Public Defenders or Private Defense Lawyers: Who’s Better?

If you were on trial, who would you choose?

A public defender that handles felony cases for indigent criminal defendants on a daily basis?

Or a private defense lawyer that has ample time to analyze your case and prepare?

The comparison comes down to free-market justice.

Two economists from Emory University, Paul Rubin and Joanna Shepherd, along with Morris B. Hoffman, a Colorado state trial judge, have attempted to find out the answer to this question and have published their findings in the New York Times. And the answer may surprise you.

After dissecting and analyzing all 5,224 felony criminal cases filed in Denver in 2002, they have come to the shocking conclusion that the average sentence for clients of public defenders was almost three years longer compared to those defendants that utilize the services of a private lawyers.

Granted, many other studies use acquittal rates as a measure of lawyer effectiveness. But in this study they focused on the amount of prison or jail time they receive. In this case, acquittals and probationary sentences count as zero, halfway-house sentences counted as 120 days (typical for Denver defendants), and life sentences counted as 110 years.

Isn't this data distorted by the fact that since there are higher bonds in serious cases this would make more it more likely there's going to be a lot of defendants that can't pay and thus are rendered indigent by their pretrial incarceration?

When they removed the control for seriousness of the crime, they found that public defenders averaged five years more incarceration time compared to private defense attorneys who averaged three years more incarceration time. This result is especially shocking especially when you consider the general thought that public defenders, due to their relationships with others in the justice system, are thought of to be more likely to obtain reduced sentences for their clients.

Who handles more serious cases: public defenders or private lawyers?

Private lawyers not only handled more serious cases but also as the severity of the crime increased, it was more likely that a private lawyer was handling it. Most people generally feel that public defenders handle more serious cases as a percentage of the total of all serious cases but the data the team collected doesn't support this.

What's the reason for this phenomenon?

It turns out those people who may be considered “marginally indigent” will go to great lengths to secure the money necessary to get private representation if the seriousness of the offense and the likelihood of conviction is high enough. Those that have evidence stacked high against them for a relatively minor offense won't bother with getting a private attorney because they may feel it won't make a difference. However, a person facing a long prison sentence for a crime that they didn't commit will be much more likely to do anything in their power to get a private lawyer to represent them.

What is suggested to remedy this situation?

Denver trial judge Morris Hoffman, a member of the team conducting the study, suggests that we tighten the requirements to declare that someone is indigent. He feels that doing this would save taxpayer money and reduce the disparity of outcomes between public defenders and private lawyers.

Others feel that increasing financing for public defenders is a solution. Ever since the 1980's, per client spending per client in most systems has taken a big dip and has never really risen since. Privatization is yet another proposed solution.

Where can I find this study?

Morris B. Hoffman, Paul H. Rubin, and Joanna M. Shepherd, “An Empirical Study of Public Defender Effectiveness: Self-Selection by the ‘Marginally Indigent’” (September 20, 2004). bepress Legal Series. Working Paper 391.