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The Performance of Federal Indigent Defense Counsel

There is a new and very detailed study of this topic, here is the abstract:

The right to an equal and fair trial regardless of wealth is a hallmark of American jurisprudence. To ensure this right, the government pays attorneys to represent financially needy clients. In the U.S. federal court system, indigent defendants are represented by either public defenders who are salaried employees of the court or private attorneys, known as Criminal Justice Act (CJA) attorneys, who are compensated on an hourly basis. This study measures differences in performance of these types of attorneys and explores some potential causes for these differences. Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act.

Here is a non-gated version of the paper. By the same author, here is a working paper on whether the certainty of arrest reduces domestic violence.

Colin (mail):
The last sentence in the abstract is a bit of a bombshell. I'm eager to read this article. My gut reaction (before reading the paper, and so worth what you've paid for it) is that her empirical data is very probably true, but that her conclusion that the differential is a Title VI violation is very likely overreaching (at least so far as the selection process is random). I do see that she asserts that where the selection is non-random black defendants are more likely to draw a CJA attorney than white defendants; that presents some interesting problems.

Both of these look like interesting reads.
6.25.2007 8:14pm
Sarah (mail) (www):
I wonder, having no time to read the article tonight, whether they accounted for the availability of full-time public defenders -- there aren't any in my county; every defense attorney assigned by the court is just one of the attorneys working in the area. The last project I did limited my research to cocaine and crack cases, but almost every defendant in the county was using a court-appointed attorney, and almost every active criminal defense attorney in this county and the next one over managed to get on my list at least once in the two and a half years I looked at. Only one that I caught managed to get more than five such cases: I wouldn't be surprised if a full-time public defender in New York or Chicago got better deals for his or her clients, on average, compared with any of our attorneys. I mean, it only makes sense, right?

Incidentally, why is it that the system pays for the attorney up front, but then the judges always order convicted defendants to pay the court back? It's a real burden for the guys who are already getting out with a felony drug conviction and ten years of incarceration on their record (and don't have a job,) have court-mandated child support and restitution, and now have thousands of dollars in court costs on top of it...
6.25.2007 8:38pm
Ex-Fed (mail):
I spent a year on the CJA panel in Los Angeles. The quality of the lawyers varies very substantially. This doesn't shock me.

CJA attorneys get about $94 an hour right now, by the way.
6.25.2007 8:40pm
Nathan_M (mail):
I wish I could understand the statistics better, but the paper was very interesting. It's hardly news that public defenders are excellent lawyers, albeit overworked and underpaid ones, but it's nice to see it confirmed in a study.

What struck me as most surprising was the difference the quality of law school attended made. But maybe that's just my Canadian perspective, where some schools are a bit better then others, but there are few huge differences in quality.
6.25.2007 8:59pm
Mahan Atma (mail):
As a former statistician and now criminal defense attorney, I'd simply point out that this research is extraordinarily well-done from a technical standpoint.

All you law profs out there engaged in social science research could afford to take a page from this approach.
6.25.2007 9:37pm
Dave N (mail):
My experience generally is that in the larger jurisdictions, public defenders (both state and federal) are usually (though not always) better than their private practice counterparts.

However, public defenders have an unfair reputation for not being "real" attorneys--which is sad given the skills I have seen them demonstrate, both in trying cases and negotiating resolutions.

In fact, I am alwys amazed when someone hires a private attorney with less skill than the public defender representing him--and this defendant thinks he is actually doing better than before.
6.25.2007 9:43pm
Ex-Fed (mail):
I agree with Dave N. If you are looking at a federal indictment, unless you can afford a really expensive attorney -- usually an ex-AUSA or ex-DFPD -- you are better off with a federal public defender, or with about 50% of the CJA attorneys, than you would be with most inexpensive or moderately expensive criminal defense practitioners. The FPDs in Los Angeles are really quite good.
6.25.2007 11:16pm
Public_Defender (mail):
I could provide a list of private attorneys who, with unlimited resources, could put more time and quality into a case than my colleagues could. But most criminal defendants don't know how to pick the good private attorneys, and they certainly don't have the resources to dump into their case.

Matters are worse on local court-appointed counsel lists than in the federal CJA system. The pay is often one half to one third what the feds pay (less than I paid the last plumber I hired) with vicious fee caps (take a case to trial, take a financial bath).

To make a living doing state court-appointed work you either have to be just starting out and building your practice, or you have to have a system that churns cases quickly regardless of merit. The case-churners give big campaign contributions to judges to keep the cases coming.

