Public Defenders Get High Marks - NY TIMES

NY TIMES Adam Liptak - Some poor people accused of federal crimes are represented by full-time federal public defenders who earn salaries, others by court-appointed lawyers who bill by the hour. A new study from an economist at Harvard says there is a surprisingly wide gap in how well the two groups perform.

Both kinds of lawyers are paid by the government, and they were long thought to perform about equally. But the study concludes that lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer.

Appointed lawyers also cost taxpayers $61 million a year more than salaried public defenders would have cost.

There are many possible reasons for the differences in performance. Salaried public defenders generally handle more cases and have more interactions with prosecutors, so they may have a better sense of what they can negotiate for their clients. Salaried lawyers also tend to have superior credentials and more legal experience, the study found.

The study will add a new layer to the debate over the nation’s indigent defense systems. In 1963, the United States Supreme Court ruled in Gideon v. Wainwright that poor people accused of serious crimes were entitled to legal representation paid for by the government.

The federal system handles about 5 percent of all criminal prosecutions and is relatively well financed. The implications of the new study for the states may therefore be limited.

But more than half the states use a combination of public defenders and appointed lawyers, and most indigent defendants are not represented by staff public defenders at the trial level.

In the federal courts, roughly three-quarters of all defendants rely on lawyers paid for by the government, about evenly divided between salaried public defenders and appointed lawyers paid by the hour. Most of the rest hire their own lawyers, with about 2 percent representing themselves.

Before the new study, the debate over how best to provide poor defendants with adequate representation had largely concerned whether lawyers for indigent defendants were paid enough to ensure a fair fight with prosecutors. The debate did not much consider how the lawyers were paid, and whether that made a difference.

The new study looked at federal prosecutions from 1997 to 2001. It was performed by Radha Iyengar, a postdoctoral fellow at the Institute for Quantitative Social Science at Harvard, and presented as a working paper of the National Bureau of Economic Research last month.

Judge Morris B. Hoffman, a Colorado district court judge and a co-author of a 2005 study on the representation of indigent defendants, said the new study’s innovation was in its noticing that public defenders and appointed lawyers were assigned randomly in many federal judicial districts.

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