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Jacob Sullum | January 8, 2007, 12:27pm
A Colorado judge who collaborated with two economists on a study of public vs. private representation in criminal cases says he was surprised by the completely unsurprising results: Defendants with private lawyers fare better, as measured by the length of their sentences (and controlling for other variables that might affect punishment), than defendants with government-provided lawyers. The more serious the case, the bigger the advantage of having a private lawyer. The judge, Morris B. Hoffman, says this was the opposite of what he expected because over the years he has been impressed by "the professionalism and competence of the public defenders who handle felony cases for indigent criminal defendants in my courtroom." But the results do conform with popular stereotypes, the general superiority of private alternatives to government services, and the wisdom that you get what you pay for. If Hoffman and his co-authors had found that public defenders were more effective than private lawyers, that would have been surprising.
Hoffman offers an alternative explanation to stave off the responses of 1) better pay for public defenders or 2) privatization (presumably like the first option, but with accountability). Maybe private lawyers aren't better, he suggests. Maybe it's just that "marginally indigent" defendants (those who officially can't afford lawyers but can scrape together the money from "hidden resources" if sufficiently motivated) are especially likely to hire private lawyers when they are innocent and facing serious charges. If so, Hoffman argues, that tendency would make private lawyers look better than public defenders even if they are not any more competent on average. Maybe. It could also be that the discipline of competition among lawyers who need decent reputations to attract clients produces better results than a system that compensates people the same no matter how well they do.
Great Banana | January 8, 2007, 1:16pm | #
I think it is probably impossible to ever truly make a reasonable comparison here.
Let's assume, for the sake of argument, that they really were comparing crimes that were very similar - say single homicides (1 victim, 1 alleged culprit, similar type of motive / means).
I would guess, on average, that the defendant who has the means to hire an attorney, will be better educated, more articulate, have a stable job, and have people who can come in as good, solid character witnesses.
In contrast, the person who cannot hire a private attorney, is less likely to share all of these attributes.
I would also guess that the person who has the means to hire a private attorney, on average, has less or no criminal record than his counterpart in the study.
So, in a case where the defendant is articulate (and thus makes a better impression on a jury if he testifies), can demonstrate that he is a stable and productive member of society, receives a better result than someone without these attributes is hardly surprising.
thus, unless the study found a way to control for such variables (and I seriously doubt that it did), it does not tell us much.
Although, with all of that said, it would not surprise me in the least to find that attorneys practicing privately are, on average, superior to public sector attorneys.
But, even with that said, some private sector attorneys are much, much superior to other private sector attorneys. So, what is the answer? Do we find the very best criminal defense attorney in the country and have him/her defend every single criminal defendant, too ensure fairness?
Karen | January 8, 2007, 10:45pm | #
Comparison between private and government attorneys is impossible. Lawyers in private practice are pushing malpractice if they have more than 60 cases per year, while those of us in government practice get that many files in two months. I left a job where I ran a caseload of more than 1,000 cases per year. The vast majority closed without further action, but even closing a file involves spending an hour writing a memo and closure letter to the person who complained and the defendant. Public defenders and criminal prosecutors won't have that many cases, but they'll have a couple hundred per year, usually with jury trials, which adds another layer of preparation and time sinks. Believe me, time is vital in getting good representation, and if you find out the morning of the first hearing that the case is yours, and meet the defendant an hour before that, you won't do much of a job.
Also, county commissioners have exactly zero interest in providing funding for indigent defendants, because they are 1. indigent, and 2. criminals. County commissioners are elected, and being nice to criminals isn't really big with the voters. (Any other fans of
Star Trek: The Next Generation might remember the Cardassian defense lawyers, whose purpose was to reconcile the defendant to being killed. County commissioners would mostly prefer that kind of PD.
It's also important to remember that in this country, most people who get arrested are in fact guilty of something. It may not be a good law they violated, but they pretty much always violated something. The issue, as Travis County District Court Judge John Dietz is fond of saying, is whether the defendant is 5 years guilty or 15 years guilty. (A friend who does criminal defense work said the most horrible case he ever tried was defending a woman who was, in fact, actually innocent. Really innocent, as in not involved in the crime at all, just an unlucky neighbor. He managed to get her acquitted, but it nearly killed him with stress.) Of course, the difference between 5 and 15 years in prison is nothing to sneeze at, but it's still a vastly different matter from someone who isn't guilty of anything going to jail.
Finally, prosecution really isn't suited to privatizing. Jane Jacobs, in
Systems of Survival, presented the best arguments about why this is so, and I commend those arguments to you. Also, the best solution to this problem is exactly what Hit and Run does, shining lights on bad cases and educating the public to the importance to our freedoms of due process in criminal law.
