Public Defenders or Court-Appointed Attorneys?

David Giacalone, who has consistently advocated for competent counsel for indigent defendants, writes:

[I]ndigent defendants are far more likely to receive consistently competent representation in a system with full-time public defenders (with statewide monitoring and funding) than from situations that rely heavily on assigned counsel.

Is this true?  Should a state concerned with defendants' rights provide more funding for a public defender system than for one relying on court-appointed counsel?

Most people I know work (or want to work) for the public defender's office long enough to do 20 or 30 trials.  Afterwards, they plan on going into private pratice.  This might mean that many public defenders have little experience.

However, public defenders, unlike court-appointed lawyers, strictly ensure that a PD's experience is appropriate for the crime charged.  Thus, junior PDs begin by working only on arraignments and client interviews; then they handle only probable cause hearings; then they try misdemeanor cases; and only after years do they move up to trying more serious criminal cases.

With a court-appointed system, even a green court-appointed attorney could draw a serious offense.  Excluding death cases, it's not uncommon for a fresh court-appointed attorney to represent someone who is facing many years in prison.

Which is better?  Is Mr. Giacalone right?

Comments

[David Giacalone]

My statement echoes the ABA's Gideon Report itself, which says, for example (text at fn. 290):

"National standards recommend that jurisdictions establish full-time public defender offices to provide indigent defense representation wherever the population and caseload are sufficient to support such organizations.289 In order to develop expertise and avoid the temptation to accept retained work, the standards also require that public defender offices employ full-time attorneys who are restricted from engaging in private law practice.290."

One of the best statements on this topic that I've seen comes in a Slate article by David Feige ("Public Offenders," Sept. 3, 2004), where Feige says:

For indigent criminal defendants, low-paying assigned-counsel systems like that in Massachusetts offer the worst of all possible worlds. They virtually guarantee sub-par representation, since low assigned-counsel rates almost always imply huge caseloads—a nightmare for poor defendants desperately in need of legal attention. In one terrifying example, Thomas Earl of Grant County, Wash., a former prosecutor and administrator of an assigned-counsel plan, at one point assigned an astonishing 40 percent of the county's cases to himself. When he was finally suspended, in February of this year, he had a pending felony caseload of over 400—a figure so high the courts were forced to draft nearly 50 other attorneys to pick up the slack. As an extreme example, Earl dramatizes the fact that who does the work and why they do it are more important questions than how much they are paid.

The Romney administration should consider adopting a public defender system. Salaried public defenders are usually paid far less than the private lawyers who take cases by the hour; in Massachusetts, public defenders earn a starting salary of just over $15 an hour plus benefits. And though it's true that public defenders usually insist on carrying a smaller caseload than assigned counsel, a downside from the state's point of view, there is a good reason. Public defenders—most of whom represent the indigent for ideological reasons—care about caseload as well as cash. Ardent, committed public defenders like this are precisely who the state should be recruiting. And given that the single biggest predictor of the quality of a public defender's work is caseload, manageable caseloads are in the interest of any state looking to provide good, rather than constitutionally adequate, representation.

Public defender offices provide additional benefits. Most offer ancillary services indigent defendants need including investigators, social workers, and lawyering that addresses homelessness, drug addiction, mental illness, and other problems that often bring defendants into contact with the criminal system in the first place."

My post about the failure of assigned counsel systems -- based on eyewitness experience and research -- can be found here, "Too Many Assigned Counsel Just Don't Give a Damn."

[Three Generations]

Working in a state with one of the best P.D. systems in the country (from what I've seen), I would most certainly agree that a system where public defenders are hired by the state and work for salary is better for indigent defendants than those where there are court-appointed attorneys.

First of all, all states should allocate equal funding for prosecutors and public defenders. If there is a centralized office (such as the office of the chief public defender, or division of public defender services), there is greater organization, control and allocation. Then it becomes a real job, a job where attorneys don't plan to leave in a few years. It can become a career for people (like me) who want to do this only because of personal beliefs and not money.

This is not to imply that caseloads won't be high. The CT P.D.'s office has last year's annual report at this link:
http://www.ocpd.state.ct.us/Content/Annual2003/2003Chap2.htm

It shows that the total caseload was 81,000 cases in 02-03. This was handled by about 180 attorneys. None of these attorneys are allowed to engage in private practice.

In my opinion, when you have a "firm" of attorneys dedicated solely to the representation of indigent defendants, there is greater motivation and the standard of representation is higher.

On a related note, the Spangenberg Group produced a report last year on Virginia's indigent defense system, which is being considered by their legislature to improve the indigent defense system. I have all the links here.

[Three Generations]

Speaking of Virginia, I found this post on CrimLaw recently about the General Assembly failing to fund indigent defense again.

Also, I'm not sure if the link to CT's annual report is clear, so here it is again.

[Jack of CrimProfBlog]

As a gross generalization, I would say that a mediocre to bad PD is more likely to receive corrective retraining or be fired than a mediocre to bad appointed counsel. When you look at the Public Defender Service of Washington, the Legal Aid Society of New York, the Cook County Public Defender, the FPDs, it is clear that there exist centers of excellence in the PD world that are not present to anything like the same degree in the group of private attorneys taking appointed cases. Perhaps this is in part because with the PDs although there is no market discipline, there is hierarchical discpline; with private attorneys there is no discipline at all.