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Public Defender Vs. A private attorney
An interesting study published in the New York Times discussing the difference between being represented by a public defender rather than be represented by a lawyer retained in a criminal case. The study was conducted by two economists from Emory University. The study concluded that in serious cases "the average sentence for clients of public defenders was almost three years more than half of the clients of private lawyers. "Furthermore, when considered all cases, the average sentence for clients of public defenders was almost five years more than half of the clients of private lawyers.
On 08 January 2007 The New York Times report outlined in full:
SIXTEEN years as trial judge in the state have left me with a deep respect for the professionalism and competence of public defenders working on felony cases for indigent defendants in my courtroom. In fact, I told friends, only half in jest, that if ever charged with a felony, the first thing to do is give all their assets to charity in an effort to qualify for public defender representation.
So when two economists from Emory University, Paul Rubin and Joanna Shepherd, agreed last year to work with me on an econometric study of the effectiveness of Public defenders are actually, I had to avoid confirmation bias. He was sure that public defenders would be more effective than their private counterparts. Rubin and Ms. Shepherd, with its faith in the labor markets were also positive opposite. In the end, the economists were right, although with an interesting twist. (The comprehensive study has been published in the Ohio State Journal of Criminal Law.)
We looked at all cases, 5224 criminal offense filed in Denver in 2002. Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we use one thing criminal defendants that most concern: the amount of jail or prison time they receive. Thus, acquittals counted as zero. test sentences also count as zero, unless the probation was combined with some jail time.
We halfway-phrases as 120 days, which is typical for Denver defendants. We have the initial length of a prison sentence without diminishing the early release or increased parole violations. life sentences that arbitrarily counted as 110 years.
My economist friends were able to use regression analysis to control for other variables (for example, if a case was negotiated plea or went to trial), to minimize the possibility that the differences found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.
The results were surprising. The average sentence for clients of public defenders was almost three years the average of the clients of private lawyers.
But our most notable finding was hidden in one of the variables that had controlled – the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, for the simple reason that such cases carry higher bonds, and defendants who can not make those bonds are often rendered destitute by his provisional detention. The length of sentences customers, of course, distorted by the fact to handle the most serious cases with longer potential sentences.
But when we removed the control of the seriousness of the crime, public defenders performed relatively worse, incarceration is not better (five years compared to three years).
When we examine the severity of cases handled by each type of lawyer who discovered not only that private lawyers tend to handle more serious cases, but also that as the severity case increases the likelihood that a private attorney handling increases. What in the world could explain this result?
It turns out that the explanation at least in part, is the one to put a smile on the face of all the free market and rational choice theorists: the accused, like any other consumer services, appear to be taking decisions based on rational evaluation of costs and benefits. But, you may ask, have you ever actually accused can choose between public defenders and private attorneys? Apparently, many do.
Our data suggest that, contrary to the binary notion of the law instead of indigence, a large proportion of felony defendants what I have called "marginally indigent." Could, if they had to, leverage hidden resources, or resources family and friends, to hire private lawyers. But what drives that decision? Just what you would expect from any rational consumer of criminal defense services: a combination of gravity of the crime and the probability of conviction.
Imagine a guilty, marginally indigent defendant facing a relatively minor offense (For which will most likely get probation). Now add to the mix the fact that the crime was captured on video, which means it has a small chance avoid condemnation. It is unlikely that defendant exhausted his and his family and friends of the resources to hire a private attorney he could get a free public defender to achieve the same result.
At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine he is innocent. Did not that the defendant would do everything possible to gather the resources to hire a private attorney, if he believed, rightly or wrongly, that the private attorney had more likely to achieve an acquittal?
In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course, if that's true, is not at all surprising that public defenders would achieve less favorable results.
More work needs to be done to confirm these results. But if they hold, and hold nationally, could have important political implications. Approximately one third of all states have public defender official statewide systems, and several others have regional or local systems. Current discussions on improving these systems tend to revolve around two poles: increased financing (So that public defenders have been clamoring since the 1980s, when spending per customer in most systems, in real dollars, fell sharply of which has never recovered) and, more recently, privatization.
If it is true that public defenders achieve results far worse for their customers private lawyers, that fact should be of concern to us all, regardless of whether the difference is the product of lack of funds, government inefficiency or both.
But our results suggest a more benign and less drastic solution than spending more on public defenders or privatizing the system. If self-selection of the defendants guilty, marginally indigent is driving much of this difference in efficacy, the cure may be simply to reinforce the mechanisms used to determine indigence. This solution would not only reduce the differences in outcome between public defenders and private defense lawyers, but also give taxpayers more bang for your public defender money.
About the Author
Mr. Broden is board certified in the area of criminal law and his practice is limited to criminal defense work. He has received an “AV” rating from Martindale Hubbell, the highest rating available. He was voted by his peers as a “Super Lawyer” in criminal defense in 2004, 2005, 2006 and 2007. Although he handles all types of criminal cases, Mr. Broden specializes in complex, criminal cases in federal court at both the trial and appellate level.
Mr. Mickelsen is board certified in criminal law, a lifetime member of the National Association of Criminal Defense Lawyers Association, a board member of the Texas Criminal Defense Lawyers Association, a member of the Dallas County Criminal Defense Lawyers Association, and a member of the Dallas County Bar Association. Mr. Mickelsen is “AV” rated by Martindale Hubbell, an independent evaluation which identifies a lawyer with “very high to preeminent legal ability”. He was also voted by his peers as a “Super Lawyer” in criminal defense in 2004, 2005, 2006 and 2007. He is currently a member of the board of the Texas Criminal Defense Lawyer’s Association. Mr. Mickelsen is a member of the adjunct faculty at Southern Methodist University Law School where he teaches trial advocacy. More about
Broden & Mickelsen – Criminal Defense Lawyers