Will Choice “Improve” Indigent Defense?

Lawprofs Stephen J. Schulhofer and David Friedman wrote a policy analysis for free-market-loving Cato Institute in 2010, arguing that indigent defense is in “a state of perpetual crisis, routinely described as ‘scandalous.’”  Few would disagree. But their solution was fairly radical:

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.

As a corrective, we 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.

Essentially, vouchers. Let the defendant pick his own lawyer, and the state/county/jurisdiction will pay for indigent defense.  Sure, the lawyer would have to agree to accept whatever the jurisdiction was paying, as well as the defendant, but assuming those weren’t in issue, why not let a defendant have freedom of choice?

One of the most insurmountable issues for indigent defendants is that they feel that the court is ramming a lawyer down their throats. They fear the lawyer is incompetent, cares more about currying favor with the court than representing the client’s interest, and has no incentive to serve the defendant’s interest. This fear, whether of “public pretenders” (“are you really a lawyer?”) or assigned counsel, has existed as long as I’ve practiced.

Is it real? Yes and no. Some indigent defenders are great lawyers who are fully dedicated to their clients. Some suck. Like all other lawyers. The dirty little secret is that retained lawyers can be just as bad, if not worse, and care just as little. But the distinction is free choice, and that’s an alluring concept.

At the New York Times, Adam Liptak writes that the notion isn’t universally adored.

Judges have been wary of the idea, saying they fear poor choices, gamesmanship and administrative chaos. “There are practical reasons for not giving indigent criminal defendants their choice of counsel,” Judge Richard A. Posner of the federal appeals court in Chicago wrote in rejecting a defendant’s challenge to his conviction based on a trial judge’s failure to appoint the lawyer he wanted. For one thing, Judge Posner said, “indigent defendants cannot be allowed to paralyze the system by all flocking to one lawyer.”

Another appeals court judge in Chicago, Harlington Wood Jr., worried about “the evenhanded distribution of assignments” to lawyers and the possibility that savvy criminals “would be afforded an advantage in access to the more experienced criminal defense lawyers.”

Is there a possibility that the logistical, ethical and practical problems inherent in the system may be exacerbated by setting loose indigent defendants on the free market? Sure. Never underestimate what desperate lawyers will do for a buck, and naïve indigent defendants are particularly susceptible to deception. But then, so too are defendants with just enough cash in their pockets to hire a bottom feeder making false promises.

In Comal County, Texas, an experiment is afoot to ascertain whether bottom-up (choice of counsel by indigent defendants) works better than top-down (assignment of counsel by the jurisdiction to indigent defendants).

The pilot program, which will start in earnest in the fall, addresses the two fundamental conflicts in most current public defense systems.

One is that lawyers chosen and paid for by the government may not represent their clients forcefully, perhaps for fear of missing out on the next assignment.

“The fundamental problem is that lawyers in this country are oftentimes beholden to judges for appointments,” said Norman Lefstein, a law professor at Indiana University and a program adviser. “The allegiance of the lawyer is not principally to the client, where it ought to be.”

The other problem is that clients have no meaningful control over this important professional relationship. It is hard to trust a lawyer you have not chosen and generally cannot fire.

In contrast, Judge Robert Lasnick in Washington State has asserted control over the indigent defense function because of the local failure to assure that defendants receive competent counsel.

Judge Lasnik, of the Federal District Court in Seattle, found that the cities of Mount Vernon and Burlington had effectively instituted a “meet and plead” system in which lawyers handling 500 cases at a time would “often meet their clients for the first time in the courtroom, sometimes with a plea offer already in hand.”

“The system is broken to such an extent,” he wrote, “that confidential attorney-client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.”

The oversight of Judge Lasnick’s top-down approach, not trusting the market, the lawyers or the local jurisdiction, to provide effective representation, has its virtues as well. It can assure that lawyers aren’t taking on more cases than they can competently handle, and can oversee their performance to assure that defendants receive more than a quick hustle into a plea.

The Texas Tornado, Mark Bennett, sees the top-down approach, while well-intended, as doomed to fail.

For every­thing Judge Las­nik can dream up to force criminal-defense lawyers to do for their indi­gent clients, there are a hun­dred other ways the lawyers can do poor jobs. It’s criminal-defense pol­icy Whac-A-Mole.

On the flip-side, he sees the Comal County experiment as having potential.

If indi­gent defend­ers’ income, like “free-world lawyers’” income, depends on clients’ choos­ing them, some lawyers will excel and oth­ers will fol­low suit or fail.

