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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.