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Defence Counsel in Criminal Cases, DOJ BJS, 2000

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U.S. Department of Justice
Office of Justice Programs

Bureau of Justice Statistics

Special Report
November 2000, NCJ 179023

Defense Counsel in
Criminal Cases
By Caroline Wolf Harlow, Ph.D.
BJS Statistician
Almost all persons charged with a
felony in Federal and large State courts
were represented by counsel, either
hired or appointed. But over a third of
persons charged with a misdemeanor
in cases terminated in Federal court
represented themselves (pro se) in
court proceedings prior to conviction,
as did almost a third of those in local
jails.
Indigent defense involves the use of
publicly financed counsel to represent
criminal defendants who are unable to
afford private counsel. At the end of
their case approximately 66% of felony
Federal defendants and 82% of felony
defendants in large State courts were
represented by public defenders or
assigned counsel.
In both Federal and large State courts,
conviction rates were the same for
defendants represented by publicly
financed and private attorneys.
Approximately 9 in 10 Federal defendants and 3 in 4 State defendants in
the 75 largest counties were found
guilty, regardless of type of attorney.
However, of those found guilty, higher
percentages of defendants with publicly
financed counsel were sentenced to
incarceration. Of defendants found
guilty in Federal district courts, 88%
with publicly financed counsel and 77%
with private counsel received jail or
prison sentences; in large State courts
71% with public counsel and 54% with
private attorneys were sentenced to
incarceration.

Highlights
At felony case termination, court-appointed counsel represented 82%
of State defendants in the 75 largest counties in 1996
and 66% of Federal defendants in 1998
Percent of defendants
Felons Misdemeanants
75 largest counties
Public defender
Assigned counsel
Private attorney
Self (pro se)/other

68.3%
13.7
17.6
0.4

-----

U.S. district courts
Federal Defender
Organization
30.1%
25.5%
Panel attorney
36.3
17.4
Private attorney
33.4
18.7
Self representation
0.3
38.4
Note: These data reflect use of defense
counsel at termination of the case.
--Not available.

ù Over 80% of felony defendants
charged with a violent crime in
the country’s largest counties and
66% in U.S. district courts had
publicly financed attorneys.
ù About half of large county
felony defendants with a public
defender or assigned counsel
and three-quarters with a private
lawyer were released from jail
pending trial.

Defendants with publicly financed or private attorneys had
the same conviction rates
Case
Public Private
disposition
counsel counsel
75 largest counties
Guilty by plea
71.0%
72.8%
Guilty by trial
4.4
4.3
Case dismissal
23.0
21.2
Acquittal
1.3
1.6

ù In State courts in the largest counties,
3 in 4 defendants with either courtappointed or private counsel were
convicted; in Federal courts 9 in 10
felony defendants with public or private
attorneys were found guilty.

U.S. district courts
Guilty by plea
Guilty by trial
Case dismissal
Acquittal

ù In Federal court 88% of felony defendants with publicly financed attorneys
and 77% with private lawyers received a
prison sentence.

87.1%
5.2
6.7
1.0

84.6%
6.4
7.4
1.6

Except for State drug offenders, Federal and State inmates received about
the same sentence on average with appointed or private legal counsel
State prison
inmates
Public
Private
counsel
counsel
Offenses
Total
155 mo 179 mo
Violent
223
231
Property
118
128
Drug
97
140
Public-order
80
98

Federal prison
inmates
Public
Private
counsel counsel
126 mo 126 mo
164
162
59
59
126
132
103
119

ù Three-fourths of State
and Federal inmates with
an appointed counsel and
two-thirds with a hired
counsel had pleaded
guilty.

This report uses information from
Bureau of Justice Statistics (BJS) data
collections that, although gathered for
wider purposes, present information
about the type of counsel defendants
and inmates used in their criminal
case. Data are from &
ù U.S. district court statistics for
persons accused of Federal crimes
(fiscal year 1998),
ù pretrial records for felony defendants
in the Nation’s 75 largest counties
(1992-96),
ù State court prosecutors’ information
gathered nationwide (1990-94),
ù the Administrative Office of the U.S.
Courts (1998), and
ù personal interviews with nationally
representative samples of inmates in
local jails (1996) and State and Federal
prisons (1997). For more information
on the data used in this report, see
Data sources, page 11.
In this report the type of counsel for
Federal and State defendants was the
type at case termination. Other
counsel may have represented the
defendant earlier. Data describing
counsel at filing or initiation were not
used because they were incomplete or
unavailable. The terms “publicly
financed attorneys,” “public attorney,”
and “appointed attorney” used in this
report include public defenders, panel
attorneys, assigned counsel, contract
attorneys, and any other governmentfunded attorney programs for those
unable to provide their own attorney.

Right to counsel is in the U.S.
Constitution
The sixth amendment to the U.S.
Constitution, a part of the Bill of Rights,
provides that “In all criminal prosecutions, the accused shall...have the
Assistance of Counsel for his defence.”
In the 1960’s and 1970’s, the Supreme
Court expanded this clause by recognizing a constitutional right to counsel
at public expense for those unable to
pay a private attorney. In Gideon v.
Wainwright (372 US 335 (1963)) the
Supreme Court held that the sixth
amendment requires indigent defendants in State court proceedings to
have appointed counsel. Gideon
involved a felony, but in another case,
Argersinger v. Hamlin (407 US 25
(1972)), the Court ruled that an
indigent defendant may not be imprisoned, even for a misdemeanor, unless
afforded the right to counsel.
Two types of programs provide
indigent representation in Federal
cases
Pursuant to the Criminal Justice Act of
1964 (18 USC ö 3006 A), the Defender
Services Division of the Administrative
Office of the U.S. Courts oversees
spending for Federal defendants
through two types of programs:
y Panel attorneys, appointed by the
court from a list of private attorneys
on a case-by-case basis. At the end
of 1998 all 94 U.S. district courts used
such panels, including 20 districts in
which only panel attorneys were used.

