An Analysis of Indigent Defense

With "an estimated $1.2 billion dollars spent to provide indigent criminal defense in the Nation's one hundred most populous counties" (Bureau of Justice, 1999), the federal government is spending a significant amount of their budgets for indigent defense. Although the government is spending this amount on attorneys, the quality of the attorney has not been guaranteed. Until the past half century, not much of an emphasis was placed upon the quality of the indigent defense. But with the federal government spending continuing to increase and governmental "watch groups" being created, the indigent defense system is beginning to be examined more thoroughly. Because public defendants and court appointed private attorneys handle the majority of the indigent caseload, they are the two most significant factors in the indigent defense system. This now leaves the question: Which is the more efficient and effective indigent defender, public defenders or court appointed private attorneys.

To compare these two types of indigent defense, I will examine numerous factors including: legal experience, workload, compensation, verdict, sentence length. While several sources will be used, the main works I will draw from are the Bureau of Justice statistics webpage and Radha Iyengar's paper on indigent defense. Iyengar's paper was a study that used numerous court cases (approximately 40,000) to draw statistics and compare public defenders and court appointed public defenders from 1997 to 2001 (Iyengar, 2007, 2). The study, with an economic emphasis, analyzed the attorney's qualifications and performance on the federal level.

The comparison between public defenders and court appointed private attorneys begins with their education at law school. While it is an accomplishment enough to graduate from law school, different law schools have different levels of prestige. The prestige of a law school is an approximate measure of the quality of the education and legal knowledge obtained while attending the law school. Although the prestige of the law school the attorney attends is not the only measure of how successful they will be, it is significant, especially to those attorneys who have yet practice law on their own. To rank the prestige of the law school, I referred to Iyengar's paper on indigent defense. Ranking law schools based on the 2005 US News and World Reports findings, tiers were formed with the more prestigious law schools at the top (Iyengar, 2007, 21). This study is significant because it gives a basis for a comparison between public defenders and court appointed private attorneys. According to the paper, 31.73% of public defenders attended one of the top two tiered law schools, while only 18.19% of court appointed private attorneys did. More importantly, 25.33% of court appointed private attorneys attended the bottom tiered law school, compared to that of only 14.09% of public defenders (Iyengar 2007 38). Despite being only a single study, it appears public defendants having attorneys from more prestigious law schools than court appointed private attorneys. Even though law school prestige does not compare to the legal experience and attorney gains from practicing law, it is a noteworthy indicator, especially in new attorneys.

Although the law school provides the foundation for the attorney, it is the attorney's actual experience practicing law that is imperative to a successful career. When analyzing actual experience, the amount of time practicing law is essential. Referring to Iyengar's research (refer to chart 1 in graph section), it can be seen that the most of court appointed private attorneys have approximately five year of legal experience with the majority having between one and ten years of actual legal experience (Iyengar, 2007, 33). This level of actual legal experience is relatively lower than that of the public defendants. The range of years of experience is more evenly distributed (refer to chart 1 in graph section) with the majority of public defendants holding between eighteen and twenty-three years of actual legal experience. With more experience in indigent defense, the attorney will become a "repeat player" in the courtroom. Once the attorney is a "repeat player", they have gained valuable insight and understanding to better represent their client and facilitate the courtroom workgroup.

The final, yet most important, factor of experience is the attorney's position in the courtroom work group. With the goal of the courtroom work group "to handle cases expeditiously" (Carp, Stidham, Manning, 2007, 63), more experienced lawyers have developed a better relationship with the judges and prosecuting attorneys. In addition to developing a better relationship with other court figures, attorneys grasp a better understanding of how to approach and defend a case. Using this understanding is vital to the courtroom work group because "in a system that tries only 5% of all criminal cases, the most important skill for a lawyer on either side is the ability to evaluate a case before entering into plea negotiations, not the ability to shine at trial" (Hoffman, Rubin, Shepherd, 2004). In correctly evaluating a case, the attorneys will be able to plea bargain more efficiently. Additionally, experience facilitates trust within the courtroom work group. Although court appointed private attorneys partake in the court room work group, they are not nearly as highly regarded as the public defendants. Because public defendants are more of a constant than court appointed private attorneys, they are more familiar with and can work better in the courtroom workgroup. With such an important emphasis on the cohesion of the court, the more constant public defendants facilitate a more efficient courtroom work group.

When analyzing an attorney's motivation to successfully defend their client, several factors such as their compensation, work load, and pressure from governmental agencies must be taken into consideration. Considering the pay system for each type of indigent defense, with public defendants working on an annual salary and court appointed private defendants being compensated by the hour, it is important to realize their economic incentives. The average salary for both public defendants and court appointed private attorneys are both slightly lower than the average salary for all attorneys. From 1997 through 2001, the average salary for all attorneys was $ 77,930 with public defendants earning $76,630 and court appointed private attorneys earning $71,540 (Iyengar, 2007, 38). With the average salaries of all three attorneys' in comparison relatively close, both public defenders and court appointed private attorneys should be motivated to work effectively to keep their jobs. Despite the monetary incentive, one of the main arguments against court appointed private attorneys is their lack of pay. If it is more profitable to work as a private attorney, then the court appointees could possible neglect or provide substandard defense. With less monetary incentive to work as indigent defenders, court appointed private attorneys greatly value their time and "when lawyers cant afford to work more than several hours on a case, innocent people get convicted" (Jackson, 2007). Because court appointed attorneys and public defenders are properly compensated they have incentive to provide quality defense.

