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September 7, 2010

Two notable new policy papers on the failings of indigent defense systems

This past week saw the release of two interesting and important new policy papers addressing indigent defense systems in the United States. One piece is this Issue Brief from the folks at the American Constitution Society authored by Erica Hashimoto and titled "Assessing the Indigent Defense System." This piece stresses "the importance of collecting data on representation rates in misdemeanor and felony cases" and discusses how to "use data to measure the quality of representation being provided to indigent defendants so that we can improve upon that representation."

Another piece comes from the folks at the Cato Institute.  This policy paper is authored by Stephen Schulhofer and David Friedman, and it is titled "Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System."  This portion of the piece's executive summary spotlights its chief themes:

Proposals for improvement commonly stress the need for more resources and, somewhat less often, the importance of giving indigent defense providers legal independence from the government that funds them.  Yet virtually every suggestion for reform takes for granted the feature of the current American system that is most problematic and least defensible — the fact that the indigent defendant is never permitted to select the attorney who will represent him.

The uniform refusal of American jurisdictions to allow freedom of choice in indigent defense creates the conditions for a double disaster.  In violation of free-market principles that are honored almost everywhere else, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need.  The situation is comparable to what would occur if senior citizens suffering from serious illness could receive treatment under Medicare only if they accepted a particular doctor designated by a government bureaucrat.  In fact, the situation of the indigent defendant is far worse, because the government’s refusal to honor the defendant’s own preferences is compounded by an acute conflict of interest: the official who selects his defense attorney is tied, directly or indirectly, to the same authority that is seeking to convict the defendant....

[W]e propose a free market for defense services, one that would, so far as possible, function in the same way that the existing market functions for affluent defendants who are able to retain their own counsel.  Though we do not doubt the importance of resource levels, we see budgetary vulnerability and implicit conflicts of interest as inherent in any system where the defendant’s attorney is chosen for him by the state.  We seek to show that at any level of resources, freedom of choice for the indigent defendant can produce gains for both himself and for the public at large.

September 7, 2010 at 12:04 AM | Permalink


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Regarding the cato paper, it draws comparisons to health insurance but does not actually consider the use of insurance to cover legal costs. Is there some barrier (ethical or legal) that prevents establishing such insurance? Similar to pre-existing conditions in health insurance, premiums could be substantially lower for individuals with no criminal records.

Posted by: . | Sep 7, 2010 10:26:20 AM

Right now insurance for civil procedures are considered essential for most middle and upper income families. I don't know if I would purchase insurance for criminal procedures. It may even be considered a red flag for prosecutors. Many defendants who use public defenders now neglect to purchase vehicle insurance. I don't see them thinking ahead and or being able to purchase legal insurance. I read the Cato paper in a very cursory way so I am probably off base.

I have often thought that forfeiture assets should be placed in a fund for payment of public defenders. If there were a fund that was dedicated to defense payments, defendants could select their attorney and thus eliminate the conflict of interest.

I say this knowing that it is an incendiary statement, but it does balance the playing field. That would eliminate the perception that there is a conflict of interest for law enforcement and prosecutors when they are negotiating the forfeiture. A phrase I heard for attorney's fees could also be applied for forfeiture negotiations - "Exchange money for hope".

Posted by: beth | Sep 7, 2010 11:19:06 AM

what about the conflict of interest in fighting the forfeiture claim versus replenishing the fund?

Posted by: = | Sep 7, 2010 1:28:48 PM

As a public defender, I can tell you that a lot of clients who come to me having previously had "counsel of their choosing" -- i.e., paid counsel -- chose very, very poorly. Privately paid and highly paid does not translate to more competent or more committed. I don't think freedom of choice is the answer -- though I know my friends at CATO feel the free market can cure all ills! The bigger problems I see are (1) lack of staffing resources, investigators, experts, etc., (2) poor public perception which undermines attorney-client relations, and (3) an unfortunate reality in SOME jurisdictions that as a result of the low pay and low esteem accorded the job, PD offices are staffed with inexperienced or unmotivated attorneys. Fund the jobs, give the attorneys resources, and treat them with respect, and you'll see a change.