ù Federal defender organizations
(FDO’s), take one of two forms:
& Federal public defender organizations staffed with Federal Government
employees and headed by a public
defender appointed by the court of
appeals
or
& Community defender organizations
that are incorporated, nonprofit legal
service organizations receiving grants
from the Administrative Office of the
U.S. Courts.
At the end of 1998, 63 Federal or
community defender organizations
served 74 of the 94 U.S. district
courts.1
Workloads rose more than
spending for the Defender
Services Division
The panel attorney and FDO
programs can represent defendants at
any time from arraignment through
appeal and during supervised release.
The Defender Services Division counts
use of these publicly financed attorneys
in terms of representations.
Total representations by panel attorneys and FDO’s rose 26% from 80,200
in fiscal year 1994 to 101,200 in fiscal
1998 (table 1). The number of criminal representations grew substantially
during the period (25%), with the FDO
workload increasing 35% and the panel
attorney workload 17%. The Defender
Services Division estimates that courtappointed counsel represent 85% of
1

Administrative Office of the U.S. Courts,
Judicial Business of the United States
Courts, 1998.

Table 1. Federal representations closed, by type of Criminal Justice Act attorney, 1994-98

Year

All representations
Total
Criminal
Other*

1994
1995
1996
1997
1998

80,200
78,700
83,700
90,000
101,200

54,200
51,700
55,400
59,200
68,000

26,000
27,000
28,300
30,800
33,200

Federal Defender Organization
representations
Total
Criminal
Other*
42,100
43,700
47,900
52,200
57,600

26,300
26,700
29,100
31,900
35,500

15,800
17,000
18,800
20,300
22,100

Panel attorney representations
Total
Criminal
Other*
38,100
35,000
35,800
37,800
43,600

27,900
25,000
26,300
27,400
32,500

10,200
10,000
9,500
10,500
11,100

Note: For a Federal Defender Organization a representation is counted *Includes appeals, probation/supervised release revocation hearings,
usually when the case is closed or the client no longer needs or wants motions to correct or reduce sentence, habeas corpus other than
Criminal Justice Act services; for a panel attorney a representation is
capital petitions, court-directed prisoner representations, bail
counted when the first payment claim is submitted. Representations
presentment, witness representation, and other matters.
may include defendants with a case pending at the end of the reporting
period and those who retained private counsel after an initial representa- Source: Administrative Office of the U.S. Courts, Judicial Business
tion by public counsel. Numbers are rounded to the nearest hundred. of the United States Courts, 1994 through 1998, and unpublished
data.

2 Defense Counsel in Criminal Cases

criminal defendants at some time
during the conduct of their case
(unpublished correspondence).

Table 2. Type of counsel for defendants in cases terminated
in U.S. district courts, fiscal year 1998
Type of counsel

Criminal Justice Act obligations, 1994-98 (in
1998 dollars)

Number of defendants
68,031
56,046
11,985
Note: Excludes 1,739 defendants for whom type of counsel was missing.
*Includes both Federal Public Defenders and Community Defender Organizations.

1994
1995
1996
1997
1998

$293,342,000
$296,794,000
$316,884,000
$338,028,000
$352,837,000

Note: An obligation is generally defined as a
legal commitment for goods or services ordered
or received by the government.

Total

Charged with &
Misdemeanor

From fiscal year 1994 through fiscal
year 1998, spending grew 20% in
constant 1998 dollars from $293 million
to $353 million.

Federal Defender Organization*
Panel attorney
Private attorney
Self representation (pro se)

Felony

29.3%
32.9
30.8
7.0

Table 3. Type of counsel for felony defendants in cases terminated
in U.S. district court, by offense, fiscal year 1998

Type of counsel

Violent

Fraud

All felony defendants in cases
terminated in U.S. district court
had an attorney in 1998

Federal Defender Organizations*
Panel attorney
Private attorney
Self representation (pro se)

42.4%
38.0
19.3
0.3

26.9%
29.9
42.8
0.3

Defendants charged with a felony
(33%) were also more likely than those
charged with a misdemeanor (19%) to
have private representation. About a
third of misdemeanants represented
themselves during judicial proceedings.
White collar Federal defendants
most likely to use private counsel
Most likely to have a private attorney
were defendants charged with a white
collar offense, primarily fraud or a
regulatory offense. Having private
counsel were 43% of fraud defendants
and 63% of those charged with a
regulatory offense & violations of laws
pertaining to agriculture, antitrust, food

25.5%
17.4
18.7
38.4

Source: Administrative Office of the U.S. Courts, Criminal Master File, FY 1998.

Source: Unpublished data, Administrative Office
of the U.S. Courts, Defender Services Division.

Nearly all defendants facing a felony
charge terminated in U.S. district court
in 1998 and almost two-thirds with a
misdemeanor charge had lawyers to
represent them in court (table 2).
Felony defendants were more likely
than misdemeanants to have publicly
financed counsel. Sixty-six percent of
those facing a felony charge and 43%
with a misdemeanor charge had used
either a FDO or panel attorney.

30.1%
36.3
33.4
0.3

Number of defendants

3,426

10,795

Other
property

Drug

31.0%
34.3
34.2
0.5
2,487

21.7%
42.2
35.8
0.2
23,699

Other
publicRegulatory order
16.9%
19.8
63.0
0.2
1,063

43.9%
32.4
23.4
0.3
14,476

Note: Excludes 1,739 defendants with missing data on type of counsel
and 494 with missing data on offense.
*Includes both Federal Public Defenders and Community Defender Organizations.
Source: Administrative Office of the U.S Courts, Criminal Master File, FY 1998.

and drug, transportation, civil rights,
communications, customs, and postal
delivery (table 3). By contrast, about 2
in 10 defendants charged with a violent
crime used private attorneys.
9 in 10 Federal defendants found
guilty regardless of type of attorney
In 1998, 92% of defendants with public
counsel and 91% with private counsel
either pleaded guilty or were found
guilty at trial.
Disposition

Type of counsel
Public*
Private

Guilty
By plea
By trial

87.1%
5.2

84.6%
6.4

Acquittal
Dismissal

1.0
6.7

1.6
7.4

37,188

18,709

Number of
defendants

*Includes Federal Defender Organizations
(FDO’s) and panel attorneys.
Source: Administrative Office of the U.S.
Courts, Criminal Master File, FY 1998.

Incarceration more likely for Federal
defendants with public counsel than
for those with private attorneys
Defendants found guilty after using a
FDO or panel attorney were more likely
to be sentenced to prison (about 88%
of defendants found guilty) than those
with private attorneys (77%). The
difference in incarceration rates is
explained in part by the likelihood of
prison after conviction for different
types of offenses. As has been shown,
public counsel represented a higher
percentage of violent, drug, and publicorder (excluding regulatory crimes)
offenders, who were very likely to
receive a sentence to serve time, and
private counsel represented a higher
Sentence
Incarceration
Probation only
Fine only

Type of counsel
Public*
Private
87.6%
12.1
0.3

Number of defendants 33,068

76.5%
22.4
1.1
16,622

*Includes Federal Defender Organization
(FDO’s) and panel attorneys.
Source: Administrative Office of the U.S.
Courts, Criminal Master File, FY 1998.