While both public defenders and court appointed private attorneys are properly compensated, according to the Iyengar study, in comparison to all attorneys, salary is not the only motivating factor. Practicing law, especially as a trial attorney, can be very stressful and the workload assigned can greatly influence the attorney's motivation for the case. According to the Bureau of Justice, in 1999 in the largest one hundred counties, public defenders handled 82% of the cases. (Bureau of Justice, 2001). The problem with taking such a large amount of the workload is that public defenders are going to have less time to concentrate on single cases. If less time is taken, the case might not be evaluated correctly and result in the defendant not receiving quality defense (Hoffman, Rubin, Shepherd, 2004). Although the public defenders are taking the vast majority of the caseload, not all are necessarily overworked. Most public defendants have access to other human resources within their office. In 1999, public defendant offices employed almost more assistants, such as paralegals assistant public defendants, and social workers, than they did actual public defendants (Bureau of Justice, 2001). In contrast to the public defendants, court appointed private attorneys usually work out of much smaller firms. With the smaller firms, the court appointed private attorneys will not have as much assistance as public defenders to handle their workload. Even if the court appointed private defenders work out of a larger firm, indigent cases are usually low priorities, resulting in the firm spending their resources on other cases.

The only actual way to decide which type of indigent defense is superior is to compare the findings of the court. To compare the findings, I will examine two separate sets of statistics, one from the Iyengar study and another done by the Bureau of Justice. Because the Iyengar study examines the federal court findings, the United States District Court statistics from the Bureau of Justice report will be used to provide a viable comparison. First in the Bureau of Justice report, public defenders had approximately (very slightly less for public defenders) the same conviction rates as court appointed private attorneys. The reports, who studies were done in 1998, found that public defender's clients were guilty by plea 87.1% and guilty by trial 5.2% of the time; while court appointed private attorney's clients were guilty by plea 84.6% and guilty by trial 6.4% of the time (Harlow, 2000, 1). In examining the Iyengar paper, the results were almost identical to those found by the Bureau of Justice. Once again court appointed private attorneys had slightly less success in defending their clients than public defendants, the guilty verdict was found 2.8 tenths of a percentage pointer higher in court appointed private attorneys (Iyengar, 2007, 12). While one might think that the similar results in the finding were similar in the two studies would cause similar results in sentence length, it is not the case.

Stemming from the court's verdict, the sentence length also plays an intricate role in establishing the superior indigent defender. To ensure a fair comparison of sentence length, the statistics used were an average that compensated for severity of the crime, thus minimizing bias. According to the Bureau of Justice, the clients of both public and private defenders received the same average sentence of one hundred and twenty nine months with "three-fourths of State and Federal inmates with an appointed counsel and two-thirds with a hired counsel had pleaded guilty" (Harlow, 2000, 1). While the Bureau of Justice study had both public defenders and court appointed private attorneys earning their clients the same sentence, the Iyengar study cam to a slightly different conclusion. In comparison, on a study done with 46,167 cases and holding case characteristics fixed, the Iyengar study found that public defender's clients, on average received 7.76 fewer months than those defended by court appointed private attorneys (Iyengar, 2007, 37). Although both studies found that guilty verdicts were found approximately the same for both defendants, in the more recent Iyengar study, public defenders got a smaller sentence length, thus showing to be, in this case, a slightly better indigent defender.

After reviewing all the previously stated comparisons, while the public defender might only be a slightly more effective indigent defender, the public defender is a much more efficient indigent defender than the court appointed private attorney. Examining the verdicts of the trial, it could be seen that in both studies, the defendant was found guilty approximately the same amount with both public defenders and court appointed private attorneys. Despite the similar outcomes, the public defenders reigned supreme in the experience category. Stemming from the more prestigious law schools that they attend, to the role of the repeat player in the court room work group, the public defender, on average, is a more experienced attorney. Because the salaries for both public defenders and court appointed private attorneys are approximately equal, the government is receiving more experience for is money when it chooses the public defender over the court appointed private attorney. Additionally, while it might only be slightly less, the average sentence length is less for those who were used public defenders. While the public defender only be slightly more effective, for the defendant, than the court appointed private attorney, the public defendant is much more efficient solution for indigent defense.

Sources

"Indigent Defense Statistics." October 2001. U.S. Department of Justice.

13 April 2008. < http://www.ojp.usdoj.gov/bjs/id.htm#caseload>.

Babcock, Barbara Allen. "Inventing the public defender." American Criminal Law Review 43.4 (Fall 2006): 1267(49). LegalTrac. Gale. Clemson University. 8 Apr. 2008 .

Carp, Stidham, Manning. Judicial Process in America. 7^th ed. Washington, DC:

CQ Press, 2007.

Harlow, Caroline. "Defense Counsel In Criminal Cases." Bureau of Justice Statistics Special Report. November 2000. 13 April 2008.

< http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf>.

Hoffman, Rubin, Shepherd, "An Empirical Study of Public Defender Effectiveness: Self-Selection by the 'Marginally Indigent.'" 20 September 2004. bepress Legal Series. 13 April 2008. .

Iyengar, Radha. "An Analysis of the Performance of Federal Indigent Defense

Counsel." June 2007. Working Paper 13187. NBER Working Paper Series.

13 April 2008. .

Jackman, Tom. "Lawyers for Indigent Up for Pay Increase." 4 March 2007.

The Washington Post. 13 April 2008. .