Posted by: sal | Sep 7, 2010 2:52:45 PM

Permit me to make a radical proposal:

The private bar should take responsibility for the quality vel non of its own members.

It might also consider providing more pro bono services to these indigent criminals. The taxpayers are already picking up the tab for trillions of government (over)spending. Lawyers make more money than most other people, and ought to be willing to contribute to the public good from their own resources, rather than continuously beggaring the public to pay their fees.

Posted by: Bill Otis | Sep 7, 2010 7:37:16 PM

Defendants, Bill Otis, they're called defendants.

Also, I can turn it around: the private bar should provide pro bono services as prosecutors rather than the state having to bear the costs.

Posted by: . | Sep 7, 2010 7:52:55 PM

"...the private bar should provide pro bono services as prosecutors rather than the state having to bear the costs."

As long as members of the private bar would be enthusiastic and zealous in representing their new client, I have no problem at all with your suggestion.

Do you have a problem with mine?

Posted by: Bill Otis | Sep 7, 2010 9:51:20 PM

New York recently permitted a state-court lawsuit, attacking the lack of funding for indigent defense, to go forward. Meanwhile, a similar lawsuit in Michigan had been allowed to proceed, until the Michigan Supreme Court reversed itself, and held that the suit failed to state a claim upon which relief could be granted. Undoubtedly, the next step here in Michigan will be litigation in Federal court, where the state will lose all control over the litigation.

Posted by: Greg Jones | Sep 8, 2010 10:43:27 AM


How much time or money (calcualted either at the attorney's usual hourly or flat-fee rate which the free market allows him to command; or, at the low end as described in the Cato Report ($200 per case, or $11.84/hour)) or in number of cases, would you like to see a defense attorney allocate to pro bono representation? Is it categorical or based on a factor test?

Posted by: = | Sep 8, 2010 2:15:14 PM

That is for the defense bar to decide. I doubt my advice would be welcome. One way or the other, the details are secondary. What is primary is the bar's willingness -- if it ever shows up -- to fix the incompetence in its own ranks that it continually whines about.

Posted by: Bill Otis | Sep 8, 2010 10:17:27 PM

But I'm not asking you to decide officially; I'm not asking you to send a letter to some person or organization who claims to represent the interests of the defense bar. I just want to know what number you're thinking about. What's the ballpark number you're talking about? You suggested members of the bar ought to use some of their resources. I just want to know what numbers you specifically had in mind. Perhaps members of the bar are already meeting your number.

In addition, what you say is primary, is, to this discussion, secondary, because, there is no official defense bar representative speaking up about "fix[ing] the incompetence in its own ranks[.]" The only answer we're going to get here is your number.

Posted by: = | Sep 9, 2010 11:54:35 AM

beth: "Many defendants who use public defenders now neglect to purchase vehicle insurance."

me: You obviously are not familiar with how things work for the poor in poverty stricken rural areas if you think that is a result of "neglect," which implies a measure of choice (although you do have more knowledge of how things really work than Bill does). Buying vehicle insurance is impossible when your driver license is suspended because of not paying previous fines and court costs. If you are poor and live in an area with a limited job market (and often don't have much education - for the purposes here, the client is a single mother who dropped out of high school when she had her first child) and nonexistant public transportation (which is to say almost all poor, rural areas), all it takes is one speeding ticket and you're likely to wind up as a client of the public defender system. You can't afford to pay the ticket without working, but you can't work without being able to drive - and we'll assume for the purpose of this hypothetical that our client here is a law abiding individual who makes a serious effort to pay off her fine). The result, she drives anyway, and get stopped because its a small town and the officer knows her and ran her name to see if her license was suspended or if there were any outstanding warrants for her (anyone who doubts the realisticness of that scenario just doesn't know rural police). Suddenly, she has a criminal conviction for driving on a suspended license, more court costs (including paying a legal fee for the public defender or court appointed attorney who represented her) and additional fines - also a suspended jail sentence. But this time, she at least avoided jail and was able to keep her job. Again, faced with the choice of not driving and not being able to work to pay the fines and costs she drives anyway and get stopped again and another conviction follows adding in more fines and court costs. Then she gets sentenced to jail and loses her job. Of course, the Bill Otises of the world will say get a ride with someone, walk, or take a taxi - of course, the Bill Otises of the world never lived in a small town/rural area and likely don't know any poor people - the job could be 20+ miles from the house so walking isn't a realistic option. Getting a ride with someone - its possible, but difficult - your family and neighbors are as poor as you are and likely in the same boat. As for the taxi idea - well, even in the unlikely event you can find a taxi (a place small enough to have no public transportation is likely to have no taxies either), that costs money and between living expenses, child care expenses, and paying back the court costs and fines so there is no money to spare.

