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July 14, 2007

Assessing the different results for different federal defense attorneys

Defenders_full Adam Liptak has this terrific new article in the New York Times reporting on a new study by a Harvard economist which concludes that federal public defenders get better results than private lawyers appointed under the Criminal Justice Act.  Here are parts of the article's overview of the study:

Some poor people accused of federal crimes are represented by full-time federal public defenders who earn salaries, others by court-appointed lawyers who bill by the hour.  A new study from an economist at Harvard says there is a surprisingly wide gap in how well the two groups perform. 

Both kinds of lawyers are paid by the government, and they were long thought to perform about equally. But the study concludes that lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer.  Appointed lawyers also cost taxpayers $61 million a year more than salaried public defenders would have cost.

There are many possible reasons for the differences in performance.  Salaried public defenders generally handle more cases and have more interactions with prosecutors, so they may have a better sense of what they can negotiate for their clients.  Salaried lawyers also tend to have superior credentials and more legal experience, the study found.

The full study by Radha Iyengar, which is entitled "An Analysis of the Performance of Federal Indigent Defense Counsel" can be accessed at this link.  Notably, Jeralyn at TalkLeft writing here explains why she thinks "this study is seriously flawed."   I do not have the background necessary to assess the empirical work in this new study (and perhaps the folks at the ELS Blog will look closely at the data as a follow-up to this post).

Personally, I am not especially surprised by the result of this study because I find all federal public defenders to be great and the quality of CJA appointed lawyers to be very uneven.  Moreover, addressing this issue from a more theoretical perspective, I published this article five years ago in the Iowa Law Review entitled "From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing."  In the article, I flagged my concern that "poor defense representation or differences in the quality of defense counsel may create considerable risks of disparities and other unfair sentencing outcomes under the [Federal Sentencing] Guidelines."

July 14, 2007 at 12:48 PM | Permalink


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Tracked on Jul 16, 2007 1:31:50 AM


I do a lot of CJA work. I suspect that a large part of the problem is that the fee caps are unrealistic for the amount of work that a diligent defense counsel will do. Then, the judge to whom the case is assigned approves your bill, and can cut it even if it does not exceed the fee cap. You are at the mercy, sometimes of a cantankerous, petty judge who has never defended someone charged with a federal crime and has absolutely no clue about what it takes. So, many attorneys will do just the bare minimum. Some have said as much to me.

Posted by: Damien Schorr | Jul 14, 2007 9:24:53 PM

I noticed that 30% of the indigent defendants were Black but no information was provided about their pretrial supervision which I think is an import important factor because Blacks are also overrepresented in jails. A defendant in jail is under a lot more pressure to agree to a plea-bargain than a defendant under some type of pretrial release.

A PD knows which defendants will not be released under any circumstances a possible source of dissatisfaction of the client with the attorney. It appears to me that a PD who works in the system all of the time has a better chance of getting their client moved to pretrial release than an attorney who works in the system on occasion. A PD is more likely to know how to expedite the release so the client does not unnecessarily spend a weekend in jail another possible source of client dissatisfaction.

If the client is dissatisfied and asks for a new attorney it restarts the clock and could also annoy the judge and prosecuting attorney.

Posted by: JSN | Jul 14, 2007 11:16:49 PM

Let's face it, CJA attorneys for the most part have no real practice. Therefore, they value their time at $90.00 per hour which is frankly, after taxes, a joke. PD's are better trained and have superior resources so this study is no big surprise. Many CJA attorneys can't cut it in the open market so they live off the federal subsidy and meek at a living. It is a shameful state.

Posted by: realistic | Jul 14, 2007 11:25:49 PM

Realistic, your screen name is a misnomer. You are absolutely wrong to denigrate CJA attorneys. Some of the top criminal defense lawyers in my area take CJA cases. I have tremendous respect and admiration for the Federal Public Defenders that I work with. But I have seen some fantastic lawyering by panel attorneys, too. In my earlier post, I referred to how some panel attorneys will do the bare minimumm. But, I and some of the panel attorneys in my district have taken on some of the ugliest cases imaginable and gotten good results. You insult those of us who take on panel cases because we believe that everyone is entitled to a vigorous defense.

Posted by: Damien Schorr | Jul 15, 2007 8:22:32 AM

Althought there certainly are some good private, and CJA appointed attorneys, it's the federal public defenders who best represent defendants in my district. They're also far more realistic in their defense strategy. Private counsel often put on a show for their clients, and others who are watching. It always cracks me up when defendants fire their PD's so they can have a "real lawyer."

Posted by: rls | Jul 15, 2007 10:40:33 AM

I rarely see a FPD who is lackluster (there are some out there though), but CJA can vary. Some are very good - stay on the panel to stay sharp in federal court, &/or live in an area that cost of living and the CJA payment is fine, and some have no business being there at all. I think because there is a mixture of the latter - the results are accurate.

The answer - beef up both FPD offices to take larger loads and raise CJA fees to keep it worth the effort. I wouldn't mind seeing courts appoint attorneys from the private practice bar to sit ad hoc as a second chair to spread the wealth.

Posted by: Deuce | Jul 15, 2007 4:38:25 PM

Another factor, competence aside, is the fact that many panel attorneys have state court-based practices and just don't have the same experience with federal crimes as their federal pd counterparts. That said, I agree with Mr. Schorr: several on the panel are among the best in this jurisdiction.

Posted by: Matthew Byrne | Jul 17, 2007 3:02:38 PM

Damian, if you do panel work because you think everyone is entiled to a vigorous defense, you have too much time on your hands. Your paying clients should be entitled to a vigorous defense. Worry about them, if you have any.

Posted by: realistic | Jul 18, 2007 2:26:18 AM

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