Defense Counsel in Criminal Cases 3

Table 4. Length of prison sentence
imposed on felony defendants
convicted in U.S. district court,
by type of counsel and offense,
fiscal year 1998
Offense
and
type of
counsel

Number
of Federal Sentence to prison
defendants Mean
Median

Total
Public
Private

28,453
12,563

58 mo
62

33 mo
37

Violent offenses
Public
2,266
Private
471

84 mo
74

60 mo
41

Fraud offenses
Public
Private

3,413
2,426

22 mo
23

15 mo
15

Other property
offenses
Public
Private

862
380

38 mo
40

18 mo
24

Drug offenses
Public
12,297
Private
6,753

75 mo
84

51 mo
60

Regulatory offenses
Public
261
Private
244

33 mo
23

17 mo
15

Other public-order
offenses
Public
9,329
Private
2,283

46 mo
44

27 mo
24

Note: Excludes 304 inmates sentenced to
life or death, 2,803 with suspended or sealed
sentences, 383 with missing offense data,
and 445 with data missing on counsel type.
Source: Administrative Office of the U.S.
Courts, Criminal Master File, FY 1998.

percentage of white collar defendants,
who are not as likely to receive
incarceration sentences.2

average sentence of 23 months, and
those with a public attorney, 33
months.

Federal defendants with private
attorneys had longer average
sentences than defendants
with publicly financed attorneys

Most criminal defendants are tried
in State courts

Defendants with private attorneys were
sentenced to an average of 62 months
in prison, and those with publicly
financed attorneys, to 58 months
(table 4). The primary differences
in average sentence length were
between offenses, not between the
types of attorney. Other factors not
shown may also have had a role.
Among those sentenced to incarceration, drug offenders who used publicly
financed counsel had shorter sentences on average than those who
used private attorneys & an average
of 75 months compared to 84 months.
Among Federal violent and regulatory
offenders, those with private attorneys
received shorter sentences than those
with public lawyers. Violent offenders
who used private attorneys were given
74 months on average, and those with
public counsel, 84 months. Similarly,
those sentenced for a regulatory
offense with a private lawyer had an
2

Compendium of Federal Justice Statistics,
1998, BJS report, NCJ 180258, table 5.1.

Table 5. Indigent defender systems for felony defendants
in State general jurisdiction courts, 1990-94
Indigent defense system

1990

Percent of prosecutors’
1992
1994

Public defender programs
Only
With assigned counsel
With contract attorney
With assigned counsel and contract attorney

56.6%
27.0
21.5
4.2
3.9

64.9%
27.8
23.4
7.8
5.8

67.8%
20.8
31.0
9.6
6.4

Assigned counsel programs
Only
With public defender
With contract attorney
With public defender and contract attorney

57.8%
30.7
21.5
1.7
3.9

55.4%
23.0
23.4
3.1
5.8

62.5%
19.3
31.0
5.7
6.4

Contract attorney programs
Only
With public defender
With assigned counsel
With public defender and assigned counsel

20.8%
11.0
4.2
1.7
3.9

25.0%
8.2
7.8
3.1
5.8

28.9%
7.1
9.6
5.7
6.4

Number of prosecutors' offices
2,272
2,352
2,336
Source: BJS, National Survey of State Court Prosecutors, 1990, 1992, and 1994.

4 Defense Counsel in Criminal Cases

The bulk of the task of providing
counsel for the indigent has fallen
to lawyers working in State courts.
Approximately 95% of criminal defendants are charged in State courts,
with the remainder tried in Federal
courts.
Two-thirds of State prosecutors
reported that their courts used
public defenders
Three systems now serve as the
primary means for providing defense
services to indigent criminal defendants charged in State court.
ù Under a public defender system,
salaried staff attorneys render criminal
indigent defense services through a
public or private non-profit organization
or as direct government employees.
In 1994, 68% of State court prosecutors reported that a public defender
program was used to defend indigents
in cases they prosecuted (table 5).
ù In an assigned counsel system,
courts appoint attorneys from a list of
private bar members who accept cases
on a judge-by-judge, court-by-court, or
case-by-case basis. About 63% of
prosecutors in State criminal courts
reported an assigned counsel program
in their jurisdiction.
ù In contract attorney systems, private
attorneys, bar associations, law firms,
groups of attorneys, and nonprofit
corporations provide indigent services
based on legal agreements with State,
county, or other local governmental
units. Approximately 29% of prosecutors indicated that in their jurisdiction
contracts were awarded to attorney
groups to provide indigents with legal
representation.
Although the Supreme Court in Gideon
mandated that the States must provide
counsel for indigents accused of
serious crimes, the court did not

Table 6. Type of counsel for felony defendants in the
Nation's 75 largest counties, 1992, 1994, and 1996
Type of counsel
Public defender
Assigned counsel
Hired attorney
Self (pro se)/other
Number of defendants

Percent of felony defendants
1992
1994
1996
59.3%
60.4%
68.3%
21.4
18.6
13.7
17.6
20.1
17.6
1.7
0.9
0.4
33,092

32,909

37,410

Note: Missing data were 40.2%, 1992; 37.7%,1994; and 31.1%, 1996.
Source: BJS, State Court Processing Statistics, 1992, 1994, 1996.

specify how such services were to be
provided. State court prosecutors
increasingly report that their jurisdictions use more than one type of
program to defend indigents. In 1990,
31% of prosecutors’ offices reported
that their courts used a combination of
public defenders, assigned counsel,
and contract attorneys; in 1994 & the
last time BJS asked prosecutors about
their indigent defense systems & 53%
of the courts relied on more than one
program.
In 1994 about 6% of prosecutors
reported the court of their jurisdiction
using all three systems: public defenders, assigned counsel, and contract
attorneys. The most prevalent combination of two programs was public
defenders and assigned counsel &
indicated by almost a third of prosecutors’ offices.
Table 8. Type of counsel for felony
defendants in the Nation's 75 largest
counties, by prior conviction and
criminal justice status, 1996
Type of counsel
Public
Private
Prior conviction
Any
None
Criminal justice
status at arrest
Any
None

85.5%
77.3

86.3%
78.8

14.2%
22.0

13.5%
20.6

Note: Data were missing on type of counsel
or prior convictions for 36.9% of cases, and
on type of counsel or criminal justice status
for 38.9% of cases. Pro se and other
categories are included in the analysis
but are not displayed.
Source: BJS, State Court Processing
Statistics, 1996.

