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January 8, 2007

Analyzing lawyering's impact on sentencing outcomes

Hoff600 Judge Morris Hoffman, an academically minded Colorado state court judge, has this op-ed today in The New York Times entitled "Free-Market Justice: Why do private lawyers do better than public defenders?".  The piece discusses the results of an econometric study on the effectiveness of public defenders, which he first discussed in this article, entitled "An Empirical Study of Public Defender Effectiveness: Self-Selection by the 'Marginally Indigent,'" published last year in the Ohio State Journal of Criminal LawHere are snippets from Judge Hoffman's op-ed:

We looked at all 5,224 felony criminal cases filed in Denver in 2002.  Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive....

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.... [And] when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more)....

What in the world could explain such a result? It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits....

Our data suggested that, contrary to the law's rather binary notion of indigency, a large chunk of felony criminal defendants are what we have called "marginally indigent."  They could, if they had to, tap hidden resources, or the resources of family and friends, to retain private lawyers. But what drives that decision?  Just what you'd expect from any rational consumer of criminal defense services: a combination of the seriousness of the offense and the likelihood of conviction....

[M]arginally indigent defendants who choose public defenders tend to be guilty.  And of course if that's true, it's not at all surprising that public defenders would achieve less favorable outcomes. More work needs to be done to confirm these results. But if they hold, and hold nationally, they could have important policy implications.... If self-selection by guilty, marginally indigent defendants is driving a big part of this effectiveness difference, the remedy may simply be to tighten the mechanisms we use to determine indigency.  This solution would not only reduce the outcome differences between public defenders and private defense lawyers, but it would also give taxpayers more bang for their public defender buck.

January 8, 2007 at 07:58 AM | Permalink


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I am sure that the Blogosphere will be blogging about this op-ed by Judge Morris Hoffman, who conducted an empirical study which analyzed sentences handed out to people represented by public defenders v. privately retained counsel. SLP already comments... [Read More]

Tracked on Jan 8, 2007 10:35:53 AM


This piece is truly fascinating, and I hope that more work is done to test these conclusions. Anyone who works in the criminal justice system will understand the concept of "marginally indigent," but I admit to never having thought of it until now. If tighter controls on who gets indigent counsel can be designed in such a way as to ensure that the truly indigent are not penalized, I'd be in favor of them. But that's a mighty big "if" that can have serious appellate consequences in a lot of cases -- imagine how many convictions might be subject to reversal if it's done poorly.

Posted by: NCProsecutor | Jan 8, 2007 9:19:17 AM

Do states ever try to recoup funds from those who have gotten free counsel? I think I recall reading something in WaPo about it a few years ago.

Posted by: federalist | Jan 8, 2007 12:34:11 PM

Recouping might kinda stand in the way of that pesky "right to counsel" thing...damn constitution...

Posted by: Anon | Jan 8, 2007 12:48:10 PM

Anon, as I recall, that argument has been made, but it doesn't seem to hold a lot of water, your snarky dismissal aside.

Posted by: federalist | Jan 8, 2007 1:05:17 PM

The New Jersey public defender system does actually "recoup" costs from people who get free legal counsel. Obviously, a lot of people have a problem with it, but it continues to happen.

Here's a thought -- maybe the clients of public defenders are getting more jail time because the truly poor are most often the ones who resort to dangerous criminal activities (i.e. selling crack, an offense whose federal sentencing guideline ranges for imprisonment are draconian anyway, and if you add a gun, say goodbye for a couple of decades). Not to mention the fact that public defenders' clients are most often members of racial and ethnic minorities, and research has shown that people in those groups are likely to receive much harsher sentences than their white counterparts. That's true even in some of the best public defender offices in the country, where lawyers work full-time and are paid an actual salary, rather than a few hundred dollars a case. In terms of the seriousness of defendants' offenses, we get the worst of the worst, so these stats are no surprise.

Posted by: Public Defender | Jan 8, 2007 1:32:50 PM

What research has shown that similarly situated white defendants get a better deal than minorities? Given that minorities tend to commit their crimes in urban areas, where there are more lenient judges, I would bet that research purporting to show such a result is flawed, seriously flawed. One study that came out a few years ago failed to consider the priors of particular defendants--a big problem. Moreover, it is inescaply true that white murderers are more likely to be executed for murder than black or Latino murderers.