There is no shortage of reasonable arguments to be made either way, but the answer points less toward the mechanics of indigent defense distribution than toward the nature of lawyers and the law more generally. That lawyers will forsake their duties to their clients for a quick buck speaks for itself. That they will find new ways to deceive, even with a federal judge overseeing their moves, is undoubtedly true.  That desperation breeds contempt for the law and their clients can’t be doubted.

Like Bennett, I am constrained to agree that the free market seems to hold greater potential for rewarding competent counsel by gaining more business.  Unlike Bennett, however, I’m not sanguine about the potential for lawyers to create a cottage industry of their own to take advantage of the indigent.

If lawyers aren’t motivated to zealously represent their clients, regardless of how the business came to them or the fee they’re being paid, then this is mostly illusory.  The problem isn’t whether it’s top-down or bottom-up, but that lawyers are putting the buck ahead of the defendant.

While indigent clients may well prefer the sense of freedom of choice, and thus be happier with a bottom-up system, their preference means little if they aren’t getting the zealous representation to which they are entitled. And that, really, is entirely in the hands of lawyers, regardless of how a case came to them.

33 comments on “Will Choice “Improve” Indigent Defense?

  1. william doriss

    I was assigned two public defenders to represent me in two separate, unrelated cases tried in one courtroom before one judge and one jury. At first, I was impressed, for reasons which elude me now. Maybe I just thought they were “nice” people: a seasoned lady first chair and a newbie man second chair who was less than confident. When things started going badly, I contacted the public defender supervisor and explained to her my concerns. I said I wanted to fire both of them, the “public defenders”. She said, “Look, I’ve given you the best lawyers I have on my staff.” I believed her; so I stuck with them thru thick and thin of an absurd “kangaroo court” trial. I mean that literally.
    For over ten years, I’ve been studying the law, the transcripts and playing the tapes in my head. Here’s what I think: I’m inclined to agree with SHG that neither the top-down or the bottom-up approach is going to solve anything. I do not have a bloody clue. The system stinks. It does not work. It’s broken. Furthermore, when you have an unsympathetic judge who rules against you at every opportunity, you’re doomed. You cannot fire the judge. That is a problem not addressed above. Finally, the appellate courts, which are supposed to fix things, rarely fix anything. It’s a joke. A serious one albeit.
    P.S., We beat the pants off the State of Konnecticut, a state which remains in serious denial. So bad that we sought political asylum somewhere else.

      1. william doriss

        I stand korrected, Skott. My granddaddy belonged to the KKK. The apple does not fall far from the tree. Back to Nite Skool for me,.. I mean the woodshed.

        1. SHG Post author

          I won’t make you, but it might be in your best interests to consider that people might be more inclined to seriously consider your comments if they didn’t think you were wearing a tin foil hat as you typed them. Whatever. Carry on.

          1. william doriss

            Literate folks might take you more seriously if you did not split your infinitives, mister. Check out the N.Y. Times Stylebook, or Strunk and White. Remember them?
            Will take under advisement from whence it comes. Will you be my guardian ad litem? OK, you get the last word.

            1. SHG Post author

              Or mix my metaphors, for that matter. But like I said, whatever. Your call (and yes, I get the last word. You know why).

  2. Scott Key

    Defendants in the free market can fire their lawyer and hire a new one (with certain restrictions). Indigent defendants who become dissatisfied by their appointed lawyer or public defender are generally given the choice between keeping their lawyer or proceeding pro se. Judges rarely appoint a different lawyer. I wonder if the voucher would be a one-time deal.

    1. SHG Post author

      A good question. Should they be allowed to fire their lawyer? It would certainly seem so, though it will by definition increase the cost and provide a new gaming opportunity.

    2. Dan

      I’ve seen indigent defendants go from legal aid to three different 18b lawyers. I can’t remember exactly why, but I think it had something to do with a breakdown in communication, i.e., they didn’t like each other.

  3. AP

    It warms my communist heart to know that the CATO Institute proposed a solution that is the norm up here in the Soviet Socialist Republic of Canuckistan. We don’t call it a voucher system though we call it a “certificate” system.

  4. pml

    This brings into question, what would you do with Public Defender Offices or Like in NYC the Legal Aide society. Would you just disband them.

    Also, how about the Person who has bail set at arraignment who doesn’t have an attorney. How will he hire one from Jail?

    1. SHG Post author

      Comal County doesn’t have a PD office, so that won’t come into play, but it’s a good question. Does this spell the end of public defenders? Should it? I suspect that for many, they’re better off with a well-run PD office, but that doesn’t comport with the whole free choice concept.

      As for people being held, I understand that the Comal experiment includes assigned counsel as well, so if a defendant can’t retain a lawyer of his choice, he can still have one assigned for him. Not the same, but it’s something.