Table 7. Type of counsel for felony defendants in the
Nation's 75 largest counties, by most serious charge, 1996
Type of counsel
Public defender
Assigned counsel
Hired attorney
Self (pro se)/other
Number of defendants

Most serious charge at arrest
Violent
Property
Drug
Public-order
67.9%
68.3%
69.5%
64.3%
14.9
12.8
14.8
8.7
16.8
18.3
15.4
26.7
0.4
0.5
0.3
0.3
9,003

12,006

13,338

3,063

Note: Data were missing on type of counsel for 31.1% of cases.
Source: BJS, State Court Processing Statistics, 1996.

8 in 10 felony defendants in large
State courts used publicly financed
attorneys

Pretrial release less common
for State defendants with public
attorneys

In 1992 and 1996 about 80% of defendants charged with a felony in the
Nation’s 75 most populous counties
reported having public defenders or
assigned counsel while nearly 20%
hired an attorney (table 6). Between
1992 and 1996 the percentage of
felons in large counties using public
defenders increased from 59% to 68%
and the percentage with assigned
counsel decreased from 21% to 14%.

About half of defendants using a public
defender or assigned counsel,
compared with over three-quarters
employing a private attorney, were
released from jail prior to trial (table 9).

Defendants charged with violent,
property, and drug crimes were more
likely to have been represented by
public defenders or assigned counsel
(81%-84%) than those charged with
public-order offenses (73%) (table 7).
Public-order offenses include weapons,
driving-related, flight/escape, parole or
probation, prison contraband, habitual
offender, obstruction of justice, rioting,
libel, slander, treason, perjury,
prostitution/pandering, bribery,
and tax law violations.
State defendants with a criminal
record more likely than other
defendants to use public counsel
Felony defendants with prior convictions were more likely than those
without a criminal record to have used
a publicly financed lawyer. According
to criminal history records available to
the court, 86% with a previous conviction and 77% without had public
defenders or assigned counsel (table
8). When arrested for their current
charge, about 86% of those already on
criminal justice status & for example,
on pretrial release, probation, or parole
& and 79% not on criminal justice
status used appointed counsel.

Release on bail, a payment to a court
to guarantee the defendant’s appearance at subsequent court dates, was
awarded to 57% of defendants with
public counsel and to 65% with a
private lawyer. Of those allowed bail,
about a third with a public attorney and
three-quarters with a hired attorney
were released before adjudication.
Table 9. Pretrial release of felony
defendants in the Nation's 75 largest
counties, by type of counsel, 1996
Pretrial release

Type of counsel
Public
Private

Released
Financial
Nonfinancial
Emergency

52.2%
19.2
32.3
0.7

79.0%
51.0
27.7
0.3

Detained
With bail
Denied bail

46.1
38.2
7.8

20.1
14.3
5.8

1.8

0.9

28,127

6,232

Case closed
Number of
defendants

Note: Data were missing on type of counsel
or pretrial release for 36.5% of cases.
Source: BJS, State Court Processing
Statistics, 1996.

Defense Counsel in Criminal Cases 5

Table 10. Case disposition for
defendants in the Nation's 75 largest
counties, by type of counsel, 1996
Type of counsel
Case disposition Public
Private
75.3%
60.2
56.3
3.9

77.0%
62.7
59.3
3.5

Misdemeanor
By plea
By trial

15.1%
14.7
0.5

14.3%
13.5
0.8

Not convicted
Acquittal
Dismissal

24.3%
1.3
23.0

22.8%
1.6
21.2

0.3%

0.2%

Convicted
Felony
By plea
By trial

Other

Number of
defendants
29,984
6,583
Note: Data were missing on 32.4% of cases
on type of counsel or case disposition.
Source: BJS, State Court Processing
Statistics, 1996.

About 3 in 4 State defendants with
public or private attorneys were
found guilty
Conviction rates were about the same
for defendants with court-appointed
attorneys (75%) and for those who
hired private counsel (77%) (table 10).
Of those convicted, about 8 in 10
were convicted of a felony and the
remainder of a misdemeanor, regardless of type of attorney.
Table 11. Sentences for convicted
defendants in the Nation's 75 largest
counties, by type of counsel, 1996
Sentences

Type of counsel
Public
Private

Incarcerated
Prison
Jail

71.3%
31.0
40.2

53.9%
23.6
30.3

Not incarcerated
Probation
Fine

28.7%
27.8
1.0

46.1%
43.3
2.9

Number of
defendants
20,131
4,666
Note: Cases were missing for 36.4%
of cases and excluded for an additional
17.8% that were acquitted, dismissed,
or not yet adjudicated.
Source: BJS, State Court Processing
Statistics, 1996.

6 Defense Counsel in Criminal Cases

Almost a quarter of defendants with
publicly financed or private attorneys
had their cases dismissed or were
acquitted. Just over a fifth had charges
dismissed and around 2% were
acquitted.
State defendants with public
counsel sentenced more often to
prison or jail but for shorter terms
than those with private lawyers
Convicted defendants represented by
publicly financed counsel were more
likely than those who hired a private
attorney to be sentenced to incarceration. About 7 in 10 with appointed
counsel and 5 in 10 with a private attorney were sentenced to a prison or jail
term (table 11).
Of defendants sentenced to serve
time, those using publicly financed
attorneys had shorter sentences than
those with private counsel. Those with
publicly financed attorneys were
sentenced to an average of 2½ years
of incarceration and those with private
counsel to 3 years (table 12).
Similar to drug offenders convicted in
Federal court, those sentenced for
drug offenses with court-appointed
attorneys had shorter sentences (2
years) than those who hired their attorneys (3 years). For other offense
categories, sentences were about the
same for defendants with public and
private attorneys.