Given the fact that most criminal behavior in America is intra-racial, it does not seem likely that places where white victims tend to congregate are likely to be all that tolerant towards criminals in their midst. Capital punishment foes have pointed out the race of the victim disparity (which I would argue has more to do with the views of those in the prosecutor's office and the jury box, as well as the sheer numbers of murders in jurisdictions where black victims are concentrated, rather than the race of victim per se)--is it such a stretch to believe that the same thing could be happening in non-capital cases? Ever hear of misdemeanor murder in the suburbs? No. But you do in the city.

Posted by: federalist | Jan 8, 2007 1:54:38 PM

This is particularly interesting because I have seen some of the other studies alluded to using acquittal rates, etc. which show the main difference between private counsel and public defenders in results having to do with the quantity of personal attention the client receives, rather than the result.

The prospects for tighter indigency standards increasing government revenues are far lower than one might suppose, beceause "marginal indigency" mostly involve the money of someone other than the defendant, rather than primarily involving hidden assets. (It is a phenomena that also crops up a lot in domestic relations cases where legal fees are often paid with loans and/or gifts from family members.) An income standard that looked to friends and family (let alone members of the general public contributing to defense funds for public figures) as well as the defendant himself would likely be unconstitutional.

Still, if the return on investment hypothesis is true, it ought to be testable from the data set, probably with some additional investigation (it is hard to obtain economic data on criminal defendants who don't seek representation from a public defender). Quite a small proportion of all criminal defendants have a paid attorney. That part of the sample could then be bifurcated into those criminal defendants who clearly have no ability to claim indigency, and those who may be marginally indigent.

[It might take a larger sample to get a statistically significant result, however, because affluent criminal defendants are quite rarely in felony cases -- also, many affluent defendants get tried in federal court on white collar crimes, further skewing the sample.)

If the hypothesis is true, the results secured by the marginally indigent with private counsel ought to be superior to those of the non-indigent with private counsel to a statistically significant degree.

I suspect that this would not be the case. One of the biggest edges that the non-indigent have in sentencing is that they are non-indigent, not just that they have private counsel. Their affluence makes it possible for them to offer to prosecutors things like defendant financed drug rehabilitation, complete and prompt restitution, and defendant financed home detention monitoring. The indigent can't put such creative solutions on the table.

The education, steady income, and ties to the community of a more affluent defendant also frequently make the recidivism risk of these defendants lower. Affluent criminal defendants are, almost by definition, rarely people who make a career of committing crime, while a large share of indigent defendants (either with vice, or property crime, or both) are economically supporting themselves through crime which makes recidivism a greater issue. This is one reason why counterintuitively, homicide defendants have lower recidivism than burglars -- homicides are often non-economic in nature, so there is no compulsion to return to a criminal livelihood.

Posted by: ohwilleke | Jan 8, 2007 3:01:04 PM

If marginally indigent defendants who choose public defenders tend to be guilty, does that mean the affluent do not tend to be guilty? It is also possible the better educated affluent sample knows and exercises their rights better, and are therefore less likely to be found guilty.

Also, Public Defenders must compromise more on plea bargains because they need to save their fights for the bigger cases or ones they really believe in. They may have to deal with the same prosecutor over and over whereas a paid defense attorney wouldn't be so obligated.

Posted by: George | Jan 8, 2007 5:02:22 PM

Two points:

The study notes that it lost arguably the most important indicator of pd vs. private bar performance - who the attorney is & her level of experience. p.249. The reason that is important is does an attorney with similar experience get a similar result. PD's disproportionately tend to be (although not always are) younger & less experienced than their private bar colleagues. As a point of reference, albeit exaggerated, a private bar atty or pd with 30 years experience who is handling his 500th straight position is going to know what the value of a case is while an atty, private or pd, 1 yr out of law school isn't going to have as much. Unfortunately there are few PD's with 30 years experience & yet every courthouse's back bench is full with private bar attys with that much experience.

Another point, as highlighted by the report, the built in disincentive for PDs to go to trial. Most PDs get paid the same rate whether the client takes a bad plea or goes to trial. Trials cause the PD to work later, causes them to cut in to their "personal time," and may well cause stress for which they are not compensated for; put another way, PDs have every incentive in the world NOT to go to trial. Curiously, when they do go to trial they win at the same rates as private bar attys.

I am curious to hear about PD recoupment plans, especially whether they are flat fee or some sort of hourly billing.

