Plea 'Bargains'; Study Shows That Indigent Clients Get Better Help From Federal Legal Defenders Than From Private Lawyers


	Print or Email This Page Plea 'Bargains'; Study Shows That Indigent Clients Get Better Help From Federal Legal Defenders Than From Private Lawyers July 7, 2007 The National Journal More than 40 years ago, the Supreme Court recognized that "equal justice under law" was impossible when a defendant couldn't afford a lawyer. In Gideon v. Wainwright, the Court required that indigent defendants have access to a lawyer paid by the court, and such cases now account for three-fourths of the total in the federal justice system. Most Americans are familiar with the image of the public defender, employed by the government. But nearly half of these cases are handed off to private lawyers with other, bill-paying clients, who have agreed to represent the indigent for rates fixed by the court. Courts use private lawyers for several reasons -- to manage a fluctuating caseload, for example, or to resolve conflicts involving multiple clients -- but the standard of service is supposed to be the same as that delivered by a full-time public defender. Now, a Harvard economist has used science and statistics to argue that this two-track system does not deliver equal justice. Using the tools of economics, Radha Iyengar says she found that both conviction rates and the length of sentences are greater for defendants represented by private attorneys in the federal court system. Iyengar further contends that what she calls an unequal dispensation of justice falls disproportionately on minorities and immigrants, and may constitute a violation under Title VI of the Civil Rights Act. Since Gideon, there have been problems with consistently delivering adequate representation at the state level, but by comparison, the federal system has served as something of a model, according to David Carroll, director of research and evaluation at the National Legal Aid & Defender Association. "Compared to many states, the view is that the federal system is better run and better funded, and I think it has been less studied for that reason," Carroll said. In the next few months, a commission of prominent lawyers led by former Vice President Mondale and former Sen. John Danforth, R-Mo., is to issue a report calling for major reforms in the way that the indigent are afforded legal counsel, but the report is expected to focus almost exclusively on the states, Carroll said. In the states, reform efforts have often focused on the funding provided to defend the indigent -- by reducing the caseload of full-time public defenders, for example, or by increasing the hourly rate paid to private lawyers who handle such cases, according to Steve Benjamin, a Virginia lawyer who has worked to raise the pay scales for court-appointed private counsel. But Iyengar's research suggests that the problems go beyond resources. She concludes that there may be something inherently unequal and inadequate about employing private lawyers on an ad hoc basis to represent some indigent defendants. Iyengar, a scholar at Harvard's Institute for Quantitative Science, started with data on all 96 federal districts for the years 1997 to 2001. She winnowed this down -- including, for example, only those districts where cases are assigned randomly -- to remove any factors that might bias the outcome. Iyengar ended up with 51 federal districts and about 50,000 cases. In looking at the outcomes, she controlled for other factors, such as the race and gender of defendants, and the type of crime. After filtering out these effects, Iyengar found that being assigned a private lawyer increased the conviction rate -- already 97 percent -- by three-tenths of a percentage point. Although it sounds insignificant, it represented a 10 percent decrease in the chances of acquittal. A greater difference, however, came in the sentences for those convicted. Indigent defendants received average sentences of 40 months. The average for those represented by private attorneys was 48 months, a 20 percent difference. There's a large variation, depending on the crime. Indigent defendants represented by private attorneys received sentences that were five months longer for violent offenses, but a year longer for nonviolent drug offenses and 17 months longer for weapons offenses. Theft and other property offenses brought the smallest difference, less than four months. In looking into the source of this discrepancy, Iyengar concluded that about half of it came from plea-bargaining, which occurs in most convictions. Television often depicts thorny relations between public defenders and prosecutors, but the reality in most places is that the two sides work closely and cooperatively to keep the huge volume of routine criminal cases flowing. This familiarity inevitably helps indigent defendants to negotiate better sentences, Iyengar says. She also found that about half of the difference in conviction rates and sentences comes from differences in the lawyers' relative pay, extent of experience, and quality of legal education. According to Iyengar, private lawyers appointed to represent the indigent got $92 an hour, regardless of location. As a result, in some places the hourly rate came close to the average wage for criminal defense attorneys, but in many high-cost areas, it lagged far behind. Iyengar found that differences in conviction rates and sentence lengths were greater in places where $92 an hour was less than the prevailing rate. In addition, private lawyers receive a premium for courtroom work, and Iyengar hypothesizes that this provides an incentive for them to avoid plea bargains, at least in the initial stages of a case. But even measured purely by cost, private lawyers are no bargain. They take an average of 20 days longer to handle similar cases, or about 10 percent longer than public defenders. This imposes an additional cost per case of $5,800, or an added annual cost to the federal court system of $61 million. The judicial branch makes its own budget requests to Congress, and funds for indigent defense have lagged. In fiscal 2006, the budget increased from $709 million to $710 million. The Criminal Justice Act lays out some basic rules about the selection of private lawyers. But in practice, the methods used by individual federal districts to recruit and police these court-appointed attorneys diverge widely, according to Franny Forsman, who heads the public defender's office for the federal district based in Las Vegas. She said that in the Nevada district, an area with a relatively large pool of criminal defense lawyers, private counselors are appointed and are eligible to work part-time on defending the indigent for three years, after which their performance is reviewed. By contrast, she said, in some places where it's tougher to recruit private lawyers, anyone admitted to the bar is automatically eligible to represent indigent defendants. Iyengar argues that the best solution to the problems she has uncovered would be to hire more public defenders; but caseload isn't the only reason for using private lawyers for the indigent. Forsman said that in her district and in many others, the primary reason for using private lawyers is to handle attorney-client conflicts: In cases with multiple defendants, the public defender's office, which acts, in essence, like a law firm, can't represent two or more defendants trying to blame each other. "There is no alternative to using private attorneys," Forsman said. Iyengar responds that in these cases, the best solution may be to significantly increase the hourly pay for private lawyers, so that it more closely approximates the going rate for criminal defense. Iyengar is on shakier ground when she contends that the difference in outcomes for different representation may violate the Civil Rights Act. "The most striking result of this paper is the unintended consequence attorney assignment has on perpetuating discriminatory outcomes on the basis of race," she writes. African-Americans are 13 percent of the population but make up 30 percent of the indigent defendants in the federal courts. In addition, districts with high minority and immigrant populations tend to have a higher proportion of cases handled by private lawyers. In those districts where cases are not assigned randomly, African-Americans are more likely to get a private lawyer. But legal experts said that, based on precedents, this would be a tough case to make. Even in the imposition of the death sentence, Steve Benjamin said, the Supreme Court has been unwilling to declare unequal treatment a violation of civil-rights law.
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