Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System, Cato Policy...

8/9/2019 Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System, Cato Policy Analysis No

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Criminal defense systems are in a state of per-petual crisis, routinely described as scandalous.Public defender offices around the country facecrushing caseloads that necessarily compromisethe quality of the legal representation they pro-vide. The inadequacy of existing methods for serv-ing the indigent is widely acknowledged, and Pres-ident Obama has recently taken steps to give theproblem a higher priority on the national agenda.

Proposals for improvement commonly stressthe need for more resources and, somewhat lessoften, the importance of giving indigent defenseproviders legal independence from the govern-ment that funds them. Yet virtually every sugges-tion for reform takes for granted the feature ofthe current American system that is most prob-lematic and least defensiblethe fact that theindigent defendant is never permitted to selectthe attorney who will represent him.

The uniform refusal of American jurisdictionsto allow freedom of choice in indigent defense cre-

ates the conditions for a double disaster. In viola-tion of free-market principles that are honoredalmost everywhere else, the person who has themost at stake is allowed no say in choosing theprofessional who will provide him one of the mostimportant services he will ever need. The situationis comparable to what would occur if senior citi-

zens suffering from serious illness could receivetreatment under Medicare only if they accepted aparticular doctor designated by a governmentbureaucrat. In fact, the situation of the indigentdefendant is far worse, because the governmentsrefusal to honor the defendants own preferencesis compounded by an acute conflict of interest:the official who selects his defense attorney is tied,directly or indirectly, to the same authority that is

seeking to convict the defendant.We see this situation as the source of grave

problems. As a corrective, we propose a free mar-ket for defense services, one that would, so far aspossible, function in the same way that the exist-ing market functions for affluent defendantswho are able to retain their own counsel. Thoughwe do not doubt the importance of resource lev-els, we see budgetary vulnerability and implicitconflicts of interest as inherent in any systemwhere the defendants attorney is chosen for himby the state. We seek to show that at any level of

resources, freedom of choice for the indigentdefendant can produce gains for both himselfand for the public at large. We also discuss indetail how such a system could be implementedand why it can be expected to provide a practicaland effective cure for many of the major ills ofindigent defense organization.

Reforming Indigent DefenseHow Free Market Principles Can Help to

Fix a Broken System

by Stephen J. Schulhofer and David D. Friedman

_____________________________________________________________________________________________________

Stephen J. Schulhofer is the Robert B. McKay professor of law at New York University School of Law. David D.Friedman is a professor of law at Santa Clara University School of Law.

Executive Summary

No. 666 September 1, 2010


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Introduction

Most citizens would consider it shocking-ly unethical for an attorney representing one

side in a lawsuit to be selected or paid, evenindirectly, by the opposing party. Yet thisgross impropriety occurs daily in this coun-try on a massive scale. In criminal cases, thegreat majority of defense attorneys are paiddirectly or indirectly by the prosecuting par-tythe state.

The great majority of people arrested andprosecuted are indigent, and the SupremeCourt has ruled that the government has aconstitutional obligation to provide lawyersfor people who cannot afford to hire their

own.1

To meet this constitutional obligation,three basic defender systems have emerged injurisdictions around the country. First, pub-lic defender organizations are staffed by gov-ernment attorneys who represent virtually allthe indigents in the jurisdiction. Second,some cities and counties have made contrac-tual arrangements with individual attorneysor private law firms to handle indigent casesfor a fixed fee. Third, still other jurisdictionsuse assigned counsel programs. That is, private attorneys are appointed on a case-by-

case basis for indigent defendants.The danger of a publicly funded defense

should be obvious: the decisions of the attor-ney are bound to be affected by the desires ofhis employer. That is true for public defend-ers and assigned counsel in criminal casesjust as it is for private attorneys in civil cases.While the lawyers and those who assign themto casesjudges, government officials, or pri-vate firms contracting with governmentareno doubt interested in preventing convictionof the innocent, they are less strongly com-

mitted to that objective than are innocentdefendants. And they are likely to have otherobjectives, such as getting criminals off thestreets and reducing court backlog, that con-flict with that goal.2

If attorneys for the indigent are to be paidat all, they must be paid by someone otherthan their clients. The resulting conflict of

interest is clearly undesirable, but how can itbe prevented? This paper proposes what webelieve is a realistic answer to that questionand explores ways in which it might be imple-mented.

The problem is by no means merely theo-retical. Authorities of all stripes routinely con-clude that our criminal defense systems arescandalous.3As one expert noted, year afteryear, in study after study, observers findremarkably poor defense lawyering.4 In oneTennessee county, for example, the publicdefender office had six attorneys handle morethan 10,000 misdemeanor cases in a singleyear.5An average of one attorney-hour per caseis plainly wrong and unacceptable. To avoidthe risk of malpractice charges, public defend-

ers in Missouri started to refuse case assign-ments after their individual caseload exceeded395 cases a year.6 They note that there is sim-ply insufficient time to prepare an adequatedefense, which requires time to investigate thecase, to interview the client and witnesses, andto scrutinize the prosecutors evidence. Even aswe write, New Yorks highest court has given agreen light to a class-action lawsuit allegingthat the states provision of indigent defensefails to meet constitutional requirements.7

The grave inadequacy of existing systems for

serving the indigent is widely acknowledgedand widely discussed.8 In an effort to give indi-gent defense reform a higher priority on thenational agenda, President Obama recentlyappointed Laurence Tribe, one of Americasleading constitutional law scholars, to a posi-tion in the Justice Department as a seniorcounselor for access to justice.9

Our proposed solution differs in two funda-mental respects from other proposals forreform of indigent defense.10 First, although weare aware of the importance of resource levels,

our approach largely takes as a given theresources allocated by prior political decision toindigent defense. We seek to show that at anylevel of resources, reorganization of an indigentdefense system can produce gains for both thecriminal defendant and society as a whole.

The second difference is the most basicWe do not take as our paradigm a large

2

The greatmajority of

people arrestedand prosecuted

are indigent.


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defender organization providing the lionsshare of indigent defense services for a city orcounty, and do not focus on efforts (desirablethough they may be) to write charters thatattempt to guarantee such organizations legal

independence from the government thatfunds them.11 Nor do we see any intrinsicadvantage in the principal current alterna-tivethe system in which judges or courtadministrators assign to the defendant anattorney selected from the private bar. We seebudgetary vulnerability and implicit conflictsof interest as inherent in both the largedefender model and any other system wherethe defendants attorney is chosen for him bythe state. Our alternative is a free market fordefense services, one that would, so far as pos-

sible, function in the same way that the exist-ing market functions for affluent defendantswho are able to retain their own counsel.

Indigent defense plays a small role in thebudgets of the governments that fund it but avery large role in the lives of indigent defen-dants. And of all the services that governmentsprovide to the poor, it is arguably the one mostdefensible on libertarian (as well as other)grounds.12Judicial proceedings, including theopportunity to present a defense, are an intrin-sic part of a broader service that government

provides to the public as a wholelaw enforce-ment and social protection. It is not proposedto leave that broader service to the private sec-tor; that service is one of governments mostbasic tasks and indeed is typically seen as theprimary raison dtre of the state. Within thatframework, government support for defenseof the indigent becomes essential, since with-out it the legal system is likely to engage inmassive violations of individual rights by con-victing defendants who lack the resources tomount an effective defense and punishing

them for crimes they did not commit. Such asystem is also likely to deliver its social protec-tion services poorly by incapacitating thewrong people. A government that routinelyconvicts the innocent is failing in one of itsmost fundamental functions. The state usesthe effort of the defense attorney as an inputto the production of verdicts, and it is there-

fore both just and efficient for the governmentto pay its cost.13

The first section of this paper analyzes thestructure of the attorney-client relationshipand identifies the problems that contractual

or institutional arrangements must seek tominimize. The second section describes exist-ing methods for the delivery of indigentdefense services and assesses their ability toaddress these problems. The third and finalsection describes and defends our alternative,a voucher model for indigent criminal defense.We believe that a voucher model would pro-vide a practical and effective cure for many ofthe major ills of indigent defense organiza-tion, to the ultimate benefit of both defen-dants and the public at large.

Goals and Problems inthe Attorney-Client

Relationship

People who are accused of crimes are inter-ested in winning acquittal or, if that fails, thelowest possible sentence, and in achievingthese goals at the lowest possible cost.Criminal defendants facing substantialprison terms will spend large sums to pro-

duce even small increases in the chance ofacquittal, but at some point diminishingreturns presumably prompt most defendantsto economize on the expenditure of their ownor their familys resources. Conversely, defen-dants of moderate means may run out offunds while a potentially productive defenseeffort remains unfinished; they may regret theinadequacy of their available savings.

