Eighty percent of criminal defendants are indigent, and wind up being represented by either public defenders or appointed counsel. The other twenty percent of criminal defendants pay for their attorneys. As one observer astutely noted, "The man who said money can't buy happiness never sat in a courtroom."
Glib, but is it true? Yes, it's not uncommon for lawyers in the first two groups to be told by their respective clients, "I want a real lawyer," and attorneys who don't take assignments often look down on those who do, and view public defenders with equal skepticism. But do private attorneys get better results than their counterparts?
Yes. Maybe. It depends.
A government study in 2011 found that defendants represented by public defenders or private attorneys fare better than those with assigned counsel, at least in terms of sentencing outcomes. That was echoed by a 2014 study, and also by an analysis by the Rand Corporation, which examined murder cases in Philadelphia, and found pronounced differences:
Public defender representation reduces a murder defendant's conviction rate by 19 percent when compared with appointed counsel. The likelihood of receiving a life sentence is reduced by 62 percent if the defendant has public defender representation rather than appointed counsel. The study further concludes that representation by a public defender results in a 24 percent decrease in expected prison terms.
On the other hand, this paper (h/t to Doug Berman's Law & Sentencing Policy blog) honed in on cases involving co-defendants, where one was represented by an assigned attorney and another by the public defender. The result?
defendants assigned a public defender in co-defendant cases had slightly worse outcomes: a higher probability of being convicted, an average of three months longer expected prison sentence, longer court proceedings and a higher probability of reaching a plea bargain.
As Berman notes, "longer court proceedings and a higher probability of reaching a plea bargain" are not necessarily indicative of negative result, especially if the client is on bond. Despite all the talk about "speedy trial rights," I'm firmly convinced that as long as my client isn't sitting in jail, if I walked out of the courtroom and told him, "Unfortunately, the court's not going to be able to do anything with your case for another five years," he'd be ecstatic.
The problem with all these studies, though, is that other factors, especially economic ones, come into play. A 2002 study of public defender effectiveness in Denver found that public defenders achieved worse results than privately-retained lawyers, but the authors found an explanation which should bring joy to the heart of any free-market capitalist: the concept of the "marginally indigent." Basically, if a defendant's family and friends believe his case is defensible, they'll gather up the money to pay for a private attorney, in the belief that you get what you pay for, and if the family pays for an attorney, the defendant will get a better outcome. Conversely, if the family and friends believe the defendant is a lost cause, they'll figure the defendant can just make do with a public defender. The result is that public defenders wind up with the less defensible cases, which is why they have worse outcomes.
That holds true for assigned counsel, too. The Philadelphia study noted the horrific rate of pay for assigned counsel in homicide cases in that city. Fees are capped at $3,000, and that's if the case goes to trial. A defense attorney can spend months preparing for trial, and if the case pleads out a day before, he gets paid $1,333. The average fee worked out to about $2 an hour. Needless to say, that's not going to attract quality attorneys.
Also unaddressed by many of these studies is the vast difference in caseloads between public defenders and private attorneys. A New York Times article points to Fresno, CA, where public defenders have caseloads that are four times the recommended maximum of 150, and to Minnesota, where a reporter followed a public defender for a day and found that he had about twelve minutes to devote to each client.
And it's getting worse; Google "indigent defense crisis" and you'll find any number of stories: In Louisiana, hundreds of defendants sit in jail, on a waiting list for representation by the public defender's office. Georgia, Florida, Nevada, Idaho and Oklahoma all merit their own discussions.
As does Missouri; each of its public defenders will handle 200 cases this year. An ABA study suggested that the state needed to add almost 300 lawyers; instead, Governor Jay Nixon just signed off on a budget cutting the public defender's expenditure to its lowest level in five years.
Michael Barrett, the head of the Missouri public defender's office, had an interesting solution to the problem. Pointing to a section of state law which granted the state public defender the authority to appoint private lawyers to handle indigent cases, he appointed one to a case: Governor Jay Nixon.
Given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it.