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October 8, 2022

"The Problematic Structure of Indigent Defense Delivery"

The title of this post is the title of this new article authored by Eve Brensike Primus now available via SSRN. Here is its abstract:

The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense.  In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems.  In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders.  In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal cases as quickly as possible.  Those incentives fuel mass incarceration, because the lawyers put less time into each case than their public defender counterparts and achieve poorer outcomes for their clients.  Moreover, empirical research shows that assigned-counsel and flat-fee contract systems are economically more costly to the public fisc than public defender systems.

This Article collects data from across the country to show how prevalent assigned-counsel and contract systems remain, explains why arguments in favor of substantial reliance on the private bar to provide for indigent defense are outdated, argues that more states need to move toward state-structured public defender models, and explains how it is politically possible for stakeholders to get there. 

October 8, 2022 at 10:48 AM | Permalink


Georgia courts relied on contracted attorneys to handle indigent defendants before the state established a state public defender council in 2005. The system cut down on costs and more importantly, provided effective counsel to indigent defendants. Every state should have a public defender agency.

Posted by: anon | Oct 9, 2022 11:45:47 PM

The advantage of a public defender system is the sharing of resources and having other attorneys available to assist when needed. The disadvantage of a public defender system is that the bureaucracy can, at times, try to micromanage the attorneys and emphasizes certain easy to quantify metrics for performance (how many trials, where certain motions filed) over the more difficult to measure question of benefitting the client with the result that attorneys modify their behavior to meet those metrics rather than exercising independent judgment on what should be done in this case.

Posted by: tmm | Oct 11, 2022 1:54:39 PM

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