Criminal lawyers, whether assigned to indi-gent defendants or retained by affluent ones,must make hard choicesincluding decisions

about how much work to do (whether toinvestigate factual leads, research legal issues,and file particular legal motions in court) andabout what advice to render in matters ofjudgment (whether to recommend accepting aproposed settlement, holding out for a betteroffer, or going to trial in hopes of an acquittal).For all of these decisions, the lawyers personal

3

Indigent defenseplays a small rolin the budgetsof governmentsbut a very largerole in the livesof indigentdefendants.


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interest may diverge from that of his client.14

In the case of retained counsel, as opposed topublic defenders, the problem is mitigated bythe fact that the lawyer must attract and keepclients, and will do so by creating and main-

taining a reputation for serving their interestseven when they conflict with his own. Theindigent defendant has no such protection.His counsel is chosen not by him but by thecourt, the public defenders office, or some private organization which contracts with thegovernment to provide attorneys for the indi-gent. If the attorney wishes future cases, hemust indeed maintain his reputationbutwith those who provide him with business,not with potential defendants.

The attorney-client relationship thus poses

three sorts of problemsthose involvingincentives for the attorney to act in his clientsinterest (incentive problems), the need forinformation about the quality and loyalty ofalternative providers of defense services (infor-mation problems), and protection against therisk of unanticipated need for criminal de-fense services (insurance problems).

Incentive ProblemsIf the lawyers fee is based on an hourly rate

set at a figure that is low, relative to the

lawyers other opportunities, or if the totalresources available for the case are too meager,attorneys may forego useful investigationsand may avoid trial even when there are goodchances for acquittal. If hourly fees are toogenerous and the available resources areunlimited, attorneys may pursue expensiveand unproductive investigations or hold outhopes for acquittal at trial when a guilty pleawould better serve the clients interest.15 This isa problem for the client if he is paying the bills,and a problem for taxpayers when, as in the

case of an indigent defendant, the public is.As in any situation in which the choices of

a buyer and seller are supported by a third-party payer with imperfect monitoring capa-bilities, expenditure is likely to skyrocket.Health care has been the classic case in point.Where the attorney is chosen and selected bythe state, a further incentive problem arises,

since it is the state and not the client that thelawyer must satisfy if he wishes futureemployment.

Information Problems

In order for anyonejudge, state govern-ment, or defendantto choose the best pro-vider of defense services, he must have infor-mation on what will be provided. This is aparticularly serious problem for the defen-dant, since he may have had little previousexperience with the criminal justice system.The poor may be especially disadvantaged inthis regard, since they generally have less accessto lawyers and other sources of informationabout professional competence. On the otherhand, because the poor are disproportionately

represented among those accused of seriouscrime, an indigent defendant is more likelythan a middle-class defendant to have facedcharges before or to know someone who has.16

The information problem is less serious ifthe attorney is chosen by a judge or othercourt official, by a public defender allocatingcases to lawyers under him or by a state agencycontracting with an independent provider ofdefense services. Here the incentive and infor-mation problems are in tension. The defen-dant has the incentive to choose a vigorous,

effective advocate but may lack the informa-tion to do so. A public official who chooses forthe defendant is likely to have better informa-tion but a weaker incentive to make the bestchoice. The official, appraising an attorneysability from the standpoint of the court sys-tem, has incentives to value cooperativeness, adisinclination to work long hours, and otherqualities that might not win favor with defen-dants themselves. Providers may end up beingselected according to how well they serve thecourt system, not how well they serve defen-

dants.

Insurance ProblemsPotential criminal defendantswhich is to

say, all of usface the risk of having to incurthe very high cost of an effective criminaldefense. Being accused of crime is not whollydissimilar to catching a potentially incapaci-

4

Attorneys for theindigent may be

selected accordingto how well they

serve the courtsystem, not how

well they servedefendants.


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tating or fatal disease. Attempts to combat theproblem can be enormously expensive and, inthe end, may or may not prove successful. Alarge share of personal and family resourcesmay be consumed in the effort. Not surpris-

ingly, health insurance to spread the financialrisks of catastrophic disease is widely availablethrough the market. Yet insurance against thefinancial risks of becoming a criminal defen-dant is not.17 One function of a public defend-er system is to provide a substitute for thenonexistent insurance. Public funds are avail-able only to the indigent. But middle-class oreven wealthy individuals can be rendered indi-gent by the costs of defending against a seriouscriminal charge. When the affluent defendantruns out of funds, he can qualify for appoint-

ed counsel, either to complete his defense atthe trial level or to pursue an appeal. The eco-nomic effect is comparable to that of an insur-ance policy with a very high deductible.

In considering how different institutionsperform the insurance function, we find it use-ful to distinguish between two sorts of uncer-tainty: uncertainty as to whether someone willbe arrested (and on what charge); and uncer-tainty as to how complex the case will be.

The second sort of uncertainty requires fur-ther explanation. By a complex case, we mean

one in which additional expenditures ondefense provide substantial benefits to thedefendant up to a high level of expenditure. Asimple case is one in which additional expen-ditures above a fairly low level produce, atmost, small benefits for the defendant. Simplecases include both those in which the prosecu-tions case is so weak that defense expendi-tures are almost unnecessary and those inwhich it is so strong that defense expendituresare almost useless.18

It is useful to further distinguish between

two sorts of uncertainty regarding the com-plexity of the case. They are uncertainty thatcan be resolved before the attorney is chosen,and uncertainty that can be resolved onlyafter the attorney begins work.

The various kinds of uncertainties affectthe relative advantages and incentive prob-lems of different kinds of payouts that an

insurance program might afford. Three basicpayout methods may be distinguished: lump-sum payments, variable (fee-for-service) pay-ments, and in-kind payments.

In the lump-sum payment approach, the

insurance policy pays a fixed amount or, morecommonly, one of several fixed payouts,depending on which of several risks (i.e., whatsort of criminal charge) materializes. Lump-sum payments are common in disability insur-ance. The lump-sum system is also commonin indigent defense; as we shall see, many juris-dictions pay appointed counsel a flat fee percase, with different amounts often specifiedfor misdemeanor, felony, and capital cases.

Variable (fee-for-service) payouts are proba-bly the most common form of health insur-

ance coverage, and this system is also used inindigent defense; some jurisdictions compen-sate appointed counsel on an hourly basis forall reasonable effort both in and out of court.Fee-for-service payouts also exist in some com-mercial insurance policies for reimbursingcounsel fees incurred in defending against civ-il claims.

In-kind payouts are the predominantform of coverage in health insurance provid-ed by the Veterans Administration andHealth Maintenance Organizations (HMOs),

and in pre-paid legal service plans availablethrough unions or employers.19 In commer-cial insurance against civil liability, the insur-er typically undertakes to defend against anycovered claim, using its in-house legal staff orselecting outside counsel at its sole expense.The in-kind payment system is also the dom-inant form of criminal defense insurance injurisdictions that rely on a public defender.

Variable payouts present large incentiveproblems. The insured and the service pro-vider have only weak inducements to control

costs, and monitoring by the insurer may notbe fully effective, as escalating health care costshave made clear. Lump-sum payments avoidthe monitoring problem for the insurer (at thecost of possible overpayment on some claims)but leave the beneficiary self-insured for therisk that providers will be unwilling to take onhis case because they readily identify it as an

5

Insurance againsthe financial riskof becoming acriminal

defendant is notavailable througthe market.


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exceptionally complex one that cannot betreated for the lump-sum fee.

The problem is different when a complexcase cannot be identified as such before a serviceprovider accepts it. In that instance the lump-

sum may be adequate to induce a doctor orlawyer to commit to providing the necessaryservices. The risk of unforeseen complexity thenshifts to the service provider, but because thelump-sum fee affects his incentives, the moni-toring problem is transformed. Surveillance,directly or through reputation, is no longer nec-essary to prevent excessive provider services (asin the fee-for-service model) but is now requiredto ensure that services are sufficient, and theresponsibility for monitoring shifts from theinsurer to the insured.

Unlike lump-sum payments, in-kind pay-outs protect the insured against the risk ofcomplexity that a service provider could detectat the outset. Their disadvantage is the same asthat which the insured faces under a lump-sum payment when complexity is initially dis-guised. The service provider bears the risk ofexceptional complexity, but monitoring by theinsured is essential to ensure that adequateservice is provided.

The different mix of advantages and draw-backs in each payout method helps explain

why all three approaches are found in mostforms of insurance for legal and medical ser-vices. Lump-sum, variable, and in-kind payoutpackages coexist in the market, and the insuredcan select the payout system that best suits hissituation. In one respect, however, indigentcriminal defense is an exception. As we shall seein the next section, lump-sum, variable, and in-kind approaches are all important forms ofindigent defense insurance, but neitherbefore nor after the risk (the criminal charge)materializes is the person in need of services

(the indigent accused) permitted to select thepackage that best meets his own needs.