      1. Mark Draughn

        As much as I generally like free market solutions to problems, I’d hate to see something like this ruin a good PD system, and I’d feel bad for the PDs. I understand that one of the attractions of the PD job is not having to worry about things like marketing yourself to clients.

          1. Alex Bunin

            According to its best proponent, Norm Lefstein, a PD should be one of the choices for the voucher holder. He cites Scotland where this has worked to the PD’s advantage as being a popular choice. I have already commented on Defending People that I distrust foisting the free market upon the poor. “Choice” is generally a good thing, but not when it is merely a substitute for more resources, as in, “We won’t spend anymore on you, but here is a shiny ticket you can exchange for a warm body.”

  5. Bruce Coulson

    There’s also the question of ‘available information’. The free market in part works because people share information about goods and services. And it’s pretty easy to judge whether brand y body lotion kept you clean, or whether your car is now shiny and clean or still covered in grime. The same cannot be said about legal services. As has been previously observed, judging a attorney based on their win-loss ratio isn’t the best way to determine whether they are a good attorney, or, even if they are, if they’re the right lawyer for you. I’m sure that other local attorneys, judges, prosecutors, etc. have a pretty good idea as to who’s capable and who’s not, but how would the average defendant, let alone an indigent one, have any idea about competency, except through (painful) experience?

    1. Mark Draughn

      I’m inclined to agree, but… Like most free market v.s. government questions, it’s not enough just to ask whether indigent defendants would do a bad job of picking lawyers. You also have to ask if the folks who choose appointed counsel can do any better. On the one hand, they’re probably better than indigent defendants at evaluating the quality of representation, but on the other hand, they have a lot less incentive to make the right decision, since it’s not their freedom at stake. Or to put it another way: Is it harder for a sleazy lawyer to fool a judge into appointing him than to fool a client into hiring him? Or is it just a different marketing skill?

      1. SHG Post author

        The more common concern is that judges steer indigent cases to “cooperative” lawyers, meaning the ones who they feel confident will plead them out and move the calendars forward.

        1. Rick Horowitz

          In one county near where I practice, there is no public defender system; contract attorneys are used instead.

          When I first started practicing, I was told that those contract attorneys can make decent money, but that if they “irritated the system” the judges — who allegedly decided which attorneys got to be contract attorneys — would ensure their contract was not renewed the following year.

          In that same county, I have seen exactly what was described by Judge Lasnik. The county has a large population of non-English-speaking, or barely-English-speaking, individuals. (One reason I taught myself Spanish is the large number of such individuals throughout the San Joaquin Valley here.) I have stood staring, feeling like I should do something, but also knowing that I’d likely get into trouble with either the court, or the bar, if I did, as a contract attorney stood before a group of accused persons in the lobby of the courthouse, calling out names, and telling them how their case was going to be settled. (Note that I did not say “asking.”)

          Certainly, in that county at least, giving people a choice would greatly improve things. Those who can afford attorneys in that town won’t even go to an attorney in that town. But I have no doubt that there probably are good attorneys in that town. They just suffer from the taint of all the contract attorneys people normally see there.

  6. Alex Stalker

    Disclosure: I am a public defender.

    While it would be nice to offer indigent defendants more choice, I would expect a voucher system to provide, on average, worse results than the current system. The studies I am aware of tend to conclude that public defender systems provide slightly better or the same results as the private bar. The result of this change would be that many indigent clients would ignorantly choose bottom feeder private attorneys rather than experienced public defenders.

    This is for two main reasons. First, as you mentioned in your article, I doubt the vouchers will be large enough for a client to hire a private attorney as experienced as yourself or Mr. Bennett. Furthermore, I strongly suspect you will not allow the more difficult clients to hire you. (How many Sovereign Citizen clients do you accept if they demand to have certain arguments raised?) Second, my experience has been that many of the more experienced public defenders do not have the ability, the experience in selling their services, or the salesmanship skills that would be required to convince legally naive clients to hire them over a less experienced attorney. Also, many of them would run a solo office exceedingly poorly. As a result I suspect bottom feeders would thrive, and curmudgeon-y experienced defenders will fare poorly. Outcomes, on average, would be worse than under the current system.

    I guess I think of the current system of an example of the frequently annoying but occasionally effective nanny state. Yes, it’s aggravating that there isn’t more freedom to choose, but overall I think the choices made by indigent defendants would be worse than the choice the state makes for them.

    Finally, think of all the additional lawyers who would strut the boulevard in hot pants after a switch to a voucher system. Oh the horror!

    1. nidefatt

      Precisely. You don’t see the state asking permission to hire among the private bar like they do on Rumpole. One of the big arguments against Gideon was that appointing an attorney wouldn’t help defendants because most attorneys don’t do criminal work and won’t fair any better than the pro se against a seasoned prosecutor.