One thing I love about my job is that I can allocate my time as I deem it important, not as the fee schedule deems it important. If one case has a particularly important legal issue that could impact many others, I can put more time into it. If I think a guy is getting screwed particularly bad, I can put more time into it, even if it's a low-level case. And if a case gets too complicated, I have an office full of colleagues willing to help.

While PD's offices aren't perfect, attorneys are supervised. When clients complain, someone listens. When deadlines are missed or performance starts to decline, someone notices.

I plan to read the article carefully. Research on what makes criminal defense lawyers effective is very useful, even if some of the articles are a little humbling.
6.26.2007 5:59am
Public_Defender (mail):
I forgot to mention one problem. If PD performance is measured by better results for clients, some prosecutors, judges and funding authorities will choose not to have PD's precisely because PD's do a better job.

My perception is that some judges intentionally assign cases to substandard private practioners because the judges do not want quality defense lawyering in their courtrooms.
6.26.2007 7:47am
Bruce Hayden (mail) (www):
One of the perverse thoughts coming out of this, esp. in view of the advantages we saw in the Nifong Duke "rape" case for having the money to buy top representation, is that it appears that those on the bottom have a better chance at justice than those in the middle, who don't qualify financially for public defenders, so are limited to hiring the low to mid range criminal defense attorneys who appear to many here to do a worse job than PDs do.
6.26.2007 8:11am
Public_Defender (mail):
Bruce,
One of our local judges said that if he were in serious criminal trouble, he'd want to get rid of all his assets and get a public defender.

You are right about the problem for people in the middle. Basically, judges expect you to sell your house to pay for your defense. So even an indictment for a serious felony (let alone a conviction) can mean a middle class person looses his or her home.
6.26.2007 8:30am
Special Guest:
Nice to see conventional wisdom confirmed empirically!
6.26.2007 10:32am
Dave N (mail):
Public Defender,

While I think that some judges might want to assign substandard attorneys, my personal view (as a prosecutor doing appellate work) is that I would rather a good attorney handle the case from the beginning because the trial and record will be much, much better and easier to defend if there is a conviction.

In my county, we used to have a Public Defender system with private counsel acting as backup if there was a conflict. We are moving to a system where we have two separate county agencies--the Public Defender and the Alternate Public Defender--to handle the vast majority of indigent criminal defense. Frankly, I think it was a step in the right direction.
6.26.2007 12:45pm
c.f.w. (mail):
From a policy perspective - do what? I suggest improve the compensation and training of the CJA counsel. Get them up to say $150-160 per hour, as for the death penalty counsel. The trouble with putting all the work in-house is it leads to a perception of no justice. That perception is worth working against by keeping and developing the private bar. In addition, the trial/management/negotiation skills learned under the CJA system can help the private lawyer serve the community in related areas (appeals, civil matters, immigration, etc.) at less than $350 per hour.

Re methodology - measuring results only by stats is faulty. What matters is whether the client thinks and feels he or she was well represented. Ignoring that dynamic makes the study impeachable. Look at civil cases - lots of civil case clients (including Fortune 500 companies) get objectively bad results but still swear by their counsel.
6.26.2007 2:23pm
Daniel San:
PD: My perception is that some judges intentionally assign cases to substandard private practioners because the judges do not want quality defense lawyering in their courtrooms.

In my experience, judges and prosecutors see it as to everyone's advantage to have good lawyering. Bad lawyering creates error. It also creates unnecessary work for everyone.

I cannot argue with your experience. I assume that your perceptions may be correct. But it seems to be very short-sighted. As good public defender creates an advantage for a judge who doesn't want to work any more than necessary: they will argue well and they tend not to waste time on the unimportant or unnecessary.
6.26.2007 5:57pm
Public_Defender (mail):
I didn't say that all judges and prosecutors want lazy defense lawyering, but some do. I think they are a minority, but they do exist. Those judges want defense lawyers who will convince their client to plead guilty while creating as little work for others as possible.

And given that those lawyers don't do a lot of work, they can make money at appointed work. They then return a portion of the money they make to the judge in the form of campaign contributions.

All that said, I should have pointed out that some very good attorney take appointed counsel cases and work them hard. For those attorneys, it's basically pro bono.

I keep saying "some attorneys" this and "some attorneys" that. Research into indigent defense is valuable because it tests whether anecdotal stories represent what's really going on.
6.27.2007 7:08am

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