November 11, 2007

Poor Defense

Richard Posner, the U.S. circuit court judge, once pointed out that public defenders are overworked and under-funded—but then went on to say that he didn't necessarily consider this a bad thing:
I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented. ... If we are to be hardheaded we must recognize that this may not be entirely a bad thing.

The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A barebones system for the defense of indigent criminal defendants may be optimal.
Now, I don't think the odds of convicting innocent people are "very low" in the U.S. justice system, though that might be a subjective judgment. But I'd always assumed that support for a "barebones system for the defense of indigent criminal defendants" was the prevailing view on the right. So it's nice to see that Radley Balko has a terrific, though not-online, Reason essay—discussing a new book on public defenders in Illinois—in which he argues against Posner and in favor of boosting state resources for poor defendants. (And how often do you expect libertarians to support greater spending for the poor?)

The disparities are striking. Prosecutors' budgets dwarf public defense budgets by about 2.5 to 1, and public defenders and court-appointed attorneys don't always have access to forensic experts or private investigators (nor do courts have to provide them). The fact that prosecutors usually have superior firepower, and can threaten mandatory minimum sentences if the case goes to trial, has given over-matched defense lawyers very high incentives to push for guilty pleas and "slough off burdensome caseloads." As Balko notes, a scant 1 percent of felony cases in Texas even make it to court, a level that's almost certainly too low.

I do wish, though, that there's been more discussion of the fact that public representation for the poor at the state level varies so widely from county to county. Some counties establish a state-run public defenders' office, some contract out the work to private law firms, and some pay individual lawyers by the hour to take court-appointed cases—as is the case in most of Massachusetts. My understanding is that the latter two set-ups create the starkest inequities, although I'd be curious to know more. (Public defenders' offices, after all, are hardly free of problems—see this investigation of Santa Clara county's justice system for a glaring example.)

David Feige wrote a great Slate piece in 2004 about how Massachusetts's hourly billing system created perverse incentives for court-appointed private lawyers to "load up on cases, plead out as many as possible as quickly as possible, submit a bill, and call it a day." Feige argued that dedicated public defender offices are a better alternative, and I think I agree. The obvious argument is that public defenders have more experience with criminal work, and are better able to lobby for more funding and lower caseloads (though not always successfully). Balko doesn't weigh in on this question, although his broader point about the need for more resources, regardless of the set-up, is well-taken.

P.S. Since I couldn't find Balko's review online, I'll compensate by linking to this great piece he did on the news that Schwarzenegger just vetoed a modest criminal-justice reform bill in California. That bill would've forced prosecutors to corroborate testimony from jailhouse "snitches," mandated the videotaping of police interrogations in certain cases, and established guidelines for eyewitness testimony. Suffice to say, none of these reforms should've been nixed.
-- Brad Plumer 4:53 PM || ||