Table 12. Sentence length to
incarceration for defendants
convicted of a felony in the Nation’s
75 largest counties, by offense
and type of counsel, 1996
Offense
and
type of
counsel

Number of
defendants

Total
Public
Private

11,089
1,857

31.2 mo
38.3

16 mo
17

Violent
Public
Private

2,102
381

55.2 mo
59.4

36 mo
36

Property
Public
Private

3,276
451

27.4 mo
29.7

14 mo
11

Drug
Public
Private

4,754
773

25.3 mo
38.8

12 mo
21

911
244

19.7 mo
19.9

16 mo
12

Public-order
Public
Private

Sentence length
Mean
Median

Note: Data were missing on sentence
length for 42% of cases.
Source: BJS, State Court Processing
Statistics, 1996

Local jail inmates described their
experiences with the criminal justice
system
In addition to gathering information
on defendants in Federal and State
courts, BJS sponsors interviews of
inmates in local jails and State and
Federal prisons. Nationally representative samples of inmates describe their

Table 13. Type of counsel for jail inmates, 1996 and 1989

Type of counsel
Court appointed
Inmate hired
Both appointed and hired
No counsel
Number of jail inmates
--Not available.

Total
68.1%
16.7
1.2
14.0
483,438

Percent of jail inmates, 1996
Charged
Charged with
with felony
misdemeanor
76.6%
19.2
1.3
2.9
204,700

Source: BJS, Survey of Inmates in Local Jails, 1996 and 1989.

56.3%
14.7
0.7
28.3
97,855

1989
total
64.1%
18.5
-17.3
373,259

Table 14. Type of counsel for jail inmates, by type of offense, 1996
Offense

Public

Table 15. Release before trial
and disposition of case with
a felony charge, by type of counsel,
for convicted jail inmates, 1996

Percent of all jail inmates with counsel
Private
Both
Pro se

Violent offenses
Homicide
Sexual assault
Robbery
Assault

70.7%
55.5
66.5
78.6
71.6

20.1%
39.5
24.8
16.7
16.2

1.4%
2.5
2.1
0.7
1.2

7.8%
2.5
6.7
4.0
11.0

Property offenses
Burglary
Larceny
Fraud

75.5%
82.0
77.9
65.2

11.5%
9.1
9.6
19.1

1.0%
1.2
0.5
1.9

12.0%
7.7
12.0
13.9

Drug offenses
Possession
Trafficking

73.0%
74.3
71.1

17.4%
15.7
20.7

1.6%
0.6
2.8

8.0%
9.4
5.5

Public-order offenses
Weapons
DWI
Other public-order

51.8%
68.2
49.7
50.1

18.1%
25.0
28.1
11.1

0.7%
0.1
1.1
0.5

29.4%
6.7
21.2
38.2

Type of counsel
Public
Private
Release before trial*
Released
Without bail or bond
With bail or bond
No release
Bail or bond set
Bail or bond not set

In the 1996 Survey of Inmates in Local
Jails, most inmates charged with a
felony reported they were represented
by counsel; 97% had an attorney &
77% a court-appointed counsel and
20% a private attorney (table 13). Over
a quarter of jail inmates charged with a
misdemeanor had no attorney, and
over half used public counsel.
The percent of all jail inmates who had
been represented by a publicly
financed attorney rose from 64% in
1989 to 68% in 1996.
Defendants in jail for homicide most
likely to hire their own attorneys
About 40% of jail inmates charged with
homicide hired their own attorney, as
did 25% charged with rape or sexual
assault, 28% driving while intoxicated,
and 25% weapons offenses (table 14).

charged with driving while intoxicated
reported that they had no lawyer.

Source: BJS, Survey of Inmates in Local
Jails, 1996.

lesser charge or fewer counts. An
estimated 54% with a publicly financed
attorney and 49% with a hired attorney
plea bargained.

1 in 4 convicted jail inmates with
public counsel and with bail set
were released before trial
Whether their attorney was appointed
or hired, about three-quarters of
convicted jail inmates charged with a
felony had bail or bond set for them
(table 15). Of inmates with bail set, a
quarter with a court-appointed attorney
and two-thirds with hired attorneys
were released on bond before their
trial. The lack of financial assets that
prevented hiring a private attorney may
have also impeded posting bond.
Convicted jail inmates with a public
attorney were more likely than those
with private counsel to have entered a
guilty plea after reaching an agreement
with the prosecutor to plead guilty to a

Prison inmates & those already
convicted & reported their
experience with their attorneys
In 1997 publicly financed attorneys
had represented in court proceedings
3 in 4 inmates in State prison and 6
in 10 in Federal prison (table 16).
About 1%-2% represented themselves
rather than using a lawyer.
From 1991 to 1997 the percentage
of State inmates with appointed
counsel remained the same, while
that of sentenced Federal inmates
increased from 54% to 60%.

Table 16. Type of counsel for State and Federal
prison inmates, 1997 and 1991

Type of counsel

Public-order defendants were more
likely than other defendants to represent themselves in legal proceedings.
About 4 in 10 charged with a publicorder offense such as obstruction of
justice, a traffic violation, drunkenness,
or a violation of probation or parole
represented themselves. Two in ten

54.5%
4.1
50.4
45.5
26.0
19.5

Disposition of case
Not guilty
14.0% 20.7%
Bench trial
7.6
8.7
Jury trial
5.0
10.7
Unknown type of trial
1.4
1.3
Guilty/no contest plea
85.9
79.3
With plea bargain
53.5
48.7
Without plea bargain
32.4
30.6
*Counsel may have been appointed or
hired after bail hearing.

Source: BJS, Survey of Inmates in Local Jails, 1996.

personal experiences with the criminal
justice system. Jail inmates either may
be awaiting trial or sentencing or may
be serving their sentence; prison
inmates are serving a sentence.

22.5%
3.8
18.7
77.5
57.0
20.5

Court appointed
Inmate hired
Both appointed and hired
No counsel
Number of prison inmates

Percent of inmates in &
State prison
Federal prison
1997
1991
1997
1991
73.4%
22.7
1.6
2.2
1,048,236

73.8%
21.2
2.1
2.9
702,116

60.3%
36.4
2.1
1.3
88,483

53.7%
42.1
3.2
1.0
53,342

Source: BJS, Survey of Inmates in State and Federal Correctional Facilities, 1997.