The Present System

A series of Supreme Court decisions man-date publicly funded defense for indigent

criminal defendants, but not the institutionalform of that defense.20 As previously notedexisting methods are of three basic types: pub-lic defender programs, contract defense pro-grams, and assigned counsel programs. In this

section we consider the extent to which theseapproaches successfully address the problemsof incentives, information, and insurance.

Public Defender ProgramsIn a public defender program, an organiza-

tion staffed by full-time or part-time attor-neys represents nearly all indigent defendantsin the jurisdiction.21 In most jurisdictions, thedefender organization is an agency of the ex-ecutive branch of state or county government,and in more than half the others, the public

defender is an agency of the judiciary.22

Aminority, roughly 1015 percent of the de-fender offices, are organized by private non-profit corporations, which perform the de-fender function under contract with the cityor county.23

Although all defender systems are fundeddirectly or indirectly by the government, thereare significant differences in the governmentsformal control. Usually county officials ap-point the chief defender, but in some places heis appointed by a bar association committee,

by judges, or in the case of a communitydefender, by the board of the nonprofit corpo-ration. Public defenders are elected in Floridaand in parts of California, Nebraska, andTennessee.24 Election of the defender guaran-tees his independence from county govern-ment and the court, but at the cost of account-ability to voters who may not regard acquittalor early release of criminal defendants as espe-cially desirable.25

The various selection methods do not pre-clude appointment of chief defenders who will

guard the independence and resource needs oftheir offices. Nearly all defenders are philo-sophically committed to protecting the indi-gent. Some have aggressively challenged defec-tive arrangements by declining to accept newcases or suing the court system for inadequatefinancial support.26 Defender staffs havesometimes gone on strike to protest excessive

6

Nearly all publicdefenders are

philosophicallycommitted to

protecting theindigent.


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caseloads, which the lawyers felt were forcingthem to render inadequate service.27 Still,most chief defenders temper their zeal withpragmatic instincts for bureaucratic survival;if they did not, they could not keep their jobs.28

Thus, for most defenders, most of the time,accommodation to the case management andbudgetary priorities of the court and countygovernment is a fact of life.29And as a result,the great majority of defender systems areunderstaffed and underfunded; they cannotprovide their clients with even the basic ser-vices that a nonindigent defendant would con-sider essential for a minimally tolerabledefense.30

As a solution to the problems of incentives,information, and insurance considered above,

the defender approach is plausible but imper-fect. The information effects are straightfor-ward. Subject to his budget constraints, thechief defender can hire the best attorneys pos-sible and can know their abilities firsthandbefore assigning them to cases. He is probablymore able than the defendant to select the bestattorney for the case, at least if the meaning ofbest is unambiguous. But if the chief defend-er values attorneys for their ability to resolvecases quickly and to persuade reluctant defen-dants to plead guilty, the accused might be

better off making his own, poorly informed,choice. This problem is not lost on the sup-posedly unsophisticated defendants whomthe public defender ostensibly protects fromexploitation in the market. Indigents com-monly mistrust the public defender assignedto them and view him as part of the samecourt bureaucracy that is processing andconvicting them. The lack of trust is a majorobstacle to establishing an effective attorney-client relationship. The problem was capturedin a sad exchange between a social science

researcher and a prisoner: Did you have alawyer when you went to court? No. I had apublic defender.31

The twin incentive problems are to ensurethat defenders do not slight the clients inter-est in adequate service or the taxpayers inter-est in controlling costs. The latter concern ismet directly by government power to fix the

defender budget and its control or influenceover the choice of the chief defender. The chiefdefender, in turn, may lobby for moreresources (just as the district attorney might),but once the appropriation is determined, he

will be forced to insist that his staff allocatetime and resources carefully to provide thebest possible service to the clientele as a whole,within the limits of budget constraints.

The other incentive concern is more prob-lematic. One might ask why the defender orhis staff would bother to do anythingfor theirclients, beyond the minimal effort requiredto avoid professional discipline. One answeris personal pride and a commitment to pro-fessional values. Many defender offices devel-op an esprit de corps, in which they view

acquittals as victories and severe sentences asdefeats in a continuing competition with theprosecutors office.

To the extent that idealistic motivations areoperative, the defender approach provides adistinctive way to reconcile the twin incentiveproblems. When government controls com-pensation case-by-case, as in the assignedcounsel systems considered below, its need toprevent excessive service is, at every step, indirect tension with the defendants need toensure adequate service. In the defender

approach, the state exercises its cost controlfunction wholesale, leaving the monitoringfunction at the retail level to the chiefdefender and other supervisors in his office.Their annual budget leaves them (like theprosecutors) the flexibility to invest enormousresources in a particular case if their sense ofjustice requires it, free of the chilling effect ofcase-by-case external review. But even whenmediated in this way, the cost-control func-tion constrains the management of nearly allcases nearly all of the time. The annual bottom

line may even create a more powerful and per-vasive cost-control ethos than would exist fora private attorney who had to justify a singleclaim for fees in an individual case.

Considerations of narrower self-interestmay join with idealism in providing incentivesfor adequate service. To win the esteem of col-leagues, adversaries, and judges, and to pave

7

The lack of trustwas captured in sad exchangebetween a socialscience researche

and a prisoner:Did you have alawyer when youwent to court?No. I had apublic defender.


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the way for subsequent career moves, the staffattorney needs a reputation for vigor andeffectiveness.32 The reputation effect canoperate powerfully at trial but is unlikely toconstrain an attorneys low-visibility decision

to recommend a time-saving plea.

33

The repu-tation effect may even distort his advice byinducing him to recommend trial in a casethat would be a good vehicle or to plead outsome defendants in order to permit betterpreparation in high-visibility cases. In anyevent, self-interested reasons for effective per-formance, as reinforced by idealism and officeesprit de corps, must compete with office atti-tudes that run in the opposite directionthatof restraining costs and cooperating in thecourts desire to move cases. The adversarial

attorney thus maylose collegial esteem or thechief defenders approval as a result of vigor-ous efforts. In one highly publicized case, theAtlanta public defender demoted a staff attor-ney because she had filed a motion asking thelocal judges to appoint her to no more thansix cases per day.34

The insurance problems are a function ofthe incentive issues just canvassed. Like anyinsurer that provides an in-kind payout, thedefender has in-house control to preventexcessive effort, but it bears the risk of

unforeseen complexity, and the insured (theaccused) must monitor performance to pre-vent shortcuts and inadequate service. In onerespect the criminal defendant is betterplaced to control counsels effort because thedecision whether to settle is legally his aloneto make; the insured defendant in civil litiga-tion often has no such protection. On theother hand, the criminal defendant has lesscapacity to assess litigation risks than manycivil defendants, usually hospitals or manu-facturers, with their own legal staffs.

An alternative possibility for monitoring isthe after-the-fact suit for malpractice or consti-tutionally ineffective assistance, roughly analo-gous to the civil defendants suit for an insur-ers wrongful refusal to settle.35 But themalpractice suit is virtually a nonexistent rem-edy for the criminal defendant.36An ineffectiveassistance claim is almost equally improbable

as a monitoring device. First, many departuresfrom fully adequate service do not rise to thelevel of constitutionally ineffective assistanceThe constitutional standard is low, and whatthe defendant wants to ensure is not just a

minimally adequate effort, but the effort thatan attorney with the right incentives wouldprovide. In addition, the severe penalties thatcan follow conviction at trial mean that anattorneys recommendation to plead guilty canalmost never be proved unreasonable, howevermuch it may be influenced, consciously or sub-consciously, by resource constraints.37 Finallyineffective assistance claims can often bebrought only in post-conviction proceedings,and such claims must be brought in a post-conviction proceeding when conviction is on a

guilty plea; thus the defendants only tool formonitoring is one he must invoke without aconstitutional right to professional help.38

The weakness of available incentives toensure adequate services and the absence ofeffective after-the-fact monitoring leave thepublic defender as a highly flawed solution tothe incentive, information, and insuranceproblems. Although idealism undoubtedlymotivates many defenders to seek the best out-come for their clients, the system as a whole isdriven by political goals that often conflict

with that objective. A court system troubled byfull dockets and high crime rates may welldecide that lawyers with an idealistic commit-ment to getting their clients acquitted, astrong aversion to guilty pleas, or a determina-tion to ensure the lowest possible sentencesare not the lawyers it wishes to put in charge ofindigent defense.

