California
Not Official. California does not have official standards.
Qualifying for the Sixth
How poor must someone be to qualify for a public defender? “Qualifying for the Sixth” offers state policymakers practical guidance for establishing fair, efficient, and fiscally responsible rules for determining indigency in adult trial-level criminal cases.
Defining Indigency: Who Gets a Lawyer and Why It Matters
Only individuals deemed “indigent” qualify for an appointed attorney. The U.S. Supreme Court defines an indigent person as someone whose lack of financial resources substantially inhibits or prevents them from asserting their rights. National standards similarly define indigency as the financial inability to obtain adequate representation without facing substantial burden or undue hardship.
But how should government officials determine when paying for a private attorney would cause too big a burden on a defendant? States take different approaches — some set income guidelines with clear thresholds or presumptions for indigency, others outline specific factors for judges to weigh, and some have no formal standards at all. The categories below reflect standards that have the force of law, through statute, court order, or regulation, and bind decisionmakers across a jurisdiction.
Make it Official
Some states have no standards for determining a person’s indigency. Official state standards, adopted through statute, regulation, or court order, create norms that bind decisionmakers across a jurisdiction.
Without standards, each judge - or other decisionmaker - is free to adopt their own criteria. This means one person might be found indigent by a judge and receive an attorney, while another person in the same financial situation could be found not indigent and denied an attorney by a different judge in the very same courthouse.
While many public defense agencies issue their own guidelines, those often do not bind the final decisionmaker.
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Michigan
Official. The Michigan Indigent Defense Commission (MIDC) sets official standards that must be followed.
Make it Statewide
Some states have official standards but differ by region or defense provider. Statewide indigency standards ensure fairness and reduce geographic disparities. Otherwise, two people in identical financial circumstances will be treated differently – one may be found indigent and receive an attorney because they are prosecuted in one county, while the other is found not indigent and denied an attorney because they are prosecuted in a neighboring county.
At the same time, national standards recognize that the cost of hiring an attorney can vary by location, so indigency determinations should take local costs into account.
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Georgia
Not Statewide. The Georgia Public Defender Council promulgates objective standards, but these standards do not apply in counties with alternate systems, where courts create their own eligibility standards to guide judges.
Nevada
Statewide. Under its statutory authority, the Board of Indigent Defense Services (BIDS) sets indigency determination standards that apply to all defendants in the state.
Make it Objective
Some states have official statewide standards, but they are not objective. Objective statewide standards have automatic presumptions of indigency, such as receipt of public assistance, a “juvenile,” or in-custody status, which may or may not be rebutted by contrary evidence.
Objective standards ensure a way for a person to demonstrate their need for an attorney and allow for a fair and efficient appointment. While a certain amount of discretion and flexibility is necessary to ensure the right to counsel is guaranteed for all eligible defendants, states that adopt presumptions can determine indigency in most cases quickly and efficiently, preserving state resources.
On the other hand, subjective statewide standards list general factors for the decisionmaker to weigh in determining indigency but with no threshold at which a person is automatically or presumptively indigent to receive an appointed attorney. Decisionmakers weigh factors differently, leading to inconsistent outcomes depending on where charges are filed or which judge hears the case.
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Indiana
Not Objective. Indiana’s statutes list factors that the court must consider in determining indigency but provides no guidance to judges on how they should weigh those factors.
Louisiana
Objective. Louisiana’s statutes include a presumption of indigency if a defendant receives public assistance, resides in public housing, earns less than 200% of the Federal Poverty Guideline, or is currently serving a sentence in a state facility.
Support 6AC
Criminal justice issues that disproportionately harm poor people, such as wrongful convictions and over-incarceration, cannot be fixed if indigent defendants are given attorneys who do not have the time, resources, or qualifications, to be a constitutional check on government. Yet, investment in improving indigent defense services remains largely neglected. The Sixth Amendment Center is the only nonprofit organization in the country that exclusively examines, uncovers, and helps fix the root of the indigent defense crisis in which inequality is perpetuated because poor defendants do not get a fair fight.
The Sixth Amendment Center is a tax-exempt 501(c)(3) nonprofit organization under EIN: 45-3477185.
Donations are tax-deductible to the fullest extent allowable under the law.