    2. John Barleycorn

      Whew, this comment thread could have devolved into an Austrian vs. Keynesian throw down at any moment.

      I would put my two cents in but I am having all the right warm and fuzzy, twisted, and freaky-sorcery like thoughts of the sovereign citizens movement bringing back hot pants.

      Go Alex Stalker! Gold star and smiley face. You should have slipped in a link on the man. Rattle of the ice cubes for you.

  7. Jim March

    My wife practices rural criminal law in Northern Alabama, specifically DeKalb County (pop. 40,000ish). Here’s how it actually works, in a “kinda sorta a voucher” way…

    First, there’s no public defender’s office.

    Second, the pay to a private lawyer for public defense type of services is crappy.

    Third, despite that there’s a large number of destitute lawyers who hang out at the courthouse looking for cases. Why? Because due to the student loan bubble, there’s just way, way too many lawyers for the size of the county – about 80 right now. So the worst and/or youngest are going broke.

    Who picks one of these “hungry sharks” isn’t really important. Most of the time the clients/defendants don’t get a lot of input into the matter while the judge has a lot to do with it. The real problem (and the issue that hurts the clients the worst) is that the pay rates stink and there’s little to no money available for a defendant’s investigation.

  8. Speedy

    (For what it’s worth, I am also a public defender.)

    Will the voucher amount be the same for pleas as they are for trials? If yes, that creates a major incentive to plead everything, directly proportional to the seriousness of the case.

    In other words, it might be worth (say) $500 to negotiate a plea on a DWI–but what if the client demands a jury? Is anyone going to take a case to trial for $500?

    Now imagine that it’s a rape case, and the defense requires a DNA expert? Exactly how big would the voucher have to be before an attorney could actually litigate that case properly–and is there any way the court would actually pay that amount?

    My answer to all these questions is “not a chance in hell,” but I’ve been told I’m overly cynical.

  9. Maria

    As an investigator with a PD office I’m also curious how support staff would be funded or retained. I know in Washington State, conflict panel attorneys often have to file expert service requests with the court in order to hire an investigator. This puts a limit on the investigator’s time and a cap on what they will be paid unless additional requests are filed and approved through the court which can result in massive delays and missed opportunities. In my experience, it is difficult to accurately estimate time needed to investigate a case unless you are talking very, very constrained tasks such as discovery review and interviewing one or two witnesses. I can only imagine that in more serious and complex cases, either the quality of investigation would suffer or large sums of money would need to be paid out by the courts to retain investigators.

    I suspect the same issues would come into play when securing other support staff.

    I also think part of the defense team’s job is to tell the client things they may not want to hear but are matters of hard reality. Often this “coming to Jesus” is an important part of adequate representation. I would be concerned that in a free market system brutal honesty in the client’s interest would rarely be selected for, even though it can make a big difference for the client in the long run.

    1. SHG Post author

      One of the huge benefits of a PD office is having dedicated investigators on staff. Clients always want investigators, even if there’s nothing to investigate, but fail to realize that investigation can be very expensive and, despite TV, completely unproductive. And not all investigators are Magnum.

    2. Adam Klein

      Absolutely. I spent several years as a PD in Metro Atlanta before going solo, and there are some definite tradeoffs, with investigators and other support resources at the top of the list. As a solo, it would be all but impossible to hire an investigator (or any support staff, really) at the rates the State is willing to pay. There’s also the fact that PD’s only have to work in one courthouse and, frequently, one judge–it makes it much easier to develop good relationships with the court and its staff. PDs also have access to specialized training and work in an office with dozens of experienced lawyers to talk through cases with–more than almost all criminal defense firms. And they don’t have to deal with the business end of lawyering (bringing in clients, billing, collection, etc.) at all.

      In Georgia, most counties used appointed counsel until a federal lawsuit forced the state to adopt PD offices in every district except for a few that opted out. It’s been my experience that a full-time PD’s office is simply more effective than appointing counsel.

      The problem, of course, is money. PD offices work with a budget a fraction of the size of the prosecutors’ (not even considering all the work that’s done by the police). When one lawyer juggles a docket of hundreds of felony cases, something has to give.

      That said, the idea of “lawyer vouchers” as an alternative (as opposed to a replacement) to the PD’s office is appealing as long as the funding doesn’t come at the expense of the PD’s office. It is true that the PDs would probably end up with the most difficult clients, but anything that lightens the caseload is a move in the right direction.

      Legislatures are notorious for under-funding indigent defense (nobody ever lost an election by being “tough on crime”) … if “free-market choice” makes indigent defense a bit more palatable to conservative legislators and voters, so be it.

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