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?
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This is a seriously distorted study that doesn’t take into account the fact that public defender offices across the country typically handle 80-90% of all criminal cases as well as handle the vast majority of cases involving repeat offenders who are exposed to more serious sentences than first time offenders. Private counsel often will handle a greater percentage of first time offenders given their ability to pay in addition to the important factor of being better able to gauge the ultimate result in a case. Repeat offenders who have some ability to pay are often turned away from the private bar because taking their case always results in a financial drain on the private lawyer. Not to let public defender offices off the hook, the real dilemma for the indigent defendant is whether he is fortunate enough (through the luck of the random draw of case assignments) to be assigned a public defender on the higher level of skill in the office. Even the least skilled public defender has more experience than any private lawyer, but the pivotal issue of trial skill and presentation is what counts when it comes to handling the very small percentage of cases that go to trial (often serious charges and where there may actually be innocent people involved) Most public defender offices will have a few trial attorneys on their roster as good or even much better than any attorney in the private bar (if the indigent defendant is lucky enough to get one of these public defenders, his prospects for working out a better deal or winning his trial improve significantly in comparison to having a private lawyer. There are usually one or two public defenders in each office that are actually feared by the district attorneys and respected by the judges). After this upper tier of top flight public defenders you will have a large middle tier of extremely competent but not spectacular public defenders followed by the bottom of the barrel who more often than not fall into 2 categories —-the ones that don’t care (the largest category ) and the ones that are completely incompetent (there are always one or two in every public defender office. My opinions are based upon years working in the courtroom and watching how public defenders and private lawyers work. If a defendant cannot afford to hire one of the more highly regarded private lawyers, the odds are he will get a decent public defender more than capable of effectively handling his case. In my years of observation, the very best, top of the top, trial attorneys have been public defenders. A poor defendant has to be lucky to get one of them. After my first few years, I came to the conclusion that public defenders get a bad rap generally because they deal with the very worst of clients who don’t get to choose their lawyers. There are some really bad public defenders, but they are not the norm. By the same token, there are some really, really bad private lawyers, a lot of competent but inexperienced (compared to the public defenders) and a very small few excellent private attorneys if you can afford them. The best trial lawyer I ever saw was a public defender who was feared by the D.A’s. The worst trial lawyer I ever saw was a private attorney who got a lot of publicity and had a reputation for being great (except inside the courtroom among people in the know)