Fight ‘Em ‘Til We Can’t

Infinity Ranch points to an op-ed in yesterday’s NYT in which Morris Hoffman, a Colorado judge, reveals that a recent study in which he participated showed that defendants who retain private counsel end up with less jail time—three years less, on average—than those who rely on court-appointed counsel. When the researchers “controlled for the seriousness of the crime” they found that “public defenders performed relatively worse, not better (five years more incarceration versus three years more).”

When we examined the seriousness of the cases handled by each type of lawyer, we discovered not only that private lawyers tend to handle more serious cases, but also that as the seriousness of the case increases, the chances that a private lawyer is handling it also increases. What in the world could explain such a result?

Hoffman’s answer is that there’s a sizable group of “marginally indigent” defendants who can afford to retain counsel if they really really want to. These defendants are “rational actors”: those who know they’re guilty don’t pull out all the stops to hire private counsel because, well, why bother? They know they’re guilty. Those who are innocent do pull out all the stops to hire counsel—by borrowing from friends, family, whatever—because no expense is too great when you’re really innocent.

That theory may have something to do with the different outcomes achieved by private vs. court-appointed counsel, but what about other variables? What about the resources most public defenders have at their disposal—investigators, access to or money for experts, etc? What about caseloads? If the average public defender has 80-100 cases at any given time while private counsel has 20-40, I’m thinking that could easily explain a difference of 3-5 years for average sentence.

Finally, I wonder if the study considered how many private counsel start their careers in PD offices in order to learn their craft and become better defenders. Once they feel they’ve learned the tricks of the trade, these people hang shingles and start making money. Perhaps this means that the average private defender has had more years of experience than the average public defender? I have no idea if this is true, but it would be interesting to explore.

Whatever the case, prominent articles like this that speak to a national audience and say that public defenders aren’t as “good” as private counsel are bound to fan the flames of PD-critics who claim we’re not “real lawyers.” On the side of the silver lining, let’s hope this study encourages states and counties to invest more in their PDs to try to reduce caseloads and improve outcomes for the truly indigent defendants who really don’t have a choice of counsel.