Academic journal article St. Thomas Law Review

Why Does Florida Have Public Defender Elections?

Academic journal article St. Thomas Law Review

Why Does Florida Have Public Defender Elections?

Article excerpt

I.   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 


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. …

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