Posted by: anon | Jan 8, 2007 5:59:50 PM

Missouri has a recoupment plan. Fees are assessed based on the grade of felony (or misdemeanor)and whether or not the case goes to trial. Some counties within the state will attach liens to recoup costs. At the same time, Missouri is very stingy on PD pay. It tops out at approximately $54,000, save administrators who can make a bit more.

Posted by: | Jan 8, 2007 8:37:57 PM

If pds' clients are getting more time than they deserve because they're poor, and so get an overworked pd, shouldn't we be increasing the number of pds to give those clients a decent shot? Or is this study simply assuming that poor people deserve longer sentences?

Posted by: | Jan 8, 2007 8:45:56 PM

In Iowa they have a mechanism for collecting the fees for PD's from their clients (mostly those in prison). My recollection is that the yield is very low because PD fees are near the bottom of the priority list which is determined by the legislature. One would think that a PD client in prison would not be strongly motivated to pay on their own volition.

Posted by: John Neff | Jan 8, 2007 10:40:14 PM

Guess what – poor people DO deserve longer sentences. Society just views the behavior of well-off people as being more socially beneficial.

Given two people who commit a crime, once we back out the underlying crime, the poor person’s life will be viewed as substantially worse than the middle-class or rich person’s.

Consider this:
The poor usually drop out of school. (This is, perhaps, why they are poor.) Being uneducated is considered practically immoral.

The poor often move around more than the rich in an undocumented manner. A lack of stability isn’t looked upon kindly.

Poor people can’t make bail. Therefore, poor people are at the mercy of the state for post-arrest rehabilitation.

Poor people probably can’t donate that much to charity. Whereas the rich get tax incentives for doing so.

There are so many poor people who come before judges at sentencing, that some cynical judge is likely to have “seen it all” before. On the other hand, a middle or rich person is much more interesting, because they have a lot in common with the judge. Therefore, a judge is simply more likely to see whatever crime they were convicted of, not as the last in a line of immoral acts committed by a defective person, but simply a one-time burst of stupidity.

This study isn’t doesn’t reveal anything about public defenders. It states the obvious: that our society values wealth. Of course, I will be the first to tell you, there is nothing beautiful about being poor.

Posted by: S.cotus | Jan 9, 2007 6:07:40 AM

“Anon, as I recall, that argument has been made, but it doesn't seem to hold a lot of water, your snarky dismissal aside.”

Out of curiosity, Federalist: who made this argument, and what was the disposition? I don’t recall any published appellate decision regarding recoupment of costs by a defendant. So, I anxiously await your specifics on this issue, so that I might decide whether to agree with you, or whether to reject your assertions as the knee-jerk reaction to anything in the field of criminal justice that doesn’t result in more people spending more time in jail.

Posted by: S.cotus | Jan 9, 2007 12:02:39 PM

Given that the practice is pretty widespread, it seems that the argument that forcing people to repay the taxpayers for providing counsel is unconstitutional is a loser.

As I recall, the argument was made in Minnesota, and got nowhere.

Posted by: federalist | Jan 9, 2007 12:43:15 PM

Federalist: Is that the best of your arguments? That because it is “widespread” it is therefore constitutional? Damn. I guess the “practice” of allowing testimonial hearsay and preventing black people from voting is constitutional, too, because, well, it is widespread.

In practice, the reason that you don’t see any opinions is that 1) inmates don’t challenge it pre-enforcement; and 2) as one commentator pointed out, such a judgment has such a low priority, it is almost unenforceable against nearly broke (and usually insolvent) inmates.

Constitutional challenges don’t “go nowhere.” At some point they are decided, or there is a specific reason why they were not decided. They don’t just “go nowhere.” If your arguments was more credible, you would have provided a citation to the case from a court in Minnesota which held that this practice was constitutional, and such judgments were enforceable. But, you did not.

Anyway, for the lawyers on this board whose knowledge of the law is informed by caselaw and statutes, I should point out that you are wrong. (Actually, I knew the this case before you made your claim, but I wanted to see how far you would take your argument without researching. Trick I learned in moot court.)

In MN v. Tennin, Minnesota Supreme Court held that:

Given the clear language of the amended statute, we hold that Tennin has met the heavy burden of showing that Minn. Stat. § 611.17, subd. 1(c) (Supp. 2003) is unconstitutional. While co-payment and recoupment may properly be required, the Sixth Amendment's protections identified by the United States Supreme Court in its Fuller decision are absent in Minnesota's co-payment statute. The Oregon statute essentially had the equivalent of two waiver provisions—one which could be effected at imposition and another which could be effected at implementation. In contrast, the Minnesota co-payment statute has no similar protections for the indigent or for those for whom such a co-payment would impose a manifest hardship. Accordingly, we hold that Minn. Stat. § 611.17, subd. 1(c), as amended, violates the right to counsel under the United States and Minnesota Constitutions.

