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September 1, 2011

Would greater state and federal spending for public defenders actually save money?

The question in the title of this post is prompted in part by a passage coming from the recent Judicature piece by Christopher Durocher and Adrienne Lee Benson.   The piece is titled "A reform roadmap for the criminal justice system," and is an effective review/promoition of the February 2011 report titled "Smart on Crime: Recommendations for the Administration and Congress," produced by the bipartisan Smart on Crime Coalition (blogged/linked here).  The full article is worth a read, but this paragraph prompted this post seeking reader reactions:

Improving indigent defense systems is, in itself, a step towards increasing cost-efficiency in the broader criminal justice system.  Our adversarial system of justice only operates properly when both prosecutors and indigent defenders have the resources available to zealously advocate their side.  As Attorney General Holder observed, “Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor.  When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals.  Poor systems of defense do not make economic sense.”   Reforms to indigent defense are fundamental to creating a more cost-effective system of justice.

I agree with this statement in principle, though this paragraph dodges the essential political problem that improving indigent defense costs (lots of?) money right now for future (and unquantifiable?) savings later.  Moreover, I suspect that there may be some readers of this blog that do not agree with this statement in principle because they believe (or know) that spending more money on criminal defense functions just leads to more (and more costly) criminal defense efforts.

A more provocative (and less responsible?) way to perhaps cast this question would be to wonder if anyone really thinks that the Supreme Court's Gideon ruling and its progeny actually have helped create "a more cost-effective system of justice."  Thoughts, dear readers?

September 1, 2011 at 10:21 AM | Permalink

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Comments

Was Gideon cost effective? No. But it was (and still is) needed.

I think the most cost effective thing Congress could do at this point would be to amend section 1983 (and its federal level counterpart, which I forget the section for) to make clear that it does in fact apply to state prosecutors and possibly even state judges. I wounder if the federal courts would rule such a move unconstitutional, that the immunity enjoyed by those two groups is of constitutional dimension. I have no idea there.

Posted by: Soronel Haetir | Sep 1, 2011 10:34:44 AM

"I suspect that there may be some readers of this blog that do not agree with this statement in principle because they believe (or know) that spending more money on criminal defense functions just leads to more (and more costly) criminal defense efforts."

Bingo!

The idea that if we give the PD's more money, we'll get fewer filings could be entertained only by someone who has never met an actual PD.

I don't begrudge them their enthusiasm, mind you. I'm just calling out the idea that lawyers with more money file fewer suits.

How many dozen times have we seen here the notion that we have to make cutbacks in the criminal justice system in order to save money? The idea was pretty shaky to start with, since the criminal justice system isn't where the big money is to be found.

But putting that entirely to one side, it now turns out -- to no one's surprise, I'm sure -- that less money for the criminal justice system means less money for putting away the bad guys but MORE money for trying to spring them.

It was never about money to begin with. It was about trying to starve things you oppose (prosecution) while engorging things you like (defense).

Amazing!!!

Posted by: Bill Otis | Sep 1, 2011 10:45:30 AM

King and Hoffman suggest that we boost criminal trial defense with money saved by reducing federal habeas for state prisoners to only the rare cases of (1) retroactive new rules and (2) strong claims of actual innocence.

Their proposal is limited to noncapital cases, but we should at least limit federal habeas in state capital cases to claims that have some bearing on reliability of the guilt verdict. Re-review of the penalty phase is doing more harm than good at present. When the Ninth Circuit, in particular, flips a penalty verdict but not the underlying guilt verdict, it is usually wrong.

Posted by: Kent Scheidegger | Sep 1, 2011 11:22:32 AM

I would add that you must also consider incarceration and social costs. Durocher and Benson write: "When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals." They don't mention that you also spend $75,000 per year (or whatever it is in that jurisdiction) unjustly locking them up. You also destroy their lives, as well as the lives of their family and their children in particular, but hey, let's stay objective here.

More important, keep in mind that we are talking about a system that currently, in at least some states, affords indigent defendants no effective representation at all, in violation of the spirit, if not the letter, of Gideon. We are talking about systems, in some states, that would be worthy subjects of suits in international human rights tribunals.