Contract Defense ProgramsIn a contract defense program, individual

attorneys, bar associations, or private law

firms agree to handle a specified volume ofindigent defense cases for a specified fee.39

Although a contract defender could, in theory,devote all his time to indigent defense work,contract defenders invariably maintain a sub-stantial private practice. Unlike the publicdefender, a contract defender normally han-dles only a part of the jurisdictions indigent

8

Althoughidealism

motivates manypublic defenders

to seek the bestoutcome for theirclients, the system

as a whole isdriven by political

goals that oftenconflict with that

objective.


9/24

defense caseload, and counties that use thisapproach may have several independent attor-neys or firms under contract. Contract defend-er programs are becoming more popular, butnationally only about 10 percent of all coun-

ties use this type of program as their primarysystem for delivering indigent defense ser-vices.40 Many others, however, use the contractmethod as their back-up system for cases thatthe public defender cannot accept.

Two types of contracts are common. In theglobal fee approach, the contract defenderagrees to accept all cases of a certain typeforexample, all felonies or all juvenile casesfor asingle annual retainer. Many county officialsprefer this approach because it keeps the indi-gent defense budget predictable and puts a

cap on total expenses. That leaves the contractdefender with the risk of unforeseen increasesin caseload. In effect, he is selling the countynot only legal services but insurance. Com-pared to the county government, the contractdefender has much less ability to control thecourts caseload, which is largely a function ofthe district attorneys charging discretion. Yet,about a third of all contract programs takethis form.41

Information, incentive, and insurance prob-lems arising in contract-defense programs

largely parallel those in the public defender ser-vice. As in a public-defender program, the ac-cused bears the burden of monitoring, andeffective tools for carrying out this function arelargely absent.

The information problem in a contract sys-tem arises in two stages: officials must awardcontracts to attorneys and then assign individ-ual cases to one of the previously designatedcontract recipients. Often the first decision ismade by county government and the seconddecision is made by a court administrator. At

both stages, officials are in a good position toevaluate attorney competence. Indeed, com-petitive bidding focused on quality of serviceoffers a powerful vehicle for ascertaining whatqualifications and support services are avail-able through competing providers.42 Andcompared to some assigned-counsel programsdiscussed below, there is more prospect that

officials will use their superior knowledge tochoose the best available defender, because thecountys defense costs are not affected by thechoices madeat least when the contract priceis fixed in advance and excluded from negotia-

tion or competitive bidding. There is one qual-ification, however. Although defense costs areindependent of which attorneys are selected,total court costs are not. Thus, officials mighthesitate to choose attorneys known for filingmany motions, driving hard bargains, orinsisting on trials, even if the lawyers are pro-viding these services at no extra charge.

Contract programs, like public-defenderprograms, address only one side of the incen-tive problem. Because fees are fixed, either percase or per annum, attorneys have a powerful

incentive to avoid unnecessary service, but thereare few direct incentives for adequate service.Indeed, fixed-fee contracts give the attorney apowerful disincentive to invest time andresources in his indigent cases. Public defend-ers may cut costs on some cases to free upresources for others, but they cannot takehome unspent cash at the end of the year. Thecontract defender, in contrast, is in businessfor a profit. Money saved on defending onecase need not be spent on another; it may sim-ply enlarge the Christmas bonus. Perhaps

worse, time saved in handling indigent cases isfreed up for more lucrative business, and abusy attorney is unlikely to turn away payingclients when he has the alternative of cuttinglow-visibility corners in his indigent case com-mitments. These dangers are intrinsic to allcontract-defender programs and have pro-duced seriously deficient service in many.43

As a result, the contract system is seriouslyflawed. The existence of competing serviceproviders in the contract system should beadvantageous, but the potential benefits are

lost because court officials, rather than clients,control the flow of cases to the attorneys.

Assigned-Counsel ProgramsIn an assigned-counsel program, a member

of the private bar is appointed on a case-by-case basis for each criminal defendant. About20 percent of American counties use assigned

9

The existence ofcompeting servicproviders in thecontract systemshould beadvantageous,but the potentialbenefits are lostbecause court

officials, ratherthan clients,control the flowof cases to theattorneys.


10/24

counsel as their sole method of ensuring indi-gent defense, and most others rely on assignedcounsel for cases in which public and contractdefenders are disqualified or unavailable.44

The judge responsible for the case, or

another court official, usually makes theassignment decision. Sometimes the selec-tion system is entirely informal, and appoint-ments are distributed ad hoc to attorneys the judge knows or to those who happen to bepresent in court. More typically, the assignedattorney is chosen from a list established inadvance by the court, the local bar associa-tion, or by each judge for his own cases. Thechoice may be determined by a formal rota-tion plan, or it may be less systematic. Allmembers of the bar may be eligible for the

list, or there may be a few simple prerequi-sites, such as a certain number of years ofexperience. Some of the assigned-counseljurisdictions have more elaborate systems toscreen applicants for inclusion on the list andmonitor their performance.45

Nearly all courts have authority to appointan unwilling attorney, and such a power isprobably an essential backup for cases thatinvolve extensive conflicts of interest or anextraordinarily unpopular defendant. But inmany jurisdictions, conscription of unwilling

attorneys is a routine feature of the assign-ment system; alleligible attorneys are includedon the list, and they are obligated to servewhen called.46

A variety of compensation systems are usedin assigned-counsel programs. In some, attor-neys receive a flat fee per case or per appear-ance, usually with different amounts specifiedfor juvenile cases, misdemeanors, and felonies.Other jurisdictions pay on an hourly basis,often with one rate for time spent in court anda somewhat lower rate for time spent in prepa-

ration.Hourly rates vary from low in some juris-

dictions to derisory in others. A June 2007survey found many jurisdictions still payingonly $40 or $50 per hour,47 rates that areinadequate even to meet the attorneys officeoverhead.48 Low rates are not exclusive toSouthern or mainly rural states. Hourly rates

for out-of-court time stand at $65 forConnecticut, $50 for Massachusetts and NewJersey, and $40 for Oregon and Wisconsin.49

The low caps imposed in the 1980s50 havebeen raised considerably.51 But as of June 2007,

the maximum fee for a non-capital felony wasstill only $650 in New Mexico, $1,250 inIllinois, $1,500 in Tennessee and Kentucky,and only $500 in one county of Oklahoma.52

In Virginia, the maximum is $445 for feloniescarrying a sentence of up to 20 years, and forfelonies punishable by sentences over 20 yearsit is a mere $1,235enough to fund less thantwo days work at the authorized rate of $90dollars per hour. Some jurisdictions regardindigent defense as a pro bono obligation,and appointed counsel, usually conscripts,

receive no compensation at all.53

Although theno-compensation approach is exceptional, flatfees or fee caps are so low in many jurisdictionsthat hourly compensation in cases that go totrial is virtually nil.

In terms of the information, incentive,and insurance problems we have canvassed,assigned counsel programs pose numerousobvious problems. Judges and court officialswho select counsel can obtain good informa-tion about attorney effectiveness, but theyhave little incentive to acquire such informa-

tion, and even less reason to act upon itTheir own interests are best served by assign-ing an attorney known to be cooperativerather than aggressively adversarial.54

With respect to the attorney himself, thegoal for society as a whole is to induce suffi-cient, but not excessive, effort. Low hourlyrates, low fee caps, and mandatory pro bonoservice nicely solve the latter half of the prob-lem but leave the assigned attorney with pow-erful reasons to minimize the time and effortdevoted to the case. The more generous

statesa small minorityface different prob-lems. Hourly rates close to market levels andan absence of fee caps give the right incentivesfor adequate service, but they risk unnecessaryattorney effort and excessive cost. Most ofthese more generous jurisdictions rely on rep-utation effects, along with case-by-case reviewof attorney fee submissions, to provide cost-

10

A June 2007survey

found manyjurisdictions

still paying only$40 or $50 perhour, which is

inadequateto meet an

attorneys officeoverhead.


11/24

control incentives, but monitoring of this sortis expensive and not always successful.55

Monitoring may fail for another reasonwhen that responsibility falls to an electedjudge, who may benefit less from controlling

costs than from encouraging campaign con-tributions from attorneys who receive well-compensated appointments. In Harris County(Houston) Texas, where all indigent defense issupplied by counsel selected and monitoredby an elected judiciary, some attorneys haveearned over $300,000 a year from an indigentdefense practice in which they enter guiltypleas for large numbers of assigned clientswith whom they have minimal contact.56Andeven if not abused, a program of compensa-tion at near-market rates puts unpredictable

budget demands on the county and tends tocost more than specialized contract defendersor a public defender.57

In terms of insurance problems, the com-pensation structure is crucial. If fees are paid atnear-market levels, the county is, in effect, self-insured for both the risk of unusual case com-plexity and the risk of unforeseen increases incase volume. The defendant escapes most ofthe need to monitor the adequacy of service, ifhe can assume that the assigned attorney hasno motivation to cut costs. But the county has

an intense need to prevent excessive costs. Andsince the county may meet that need by assign-ing attorneys predisposed to be cooperative,the defendant still needsbut largely lackssome vehicle for effectively monitoring theadequacy of service. In fixed-fee and low-capsystems, the county still bears the risk of unex-pected increases in case volume, but theassigned attorney now bears the risk of unusu-al case complexity, and the burden of moni-toring now falls entirely on the party least ableeffectively to protect his intereststhe indi-

gent accused.

