Response to @RadleyBalko: Why Loser Pays in Criminal Law is a Loser

Following  my dismissal of the same old ideas for fixing the criminal justice system,  Radley Balko twitted “Why is it a bad idea for the state to pay the legal costs of people who are acquitted?”  He went on to twit, “Even [if] there’s no larger effect, seems like a just policy.”

Unfortunately, this happened on twitter, so that readers weren’t aware of his questions, and there was no ability to explain with any degree of depth. As fun and easy as twitter may be, it’s not a good medium for thoughtful discussion. For this reason, I refuse to start something on twitter that’s either doomed to fail or merely incapable of doing any more than scratching the surface.

But if Radley questions why this proffered fix shouldn’t be given a try, I assume others do as well, and it’s worthy of a real response.  In Glenn Reynolds’ 6-page opus, he explains this fix:


Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense – for which non-indigent defendants bear the cost – is an integral part of the criminal justice process. For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest, to support a public endeavor, or go to jail. To further discipline the process, we might pro-rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.

What a great idea, for guys who do what I do at least. The reluctance criminal defendants now have in putting their own money up for their defense, applying whatever cost-benefit analysis naturally happens in their heads, would certainly get a boost from the prospect of getting the money back on the other side. 

After all, there are two things that are almost invariably present at the beginning of a criminal defense: The defendant believes he’s innocent, regardless of how guilty he may be, or the defendant believes the prosecution can’t really prove his guilty.  The ubiquitous question, “do they have it on videotape? Huh? Huh?” said to convince us that there is no way the defendant can lose because there is no way the government can prove their guilt. Except the prisons are filled with people whose guilt couldn’t possibly be prove to the defendants way of thinking. How could that possibly be?

The problem is that defendant often begin their defense in a delusional state of absurd denial, grasping onto odd straws that they, their spouses, their great aunt in Selma, the guy on the corner, assert with absolute certainty will result in their freedom.  And this is before they find religion.

Introducing a financial incentive to secure a conviction to the already overwhelming incentives that drive cops to coerce confessions and nudge identifications, and prosecutors to bury the Brady and provide excessive coaching to their victims, is just fuel to the fire. If the defendant would recover his legal fees (and how much was recoverable according to a judge’s vision of reasonable fees is another issue, but one that will never need to be addressed), the money would have to come from somewhere, some budget. Whose?  Which bureaucracy would be willing to take the hit? Which piece of the prosecution side would be strong enough, honest enough, reliable enough, to ignore the potentially ruinous financial consequences and maintain fealty to the rules and Constitution?

And why, if the group’s devotion to justice is so strong, can’t they be trusted now, without the additional burden of a financial incentive?

Then we have the judiciary, which costs money to run as well. The judges don’t hold bake sales, but depend on the legislature to fund their operations. If the decisions of the judges end up busting budgets, even a little bit, the power of the purse will come to bear. It may be subtle. It may be blatant. But it most assuredly will be, as politicians are disinclined to suffer the anger of their constituents when they have to raise taxes to cover gaps that judges could close. While we may not have much judicial independence now, there will certainly be less when there is money involved.

And finally, we come to the beneficiaries of the concept, the defendants. Already, defendants are faced with unbearable choices, to plead or fight. The equation is now a difficult balancing act of risk of conviction and severity of sentence.  The discussion is brutal, as few defendants have any appreciation of the weight or nature of evidence, or why all their really good reasons why they shouldn’t be convicted won’t come out at trial.  They want to be heard, but they don’t want to testify. They want the truth to be known, but they can’t risk cross-examination. They didn’t do this crime, but there are the three same priors lingering in the air.

Add a financial incentive into this mix, where they may not only win acquittal but get their money back, and the influence will skew their unduly optimistic view off the charts. Should defendants choose to go to trial because they have a viable defense and a good chance of winning, or should they go to trial because they can get their money back? How many defendants will suffer the trial tax because money influenced one of the most difficult decisions of their life?

And these are the reasons why this idea, seemingly “just” on its surface, would prove problematic, if not disastrous, in real life.  And this is why the response wasn’t suitable for a twit.

As long as we’re at it, Radley also  questioned by twit why I wasn’t more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, “And it’s probably more productive to engage, persuade new allies than to shun and mock them.”  Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley’s query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.  Anyone?

