Instead of coming up with an original idea, we prefer to tell you why yours is wrong.

 

Everyone knows that the indigent defense system in this country is broken.  The courts have mandated that every jurisdiction has to pay for indigent criminal defendants to get a lawyer.  It is required.  The vast majority of criminal defendants are indigent (or have no legitimate source of income, and so can pass for indigent).  So the taxpayer winds up paying for the lawyer for most criminal defendants.  This results public defender agencies that are understaffed, underpaid and overworked.  Or assigned counsel plans, where private attorneys are assigned to indigent defendants, and get paid a pittance.

Sadly, a lot of indigent defenders are either inexperienced or not very good at it.  Both kinds of indigent practice do attract fantastic lawyers who aren’t in it for the money, but they’re in the minority.  Indigent practice also attracts lawyers just starting out, who are willing to forgo a bigger paycheck for more experience.  And both kinds of practice attract lawyers for whom this is really their only way to make a living — for whatever reason, they don’t compete in the market for paying clients.

Also, indigent defenders tend to be insanely overworked.  Those who rely on assigned-counsel work for their pay often must take on an overload of cases just to make ends meet.  And those working full-time for a public defender’s outfit have an overload of cases whether they want one or not.  This has a predictable effect on the quality of their work, their ability to deal with (or recognize) non-routine cases, their resources to investigate and prepare, and pretty much everything else.

Furthermore, neither approach gives the defendants themselves any say in who gets assigned to represent them.  If they don’t get along, or there’s someone else who could have done a better job, then too bad.

There’s no economic pressure for indigent lawyers to do better.  If they do better or worse, they still get paid the same.  They’re still getting that next indigent client, whether they want one or not.

Finally, even with the abysmal pay, the cost to municipalities and states is still enormous.  There’s a lot of this kind of work to be done, and those nickels and dimes add up fast.

What to do about it?

Well, over at the Cato Institute (we’re big fans of Cato), professors Stephen J. Schulhofer and David Friedman have published a paper called “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System.”  Go ahead and read it; we’ll wait.

For the TL;DR crowd, Profs. Schulhofer & Friedman propose that all present forms of indigent defense be abolished.  Get rid of public defenders and assigned counsel and all permutations thereof.  In their place, simply give defendants vouchers that they can use to pay the defense attorney of their choice.

Brilliant, no?  Defendants can choose whomever they wish to defend them.  Market forces will drive out the crappy lawyers currently impeding justice for the impoverished.  There will be no more of the crushing caseloads that practically guarantee malpractice.  Fewer innocents will be wrongly convicted, because they’ll have more experienced and talented representation, and there will be more resources and time available for rooting it out.  It’s a winner for everyone!

Well… about that…

We really do think you ought to read the paper.  It’s not long.  It makes a solidly economics-based proposal.  The problem is that the economics aren’t so hot.

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Consider this:  The number of people being arrested is not going to go down measurably if such a scheme were established.  So the amount of work to be done is going to be the same.  And the amount of municipal money available to pay for that work is going to remain the same.  So the hourly rate isn’t likely to change much, if at all, from what is currently being paid.

So here in New York City, for example, where we understand assigned-counsel folks get paid around $75 per hour, any vouchers are going to still be worth around $75 per hour.  Meanwhile, a good lawyer around here — not the elites, mind you, just someone who’s been around the block and knows what they’re doing — is charging anywhere between $300 and $500 per hour.

How many lawyers making upwards of $300 per hour are going to be willing to accept a client who will be paying with $75/hr vouchers — keeping in mind all the bureaucratic hassles and delays involved in collecting on those vouchers the government eventually decides to honor?  (Imagine a non-lawyer, or worse yet a JD for whom this is the only job they could get, poring over your bills like a Medicare bill-review contractor, denying anything not coded properly or deemed “necessary.”)  It is simply not a rational decision for the better lawyers this scheme is supposed to make available to the indigent.  It’s only going to attract people who are already attracted to assigned-counsel work.  Nothing is going to change.

Except that it might actually change for the worse.  There will be competition for these $75 vouchers, where now there is none.  At the same time, this rate will be essentially the minimum rate for criminal defense — nobody in their right mind would charge less.  So the successful firms will be those who can keep their overhead to a minimum, and make their money on sheer volume.  Solos and small firms that try to do this will be right back in the overworked category, and they’ll have to compete with the Wal-Mart equivalent of a law firm that realizes how to maximize volume and succeed on the smallest of margins.  Of course small shops cannot compete with such a firm, and they will lose in this new free market.  One or two Wal-Mart types will dominate any given market.  The free market will prevail, but the quality of legal representation could very easily get worse.  Standardization and routine are the ways to profitability in firms and businesses that compete for the most price-conscious consumer.  These are the very same bugbears of public defenders who can only devote a brief amount of time to any given case — anything out of the norm either gets missed, or cannot be dealt with lest it gum up the whole works.  Innocents are more likely to slip through the cracks.  We envision a plea machine, and little more.

Oh, and just in case that’s not bad enough, what about the political pressure from working folks who don’t qualify for indigent defense, but who in reality cannot afford a quality lawyer?  They’d have a hard time even coughing up that measly $75 an hour.  And now people who didn’t bother working as hard in school, who aren’t working as hard now, or worse yet are living well on ill-gotten gains, are going to get free lawyers paid by their tax dollars?  It doesn’t smart so much when it’s perceived as a matter of “you get what you pay for,” but when those vouchers are intended for the hire of lawyers these taxpayers cannot themselves afford… it’s not exactly a vote-getter.

Now, though the authors don’t mention it, this leads to another option.  A more fair way of handling it would be to give every criminal defendant a voucher, and if someone wished to pay more on top of that then they could do so.  That gets rid of the inherent injustice and political difficulty.  But of course, where is that money supposed to come from?  And as JFK and others have said, “a rising ride lifts all boats.”  The voucher would be the equivalent of a minimum wage, at that point — an artificial deformation of the price curve, creating at the same time even less demand for the less-skilled lawyers, while simply raising the fees to be charged by those who remain competitive.  The taxpayer would shell out more cash, to no avail.

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As the title says, we don’t have any solutions.  We’re just here to catcall those who took the time and thought and insight to try to come up with a solution.

If you were to ask us, however, we’d say that the whole indigent-defender-system-is-broken thing is nothing more than a symptom of a larger disease: too many lawyers practicing criminal defense who aren’t good at it.  Rather than use market forces to get more of the good ones working for the indigent, we’d simply use the power of the Bar to weed out those who shouldn’t be practicing in the first place.

As we’ve suggested before, lawyers who practice in a given specialty ought to earn a certification, demonstrating actual proficiency in addition to mere test-taking ability, every few years, proving that they are competent and worthy to defend people whose very lives and liberty are at stake.  Refuse any uncertified lawyer from practicing criminal law, period.  Let the unqualified find something else to do, or another specialty where their inability won’t irreparably harm another human being’s life.

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