Defense Counsel in Criminal Cases 7

Prison inmates spoke to courtappointed lawyers later and less
often than to private attorneys
Of inmates with court-appointed
counsel, 37% of State inmates and
54% of Federal inmates spoke with
their attorneys within the first week
(table 17). In contrast, of those with
hired counsel, about 60% of State
inmates and 75% of Federal inmates
had contact with their attorneys within
a week of arrest.
Few inmates said they never spoke
to their attorneys. Of those with
appointed counsel, about 5% of State
inmates and 2% of Federal inmates
did not discuss their cases with an
attorney; of those with hired attorneys,
1-2% never spoke to them.
Inmates with appointed lawyers spoke
to them less frequently than inmates
with private lawyers. About 26% of
State inmates and 46% of Federal
inmates with court-appointed attorneys
discussed their cases with counsel at
least four times. An estimated 58% of
State inmates and 65% of Federal
inmates who employed their own attorneys talked with them four or more
times about their charges.

Inmates who used public counsel were
less likely to proceed to trial than those
employing private attorneys. A quarter
of both State and Federal inmates with
public counsel pleaded not guilty, as
did about a third of those with hired
attorneys.
In an Alford plea the defendant agrees
to plead guilty because he or she
realizes that there is little chance to
win acquittal because of the strong
evidence of guilt. About 17% of State
inmates and 5% of Federal inmates
submitted either an Alford plea or a no
contest plea, regardless of the type of
attorney. This difference reflects the
relative readiness of State courts,
compared to Federal courts, to accept
an alternative plea.

State and Federal inmates who used
public attorneys were less likely than
those with private attorneys to have
been tried by jury. Among State
inmates 17% who used appointed
counsel and 22% who employed a
private lawyer were tried before a jury.
Among Federal inmates 21% of those
with appointed lawyers and 27% with
privately hired counsel had jury trials.
State and Federal inmates with public
attorneys and those with private
lawyers were equally likely to have
pleaded guilty to a lesser offense or
fewer counts than originally charged.
About half had plea bargained, regardless of the type of attorney or the jurisdiction of the court.

Table 17. Contact with counsel, type of plea, and case disposition,
by type of counsel, for State and Federal prison inmates, 1997
Type of counsel for
State inmates
Federal inmates
Public
Private
Public
Private
Contact with counsel
Within 24 hours of arrest
Within week of arrest
More than week before trial
Within week of trial
At trial
Did not talk with counsel

8.8%
27.7
32.8
12.6
13.6
4.5

26.3%
33.9
29.6
4.8
3.5
1.9

17.6%
36.1
33.1
6.6
4.9
1.6

38.2%
36.3
18.4
4.3
1.7
1.2

Number of times talked
with counsel
0
1
2-3
4-5
6 or more times

4.6%
24.6
44.5
13.4
12.9

2.0%
9.6
30.6
20.7
37.2

1.7%
10.4
42.3
23.1
22.5

1.3%
6.7
27.0
19.7
45.3

Type of plea*
Not guilty
Other plea
Guilty
Alford
No contest
Other

24.3%

31.4%

25.4%

31.7%

60.6
6.3
11.1
0.4

54.7
6.7
10.3
0.3

71.1
3.0
2.6
0.2

66.3
2.8
1.6
0.1

Case disposition
Not guilty plea
Bench trial
Jury trial
Guilty or no contest plea
With plea bargain
Without plea bargain

24.3%
7.7
16.6
75.7
50.6
25.1

31.4%
9.0
22.4
68.6
47.2
21.4

25.4%
4.5
20.9
74.5
50.5
24.0

31.7%
5.2
26.5
68.3
48.4
19.9

Number of inmates
765,763
236,550
53,215
32,032
* Inmates may have entered more than one type of plea if charged with multiple offenses.
Source: BJS, Survey of Inmates in State and Federal Correctional Facilities, 1997.

8 Defense Counsel in Criminal Cases

Table 18. Sentence length and total time to expected release,
by offense and type of counsel, for State and Federal inmates, 1997

Offense and
type of counsel

State inmates
Mean time
Maximum sentencea to expected
Median
Mean
releaseb

Federal inmates
Mean time
Maximum sentencea to expected
Median
Mean
releaseb

Total
Private
Public

120 mo
114

179 mo
155

96 mo
89

96 mo
96

126 mo
126

104 mo
106

Violent offenses
Private
Public

180 mo
180

231 mo
223

131 mo
133

156 mo
120

162 mo
164

150 mo
134

84 mo
72

128 mo
118

68 mo
64

36 mo
36

59 mo
59

43 mo
52

Property offenses
Private
Public
Drug offenses
Private
Public

84 mo
60

140 mo
97

58 mo
46

114 mo
108

132 mo
126

111 mo
107

Public-order offenses
Private
54 mo
Public
48

98 mo
80

50 mo
48

70 mo
70

119 mo
103

84 mo
85

Note: Because data are restricted to persons in
prison, they may overstate the average sentence
and time to be served by those entering prison.
Persons with shorter sentences leave prison
more quickly, resulting in a longer average
sentence among persons in the inmate sample.

a

Based on the total maximum for all consecutive sentences. Means exclude prisoners
sentenced to life or death.
b
Based on time served when interviewed plus
time to be served until the expected date of
release. Excludes prisoners sentenced to life
without expected release or to death.

Source: BJS, Survey of Inmates in State and Federal Correctional Facilities, 1997.

State inmates with public attorneys
had shorter sentences than inmates
with private counsel
On average State inmates who used
appointed counsel expected to serve
over 7 years on sentences of 13 years,
while those who hired their attorneys
expected to remain in prison 8 years
on sentences of 15 years (table 18).
Federal inmates expected to serve an
average of almost 9 years for sentences of 10½ years, whether they had
appointed attorneys or hired their own.

Federal public-order offenders with
appointed counsel had on average
shorter sentence lengths than those
with private counsel (9 versus 10
years).
Minority inmates were more likely
than whites to have appointed
counsel

Table 19. State and Federal prison
inmates with appointed counsel,
by selected characteristics, 1997

Characteristics

Percent of prison inmates
with appointed counsel
State
Federal

Gender
Male
Female

73.3%
75.9

60.1%
63.3

Race/Hispanic origin
White
Black
Hispanic
Other

69.0%
76.6
73.1
75.2

56.5%
64.7
56.0
73.2

Age
24 or younger
25-34
35-44
45 or older

71.9%
74.1
75.9
68.0

70.8%
64.3
57.8
53.4

Educational attainment
Less than high
school diploma
78.0%
High school
diploma or GED
73.2
More than high
school diploma
61.1

70.2%
60.6
49.6

Citizenship
United States
73.6%
60.7%
Other
69.7
58.7
Source: BJS, Survey of Inmates in State and
Federal Correctional Facilities, 1997.