42 thoughts on “Response to @RadleyBalko: Why Loser Pays in Criminal Law is a Loser

  1. Peter Metrinko

    You raise excellent points. But still, something bothers me. I was, by the way, a civil prosecutor for the Federal Trade Commission. The financial wherewithal of defendants was discussed as a fact of life — we knew we had a deep pocket client, the government. We also knew that defendants of lesser means were more likely to settle cases. Now long removed from the arena, it seems to me that money should not have influence in the results.

    Perhaps some of your objections could be reduced if return of defense fees was not an automatic right, but a post-acquittal remedy given in cases where the prosecution was especially ill-advised. The remedy would be applied for before a different judge, and the standard could be something like “the prosecutor at the inception of the case knew or should have known that there was a substantial likelihood of acquittal, suppressed evidence favorable to the defense . . .”.

    Prosecutors, acting in good faith, make human errors. Sometimes they lose because of a good defense attorney, or a poor jury. Those factors also suggest there should not be automatic awards.

    Further, if one has an out of control prosecutor, the public will rarely know about this. But if a judge keeps handing out taxpayer money to defendants, these equitable awards will soon become known, which might lead to the prosecutor being replaced.

    I do not think there is an automatic answer to this issue, and I hope all will keep an open mind about it.

  2. SHG

    Let me do you one better: If the prosecutor is “out of control” to the extent that a defendant would be entitled to the return of his defense fees, is that really a sufficient remedy, either in terms of making the defendant who should never have been prosecuted whole or deterring prosecutorial misconduct?  See where this is going (or are there 1983 reasons to eliminate prosecutorial immunity for such flagrant abuse)?

    But this is a completely different issue; when the prosecution goes that far off the rails, the mere return of legal fees is hardly sufficient to do right by the defendant or society.

  3. Ken

    I don’t know how it works elsewhere, but in Virginia the vast majority of defendants are indigent and if they are found not guilty they are not held responsible for costs and the government pays for the defense (if they lose they are assessed the cost of defense). So, this system is already in place for 80% of the cases and does not affect how prosecutors behave one bit. Assuming that judges would limit payable costs of a private defense to those which are authorized by the legislature (most likely what an indigent defender would have gotten paid), I don’t see paying the expenses of a case as a deterrent.

  4. SHG

    Budgeting for indigents has been part of the routine for a generation already, since Gideon. If its institutional, it’s a contract. If not, they fix rates, oversee panels, limit maximum compensation, and any lawyer who wants more assignments better not push the envelope too far.

    But reimbursement isn’t dependent on outcome. It’s there from the outset, and thus provides no financial incentive either way. And, of course, if they fixed reimbursement at indigent defender rates, then it would just be a joke anyway.

  5. Dr. Sigmund Droid

    .
    I’ve been thinking a lot about such issues lately . . .

    I believe that solutions are often defined by a problem’s one, two, or perhaps three, primary constraints . . .

    The obvious constraints I see here are, in no particular order – the inertia caused by the crushing weight and amount of existing criminal laws, the entrenchment of overzealous prosecutors, and the unknowable and unintended consequences of any “corrective” actions, drastic or otherwise . . .

    In this context, the solution, though radical to some, is obvious. We need to direct an asteroid of the type and size of that which destroyed the dinosaur 65-million years ago to once again strike the earth; this time doing away with homo sapiens for good. It is time to start anew . . .

    Given 65-million more years, I firmly believe that the cockroaches, who should easily survive such a disruptive and cataclysmic event by feeding on our rotting carcasses, will evolve to be giants and have superior intelligence, thus developing a far better criminal justice system. But I do sometimes wonder as I ponder such a future, will they paint their antennae like we paint our finger and toenails?? Cuz that would look so darn cool . . .
    .

  6. Dr. Sigmund Droid

    .
    Greenfield, you think I’m brutal?? That just sounds so pejorative . . .

    When I think of brutal, I think of people and things like Vlad the Impaler, Saddam Insane, Stalin, and countries that administer the death penalty to innocent souls; but I certainly don’t think of myself. Maybe I’m not spending enough time in meaningful self-reflection – I guess I’ll have to first reflect on that possibility, IDK . . .

