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October 20, 2010

How and how much does lawyering impact sentencing outcomes?

Nearly a decade ago, I wrote an article for the Iowa Law Review that sought to explore the question in the title of this post. (The piece was titled "From Lawlessness to Too Much Law?  Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing" and is still available here via SSRN.)  The issue is on my mind again this morning after I came across this notable new piece on SSRN titled "What Judges Think of the Quality of Legal Representation" authored by Judge Richard Posner and Professor Albert Yoon. Here is the abstract of this new article (which is forthcoming in the Stanford Law Review):

Studying the legal profession poses several challenges.  The evolution of law has moved lawyers away from a generalist practice towards increased specialization.  This makes it difficult, if not impossible, to compare lawyers across different practice areas meaningfully and to provide a comprehensive assessment of the legal profession.  Judges are well situated to provide such an evaluation, given their experience and scope of cases.

This article reports the responses of federal and state judges to a survey we conducted in 2008.  The questions relate to their perceptions of the quality of legal representation, generally and in criminal and civil cases; how the quality of legal representation influences how they and juries decide cases; and their recommendations for change in the profession.  We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law.  In many instances, the underlying causes of these disparities can be traced to the resources of the litigants.  The judges’ responses also suggest that they respond differently from juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.

This new article does not extensively discuss the question posed in the title of this post, but it does include this notable (and accurate?) paragraph:

The perceived disparity between public defenders and other defense counsel might be a minor concern if the latter groups represented defendants in only a small fraction of cases. But retained counsel represent 25 percent and courtappointed counsel 33 percent if all federal criminal defendants.  If the quality of legal representation matters in criminal case outcomes, as recent studies suggest, a majority of indigent federal criminal defendants may be serving longer sentences simply by virtue of not being represented by a federal public defender.  The Constitution has been interpreted to place a floor under the quality of assistance of counsel tolerated in criminal cases, but one federal district judge described the work of defense attorneys other than public defenders as “exceedingly poor.”

October 20, 2010 at 09:50 AM | Permalink


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My observation is that the quality of defense advocacy (or, for that matter, advocacy for the government) is less critical at sentencing than at other stages of the proceedings. Why? Federal judges have the benefit of a Presentence Report and the resources of the Probation Office, which can neutralize (or at least temper) both the best and worst advocacy. And second, the judges I appear before not only impose lots of sentences, but they work very hard to do what they think is the right thing based on the facts of the case and the defendant presented. In my view, the quality of defense advocacy is more important earlier on--for example, in negotiating a plea agreement or, even more importantly, giving timely and accurate advice with respect to entering into a cooperation plea agreement with the government, and spending enough effort so the client doesn't blow it with a bad proffer.

Posted by: Anon Lawyer | Oct 20, 2010 3:08:26 PM

The quality of lawyering does fall off at sentencing in federal court. It appears that federal defenders file more sentencing memos than appointed or retained counsel. In my district, the judges noticed this fact and now to be placed on the CJA panel a practioner must submit a sentencing memo to receive consideration to become a panel member.

If you want to see where sentencing advocacy (using evidence-based practices to advocate for a reduced sentence) by defense counsel is at a low go to state court. Typically, no sentencing memo is filed and counsel's typical refrain is: "Your honor, my client is a life long resident of the county, has a job and 3 kids. We ask for mercy."

Using evidence-based practices tends to disabuse judges of their long-held wrong-headed views and puts you on the same page as the probation officer who has the judge's ear

Posted by: Z | Oct 20, 2010 4:31:49 PM

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