So the net result from a speeding ticket and two driving while suspendeds our hypothetical client is probably at least $1000 in the hole even assuming she made every effort to pay back the costs from the first two convictions - had no job, limited job prospects, limited education, young children who require child care for her to work, and has a criminal record and has been in jail. So what happens next is probably some sort of crime - low level drug dealing, theft or other property crimes (shoplifting, bad checks, forging checks) - maybe even prostitution - despair at her situation likely leads to drug or excessive alcohol use - typical crimes of poverty, but nothing violent (she's desperate and trying to survive, but she's not violent). Of course, all the while our hypothetical client continues to drive because she has no other realistic options to try to find a job or get food or clothes (which may well be stolen or paid for with a bad check). More and more convictions follow - the type of property crimes she does are easily caught - maybe a prison sentence, but since she is just committing property crimes, more jail sentences are more likel) - really, even if there is a probation only sentence or a short jail sentence, her job prospects with a criminal record and not much education are nonexistent - so the odds that she will stay out of trouble and meet probation reporting requirements are low (especially since she'll likely drive to probation and all of the cops by that point know her as a "troublemaker" - eventually the judge will decide she's a "troublemaker" and send her to prison). Chances are her children growing up with a single mother who is often away in jail or prison (and there is a good chance that the father is also away in prison) also grow up to be clients of the public defender's office and the cycle of poverty of criminal actions continue. Of course, I'm talking about rural poverty here - urban poverty is different, but rural poverty best illustrates how many of the clients of the public defender's office really are caught up in a nasty cycle (and the only realistic way to break the cycle is through rural economic development).

And that's the problem with Washington think tanks made up of rich people trying to say what's wrong with the public defender's system or indigent defense system - they are so disconnected from the actual world of being a public defender or being a potential client of a public defender that they do not understand what the deindustrialization of the United States has done to the poor - where once a person with little education could eek out a respectable middle class living working in a factory, those jobs are almost all gone and nothing has replaced it. The lack of transportation options limits employment options and may well mean that even a person attempting to do the right thing and be responsible has to break the law to get by and is therefore at increased risk of being buried even lower. Public defenders have to represent people who are often caught in a hopeless cycle of poverty led crime as well as crimes which arise out of the boredom. Instead of acknowledging these realities, the Bill Otises of the world harumph that the clients are to blame and they should just not break the law (because to acknowledge the economic factors which drive most crimes among the poor would require admitting that 30 years of mean spirited right wing economic policies under Reagan, Bush, Clinton, and Bush have been a disaster). Then he makes an even more absurd proclamation that rich lawyers are to blame for not taking criminal cases for the poor pro bono. Sweetie, you just aren't going to find a lot of rich lawyers in poor rural areas or even smaller cities - even private practice guys in those areas often depend upon court appointed work to eek out a living which is lower than what you made as an Assistant U.S. Attorney. In some rural areas the prosecutors are actually the best paid attorneys there and generally they will have the most resources as well - of course, in some of those same places, the public defender's office may be the second highest paid attorneys around. And in no case will even the best equipped private firm be able to match the investigative capacity of an entire police force and an entire state. Also, realistically I'll ask the question would bringing a pro bono lawyer in from say, King & Spalding in Atlanta with impressive academic credentials but little knowledge of rural southern life really provide better defense for a defendant in rural southern Georgia than the local court appointed guy who grew up there and hung out his shingle after graduation from a lower ranked school? And realistically does even a huge prestigious firm like King & Spalding really have resources to match that of the entire state of Georgia? While Bill's suggestion of more pro-bono indigent criminal defense work may help in larger cities, its not going to help at all in smaller markets. The bigger firms would gravitate to higher profile cases for their pro bono work and ignore the smaller stuff which is the bulk of indigent criminal defense - that may actually be a good thing to remove the cases which require the most intensive level of resources from the public defender/court appointed system, but just because someone comes from a fancy law firm and has a fancy degree doesn't mean they will represent a criminal defendant in a competent matter (ask that death row inmate about how well Sullivan & Cromwell handled his case?) And even the biggest most prestigious law firm is not going to have as many investigatory resources as the prosecutors office does. Not to mention the potential conflict of interest issues - if the firm represents Wal-Mart and the defendant stole from Wal-Mart, well, that's a pretty obvious conflict of interest. Plus, unless it is a requirement, large firms are likely to continue more politically palatable/less controversial forms of pro bono work than criminal defense work. And really if there is a requirement, does providing counsel from a corporate transactional attorney who has no interest in criminal law really help. Let alone someone receiving pro bono criminal defense representation from a Bill Otis type who is openly hostile to defendants.