    I actually fancy myself as a realist, by always attempting, to the best of my ability, to call a spade a spade and a heart a heart, while never confusing the two; I also constantly employ “The Shit Sensory Probe™” – if something smells like shit, tastes like shit, looks like shit, sounds like shit, and feels like shit, more likely than not, it’s shit . . .
    .

  7. TomH

    Your postings on some of the proposed solutions to the complaints of inequity in the way criminal defense costs are allocated are interesting. It is always good to see honest (ie practical and non-political) critiques of these seemingly good solutions.

    On a related issue, I was wondering about your thoughts on a possible fix for the fundamental flaw of cheating or “out-of-control” prosecutors. As I understand it, the military system of justice uses a common pool of attorneys for prosecution and defense. My thoughts are that this would seem to undermine the “us v. them”, team mentality often found in the law enforcement v. criminal defense. When everyone you oppose is a “bad guy” and when you have the predisposition to believe everyone you represent, it seems that human nature would encourage you to cheat for your team.

    My thought is that, if the public offices,budgets and support resources for the DA and PD were combined into a common criminal justice office and attorneys found themselves assigned to represent clients on both sides of the aisle, then perhaps more fairness and actual justice might be done. Maybe. Or, at least the individual egos of the attorneys would drive them to cheat on both sides, and have the wherewithal to do so (that is a kind of fairness, I guess). Or they could all turn out to be prosecutors and throw every defendant under the bus or vice versa. Hopefully that is a circumstance that could be avoided by some kind of good hiring practices and incentives for successful outcomes on both sides.

    I do not see this as putting out private defenders any more than now, in my little world, because assigned defense would still be on the basis of indigence.

    Once one gets over the hurdle that it would be next to impossible to get this done in a real world government, I am curious about your thoughts on the substance of the idea.

  8. SHG

    This is one of the most intriguing ideas I’ve heard. Put public defenders and prosecutors into the same pool of lawyers, and draw upon them to serve either side, since we’re already paying for both anyway. Fascinating.  Any JAG guys (Eric?) think this will work?

  9. Dr. Sigmund Droid

    .
    On the surface, this concept does seem to have more legs than my previous cockroaches, asteroids, and 65-million years proposal . . .

    But that may only be on first blush, I’m not sure yet; I’ll have to think about it some more . . .
    .

  10. Andrew

    It seems that this idea runs the risk of diminishing the quality of representation that the public defender is able to provide even further. From everything I read here and elsewhere, public defenders already have far too great a case load to represent their clients as well as needed. When the often-elected head of this pool of lawyers (the District Attorney, the County Attorney, or whatever this individual is called in his or her jurisdiction) has to deal with budget cuts, it seems likely that the public defense function of the office would suffer disproportionately. I realize this is already the case (in that the public defender’s office may not have parity in resources with the prosecutor’s office), but at least in the current system, the relevant government budgeting authority has to allocate resources publicly to one office or the other.

  11. Alex Stalker

    There is already a difficult relationship of trust between public defenders and their clients. How much worse would it be if clients see their defense attorney prosecuting others the week before their case?

    How about oversight? Right now (In Washington) elected prosecutors tell their deputy minions how to run a case. If the minion disobeys, they can be fired. How would that work if attorneys were both defenders and prosecutors? If an attorney didn’t plea out their client in a big case their boss would fire them? Or would minions no longer be constrained by the elected prosecutor? Would they be totally without supervision if they went off the deep end?

    In addition, a significant number of the prosecutors I know would make very bad defense attorneys.

  12. John Neff

    I think indigent defendants would not like this at all. We already have enough conflicts of interest and this arrangement would max them out.

  13. robert wunder

    When in doubt, look to the English system. Solicitors and barristers. Barristers are trial attorneys and solicitors do not go to court.
    That right there would solve a number of problems we have beyond this topic. Secondly, the appointed barristers do ride both sides of the fence – prosecution and defense. But the feds and career prosecutors would never agree to such a change of our legal system.

  14. Gideon

    Sorry, but doesn’t this already happen? In fact, isn’t the cost of close to 80% of prosecutions already paid by the State?

    So what, now we make a show of it? Or are we going to pay me market rate of $300/hour. Because I’d really like that.

  15. TomH

    The system would not increase case loads. They would remain similar. Just some cases would be prosecution and some defense.