The Free Market Alternative:Defense Vouchers

Existing systems resolve, with varyingdegrees of success, the incentive, informa-

tion, and insurance problems presented forthe state, but in all three areas, the indigentdefendant is left largely unprotected. Thereare few reliable mechanisms to ensure thatattorneys for the indigent vigorously protect

their clients interests when those clash withthe interests of the attorneys themselves,with those of the court system, or with thoseof the government that pays their fees. Beforedescribing an institutional alternative, we canhelp focus the issues by describing three gen-eral tools for solving the client loyalty prob-lem, which is the central difficulty each ap-proach must address.

One such tool is to rely on incentives oth-er than individual or institutional self-interest, in particular the attorneys personal

pride, professional ethics, and idealistic com-mitment to helping the accused.58 This is thesolution implicit in all existing institutions.Its power is not negligible, but for reasonsalready discussed, we believe it is by itself aninadequate counterweight to strong organi-zational and financial pressures that push inother directions. A West Virginia courtexplained the point with irrefutable force:

We have a high opinion of the dedica-tion, generosity, and selflessness of this

States lawyers. But, at the same time, weconclude that it is unrealistic to expectall appointed counsel with office bills topay and families to support to remaininsulated from the economic reality oflosing money each hour they work. It iscounter-intuitive to expect that ap-pointed counsel will be unaffected bythe fact that after expending 50 hourson a case they are working for free.Inevitably, economic pressure must ad- versely affect the manner in which at

least some cases are conducted.59

While one wants to be sure that institu-tional reforms do not impair the valuablerole of personal and professional ideals, thereis a need to supplement idealism with con-crete inducements and to diminish the pow-er of countervailing pressures.

11

There is a needto supplementidealism withconcrete

inducements.


12/24

A second solution is to use direct incen-tives to align the interests of defense counselmore closely with those of the defendants.This could be done, within a system in whichthe state selects defense counsel, by making

reimbursement in part conditional on theoutcome of the case, with outcomes morefavorable to the defense resulting in morecompensation. But there are at least two prob-lems with this solutionthe incentives andthe knowledge of those running the pro-gram.60 We want direct incentives because wesuspect that the governments interest is inconflict with that of the defendant; setting upa system of discretionary rewards controlledby the state would have a certain air of hiringthe fox to guard the chicken coop. Those in

charge of administering such a reform coulddefeat its purpose by writing rules thatrewarded the most cooperative lawyers ratherthan the most effective ones.

Even if the system were run with the inten-tion of serving poor defendants as well as pos-sible, those in charge might not have the infor-mation necessary to do so. This is a commonproblem in institutions that substitute admin-istrative rules for market incentives. How adefendant would wish his counsel to trade offthe costs and benefits of different strategies is

a complicated issue, especially in decidingwhether to accept a particular plea offer. Anyadministrative rule setting the reward as afunction of the outcome will represent only acrude approximation of the correct incentives.What we want, after all, is not to reward attor-neys either for persuading their clients toaccept plea bargains or for persuading theirclients not to accept them, but to reward attor-neys for persuading their clients to acceptdesirable bargains and reject undesirableonesnot an easy thing to measure.

A third solution, and the one we propose,is to transfer the power to select the attorneyfrom the court system to the defendant. So faras his own interests are concerned, the defen-dant has precisely the correct incentives. Ifavailable information is good enough to allowa defendant to appraise alternative providersof defense services, such a system solves the

clients problem. Even if the defendant cannotjudge perfectly among alternative counsel, atleast the decision will be made by someonewith an interest in making it correctly; con-sumer sovereignty is, despite imperfect infor-

mation, the mechanism that most of us usemost of the time to control the quality of thegoods and services we buy. And, insofar asjudges or others within the court system haverelevant expert knowledge, they can alwaysmake it available to defendantsas adviceoffered to them rather than choices imposedupon them.

One can imagine a range of reforms offer-ing more freedom of choice to indigent defen-dants. We will designate as a voucher modelany system in which lawyers who serve the

poor have freedom to organize their practiceas individuals or firms, with or without spe-cialization, and to compete for the business ofindigent clients. The voucher would be theguarantee of state payment that the accusedcan take with him to any individual or groupprovider of criminal defense services.

Because government would not control theorganizational form employed by indigent de-fense providers, a number of different ap-proaches would be likely to materializesololawyers, small groups of practitioners, and

larger firms. Providers would vary not only bysize but by kind of practice, just as they cur-rently do in most areas of legal work. Somemight be generalists who occasionally take acriminal case. Most would probably be special-istsin litigation, in criminal practice, or evenin a particular kind of criminal practice, suchas drunk-driving cases or major felonies. Thesevariations already exist among those who rep-resent nonindigent defendants; the large clientpool created by a voucher system would per-mit further specialization. We expect that

most criminal defense specialists, whetherindividuals or firms, would serve both poorand affluent clients, though some might spe-cialize in serving the indigent.61 Finally, wewould not exclude the possibility of a govern-ment-run staff of salaried public defenders,financed by vouchers collected from clients. Apublic defender of this sort would not com-

12

Consumersovereignty is the

mechanism thatmost of us useto control thequality of the

goods andservices we buy.


13/24

promise the value of a voucher system, provid-ed that defendants remained free to reject thepublic option and that private service pro-viders accordingly emerged as alternatives.

We hypothesize that this proliferation of

possibilities for the indigent defendant wouldprovide a much needed spur for innovation,effectiveness, and loyalty to client interests.The principal risk of such an approach is two-edged. Would it successfully protect the stateslegitimate interest in avoiding excessive costs,and if so, would it still successfully elicit quali-ty defense services for the poor? To explorethese questions, we need to examine in detailthe form of reimbursement that the voucherwould guarantee. We consider two possibili-ties: lump-sum payments and variable pay-

ments based on services rendered.

Lump-sum PaymentsA lump-sum voucher would grant a fixed

amount to cover the cost of defense, with theamount presumably depending on the natureof the charge, with different rates for capitalcases, other felonies, and misdemeanors. Thevoucher could be cashed by any provider, cho-sen by the defendant, who is legally eligible topractice before the relevant court.

When first implemented in a county cur-

rently using lump-sum payments for appoint-ed counsel, this approach would cost no morethan the prior system of representation; inprinciple, each voucher would be worth exact-ly what the county had previously been payingper case for indigent defense services. Overtime, plan administrators might find it cost-effective to make the schedule of voucher pay-ments more discriminatingfor example,linking lump-sum amounts to the particularoffense charged and perhaps to other observ-able features of the case, such as whether it is

resolved by guilty plea or by trial. But initiallyat least, average payments per case would beno higher than before.

Over time, the voluntary choice features ofa voucher system for both attorney and clientmight exert upward pressure on the indigentdefense budget. If the payments offered wereinsufficient to attract sufficient numbers of

qualified attorneys, a county that had previ-ously relied upon conscription would have toraise the amount of its vouchers. The result-ing addition to the countys budget wouldnot represent an increase in real economic

cost but only a transfer to the public of coststhat had previously been borne by attorneysconscripted at below-market rates.

Just as in the market for ordinary legal services, defense firms will wish to establish areputation for effectiveness in order toattract clients. A lawyer might be tempted topocket the lump-sum fee and then stint onthe time he devotes to the case, but this dan-ger already exists in the fixed-fee appoint-ment systems that a lump-sum voucherwould replace. The difference under a vouch-

er plan is that, as in any market transactionfor service at a fixed price, stinting on servicerisks client dissatisfaction and, through repu-tation, a loss of future business.62 There is nosuch prospect for preventing meager servicewhen the flow of future clients is controlledby the county or the court.

How well reputation will work depends inpart on how well informed potential clients areabout attorney performance. While the statesprimary role in such a system is providing thevoucher, there is no reason why it cannot also

provide information. The court or county gov-ernment could maintain a list of attorneys andfirms it considers particularly well qualified todefend the indigent. Such lists might appear toinvolve unseemly favoritism, but of coursenearly all indigent defense systems bestow suchfavoritism on designated attorneys already.And the favoritism that currently exists is farmore pernicious because it carries not just apositive recommendation, but a guarantee ofbusiness. In a voucher system, defendantswould be free to discount the recommendation

if they suspected that the state was more con-cerned with its own interests than with theirown. Such an arrangement allows defendantsto have both the informational advantage ofstate choice of provider and the incentiveadvantage of defendant choice.

