Making Gideon Real
A new study finds that public defenders do a better job for their clients---as measured by average sentence length and other outcomes---than do court-assigned private lawyers. The study attributes much of the difference to the greater experience and better credentials of public defenders. It also notes that public defenders give a better bang for the buck. They obtain better outcomes for their clients by spending less time, and thus costing less per client.
Win-win, right? So should we expect those jurisdictions that use assigned counsel rather than public defenders to switch to the latter? Don't count on it. Better outcomes for clients means criminals spending less time behind bars. Any politician who works to switch from court-assigned private counsel to public defenders will find a challenger eager to label him or her soft on crime. Reformers' best hope would be to hook their proposed changes on the expected cost savings, but even then there will likely be holdouts.
Win-win, right? So should we expect those jurisdictions that use assigned counsel rather than public defenders to switch to the latter? Don't count on it. Better outcomes for clients means criminals spending less time behind bars. Any politician who works to switch from court-assigned private counsel to public defenders will find a challenger eager to label him or her soft on crime. Reformers' best hope would be to hook their proposed changes on the expected cost savings, but even then there will likely be holdouts.
posted by Michael C. Dorf @ 8:24 AM
4 Comments:
At 3:20 PM,
egarber said…
Did the study say anything about pay gaps between public defenders and private lawyers?
At 9:38 PM,
Michael C. Dorf said…
the difference that was emphasized was that public defenders are salaried while private lawyers are paid by the hour.
At 5:11 AM,
Sarah said…
Yes, that was difference that was emphasized in the article, but it seemed to me that the study itself did not demonstrate that. The results of the study were not inconsistent with the difference being salary v. hourly wage, but I don't believe the study actually showed that that was the difference. Relevant quotes from the study:
"Wage gap, experience, caseload, and law school quality variables explain the entire difference in guilty rates….[E]xperience and law school quality (along with caseload and wages) fully explain any difference in plea rates." Wage gap for these purposes is defined as the difference between wages in the area on the open market and wages paid by the federal government for, as relevant, CJA or public defender.
Then, in a later section: "The magnitude of the performance difference estimated in the previous section conflates both the incentive effect from wages and the selection effect of participation in the CJA panel. Thus, the effect of a change in wage structure [for the hourly attorneys] might be an equally cost-effective solution [to the problem of costs imposed by the hourly attorneys]" (emphasis added). Also, "These results appear consistent with the hourly wage structure" (emphasis added). So it seems to me that the paper itself didn’t look at wage structure.
Perhaps someone who knows statistics better than I do would want to take a look at the study and see if this characterization of it is correct.
At 2:01 PM,
MOCKINGBIRD said…
One other unspoken point is that federal defenders are frquently conflicted out of cases and can only rep one defendant in a multi-defendant case. There's really nothing that can be done about any real discrepancy.
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