    You are right, the issue of fund allocation could be sticky. But in a better world, the attorneys would be given appropriate credit for defense wins as well as prosecutions, there would be an internal tension to get the resources.

  16. SHG

    Already addressed in response to Ken Lammers’ comment above. And no, nobody is going to pay you $300/hour.

  17. Shawn McManus

    Once a year, have a “litigation lottery.” The cases the prosecutors lost are drawn at random, and the prosecutor must reimburse for the defense of every third one out of his own pocket.

    At the least, the prosecutors would be more careful about the cases they prosecute and defendants would be more likely to hire a decent attorney – or at least try to do better than an overloaded PD – knowing they might get the money paid to him returned.

  18. alastair Baker

    Agreed, but at least its a start that the defendant is not financially ruined by having to provide a defence to an over-reaching/ill-advised/political aspiring prosecutor.
    Perhaps ‘making the defendant whole’ should be the first priority rather than ‘fix the system’. Never mind the legal hand-wringind/soul searching, as a bankrupted defendant I know which I’d prefer.

  19. Greg

    Several years ago, I read an article that said that in some notoriously chaotic third-world city (in my memory, Lagos, but I could be wrong), traffic cops didn’t issue tickets, because they would never be able to find defaulters. Instead, when the cops witnessed what they considered to be an egregious violation of the traffic code, they would drag the driver from his car, beat him with sticks, and send him back on his way.

    Maybe defense lawyers could be supplied with sticks, or perhaps switches cut from willow trees to be planted by the courthouse steps, with which they could, in their discretion, beat prosecutors whenever a defendant was charged with multiple offenses and acquitted of most of them. We could trust defense lawyers not to abuse this power, just as we trust prosecutors not to abuse theirs.

  20. SHG

    After the fact, of course you would want compensation for financial ruin. Before you walk, would you be willing to trade the cost of a defense for a life in prison? That’s the point where you need to decide priorities, not after you’ve won.

  21. John Neff

    As soon as a flogging post is erected on the courthouse lawn a judge will order that it be used on a defense attorney. Not a good idea in my opinion.

  22. Eric L. Mayer

    In short…
    The military system is great in some ways, but bad in others. Here are a few pros and cons:

    Pros:
    –Well-rounded lawyers. (the average JAG attorney starts by working in legal assistance, then to a claims department, then prosecution followed by defense (or vice versa), then supervisory positions). I started as a labor attorney, followed by prosecution, followed by instructing military police, followed by defense, all in 6 years. It is impossible to serve under this structure and be the proverbial “one-trick pony.”
    –More understanding of what the other side is doing, and why. Even if a prosecutor has never defended, chances are that their supervisors have done so for at least two years. The same goes in the same regard for defense attorneys.
    –Shared education and continuing education. Both defense and prosecutors share common training and educational resources. So, the playing field is leveled to a certain extent.
    –Judges are appointed from a pool of senior officers who, in their careers, have served in both prosecution and defense capacities. Most, in addition to having been on both sides in the trenches, have also occupied leadership positions on both sides.
    –There is still a healthy amount of esprit de corps for each side. Prosecutors, of course, have their legions of fellow prosecutors, investigators, and paralegals. The defense side considers themselves as mavericks, even flying pirate flags in their offices and wearing smaller versions of the flags discretely on their uniforms.

    Cons
    –Prosecutors and defense counsel are notoriously inexperienced. Most will do each job for a maximum of 2 years. After that, they are ordered to move to a different job or to leadership (where their time in the courtroom is severely or completely curtailed. While there can be exceptions, they are extremely limited.
    –Cost. The military legal system has the luxury of manipulating their pool of attorneys at will because there are a lot of lawyers, and a decent number aren’t even gainfully employed. How? Look at the size of the defense budget. Consider this: A military defense lawyer is considered overworked if he/she is currently balancing 15 or more pending courts-martial (trials), and most of those are guilty pleas. I was required to report to my superior if any of my attorneys were juggling more than 12 cases. States lack the benefit of the federal defense budget. Creating what you believe to be an ideal legal system requires ideal dollars.
    –Motivation. My experience has been that most civilian public defenders affirmatively choose their employment. The same goes for prosecutors. In the military, someone can be forced to occupy a job, even if they hate it. I cringed when I heard a defense attorney say that they were “just doing their time” before moving back to something else. I believe that clients are best served when their lawyers actually want to be doing the work. They can be hurt badly by a disinterested and pouting lawyer.