So long as a lump-sum voucher is set at alevel sufficient to make it attractive to crimi-

13

In a vouchersystem, indigentdefendantswould be freeto discountthe attorneyrecommendation

if they suspectedthat the state wamore concernedwith its owninterests thanwith their own.


14/24

nal defense practitioners, this approach pro-vides one way to solve the incentive problem.Not only does it use consumer sovereignty toconstrain the lawyer to act in his clientsinterest, it also fixes the payment obligations

of the state and thus eliminates any potentialfor the lawyer to increase his income at tax-payer expense.

The lump-sum voucher has another valu-able incentive characteristic. Since theamount provided will normally increase withthe seriousness of the charge, the vouchermodel would tend to deter prosecutors frominflating the charge. A prosecutor who fol-lows such a strategy, to bluff the defendantinto pleading guilty to a lesser count, increas-es the resources available to the defense and

thus makes conviction more difficult.A lump-sum voucher provides the defen-

dant insurance against the risk that his casewill turn out to be unexpectedly complexafter an attorney has accepted it. Such insur-ance is implicit in the providers agreement toaccept the case. Defendants choose providersin terms of the total package they offer,including service for both complex and sim-ple cases. As long as the cases cannot be dis-tinguished in advance, a provider has anincentive to offer good service on complex

cases as part of a package intended to attractclients because this is the only way to get sim-ple cases.

The most serious disadvantage of thelump-sum voucher is that it provides no pro-tection for the defendant who has an unusu-ally complex case identifiable as such beforethe lawyer accepts it. Because the providergets a fixed payment, he will prefer, so far aspossible, either to take only simple cases or totake complex cases only on the understand-ing that he will not try very hard to win them.

One cannot solve this problem by merelyrequiring providers to agree, like commoncarriers, to accept all comers. All a firm needdo to protect itself against complex cases isdo an inadequate job of defending them,thus saving money and developing a reputa-tion that will keep away future clients withcomplex cases.

This might be a serious argument against avoucher if the current system of indigent de-fense provided substantial insurance againstthis danger. But it does not. At present, manycounties provide only a lump sum for indigent

defense, and thus replicate this disadvantageof the lump-sum voucher without its advan-tages. Other counties provide variable com-pensation but with a low ceiling, in effectoffering either a lump sum or only minimalinsurance. For jurisdictions that currentlycompensate counsel by a lump-sum paymentor an hourly rate with a low cap, a voucherstructured in the same way would cost taxpay-ers no more and would leave defendantsunequivocally better off.

Nonetheless, the problem of unusual com-

plexity evident from the outset suggests thatthe lump-sum voucher is far from ideal. It istherefore important to explore possible waysto improve it. The next section analyzes sever-al more fine-tuned forms of voucher payment

Hourly-rate Vouchers and OtherVariations

One alternative would be for the voucher toauthorize payment at a predetermined rate perhour, with a firm or presumptive cap andsome possibility for a court administrator to

review whether the time spent on the case wasreasonable. The Canadian province of Ontariohas used such a model for some time, appar-ently with considerable success.63

The hourly-rate voucher improves the sys-tem as insurance (because both lawyer andclient escape the risk of unusual complexity),but it brings back some of the incentive prob-lems that a lump-sum voucher avoids. If thehourly rate is compensatory, it leaves theattorney with an incentive to work morehours than necessary. Government review of

fee claims is therefore essential in an hourly-rate voucher plan, as it is in existing pro-grams that compensate appointed counsel atan hourly rate. Unfortunately, from the tax-payers perspective, government review is acostly and imperfect monitoring device,while from the defendants perspective it pro-vides the court system with a tool for punish-

14

The Canadianprovince of

Ontario has usedhourly-rate

vouchers forsome time,

apparently withconsiderable

success.


15/24

ing attorneys who serve the interests of theirclients rather than those of the court.

These drawbacks would count as seriousdefects in this sort of voucher, except that eachof them is equally present in existing hourly-

rate plans for appointed counsel. The voucherapproach is no worse in these respects and atleast has the advantage of using the defen-dants power of choice as a reason for theattorney to take his clients interests into con-sideration. Once a jurisdiction has opted tocompensate appointed counsel on an hourly-rate basis, there are unequivocal welfare gainsin offering defendants a portable voucherwith the same compensation structure.64

Since an hourly-rate voucher gives the tax-payer less security than a voucher for a lump-

sum payment, logic alone cannot dictate thechoice between these two methods of compen-sation. To some extent the relative merits ofthese alternate approaches will depend on localconditions and on the level at which lump-sumand hourly payments are set. These matterswould provide fruitful areas for investigation,perhaps through small demonstration pro-jects, as would the possibility of giving defen-dants a choice between lump-sum and hourly-rate vouchers. Current experience suggests thathourly rates, combined with after-the-fact

monitoring, lead to more responsible andeffective representation, without uncalled-fordemands on the state budget.65

Objections toVoucher-Based Reforms

Will a Voucher Approach Prove Effectivein Practice?

Our primary goal in proposing a voucherapproach has been to use the engine of free

choice and consumer sovereignty to improvethe effectiveness of indigent defense services.But several practical concerns raise questionsabout whether a voucher approach wouldreally work. We examine both economic andnoneconomic concerns.

Resource levels. Until now we have putaside the question of how generously indi-

gent defense services will be funded; we havesimply argued that, with whatever resourcessociety allocates to indigent defense, freedomof choice will enhance the quality of the services delivered. Among those committed to

the improvement of indigent defense, howev-er, there is an understandable preoccupationwith funding levels. There are legitimate con-cerns that without large increases in theresources devoted to indigent defense, otherreforms may make little difference. We recog-nize that funding levels have a major impacton the quality of defense services and willcontinue to do so under the voucher regimeswe propose. But whatever the level of fund-ing, the attorneys independence from hisadversary (the government) is the sine qua

non of zealous representation, and freedomof choice for the client therefore remains acritical element in any plan for achievingeffective defense services.

If funding levels remain low, the pool ofattorneys who serve the indigent will contin-ue to include both able, altruistic lawyers, aswell as minimally competent attorneys withfew other opportunities, and highly skilledattorneys who are adept at cutting corners sothat they can limit the harm to their clientswhile maintaining a decent income for them-

selves. Our proposal to end conscription, ifcombined with low resource levels, mightreduce the number of able attorneys servingthe poor. But the attorneys lost would bethose who prefer not to serve and, if com-pelled to, can be expected to minimize thetime they devote to indigent defendants. Theend of conscription would not preclude ableattorneys from serving at below-market rates,and in fact would help ensure that those whodo serve are participating out of genuinealtruism and concern for client interests.

In the absence of some version of a vouchersystem, raising resource levels would improvethe predicament of the indigent accused insome respects and in some jurisdictions. Butparadoxically, it could actually make the indi-gent defendants position worse in others. Withincreased funding, public defenders and ap-pointed attorneys may no longer find it impos-

15

An attorneysindependencefrom hisadversary (thegovernment)is the sine quanon of zealousrepresentation.


16/24

sible to devote adequate time to their cases, butapart from altruism, such attorneys will stilllack an affirmative incentive to do the best jobfor their clients. In fact, if compensation israised, fewer of the attorneys involved will be

attracted primarily on the basis of altruism, sothe indigent defense lawyers in the pool willhave, on average, less motivation to put clientinterests first and even stronger reasons than atpresent to curry favor with court officials uponwhom their positions depend. So client choicewill remain essential, even with ample funding,to ensure that attorneys focus on satisfyingclients rather than the court.

Noneconomic concerns.A noneconomic ele-ment also affects prospects for a voucher sys-tem. What risks do we run in making the prof-

it motive more prominent in indigent defensepractice? At present, idealism attracts manyable lawyers to serve the poor, and these attor-neys provide one of the few bright spots in theotherwise dismal picture of American indigentdefense systems. In a more profit-orientedatmosphere, would fewer lawyers of this sortbe drawn to this work? Would attorneys inprofit-oriented firms lose their idealism?Parallel concerns arise with many other pro-posals to substitute market arrangements forvarious forms of public service.

These risks should not be taken lightly,especially in an area where, as in indigentdefense, idealism has played a vital role. Thestructure of a voucher model suggests oneanswer to the problem. Voluntary arrange-ments and free choice do not mandate a pre-occupation with profit. Bar leaders could stillform nonprofit corporations and hire idealis-tic lawyers on salary, just as happens now inCommunity Defender Associations. Defend-ers organized as government agencies couldlikewise emphasize public service in their

recruiting and daily operations. Such organi-zations should have no difficulty attractingclients (and vouchers) if their performancelives up to their ideals. And if altruism permit-ted such firms to hire attorneys at below-market rates, they would have an advantagethat should translate into larger staffs, lowercaseload ratios, and more support services

than profit-oriented firms could provide. Themarket approach we urge in this paper is notinconsistent with preserving what is best inexisting systems for indigent defense.

