This is why I like sociological research:  you find some fascinating stuff that you really didn’t figure on.  Like this article which recently appeared in the Ohio State Journal of Criminal Law.  The (much) short(er) version is that the authors studied the outcomes of criminal cases in Denver to determine whether public defenders or private lawyers were more effective in getting their clients shorter sentences.  It turns out that private lawyers fared better:  their clients averaged sentences of three years less than those represented by public defenders.

This might be because public defenders wind up with defendants charged with more serious crimes, and they do:  a defendant charged with a serious crime is more likely to be unable to post bond, and thus can’t retain private counsel.  But that didn’t account for the difference here; in fact, when seriousness of the crime was taken into account, clients represented by public defenders fared even worse, doing five years more than their privately-represented counterparts.

And, it turns out, it’s not because public defenders were worse lawyers.  They actually filed more motions than private attorneys, and their acquittal rates once in trial were every bit as good.

So what accounts for the difference?  A combination of two factors.  The first is that criminal defendants perceived private counsel as being more effective.  The second is that defendants do not fall neatly into one of two groups, the indigent and the non-indigent.  There’s also a group the authors call the “marginally indigent,” that is, people who would qualify for public defenders but who, in a pinch, can tap hidden resources or family and friends for enough money to hire private counsel.  So when do they do that? 

It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits.

Let’s say you’re charged with robbing a liquor store, they’ve got you on videotape, so there’s no hope of beating the case.  Why bother depleting your resources to hire a lawyer to accomplish pretty much the same thing the public defender is going to do for free?  But if you’re innocent of the charges, isn’t it more likely that you’d tap those resources to hire a lawyer that you perceived would be more effective?

In short, the difference in result is because of self-selection by the marginally indigent:  public defenders wind up with the obviously guilty and other hopeless cases, while the more defensible cases gravitate toward private lawyers.  Keep in mind that doesn’t just show up in conviction rates; cases in which guilt is questionable almost always end up in much better plea bargains, and thus shorter sentences.  Private lawyers get better results not because they’re better lawyers, but because defendants think they’re better lawyers and are willing to pay for the difference.

I’m not sure that the implications of that, as a public policy matter, are earth-shaking.  The authors themselves argue for nothing more than perhaps a more stringent application of indigency, so as to force the marginally-indigent guilty defendants into choosing private counsel.  That certainly would free up some public resources, but it’s difficult to see how that would be put into practice; one’s friends and even one’s family do not have a legal obligation to pick up the tab for representing him in a criminal matter. 

But as I said, it’s interesting from an intellectual aspect:  you wind up looking at things in a way that you hadn’t anticipated.