Lower educational attainment among
inmates was associated with higher
use of court appointed attorneys. Over
7 in 10 with less than a high school
diploma or GED used government
financed attorneys. Sixty-one percent
of State inmates and 50% of Federal
inmates who had attended at least
some college also had appointed
lawyers.

In State prisons, while 69% of white
inmates reported they had lawyers
appointed by the court, 77% of blacks
and 73% of Hispanics had public
defenders or assigned counsel (table
19). In the Federal system, blacks
Drug offenders in State prison who had also were more likely to have public
appointed counsel expected shorter
defenders or panel attorneys than
prison stays on shorter sentences than other inmates; 65% of blacks had
those who hired their own lawyers.
publicly financed attorneys. About the
The average length of stay expected by same percentage of whites and
State drug offenders who used
Hispanics used publicly financed
appointed counsel was 4 years while
attorneys (57% of whites and 56%
that expected by those who employed
of Hispanics).
their own lawyers was almost 5 years.

Defense Counsel in Criminal Cases 9

Inmates who were unemployed were
more likely than other inmates to
use court-appointed attorneys
About 8 in 10 State inmates without a
job before their most recent arrest,
compared to 7 in 10 employed full time,
had appointed counsel (table 20).
Among Federal inmates two-thirds who
were not employed and half who were
Table 20. State and Federal inmates
with appointed counsel, by selected
economic characteristics, 1997
Selected
economic
characteristics

69.6%
75.8
79.4

Over three-quarters of State inmates
with monthly personal incomes of less
than $1,000 had publicly financed
defenders. Less than two-thirds of
those with incomes of $2,000 or more
per month had publicly financed
lawyers. Over two-thirds of Federal
inmates with incomes less than $1,000
and nearly half with incomes of $2,000
or more per month had publicly
supported attorneys.
For both State and Federal inmates,
9 in 10 who were homeless at any time
in the year before their most recent
arrest had court-appointed counsel.

Percent of prison inmates
with appointed counsel
State
Federal

Employment at
arrest
Full time
Part time or
occasional
Not employed

employed full time had publicly
financed attorneys.

56.6%

Type of counsel for prison inmates
varied by conviction offense

61.2
67.6

Monthly income
at arrest
Less than $600
$600-$999
$1,000-$1,999
$2,000 or more

80.1%
76.4
69.9
61.1

71.2%
65.1
58.3
47.1

Homeless at any
time in year
before arrest
Homeless
Not homeless

89.5%
71.6

90.6%
58.8

Among State offenders, those serving
sentences for burglary, larceny, fraud,
or robbery had relatively high rates of
court appointed attorneys; about 8 in
10 had publicly financed counsel (table
21). Similarly in the Federal system,
8 in 10 robbery or burglary offenders
used public defenders or panel attorneys.

Source: BJS, Survey of Inmates in State
and Federal Correctional Facilities, 1997.

State inmates convicted of serious
violent and drug offenses made less

Table 21. State and Federal prison inmates with appointed
counsel, by type of offense, 1997 and 1991

Offense

Percent of prison inmates
with appointed counsel
State
Federal
1997
1991
1997
1991

Violent offenses
Homicide
Rape/sexual assault
Robbery
Assault

71.7%
67.0
67.5
78.5
72.5

73.0%
65.2
70.4
79.5
75.7

83.4%
76.0
72.3
86.2
80.3

77.5%
76.7
82.2
81.3
62.7

Property offenses
Burglary
Larceny
Fraud

82.8%
84.5
82.3
76.3

82.0%
83.8
82.8
74.0

52.5%
82.6
66.5
46.1

51.8%
79.6
61.8
47.7

Drug offenses
Possession
Trafficking

69.9%
71.8
68.4

67.8%
69.7
66.6

54.4%
55.8
55.0

48.2%
48.0
48.4

Public-order offenses
Weapons
Other public-order

68.8%
73.1
67.3

69.7%
70.5
69.5

65.9%
72.8
59.7

48.6%
59.2
39.4

Source: BJS, Survey of Inmates in State and Federal Correctional Facilities, 1997.

10 Defense Counsel in Criminal Cases

use of publicly financed attorneys.
Approximately two-thirds of those
convicted of homicide, sexual offenses,
drug trafficking, and drug possession
reported using public defenders
or assigned counsel.
Among Federal offenders about half
convicted of fraud (46%), drug trafficking (55%), or drug possession (56%)
reported using public defenders or
panel attorneys. Over 8 in 10
sentenced for rape or other sexual
crime, robbery, and burglary used
publicly financed attorneys.
Methodology

Data sources
This report uses a variety of data
sources.
ù Data on Federal court representations were published by the Administrative Office of the U.S. Courts (AOUSC)
in their annual, Judicial Business of the
United States Court. The AOUSC’s
Defender Services Division supplied
additional unpublished data.
ù The AOUSC also provides BJS with
data from their Criminal Master File.
This dataset includes defendants in
cases terminated each year in the
Federal court system. Tables from the
data are published each year in the
Compendium of Federal Justice Statistics. BJS makes these data available
on its Federal Justice Statistics website <http://fjsrc.urban.org/index.shtml>.
ù In the National Survey of State Court
Prosecutors, BJS has surveyed local
prosecutors’ offices biennially and
several times has asked about types
of indigent attorney programs in their
jurisdictions. For more information,
see the publication Prosecutors in
State Courts, 1996 (July 1998, NCJ
170092). The data, together with the
code sheet and documentation, are
available at <http://www.icpsr.umich.
edu/NACJD/bus.html#nps>.
In 1999 BJS fielded the National
Survey of Indigent Defense Systems to
collect data from providers of criminal
indigent services. Results are

Appendix table 1. Standard error
of estimates for the Survey of
Inmates in Local Jails, 1996
Standard error of the estimates for type of counsel
Public
Private
All jail inmates
0.83% 0.63%
Those charged with a &
Felony
Misdemeanor