Are Improvements in Indigent DefenseSocially Desirable?In arguing for freedom of choice and a sys-

tem of vouchers to improve the quality ofdefense services, we have taken for grantedthat such improvements would be a goodthing. A substantial portion of the generalpublic may disagree. That disagreementthough seldom openly articulated, may play alarge behind-the-scenes role in explainingresistance to improving indigent defense. Webelieve it useful to try to make explicit the rea-

sons for that resistance and our response tothem.

One source of skepticism about the valueof an effective defense is a widespread viewabout the way that an effective lawyer canhelp his client. Do the special skills of thehigh-priced lawyer typically serve to demon-strate the innocence of someone who wasfalsely charged, or do they more often enablea guilty person to get off on a technicality?Much of the resistance to providing betterindigent defense no doubt reflects the latter

view. If that view is correct, then the maineffect of improving the quality of defense ser-vices will be to make conviction of the guiltymore difficult, thus reducing the deterrenteffect of criminal punishment and increasingthe amount of crime.

We do not know of any way to establishwhether effective lawyers help the guiltymore often than they help the innocent. Buteven if that pessimistic view is empiricallycorrect, it represents an obvious normativemistake. Rules of criminal procedure that

permit the guilty to escape on technicalitiesmay need to be reconsidered on their merits,but there is no justification for underminingthose rules covertly by making them hard forone subset of defendantsthe indigenttoinvoke. So long as such rules remain on thebooks, they reflect presumptively legitimategoals, whether related to or distinct from

16

A voucher regime

would not beinconsistent with

preserving what isbest in existing

systems forindigent defense.


17/24

protection of the innocent, and counsel forall sorts of defendants should be equally ableto invoke those rules effectively in order topromote the social values they serve.

A related but even broader claim is that vir-

tually all defendants presently convicted by ourcriminal justice system are in fact guilty, so thatimprovement in the quality of indigent defenseis unimportant. Judge Richard Posner, forexample, has argued that police and prosecu-tors, faced with tight budgets and high crimerates, have enough to do convicting the guiltyand are therefore unlikely to waste scarceresources trying to convict the innocent.66

We find arguments of this sort unconvinc-ing on several grounds. Even if prosecutorsconsistently select only their easiest cases, there

is no guarantee that ease of conviction will cor-relate closely with actual guiltespecially forpoorly represented defendants. Indeed, highcrime rates, scarce resources, and a weak systemof defense may drive prosecutors to seek aneasy conviction of the first suspect at handrather than pursuing a more thorough investi-gation that might exonerate the initial sus-pect.67

In addition to making it less likely thatinnocent defendants will be convicted, animprovement in the quality of defense services

has other desirable effects. One is to reduce theinjury the legal system does to innocent defen-dants who are eventually acquitted, but wouldhave been released sooner and at lower cost tothemselves if they had been adequately repre-sented.68 A second effect is to provide morecomplete information at sentencing and thusto make it more likely that judges will imposeappropriate punishments on the guilty.

We recognize that improvements in indi-gent defense, however desirable, cannot bepursued indefinitely, regardless of cost. But

since a voucher system can be instituted withwhatever resources a state decides to allocateto defense services, the argument against ourproposal is, in effect, an argument thatimprovements in indigent defense are unde-sirable even if they entail no additional cost.That argument constitutes an objection tothe very nature of our adversary system.69 It

implies that lawyers who try hardest to gettheir clients acquitted are, on net, an obstacleto justice, even when they are doing their jobwith very limited resources. This perspectivestrikes at the heart of our system of criminal

justice. It is of interest, in part, because itdraws attention to the degree to which ourpresent system has become, at least for indi-gent defendants, inquisitorial in substance,even if adversarial in form.

Conclusion

Common-law jurisdictions outside theUnited States have long afforded indigentdefendants the right to select their own coun-

sel at government expense, and it may be thatonly inertia prevents us from bringing thatoption into American law as well.70 If so, nowis an ideal time to begin moving away from the American status quo. With pressure forreform rising and with unprecedented JusticeDepartment interest in new initiatives, itwould be a simple matter to institute a vouch-er plan on an experimental basis in a few fed-eral districts, or even in cases before selectedfederal judges who might volunteer to partici-pate. State governments should consider a

paradigm shift as well, since most criminalcases are processed at the local level. We do notclaim that our voucher proposal will solveevery problemespecially if resource con-straints generate a wide gulf between thedemand for competent defense attorneys andthe available supply. What we do claim is thatat any level of funding, our voucher model canproduce gains for both criminal defendantsand society generally.

In particular, we maintain that defensevouchers will improve the quality of legal rep-

resentation for the poor. Better legal repre-sentation will, in turn, produce at least threebenefits to the community:

Improving defense services will reducethe likelihood of mistakes. That is, it willbe less likely that innocent persons willbe wrongfully convicted of crimes.

17

Improvingdefense serviceswill reduce thelikelihood of

mistakes.


18/24

Improving defense services will alsominimize adverse consequences to theinnocent persons who would have beenacquitted under current systems of indi-gent defense. That is, a better defense

means it is more likely that those inno-cents will be released from custody evensooner (pre-trial) and with less disrup-tion to their lives and the lives of theirfamily members.

Improving defense services will bringmore complete information to the sen-tencing phase of the criminal justice sys-temmaking it more likely that justpunishments will be imposed on thosewho are guilty of committing criminaloffenses.

We see only two grounds (other than iner-tia) on which a reasonable person mightdefend existing institutions for defense of theindigent. One is the belief that defense lawyersare so bound by their professional ethics thatthey will consistently sacrifice their own inter-est to the interest of clients to whom they areassigned. Another, and less optimistic, belief isthat almost all indigent defendants are guilty, ifnot of the offense charged then of somethingelse, and that the real business of the court sys-

tem is the administrative task of allocatingpunishments while maintaining a polite fic-tion of concern for defendants rights.

These arguments are both unconvincingand inconsistent with the underlying premisesof our adversary system of justice. Even more,by denying freedom of choice to the indigentdefendant in what will often be the mostimportant matter of his lifetime, the currentsystem represents a glaring breach of ourideals of personal autonomy and freedomfrom unwarranted government control. We

conclude that present institutions for criminaldefense ought to be replaced with a vouchersystem, in order to provide indigent defen-dants with freedom of choice and to provideattorneys with the same incentive to servetheir clients that attorneys have always hadwhen they represent clients other than thepoor.

NotesThis paper is based in part on an earlier article bythe authors, Rethinking Indigent Defense: Pro-moting Effective Representation through Con-sumer Sovereignty and Freedom of Choice for AllCriminal Defendants, American Criminal Law

Review 31 (1993): 73. Readers can find in that arti-cle a more detailed discussion of the issues can-vassed here.

1. See Gideon v. Wainwright, 372 U.S. 335 (1963).

2. One public defender was . . . told by a countysupervisor that he should join the District

Attorney in his effort to keep the streets of EssexCounty safe. The Constitution Project, JusticeDenied: Americas Continuing Neglect of OurConstitutional Right to Counsel, pp. 8081, http

//www.constitutionproject.org/manage/file/139.pdf.

3. See Stephen B. Bright, Counsel for the PoorThe Death Sentence Not for the Worst Crime butfor the Worst Lawyer, Yale Law Journal103 (1994)1843.

4. Ronald F. Wright, Parity of Resources for De-fense Counsel and the Reach of Public ChoiceTheory,Iowa Law Review 90 (2004): 221.

5. Remarks by Attorney General Eric Holder, Brennan Center for Justice Awards Dinner, November16, 2009.

6. Ibid.

7. Hurrell-Harring v. New York, no. 03798 (May 6,2010); the appeals court decision permitting thecase to proceed is at http://www.courts.state.nyus/ctapps/decisions/2010/may10/66opn10.pdf.

8. For a detailed presentation of the problem andproposals for dealing with it, see Justice Denied.

9. See Carrie Johnson, Renowned Harvard LawProfessor Joins Justice Department; Laurence HTribe to Lead Efforts to Improve Legal Access forthe Poor, Washington Post, February 26, 2010;Charlie Savage, For an Obama Mentor, a Nebu-lous Legal Niche,New York Times, April 7, 2010.

10. In Strickland v. Washington, 466 U.S. 668 (1984),the Supreme Court ruled that a persons convic-tion could be reversed if he could persuade a courtthat his defense attorneys performance was (a)deficient, and (b) the deficient performance wasso bad that it deprived the defendant of a fair tri-al. This is known as the ineffective assistance ofcounsel doctrine. Many advocates of indigentdefense reform argue that the legal threshold for

18

By denyingfreedom of choice

to the indigentdefendant, thecurrent system

represents abreach of our

ideals of personalautonomy and

freedom fromgovernment

control.


