict of guilty and he was sentenced to five years imprisonment. (44) He then filed a habeas corpus petition with the Florida Supreme Court. (45) However, under the Supreme Court of the United States' holding in Betts v. Brady, the Florida Supreme Court had to deny him all relief he sought. (46) Then the Supreme Court of the United States granted certiorari to review this decision. (47) The Court noted that the facts and circumstances surrounding Gideon's case were almost indistinguishable from those in Betts v. Brady. (48) The Court's analysis began by looking at the precedent established before Betts v. Brady that led the Court to its decision. (49) The Court looked to this analysis and ultimately concluded that the Betts v Brady Court had mistakenly analyzed the precedents before it. (50) In reaching its decision the Court quoted:

    We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution. (51) To elevate its position it quoted again:

    The assistance of counsel is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.... The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.' (52) With these quotations as evidence the Court proceeded to state that the Betts v. Brady Court indeed had misinterpreted past precedent and should be overruled. (53) In explanation of their ruling, the Court said:

    In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. (54) This seems quite elementary now. However, indigents were not provided the assistance of counsel for any charge less than a capital offense a mere fifty-one years ago.


    Immediately following this case, Florida established the office of the Public Defender. (55) Peculiarly, Florida chose to elect its public defenders instead of having either a committee or the governor appoint them. (56) Interestingly enough, the landmark case of Gideon v. Wainwright was a Florida born case, yet Florida is one of the few distinct states that still elects its public defenders. (57) As to the reasons for the election system, there are two distinct arguments that must be evaluated to understand why Florida elects its public defenders.


      The Florida Supreme Court has stated that an indigent defendant is allowed effective assistance of counsel free from conflict. (58) As a safeguard to this system, the argument in favor of electing public defenders is that a system without elections would cause the public defender to have a major conflict between vigorously representing his client and working in his capacity as an appointed state officer. (59) However, in most other states, public defenders are appointed either by a governor or a committee established by the state. (60) This being so, the argument still has some legal muster. In discussing judicial elections, the Indiana Supreme Court stated:

      The security of human rights and the safety of free institutions require freedom of action on the part of the court. Courts from time immemorial have been the refuge of those who have been aggrieved and oppressed by official and arbitrary actions under the guise of governmental authority. It is the protector of those oppressed by unwarranted official acts under the assumption of authority. Our sense of justice tells us that a court is not free if it is under financial pressure, whether it be from a city council or other legislative body, in the consideration of the rights of some individual who is affected by some alleged autocratic or unauthorized official action of such a body. One who controls the purse strings can control how tightly those purse strings are drawn, and the very...

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