Celebrating 10 years! 2007-2017

To Fix Indigent Defense, Bring the Market In?

This has zero credibility with me on its own, being written wolfman04/19/17
I also tend to think the whole "indigent defense crisis" iss rubbersoul1404/19/17
This will make it even more political and move lucrative for triplesix04/19/17
This article says nothing about how attorneys will be compen guyingorillasuit04/19/17
In Virginia indigent defense is done in many places by the c qdllc04/19/17
Hourly rate is how a lot of assigned counsel systems work an flharfh04/19/17
This. In the counties I practice in (I no longer do crim def vulturelaw04/20/17
Yeah, exactly. This is touted as some big new experiment, wh wolfman04/19/17
The pay is low and if you get one case it sucks. But if you triplesix04/19/17
The model proposed isn't terrible but it's also unlikely to thirdtierlaw04/19/17
I don't know what any of this has to do with the "market"? T trollfeeder04/19/17
Having done both sides, the D attorney has mininal effect in adamb04/19/17
Yeah. This would be like Medicaid. The government will pay t onehell04/19/17
Public Defender who works a legit 1600 hours per year making anothernjlawyer04/19/17
On one hand, I agree with you that Ps overcharge for leverag adamb04/19/17
It's far from a perfect idea, I'll grant you that. It's prob anothernjlawyer04/19/17
I disagree with the haggling over every .05. I do some out o thirdtierlaw04/19/17
That's how it works around here. Private attys sign up to ta porochi04/19/17
In nyc, they went the opposite direction and funded more con adamb04/20/17
NYC is kind of a hybrid system in that they award those cont trollfeeder04/20/17
Typical NY cronyism. adamb04/20/17

wolfman (Apr 19, 2017 - 12:50 pm)

This has zero credibility with me on its own, being written by a Cato Institute shill (and I am a conservative nationalist), since these people are exactly like the Marxists-Leninists used to be: with them, the solution to everything is "free market," just like with the other guys the solution to everything was "proletarian revolution."

But it got me thinking: do people think what is being proposed here (basically, an assigned counsel system, but one where lawyers compete?) is better than the system with salaried PDs, or worse? My hunch is worse: PD jobs can be tough to get, especially in large cities, and with assigned counsel who advertise, all the work will be handled by the biggest shysters who lie and cheat the most... but I don't practice, so I don't really know.

I also tend to think the whole "indigent defense crisis" issue is kinda bogus, and in line with society's general obsession on spending the most on its members who contribute the least... these people are getting free lawyers, what do they want, Johnny Cochran? Society can't afford that, and I'm not certain it'd be good for society anyway (in fact, the opposite might be true)... but again, I don't have first hand experience like an ADA/PD would.

Is this Cato Institute person even a lawyer? Seems like he is just discovering not every place has assigned PDs... in any case, it'd be interesting to hear what people think:

http://www.nationalreview.com/article/446864/public-defenders-client-choice

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rubbersoul14 (Apr 19, 2017 - 3:01 pm)

I also tend to think the whole "indigent defense crisis" issue is kinda bogus,

I think the Supreme Court would beg to differ: https://www.law.cornell.edu/supremecourt/text/372/335

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triplesix (Apr 19, 2017 - 12:57 pm)

This will make it even more political and move lucrative for those on the inside.

Only connected will get the gigs while taxpayer will be expected to foot the higher bill for better "quality".

Again, let's fleece the producing side of society for the benefit of the parasite class, ie lawyers with political connections.

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guyingorillasuit (Apr 19, 2017 - 1:05 pm)

This article says nothing about how attorneys will be compensated. If the county offers X dollars an hour for indigent defense, then that is nothing new. These types of systems exist in lots of places.

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qdllc (Apr 19, 2017 - 1:12 pm)

In Virginia indigent defense is done in many places by the court pointing a private practice attorney as there is not enough funding to maintain a public defenders office.

The fee paid for services rendered makes working at a public defenders office look like major bank. While most attorneys do their ethical duty, how good a defense do you think you will get for $500 (misdemeanors) compared to the prosecution who get state pay w/benefits and state resources to prosecute the case?

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flharfh (Apr 19, 2017 - 1:27 pm)

Hourly rate is how a lot of assigned counsel systems work and it's fine, in my opinion.

Per case flat fees are bad because they incentivize attorneys to do as little work as possible. On the free market this incentive is counteracted by the attorney's need to preserve his reputation, but assigned counsel doesn't have that pressure because the indigent defendant isn't choosing his lawyer.

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vulturelaw (Apr 20, 2017 - 2:23 pm)

This. In the counties I practice in (I no longer do crim defense, used to do it for my old firm), a couple of them pay by the hour, and one pays a flat fee. I hated working in the flat fee county and found myself trying to do as little work as possible to avoid starving myself. Even then, the hourly rate wasn't much. There are only so many hours in a day, and if I spend 8 hours on one case, that's 8 hours I could have spent on others, usually others that pay better. Flat fees in this context are a terrible idea.

For the counties that paid hourly, although the rate was around 1/3 of my private retained hourly rate, I felt much more comfortable spending more time on the case, interviewing witnesses, filing motions, and talking to the client. I kept expenses reasonable as I didn't want to get kicked off the court contract.

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wolfman (Apr 19, 2017 - 1:44 pm)

Yeah, exactly. This is touted as some big new experiment, when lots of places appoint private attorneys when there is no salaried PD or PD has a conflict - even I know that, see 18(b) panels in NY, etc.

I suppose the only "new" thing is that the indigents DO get an option to choose their assigned counsel, as opposed to the judge just picking someone (the judge can still just pick someone if they don't want to chose).

