by Michael Fortino, Ph.D.
Defendants, put your checkbooks away. The age-old assumption that private defense attorneys provide a more comprehensive and effective defense than do public defenders may simply not be true.
A February 2021 analysis initiated by Maggie Bailey, Graduate Research Assistant at the University of North Carolina School of Government’s Criminal Justice Innovation Lab, found that appointing attorneys for the sole purpose of criminal defense, otherwise known as public defenders, is on average, less costly and often produces better outcomes than contracting with private attorneys or appointing pro-bono lawyers on a case-by-case basis.
It is a fundamental right, grounded in the Sixth Amendment to the U.S. Constitution, that persons accused of serious crimes be guaranteed effective counsel during the process, even if the accused cannot afford an attorney. However, it was only after the U.S. Supreme Court’s ruling in Gideon v. Wainwright, 372 U.S. 335 (1963), that this right was recognized to apply to state prosecutions as well.
While some states had been providing for criminal defense of indigent defendants for some time before 1963, after the Gideon decision, there was a rapid expansion of state systems providing for indigent defense, with different states taking different approaches. Shortly after this expansion, policy researchers began attempting to study which systems were most cost-effective and which produced the best outcomes for defendants.
Various systems include employing dedicated public defenders, appointing private attorneys on a case-by-case basis, or contracting with private paid attorneys, with most jurisdictions using a hybrid approach.
No fewer than 21 studies were produced between 1965 and 1987 that reviewed outcomes for various systems in support of indigent defendants. These studies collectively showed mixed results with no clear benefit of any particular system, though studies performed before 1973 did not use statistical controls to adjust for factors such as prior criminal history or demographic characteristics. Today, we must also consider the political views and psychographics of the defendant in preparing an effective defense.
The analysis by Bailey summarized seven prior studies, reviewing the precision of each study’s statistical model and proving a collective summary of the findings.
The first study reviewed the outcomes of 3,173 capital and noncapital murder trials between 1994 and 2005 in Philadelphia, where one in five defendants received a public defender, the remainder received a court-appointed private attorney. The study found that “[r]epresentation by a public defender reduced the likelihood of a guilty charge by 19% and reduced the length of expected prison terms by 24%.”
The study further speculated on causes for these variances and noted the payment structure for appointed counsel that likely “negatively affected attorney quality and created perverse incentives in terms of sufficient preparation time, number of cases taken on at once, and taking cases to trial when doing so may not have been in the clients’ best interest.”
The second study involved data pulled from the State Court Processing Statistics (“SCPS”), including series data for felony cases adjudicated in the 75 most populous counties between May 2004 and 2006.
This study found that defendants who received an appointed private attorney “were significantly more likely to be convicted and sentenced to prison … especially for drug and property offenses.”
A third study reviewed the federal indigent defense system, analyzing 50,000 cases from 51 districts between 1971 and 2001.
Results showed that “defendants with appointed counsel were more likely to be found guilty, and, on average, received a sentence that was eight months longer.” As for likely causes, the study showed “that over half their differences could have been explained by how well the attorney can plea bargain and negotiate sentences while slightly less than half could be explained by the selection of which cases should be taken to trial versus plead.”
The study found that the difference between market wages and compensation for indigent defenders played a more significant role in representation by appointed counsel. “[A]s the wages moved 1% closer to the market wage, the probability of a defendant being found guilty decreased by 5.5% for those with appointed counsel as compared to 3.7% for public defenders.”
The performance gap noted in this study were more salient given that “districts with larger populations of immigrants or people of color had more cases assigned to appointed counsel, and in districts that did not randomly assign defendants to different types of counsel, Black defendants were significantly more likely to be assigned appointed counsel.”
The fourth study focused on how labor market options for attorneys affected the outcomes for indigent defense and used SCPS data from 65 large counties for felony cases filed in even numbered years between 1990 and 2004.
This study found that “defendants with appointed counsel were 5.2% more likely to be convicted and they “received sentences that were 3.6 months longer,” and “their cases took 27 days longer from arrest to adjudication than their peers with public defenders.”
The study further showed that “as outside wages increased for attorneys in a metro area, they negatively impacted the sentence lengths for defendants with appointed counsel.” To be clear, as job opportunities for attorneys in an area got better, the attorneys remaining to represent the indigent performed worse as measured by eventual sentence length.
A fifth study compared indigent defense data, including outcomes and cost of representation between state and federal systems.
Having a public defender (instead of appointed private counsel) in San Francisco, resulted in “a lower probability of conviction (6.4%) or prison sentence (22%) and shorter prison terms (10.5%).” Compare these findings to that of federal defendants represented by public defenders resulting in “shorter prison sentences (4.64%) and a slightly lower probability of prison time (0.819%).”
This study found that about half the variance in outcomes could be explained by attorney characteristics, noting “public defenders were generally more diverse and studied at more selective law schools.”
The study further demonstrated, using county-level data from Texas, that “it was more cost-effective for public defenders to take on the majority of the cases in counties that already had a public defender office.”
The sixth study compared 400 cases from two counties in an anonymous midwestern state, where one county had a part-time public defender and the other had an ad-hoc method of appointing counsel.
Using outcomes of cases with paid-for retained counsel as a control, the study found defendants with ad-hoc appointed counsel “were more likely to be in jail at the time of case disposition” and “less likely to be released on bond prior to case disposition.” Further, defendants represented by a public defender were less likely to receive a prison sentence, while “public defenders appeared to bring misdemeanor cases to disposition more quickly than appointed counsel (47.9 days versus 81.3 days, respectively).
The study also found public defenders to be less expensive on a cost-per-case basis, showing a cost per “public defender for both misdemeanors and felony cases at $249.56 and $80.06, respectively, compared to $293.31 and $121.19, respectively, for appointed counsel.”
The seventh and final study in this analysis was based on data from eight jurisdictions in Virginia and was designed to assess the efficiency and outcomes of the public defender offices created in four of those jurisdictions as a result of legislation in the early 1970s.
This study did not show statistically significant differences in outcomes between appointed counsel and public defenders, though “appointed counsel took an average of 37 days longer to process their cases.” This may have had something to do with plea rates, as defendants represented by a public defender were far more likely to plead guilty (85% of public defender cases [versus] 67% of appointed counsel cases).
The study did show that public defenders cost less than appointed counsel in four out of six years reviewed, ranging from $31.30 to $12.15 less per case in a given year, showing the increased cost in years five and six were likely the result of “the start-up costs of establishing a public defender office in one of the jurisdictions.”
Overall, the UNC analysis of these studies showed that when “taken together, the studies ... suggest that, when compared to public defenders, appointed counsel generally achieve less favorable outcomes for their defendants. However, the severity of this performance varies across studies,” and it should be noted, “scholars offer a number of variables that may explain some of these differences, including low wages, lack of experience, variable caseloads, lack of resources, and law school quality.”
Aside from a clear benefit of employing public defenders instead of appointing private counsel on an ad-hoc or contract basis, the analysis suggests that “it is worth examining and comparing the administrative structures of indigent defense systems to understand how elements such as qualification standards, funding, support services, and level of oversight influence outcomes for different delivery systems.”
As studies like these are replicated and show a clear benefit to using public defenders, continuing to use appointed counsel as a sole or primary option, especially in diverse communities, may create liability for jurisdictions arising from Sixth Amendment concerns. Given the cost savings associated with public defenders, jurisdictions would be wise to shift from traditional paid appointed counsel to public defender representation when possible.
Source: “Empirical Research on the Effectiveness of Indigent Defense Delivery Systems,” Maggie Bailey, UNC School of Government, Criminal Justice Innovation Lab (February 2021).
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