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… (more…)