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May 19, 2022

Notable new research report explores role of federal defense counsel type in case outcomes

I just came across this interesting new "research report" from the Urban Institute titled "Counsel Type in Federal Criminal Court Cases, 2015-18." The report was produced for the Bureau of Justice Statistics, and here is its abstract:

This paper examines the role that the type of defense counsel plays in federal justice system outcomes.  We begin with a background on federal indigent defense systems and a review of the prior research examining the impact of counsel type on sentencing.  We then describe the study and present our descriptive results, which explore the frequency and variation in the use of each type of defense counsel (public defenders, assigned counsel, and private attorneys) and other key variables (disposition, incarceration decision, sentence length, year, district, case, and defendant characteristics).  Next, we model the outcomes of incarceration and sentence length to test whether type of counsel significantly impacts these decisions after controlling for legal and extra-legal factors.  Lastly, the results are summarized and situated in a broader understanding of the federal justice system.

Here is a key paragraph from the report's conclusion:

Our study found that counsel type does vary across several key variables.  For example, defendants who utilize federal public defenders had higher rates of accepting a plea deal than those who were provided a CJA panel attorney or who retained a private attorney.  However, the findings from our regression models indicate that individuals represented by CJA panel attorneys and private counsel have 18-25% greater odds of being sent to prison once convicted than those represented by a federal public defender, controlling for numerous legal and extra-legal factors.  Likewise, individuals represented by private and CJA panel attorneys received 4-8% longer sentences than those who used a public defender.  Taken together, these findings suggest that federal public defenders are an important part of the federal courtroom workgroup with specific expertise in federal criminal cases and more familiarity with the judges and prosecutors.  As a result, federal public defenders may be more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes.

I find this research so very interesting for so many reasons.  Notably, one of my early academic articles written more than two decades ago and before the guidelines became advisory, titled "From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing," focused on my concerns about the impact that different defense counsel can have on sentencing outcomes.

May 19, 2022 at 10:06 AM | Permalink


PD's obtain better outcomes because many times their involvement begins in the investigation stage of multi-defendant cases. The first people receive target letters and are generally low hanging fruit who the government wants or needs their cooperation to bring down the kingpins. All things being equal, the PD is usually first in line for appointment to the initial target. If the initial target cooperates, they are more likely to receive a favorable charging decision and ultimately a lesser sentence.

I have defended close to 1000 persons in federal court over 35 years.

Posted by: ? | May 19, 2022 12:38:01 PM

In reply to the first comment, this practice varies by district. In our district, target letters are referred to the CJA Panel and the FDO typically represents one of the lead defendants when the case is eventually indicted.

Posted by: AFPD | May 19, 2022 3:42:58 PM

In response to the first comment, not in my district/circuit. Our FDO gets lead individuals, never people with target letters. Good day.

Posted by: AFPD2 | May 19, 2022 10:16:42 PM

"[F]ederal public defenders may be more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes."

Gracious, that can't possibly be true. We have so often been told on this blog that plea deals are nothing but venal prosecutorial tools, something of doubtful constitutionality that would in any event be anathema to any upstanding person. Assuming that FPDs are upstanding people (which mostly was my experience), how could they "encourage" their clients to forfeit their constitutional rights, then add to this perversion by "secur[ing] their clients favorable sentencing outcomes."

You mean plea deals have big advantages for the accused? By, for example, cutting way back on the conduct for which he'll face charges?? I need my smelling salts.

Posted by: Bill Otis | May 19, 2022 11:27:48 PM

I’ve been practicing in federal court for 16 years. It’s not at all my experience that the FPD gets the initial target, target letters, or low hanging fruit in drug cases. Quite the opposite.
Even if that were true, I assume the study at issue here concerns a broad sample of federal cases, of which multi-defendant drug cases are only a portion.

Posted by: AFPD3 | May 21, 2022 4:53:42 AM

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