1.04%
1.84

0.97%
1.21

Type of offense
Violent
Property
Drug
Public-order

1.38%
1.33
1.47
1.81

1.24%
0.91
1.23
1.27

published in Indigent Defense Services
in Large Counties, 1999 (BJS Bulletin,
NCJ 184932).
ù In the State Court Processing Statistics data (formerly known as the
National Pretrial Reporting Program)
BJS collects a sample of records for
felony cases filed in the Nation’s 75
most populous counties in the United
States. This survey includes information on the type of attorney used by the
defendants. For more information, see
Felony Defendants in Large Urban
Counties, 1996 (October 1999, NCJ
176981). Data are available at
<http://www.icpsr.umich.edu/NACJD/
bjs.html#scps>.
ù Every 5 to 6 years BJS sponsors
surveys of inmates in State prisons,
Federal prisons, and local jails. In
hour-long personal interviews with a
nationally representative sample of
inmates, respondents are asked about
their current and prior offenses,
personal and family characteristics,
and the processes that resulted in their
current incarceration. For further information, see Profile of Jail Inmates,
1996 (April 1998, NCJ 164620) and
Substance Abuse and Treatment of

State and Federal Prison Inmates,
1997 (December 1998, NCJ 172871).
Documentation, codebook, questionnaire, and the public use data files can
be accessed at <http://www.icpsr.
umich.edu/NACJD/bjs.html#silj> for
the Survey of Inmates in Local Jails
and at <http://www.icpsr.umich.edu/
NACJD/bjs.html#siscf> for the Surveys
of Inmates in State and Federal
Correctional Facilities.

Standard errors and accuracy
of the estimates

of jail inmates using court appointed
counsel is calculated as 68.1% %
1.96(.83), or 66.5-69.7%.
The standard error of the difference of
two percentages is the square root of
the sum of the squared standard errors
for each group. For example, also
using standard errors from appendix
table 1, the 95% confidence interval for
the estimated difference in the percentage with appointed counsel for jail
inmates charged with a felony (76.6%)
or misdemeanor (56.3%) is calculated
as 20.3 % 1.96(2.1), or 16.2 to 24.4.
Because this interval does not include
zero, we can conclude with 95%
confidence that the percentages of
those charged with a felony or misdemeanor using public counsel are
actually different.

The accuracy of the estimates
presented in this report for the State
Court Processing Statistics, Survey of
Inmates in Local Jails, and the Surveys
of Inmates in State and Federal
Correctional Facilities depend on the
size of the sampling error. This error,
All relationships discussed in the text
as measured by an estimated standard of this report are significant at the 95%
error, varies with the size of the
confidence level.
estimate and the size of the base
population. EstiAppendix table 3. Standard error of estimates
mates of the
for the Surveys of Inmates in State and Federal Correcstandard error for
tional Facilities
selected characteristics have been
Standard error of the estimated percent
of inmates with appointed counsel
calculated for each
Characteristic
State
Federal
survey. (See
All prison inmates
0.48%
1.02%
appendix tables.)
Gender
These standard
Male
0.50%
1.10%
errors may be used
Female
1.00
2.00
to construct confidence intervals
Race/Hispanic origin
around
White
1.03%
2.39%
Black
0.82
2.14
percentages.
Hispanic

For example, using
standard errors
from appendix table
1, the 95% confidence interval for
the estimated 68%

Appendix table 2. Standard errors for felony
defendants in the Nation's 75 largest
counties, by type of offense, 1996
Standard error of the estimates
for type of offense
Type of counsel
Total
Violent Property Drug Public-order
Public defender
1.4%
1.0%
2.0% 1.1%
2.7%
Assigned counsel 0.7
0.7
0.9
0.9
0.8
Hired attorney
1.4
1.0
2.1
1.0
3.0
Pro se/other
0.1
0.2
0.1
0.1
0.1

1.38

2.68

Educational attainment
Less than high school diploma
High school diploma or GED
More than high school diploma

0.72%
0.71
1.46

1.87%
1.49
2.04

Employment at arrest
Full time
Part time or occasional
Not employed

0.67%
1.32
0.79

1.34%
2.97
1.86

Monthly income at arrest
Less than $600
$600-$999
$1,000-$1,999
$2,000 or more

0.70%
1.15
1.06
1.42

1.71%
2.65
2.27
1.99

Offense
Violent
Property
Drug
Public-order

0.72%
0.88
1.10
1.64

2.04%
4.05
1.32
2.61

Defense Counsel in Criminal Cases 11

Appendix table 4. Standard error
of estimates from the Surveys
of Inmates in State and Federal
Correctional Facilities, 1997

Case disposition
State inmates
Pleas of not guilty
Bench trial
Jury trial
Guilty or
no contest plea
With plea bargain
Without plea bargain
Federal inmates
Pleas of not guilty
Bench trial
Jury trial
Guilty or
no contest plea
With plea bargain
Without plea bargain

Standard error of the
estimate for
type of counsel
Public
Private
0.55%
0.34
0.47

1.07%
0.66
0.96

0.55
0.64
0.55

1.10
1.13
0.94

1.18%
0.56
1.10
1.18

1.62%
0.77
1.54
1.62

1.35
1.16

1.74
1.39

12 Defense Counsel in Criminal Cases

The Bureau of Justice Statistics is the
statistical agency of the U.S. Department of Justice. Jan M. Chaiken,
Ph.D., is director.
BJS Special Reports address a
specific topic in depth from one or
more datasets that cover many topics.

surveys of inmates in State or Federal
prisons or local jails; and Greg Steadman reviewed the standard error
calculations.

William Sabol, formerly of Urban
Institute, verified the Federal data
from the Criminal Master File. Staff
of the Administrative Office of the
Caroline Wolf Harlow wrote this report U.S. Courts, Steven R. Schlesinger
under the supervision of Allen J. Beck. and Catherine Whitaker of the StatistiIn BJS, Carol DeFrances consulted
cal Division, and Theodore J. Lidz,
extensively on research approaches
Steven G. Asin, George M. Drakalich,
and reviewed the State prosecutor
and Stephan C. Macartney of the
data analysis; John Scalia provided
Defender Services Division, provided
numbers and reviewed the items
and verified data and reviewed text.
dealing with Federal defendants; Tim
Tom Hester and Ellen Goldberg
produced and edited the report.
Hart reviewed the section from State
Jayne Robinson prepared the report
Court Processing Statistics; David
Levin assisted in accessing the SCPS for final printing.
dataset; Tracy Snell provided a statistical review of material from the
November 2000 NCJ 179023

 

 

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