Salaried Public Defenders Get Better Outcomes that Court-Appointed Lawyers

The New York Times reports on a very important study by Radha Iyengar, a postdoctoral fellow at the  Institute for Quantitative Social Science at Harvard.  In an nutshell, Iyengar's study, "An Analysis of the Performance of Federal Indigent Defense Counsel," finds that federal public defenders get better outcomes than (more expensive) court-appointed lawyers.  The reasons are quite interesting and potentially far-reaching.  Make sure you read the last line of the following abstract:

The right to an equal and fair trial regardless of wealth is a hallmark of American jurisprudence. To ensure this right, the government pays attorneys to represent financially needy clients. In the U.S. federal court system, indigent defendants are represented by either public defenders who are salaried employees of the court or private attorneys, known as Criminal Justice Act (CJA) attorneys, who are compensated on an hourly basis. This study measures differences in performance of these types of attorneys and explores some potential causes for these differences. Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act.

I am not a criminal procedure scholar, so I cannot comment on whether a civil rights class action would get very far.  But the underlying empirics are pretty damming.

Comments

[anon]

This study will cause some in power to *reduce* the number of public defenders. Getting criminals back on the street isn't necessarily a good thing.

[Anonymous Quibbles]

"It appears that public defenders on average have higher experience and a wider distribution. Many panel attorneys have less than 10 years experience, but there is a cluster of attorneys with about 15 years experience and another cluster with about 25 years of experience. These are the attorneys that frequently handle the more difficult or highly technical cases and are, in some cases, former public defenders or well established criminal defense attorneys. In addition, public defenders appear to be from higher ranked law schools. Relative to the overall population of lawyers, CJA attorneys are less experienced and attended lower quality law schools while Federal Public Defenders are more experienced and attended higher quality law schools."

This is terribly misguided. First, the study ignores that law school ranking works as a proxy for lawyering skills when you haven't any experience. But 10 years out from law school, such proxies are irrelevant. David Boies and Will E. Gary and Gerry Spence went to different law schools, but each knows how to try a million dollar case successfully. Second, the focus on wages is totally off-base. No CJA attorney is taking the case to make a profit. Higher or lower wages would not make the cases more or less attractive or increase or decrease the desire to win or the quality of the services provided. The cases are taken out of personal obligation and for goodwill publicity. Winning a case leads to better publicity (and feels better). Third, many CJA attorneys are former prosecutors and federal defenders. That's why they qualify for the CJA panel. It is true the salaried public defenders may interact with judges and prosecutors more often, but that could lead to more plea bargains that shouldn't have been made and I see no empirics on that counterpoint.