Praise for Salaried PDs

There are two types of defense attorney for indigent criminal defendants: salaried employees of state and federal court systems, and private attorneys appointed by courts from time to time to represent defendants at an hourly rate. My anecdotal experience is that full-time salaried public defenders tend to do a better job than court-appointed counsel. (Of course there are exceptions.) Many of the former choose the public defender’s office as a career and have years of experience with their courts and prosecutorial counterparts. On the other hand many court-appointed counsel are relatively inexperienced. Getting on the list for criminal appointments provides a source of revenue and trial experience for young attorneys who’ve recently hung their shingle. A recent study by Radha Iyengar titled An Analysis of the Performance of Federal Indigent Defense Counsel bears out my impressions. Published by the National Bureau of Economic Research the study measured the difference in performance by the two types of indigent counsel states its conclusion thus:

Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act. (Study Abstract)

As reported in an article in The New York Times, in addition to costing more, “lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer.” This disparity is “largely due to differences in attorney performance when negotiating a guilty plea and the selection of which cases to plead rather than to take to trial.” (Study, p. 3) The study looked only at federal criminal cases but there’s no reason to believe there would be a different result in states that provide both salaried and court-appointed counsel for indigent defendants.

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