  23. fledermaus

    My state (Washington) has something like this. If you go to trial and win with a self-defense defense (felonies only), state pays your attorney costs. See RCW 9A.16.110

    Basically the effect has been that most cases are dropped prior to trial or dropped to a misdemeanor if there is even a whiff of a successful self-defense defense.

  24. SHG

    That’s a very interesting reimbursement statute. Notably, it only applies to the defense of oneself or to defend others from violence, and it requires a special verdict from the jury that the defense has prevailed on its affirmative defense by a preponderance of the evidence. Very interesting.

  25. Alex Stalker

    That’s not totally accurate. The statute does apply to Assault 4 (misdemeanor assault).

    Some other quirks of the statute are that no subdivision of the state is responsible for payment, it has to be directly authorized by the legislature after victory, if the defense attorney doesn’t ask for the special verdict they don’t get any reward, and if you have a public defender then you cannot recover anything.

    My personal experience has been the opposite. Prosecutors don’t care about this statute because neither they nor their office are on the hook for the payment, and it doesn’t apply in the vast majority of their cases (those with public defenders).

  26. alastair baker

    I see you skated round the underlying question of ‘why should I have to?’. In civil cases there is generally the right to ask for your lawyers costs back, why not in criminal cases? I suggest that would substancly change the dynamics by forcing the system to take a reality check on overreaching or ‘load the charges on’ policies. I would then suggest that the next stage of ‘no win, no fee’ for the defence would change the dynamics even more by providing a reality check in the other direction. Apply these points to the Aaron Swartz’s case and the cost/benefit analysis of each and every charge by the prosecutor and the defence may have produced a very different path

  27. SHG

    Hardly. First, there is no “general right” for legal fees in  American civil law, so your premises fails before it starts. Second, the post is about why it’s a very bad idea, yet you think I skated around your question because I didn’t repeat an already stated lengthy explanation? I can explain it to you. I can’t understand it for you.

    I get it. After you win, you want money. It seems fair, and I agree with you, it does seem fair. But the cure would be worse than the disease. You beat the disease so you think it’s a great idea. Hooray for you, but policy isn’t good or bad based on what it does for you personally, but how it works for everyone.

  28. alastair baker

    Your right, it would work for me because at the end of the day through no fault of my own I stand bankrupt and the people in the system get to walk away shrugging their shoulders saying ‘thats life’, but according to you thats OK cos thats how it works for everyone ? A lawyers answer if ever I heard one

  29. SHG

    That’s right, it’s a grand conspiracy of lawyers all for the purpose of taking your money and ruining you.  There is no shortage of guys in prison right now who paid money, just like you, and didn’t win. They would be more than happy to take you in as their cellmate for a day to teach you a bit about how lucky you are and just how it feels to spend money and lose.

    I understand why you are bitter. What is pathetic is how you can’t see anything other than your own misery. Yes, we don’t put 100 innocent people in prison to make Alastair Baker happy. You bet that’s life.

  30. fledermaus

    I disagree in part. Violent offenses are defined in RCW 9.94A.030 and Assault 4 (and 3) are not included. Also it would appear from the statute that defendants held in custody would be entitled to lost pay in addition to attorney fees and costs.

    That said, you are probably right about minimal effect for public defense cases, but a good private attorney can leverage it to a better deal.

  31. SHG

    Lest we get too far off the beaten path, legit self-defense cases without an underlying crime are a miniscule fraction of the cases prosecuted, meaning that it doesn’t really matter much.

  32. Alex Stalker

    Assault 4 is included in RCW 9A.16.110(1)’s definition of assault. State v. Lee, 96 Wn.App. 336 (1999). See State v. Anderson, 72 Wn.App. 253 (1993) regarding “lost time” (indigent defendant not entitled to anything other than lost wages, and wages would have had to have been earned but for the prosecution and cannot be speculative).

    At most, an indigent defendant can expect to get a few thousand bucks (without interest) whenever the legislature gets around to authorizing it.

    For everyone else: in Washington the criminal charge of Assault 4 includes any harmful or offensive touching or putting someone in reasonable fear thereof (it basically is common law assault and battery wrapped up in one) and so is extremely broad and comes up all the time.

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