ginny :)

Posted by: virginia | Sep 9, 2010 12:24:56 PM

ouch ginny but i think you hit the nail right on the head.

Posted by: rodsmith | Sep 9, 2010 4:23:54 PM

Ginny - You are correct - I did neglect to acknowledge that insurance is a luxury that is out of reach for many and results cascading disaster.

Think about forfeiture funds being used for defense. They could be used for private attorneys fees or for Public Defenders. The conflict could not be more severe than the current system when the assets go to law enforcement and prosecutors.

Posted by: beth | Sep 9, 2010 5:17:53 PM

Ginny --

"Buying vehicle insurance is impossible when your driver license is suspended because of not paying previous fines and court costs."

One would hope.

"...we'll assume for the purpose of this hypothetical that our client here is a law abiding individual who makes a serious effort to pay off her fine."

You remind me of the story of the two economists who were walking along and fell into a deep whole. The first turns to second and asks, "How the hell are we going to get out of here?" To which the second placidly replies, "Well, we'll assume a ladder, and...."

"...of course, the Bill Otises of the world never lived in a small town/rural area and likely don't know any poor people."

Glad to know you've got a list of all the places I've lived and all the people I've known. Your clients must get great results, since their lawyer has ESP.

As it happens, I knew quite well a man who grew up poor. Public transportation was not an option for him -- not because it didn't exist, but because he couldn't afford even the quite modes fare. He walked.

He took a job when he was fifteen to support his widowed mother and two sisters. Still, he found a way to graduate from high school and go on to college (on an athletic scholarship).

He started his own business a year before the Depression hit, but kept it going anyway, and never laid off a worker because he viewed it as disloyal to do so.

When my father died at 90, he had made a good deal of money. Much of the reason for his success was that he took responsibility for his own life and behavior. He didn't look to welfare programs (there being none at the time), and it would not have occurred to him to look to them in any event. He also never sought the services of a public defender, or any other sort of criminal defense lawyer. This was because he obeyed the rules.

You will understand, I trust, why your Queen For A Day stories have no particular resonance with me.

Posted by: Bill Otis | Sep 9, 2010 5:37:07 PM

The conflict could not be more severe than the current system when the assets go to law enforcement and prosecutors.


I disagree. Your suggestion would create a system that would give defense attorneys an incentive to not fight forfeiture claims by the government. Prosecutors are supposed to fight forfeiture claims, if they win and get some of the proceeds, well, while that's bad for the parties, er, sorry, I mean the victims and victims' family, it's not a conflict of interest.

Posted by: = | Sep 10, 2010 10:36:59 AM

That may be true. I guess one must assume that there is integrity in the profession. If this cannot be assumed, we really can't have much faith in the system.

Is there incentive for prosecutors to over reach for assets since their office receives a portion of the proceeds along with law enforcement? Forfeiture does become a statistic that reflects on the effectiveness of their office.

If attorneys don't practice with integrity and in the best interest of their client, who ever that may be, I don't think the law has any value.

Posted by: beth | Sep 10, 2010 2:48:18 PM

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