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.