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The economics of criminal defense

One of the lawyers in my office was retained to handle a death penalty case last year.  He and his co-counsel split $100,000.  He was also assigned to handle seven other death penalty cases last year.  On those seven cases combined, he made just a tad over $20,600.  I don't know how much time he spent on the retained case, but I'll bet he made more per hour than the $43.63 the County paid him on the assigned cases.

So, how is it a viable business model that you'll take 40% of what your normal fee would be to handle seven times as many cases?

Because that's where the money is.

The entire economic structure of the criminal defense system stems from one immutable fact:  80% of the defendants going through it don't have the money to hire a lawyer.  The Supreme Court says a defendant has to have a lawyer, and so the government subsidizes the criminal defense system.  If you're a criminal defense lawyer who doesn't handle assigned cases, then you're cutting yourself off from 80% of your market.  (The tradeoff is that you're agreeing to work for a fraction of what you could command if somebody had the money to hire you.)  There are some lawyers who can do that, but they're relatively few in number.  I'd bet that for three-quarters of the criminal defense attorneys in this town, assigned cases account for at least a fourth of their income.

How does one access that market?  The gatekeepers are the judges.  True, there's an assigned counsel list, and there are a very few judges who will make their assignments from that list, in order, but it's much more common for the judges to make individual determinations, usually after the arraignment is over.  That's why if on Friday afternoon you drop by the chambers of the judge who's going to be handling arraignments the following week, you'll see a little bowl on the bailiff's desk, filled with attorney cards.  If the judges are the gatekeepers, then that's the people you're going to have to reach. 

This system has received its fair share of criticism, perhaps the chief one being that a lawyer is going to be wary of upsetting a judge on whom he's dependent for assignments, and thus might compromise his client's defense.  That could be a problem in a small county with only a few judges, but here there are 34.  That doesn't mean it can't happen; allowing the trial judge to assign a lawyer to a case pending before him when the other lawyers withdraws might have potential for problems.  But overall, the judges' power as gatekeepers is greatly diluted by their number.

There's also grumbling that this results in an Old Boys' network, where the same lawyers get most of the cases.  That's accurate to a large extent, but it would be a more effective argument if the lawyers who were getting the cases weren't qualified to handle them.  That's not true, especially for the more serious cases; the same lawyers get cases because they're regarded as competent lawyers.  To be sure, a good personality and some schmoozing at a fund-raiser don't hurt, either, but that's the marketing aspect of capitalism.

The question is whether it's going to continue.  The Steelman Report, the study commissioned by County Prosecutor Tim McGinty, recommends substantial increases in compensation of assigned counsel.  (The study's recommendations here were taken verbatim from a proposal prepared by the Cuyahoga Criminal Defense Lawyers Association (CCDLA) earlier this year.)  CCDLA representatives have also met with a committee of judges, who've made a counterproposal which isn't what CCDLA proposed, but would be a substantial increase from the present levels.  One of the concerns expressed within the group (full disclosure:  I'm the vice-president-elect of CCDLA, which means if people don't come to their senses and I don't get hit by a bus in two years, I get to run the show) is the fear that setting fees too high could result in "pricing ourselves out of the market"; i.e., that it would be cheaper for the county to give all the assigned cases to the public defender.  The likelihood of that happening, at least in the short term, is virtually nil; it would require more than doubling the number of public defenders who presently handle felony cases, with the associated expenses for staff, office space, and benefits.  Still, it's a consideration.

The bigger problem is the possibility that the judges will lose their status as gatekeepers.  The Steelman Report recommends that assignment duties be given to a substantially expanded Public Defenders Commission, which seems highly unlikely, if only because there doesn't appear to be any statute giving the Public Defenders Commission that power.  If any change is made, the more probable result is a random assignment system.

The CCDLA has taken the position that it will take no position on that issue, and that's probably wise.  There's been a perception in the past that the organization's primary function is to protect the economic interests of people who take assigned criminal cases, and getting into that fight, especially on the side of maintaining the status quo, could only serve to further that perception.

But there is another aspect of economics that comes into play here.  The goal of the system is to provide effective representation.  That requires an infusion of new blood.  Right now, it's too hard for young lawyers to get assignments.  If there are increases to compensation, as seems inevitable, there will be a bigger pie to be divided.  It makes sense to make it easier for good young lawyers to get their piece, and it doesn't mean that anybody else has to eat less.


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