Are we really reduced to economic arguments why it's not a good idea to let local prosecutors lock up any poor person they please?

In other words, while I respect Durocher and Benson's arguments, it seems like they are talking about increasing the capability of public defenders from a baseline that doesn't exist in reality. In reality, many states don't actually comply with Gideon in first place.

Posted by: James | Sep 1, 2011 2:45:22 PM

Why don't we just prosecute fewer people for B.S. crimes?

Posted by: Texas Lawyer | Sep 1, 2011 2:47:15 PM

In December, 2009, the Michiggan State Appellate Defender Office had witnesses testify before the Michigan House of Representatives Judiciary committee that its attorneys had shaved off 297 years of minimum sentences, just by properly recalculating minimum sentence guidelines ranges. At about $36,000 per inmate per year, that represents a savings to the State Corrections Department of about $10,700,000 per year. The Appellate Defender office gets just one-sixth to one-fourth of indigent appeals. If it got them all (at a greater cost to that office), the savings would go a long way toward improving indigent defense.

Posted by: Greg Jones | Sep 1, 2011 3:18:34 PM

Pro se litigants are as effective as PD's if verdict outcomes are the measure of their work. PD's suck at their jobs. First, the defendant is a commodity, disposed of in 5 minutes over a sandwich and a diet Coke with the prosecutor. In the 5% of cases, they try to assert the legal rights of the defendant, they lose 70% of the time or more. They don't know the facts, and have no desire to learn them.

Gideon was a highly sophisticated legal advocate. He was also totally guilty. He had $23 in quarters in his pocket minutes after a cigarette machine was broken into. No running for this entitled criminal. He calls a cab from a booth outside the bar where the cigarette machine was robbed. He then spnds his quarters on cigarettes and gambling nearby. He runs his own trial, and the evidence is overwhelming his great advocacy skill, because it is overwhelming.

The Supreme Court uses this terrible case of a guilty repeat offender as a pretext to generate massive employment for grads in the middle of the law school class. He refuses the do gooder ACLU lawyer offered the second round. Instead, he picks a real slick, expensive defense professional who can get anybody off.

This is a travesty. It does not end well for Gideon. Yes, he wins the case, but returns to drinking and beating the wife on a regular basis whether she needs it or not. He dies young, from alcoholism, as opposed to old if he were in prison.

I want to go to Constitution Hall to look at the exhibit of this case, presented with pride, but deserving deep shame in our rigged legal system. Rigged solely for lawyer rent seeking.

Posted by: Supremacy Claus | Sep 1, 2011 4:00:53 PM

The cost savings from public defenders is that you have, at least in theory, fewer people going to prison at 35,000 a year. Assuming the 35,000 a year number is right & assuming there is no fee for public defender services charged to the defendant, an indigent defense attorney who shaves just 3-5 years per annum off of what would have been actually served ends up saving the system money.

Posted by: speaking just for me.... | Sep 1, 2011 4:45:02 PM

Even if having public defenders does not somehow "save money", there are certain things that we can consider a natural cost of having a democracy. One of those is guaranteeing representation to people targeted by the government for prosecution. Whether performed by public defender agencies or appointed counsel for indigent defendants, it is hard to defend a system that does not provide effective counsel to people accused of crimes. Even if they are "repeat offenders" who are "totally guilty."

But if the goal is to refine the criminal justice system to save money, how about legalizing marijuana? Seriously, how many billions of dollars each year are spent on our futile quest to eradicate this virtually harmless substance from our country? All the police, the equipment, the drug dogs, the prison cells, the military equipment sent to foreign countries, not to mention the disenfranchised citizens, the stained records that prevent future employment (I have to wonder how many legislators, prosecutors, and judges thank the Lord each night that they were not arrested and prosecuted for smoking all that marijuana when they were in college), and, yes, the defense attorneys that tie up tax dollars that could be spent on something useful. What a waste.

Posted by: Anonymous | Sep 1, 2011 10:30:49 PM

Some suggestions for opening the court to pro se litigants, the owners of the law.

http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1919534_code615352.pdf?abstractid=1919534&mirid=1

Posted by: Supremacy Claus | Sep 3, 2011 10:46:43 PM

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