You can read the case here: http://www.bristolcpcs.org/MinnvTennin.html

As a lawyer, I am sure that you are aware of the consequences of relying on such incorrect statements of the law.

Posted by: S.cotus | Jan 9, 2007 1:31:11 PM

Thanks for the tip S.Cotus.

I trust you read the statement in the court decision that says "While copayment and recoupment may properly be required". If you go back and read, then you will see that my response was to the general snark that implied that recoupment was barred by the constitution, which it clearly is not, as the case you cite demonstrates convincingly.

Posted by: federalist | Jan 9, 2007 1:44:31 PM

Nobody is arguing that recoupment is absolutely barred by the constitution.

The question is whether counsel can be conditioned upon payment of a fee.

The court was very clear that judges must retain the discretion to waive all fees depending on just how poor the defendant is.

Posted by: S.cotus | Jan 9, 2007 1:59:44 PM

S.cotus, since I used the very word "recoupment" and I got the snide response, your statement that "[n]obody is arguing that recoupment is absolutely barred by the constitution." is hard to justify.

Posted by: federalist | Jan 9, 2007 2:39:40 PM

As a prosecutor who works with many fine defense attorneys, both private and public defender, I have some anectodal observations. Public defenders in California are assigned cases just like prosecutors. They do not have the luxury of refusing a "loser" case.

Private attorneys, on the other hand, can refuse to take a client based on the strength of the case among other things. Thus, successful private defense attorneys can ensure their continued success by taking cases where they have good equities to argue for lower sentences and/or good facts to take to trial. The public defender, on the other hand, has to take 'em as they come.

I think such factors should be taken into account before one disparages the relative experience or skill of public defenders.

Another observation: I have found that public defenders are more likely to try cases. A private attorney can lose a lot of money if tied up in extended litigation. Settling cases pays more. Without the financial constraints, public defenders have less incentive to settle.

Posted by: jluckyiv | Jan 10, 2007 6:00:21 PM

Can someone explain why the actual prosecutors on this blog are sane, and all the wanna-be prosecutors just want to put the whole damn country in jail?

Jluck, I think you should add one other thing into the mix, with the exception of prosecutors, most other lawyers cannot drop a case in the middle when the facts “get worse.” (Or “better” for the other side.).

I think the fact that any criminal attorney needs to debate the “money” side of going trial is an afront to the 6th amendment. Rarely do we see prosecutors telling people, “Well, we would go to trial on murder cases, but, quite frankly, there are not that many murders in this jurisdiction, and our efforts are better directed towards prosecuting property crimes – especially ones where we can get plea bargains.”

Unfortunately, this memo has become fodder for too many damn water-cooler conversations, and most of them are ignorantly disparaging public defenders, and not bothering to look at the far more obvious financial or legal-sociological reasons.

Posted by: S.cotus | Jan 11, 2007 10:17:58 AM

Hoffman, Rubin and Shepherd note that they could not capture data about a defendant's prior record or pre-trial custody status. We collected data for a multi-variate analysis that included both of those variables, plus most of the variables listed in the authors'article: type of plea bargain,whether the case went to trial, number of charges, amount of charge reduction, seriousness of offense, type of offense, and demographics (age, gender, ethnicity, location of case in the state,substance abuse and mental health problems), among other variables.
Our analysis showed that prior record was one predictor of how likely a person was to have a public attorney. The worse the prior record, the more likely that a defendant was represented by a public attorney. In the multivariate regression, both lengthier prior records and having a public attorney were independently associated with longer pre-trial incarceration and longer post-disposition incarceration.
Our analysis also showed that type of offense was closely related to type of attorney. 95% of the Murder/Kidnap defendants were represented by public attorneys, as compared to 68% of the Drug defendants (overall, 80% of all defendants were represented by public attorneys).

Carns, Cohn, & Dosik, Alaska Felony Process: 1999, page 11. The report is available at www.ajc.state.ak.us, under "Publications." (I am the Senior Staff Associate with the Alaska Judicial Council and one of the report authors.)

Posted by: Teri Carns | Jan 11, 2007 6:35:04 PM

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