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establishing an ineffective assistance claim hasbeen set too high. Even if that is true, we place lit-tle store in reliance on case-by-case litigation ofineffective assistance claims. Though doctrinalchange could probably improve the quality ofindigent defense services to some extent, claims ofineffective assistance on the record of a particular

case can have little influence on the overallopera-tions of an indigent defense system.

11. We thus disagree with Attorney General EricHolders view that even in present circumstanceswhich deny defendants a role in choosing theircounselevery state should have a public defend-er system. Remarks by Attorney General EricHolder, National Symposium on Indigent Defense:Looking Back, Looking Forward, 20002010.

12. See Loren E. Lomasky, Aid without Egalitari-anism: Assisting Indigent Defendants, in FromSocial Justice to Criminal Justice: Poverty and the

Administration of Criminal Law, ed. William C.

Heffernan and Jan Kleinig (New York: OxfordUniversity Press, 2000), pp. 8497.

13. This implies that perhaps the governmentought to subsidize defense for the nonindigent aswell. We will not consider that question here,beyond noting that the problems of maintainingthe independence of defense attorneys paid by thestate provide a pragmatic argument for privatefunding where it is practical.

14. See Stephen J. Schulhofer, Criminal JusticeDiscretion as a Regulatory System,Journal of LegalStudies 17 (1988): 5360 (discussing how compensa-

tion arrangements for lawyers can lead to conflictwith clients); and Albert W. Alschuler, The DefenseAttorneys Role in Plea Bargaining, Yale Law Journal84 (1975): 1179 (asserting that the criminal justicesystems reliance on the guilty plea puts defenselawyers in conflict with their clients).

15. Improper action in such situations, whetherby prosecutors or defense counsel, need not be theresult of conscious misfeasance. Strong financialrewards or penalties may subconsciously color theattorneys judgment on debatable questions oftrial tactics or negotiating strategy.

16. Though indigents probably represent no more

than 1020 percent of the population, theyaccount for 80 percent of those charged in felonycases. See Andy Court, Is There a Crisis?American

Lawyer(January/February 1993), p. 46.

17. The principal exception of which we are awareis the availability of limited reimbursement forthe cost of defense against certain criminal trafficoffenses, as part of the benefits of American

Automobile Association membership. See Chicago

Motor Club, Members Handbook (n.d.), pp. 1112.

18. See Stephen J. Schulhofer, Is Plea BargainingInevitable? Harvard Law Review 97 (1984): 1080(noting that in a sample of felony bench trials,defendants won acquittal in 33 percent of cases inwhich defense counsel made no effort to cross-

examine prosecution witnesses and offered nowitnesses in defense).

19. Some prepaid legal services programs use anopen panel plan, in which members select theirown attorneys and obtain reimbursement on a fee-for-service basis, often subject to some cap onhourly rates, hours expended, or both. Far morecommon, however, is the closed panel plan, inwhich members must use attorneys who have beenretained or employed in advance by the plan. SeeThomas J. Hall, comment, Prepaid Legal Services:Obstacles Hampering Its Growth and Develop-ment,Fordham Law Review 47 (1979): 85157.

20. See Powell v. Alabama, 287 U.S. 45 (1932)(requiring state courts to appoint counsel forpoor defendants in capital cases);Johnson v. Zerbst,304 U.S. 458 (1938) (establishing the right of indi-gent defendants to appointed counsel in all crim-inal proceedings in federal courts); Gideon v. Wain-wright, 372 U.S. 335 (1963) (extending the right toappointed counsel in state courts to all indigentdefendants charged with a felony); Argersinger v.

Hamlin, 407 U.S. 25 (1972) (extending the right toall criminal prosecutions involving a sentence ofimprisonment); andIn re Gault, 387 U.S. 1 (1967)(according juveniles charged with delinquent actsthe right to appointed counsel). Courts have

declined, however, to recognize any right of the indi-gent defendant to a role in selecting his attorney,even where the attorney he prefers is willing, avail-able, and qualified. For a discussion of the cases, thearguments for them, and our response, see Stephen

J. Schulhofer and David D. Friedman, RethinkingIndigent Defense: Promoting Effective Representa-tion through Consumer Sovereignty and Freedomof Choice for All Criminal Defendants, AmericanCriminal Law Review 31 (1993): 105112.

21. Conflicts of interest occasionally precludeappointment of the public defender. The mostcommon conflict situations are those in whichthe defender already represents a codefendant

and those in which one of its staff was a victim ofthe alleged offense.

22. U.S. Department of Justice, Bureau of JusticeStatistics, Criminal Defense Systems: A NationalSurvey (August 1984), p. 3.

23. Ibid. These offices are sometimes called com-munity defenders rather than public defenders. See18 U.S.C. 3006A(g)(2) (West Supp. 1993) (distin-

19


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guishing between Federal Public Defender Or-ganization and Community Defender Organi-zation).

24. Criminal Defense Systems, at 17.

25. Ibid. at 21618.

26. See Escambia County v. Behr, 384 So. 2d 147(Fla. 1980) (public defender won right to with-draw from a case on grounds of excessive case-load, even though Florida statutes imposed dutyto represent all indigents); John B. Arango,Tennessee Indigent Defense Systems in Crisis,Criminal Justice (Spring 1992): 42 (Tennessee pub-lic defender successfully asked to be relieved fromaccepting new misdemeanor cases, and thusforced state to assign private counsel).

27. Michael McConville and Chester L. Mirsky,Criminal Defense of the Poor in New York City,

New York University Review of Law & Social Change

15 (198687): 58690.

28. See Alison Frankel, Too Independent, Ameri-can Lawyer(January/February 1993), pp. 6770, re-porting, for example, that the U.S. Court of

Appeals for the Fourth Circuit refused to rehireMaryland Federal Defender Fred Bennett. Circuit

Judge Paul Niemeyer reportedly argued thatBennetts aggressiveness might make him ineffec-tive. In the words of a Baltimore assistant defender,[The system] creates an awkward situation forclients. Were representing them, but were con-trolled by the court. When the head of our office isessentially terminated by the court [for being too

aggressive], its hard to explain. Id. at 70.29. An internal study commissioned by the Legal

Aid Society of New York in the late 1970s providesone telling illustration. It found:

Reacting to increased workload and pro-portionately diminished staff, the manage-ment and staff agreed to place greateremphasis on disposing cases through guiltypleas, clearing court calendars, and reduc-ing backlog. . . . [T]he Societys institutionalconcerns with meeting its contractualobligations triumphed over the need forsystemic reform. The Society . . . subordi-

nated vigorous advocacydiligent, vigor-ous, and individualized defenseto theneed for productivity and efficiency.

McConville and Mirsky, at 68788 (footnotesomitted).

30. Few knowledgeable observers would questionthe proposition in text, but several cases have illus-trated the depth of the problem. See Mark Hansen,

P.D. Funding Struck Down, ABA Journal(May1992), at 18 (New Orleans trial judge held the citysentire indigent defense program unconstitutionalbecause it required public defenders to handleupwards of 300 cases at once); American Bar As-sociation, Indigent Defense Information (Spring1990), at 3 (caseloads in some Florida cities stood

at 1,200 misdemeanors per attorney per year andfelony caseloads ranged from 371 to 539 per attor-ney per year, even though national standards sug-gest caseloads of no more than 400 misdemeanorsor 150 felonies per attorney per year); RodgerCitron, note, (Un)Luckey v. Miller: The Case for aStructural Injunction to Improve Indigent DefenseServices, Yale Law Journal 101 (1991): 490 (inFulton County (Atlanta), Georgia, some defenderswere handling more than 500 felony cases per year)For a dissenting view, see Roger Hanson, Indigent

Defenders Get the Job Done and Done Well, NationalCenter for State Courts, May 1992, cited in AndyCourt, Is There a Crisis? American Lawyer(Jan-uary/February 1993), at 46 (arguing that peoplerepresented by privately retained counsel on thewhole obtain the same results as those representedby publicly financed defenders).

31. Jonathan D. Casper, Did You Have a LawyerWhen You Went to Court? No. I Had a PublicDefender, Yale Review of Law and Social Action 1(1971): 4.

32. See Schulhofer, Plea Bargaining, at 10991100 (discussing the need for assertiveness toachieve success within the public defenders officeand to move into private practice).

33. Schulhofer, Criminal Justice Discretion, at5360.

34. Reports and Proposals, Criminal Law Reporter(BNA) 51 (June 24, 1992): 1285. At the time of hermotion, the attorney had been assigned to handle45 cases at a single arraignment session, leaving heronly 10 minutes for each

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