Of course, as people point out, it all depends on what the pay is. If the pay is good, attys may indeed "compete" for these clients when clients decide they want to pick (or the judge will just assign cases to his old friends/gool dold boys on the panel, like it happens in a lot of places). If they pay is crappy, I imagine attys would go out of their way NOT to have indigent clients choose them (especially if they can't refuse to represent them), which could lead to some pretty hilarious bios being submitted (once again assuming submission is mandatory)... and the judge would still end up appointing some poor sap to work for peanuts...

I like how the assumption is that there are tons of attys wanting to "compete" for this work without pay rates being talked about... kinda makes me think the author is not/never was a practicing criminal defense attorney, no matter what else he might be...

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triplesix (Apr 19, 2017 - 2:01 pm)

The pay is low and if you get one case it sucks. But if you are in, you get many cases and they are well scheduled.

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thirdtierlaw (Apr 19, 2017 - 2:08 pm)

The model proposed isn't terrible but it's also unlikely to make much of a difference. My state has a "conflict counsel contracts" where attorneys get a set amount of money per month to take on as many or as few clients that are assigned to them by the Court. As a whole, you end up with two calibers of attorneys. You get the private attorneys whose only income is government contracts or you get attorneys whose contract work is just there to have a guaranteed income each month but most of their income is from private clients.

As a general rule, the attorneys who are essentially a second PD's office are pretty terrible. They figured out that the less work they put into a case the better their "hourly" rate is per month. The attorneys that actually need a good reputation will usually work harder, file more motions, etc. If this proposed system was put into place in my State almost all the "good attorneys" would drop their contracts. Especially if the attorney can only turn down cases if their caseload gets too big. It wouldn't be worth the headache of screening all those cases. Even if it is a flat fee per case, it many times isn't worth it.

It's also interesting to me that judges see more defense attorneys going to trial as a good thing. Do not misunderstand, I am fearless about trying cases. However, the large majority of people coming through the system are actually guilty of what they are charged with. It is almost always better to work out a plea deal than to go to trial and lose. If you're innocent or police botched the case sure, go to trial. But there is a reason you see more accomplished attorneys trying fewer cases than defense attorneys who are new to the field. Being able to speak honestly with your client about expected outcomes is just as important of a skill as knowing your trial objections.

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trollfeeder (Apr 19, 2017 - 2:37 pm)

I don't know what any of this has to do with the "market"? The program simply allows the defendant to pick which assigned counsel gets their case. This is mostly the placebo effect of defendants believing they got a "real lawyer" and not a public defender. Most criminal defense relies on having the time to do the leg work involved, and huge caseloads prevent that work from happening.

The point being made is a complete red herring, the comparative quality of attorneys is highly subjective, the lawsuits pertain to not having enough warm bodies to prevent a guy from awaiting trial for a year or two. I think letting a defendant choose his assigned counsel is great, but it has nothing to do with the systemic problem.

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adamb (Apr 19, 2017 - 2:51 pm)

Having done both sides, the D attorney has mininal effect in large jxs for fast pleas. ADAs and Ds know the standard pleas for certain offenses and rap sheets. The quality of attorney matters more for those uncommon trial cases.

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onehell (Apr 19, 2017 - 3:01 pm)

Yeah. This would be like Medicaid. The government will pay the same rate to whomever you select, but you get to choose where that government money goes. So lawyers compete for government-funded clients the same way doctors compete for government-funded patients.

That might improve at least clients' imperfect and subjective assessment of quality, but it won't save any money. I feel like Cato Institute must have a longer game here. It could be an incremental step towards something like the school vouchers that are the darling of so many conservatives, i.e. subsidize the cost of private counsel like vouchers subsidize private school, so that rich people get some benefit from that system and can pay the difference between the government rate and the rate of any private lawyer they choose. A smaller set of lawyers become like the public schools in a voucher world: They take the government rate as payment in-full and serve pretty much only the truly indigent. Then, you no longer have to means test the benefit because every defendant, rich or poor, gets the same voucher.

Libertarians hate means-tested benefits. So it might not be so much about saving government money, as making it so that everyone (not just the very poor) get some benefit from the public counsel system. The problem with that, of course, is that the subset of lawyers who accept the voucher as payment-in-full will become a second-tier. Right now, staff public defenders spend more time in court than virtually anyone else, and they compete like crazy to get that sweet pension and guaranteed employment. The public defenders are among the best lawyers you can get because they got a job where there are 100 applicants for every opening and then they are given the most experience of anywhere. They're certainly better than most solos. Most people don't know this, but I suspect Cato is aware. They want the best lawyers being served by the people who deserve them: Rich people. And they want rich people to get the same access to taxpayer dollars that poor people do. So again, I suspect they have a longer game and that this idea is an incremental step towards something like vouchers.

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anothernjlawyer (Apr 19, 2017 - 4:50 pm)

Public Defender who works a legit 1600 hours per year making 100K salary and benefits = $62.50 per hour. That's 1/2 the hourly rate of the sh!ttiest cut rate insurance defense work, and you know that the State will dicker over every 0.05 on a bill submitted by a private defense attorney. You're not going to hire Benjamin Braffman at that rate: you might get a new grad with zero experience and no office who renders ineffective assistance that results in bigger legal fees to the State during 20 years of appeals.

Slightly off-topic, but I'd like to see reforms that disincentive prosecutors from over-charging to give themselves leverage in plea bargaining.

Maybe a system where the Prosecutor's office is responsible for portions of Defendant's legal fees where Defendant is either found not guilty or more serious charge is dismissed.

Thus, Defendant who jaywalked gets charged with jaywalking instead of "conspiracy to interfere with interstate commerce," which has a 20 year jail term and leads to a no-brainer jaywalking guilty plea.

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adamb (Apr 19, 2017 - 5:49 pm)

On one hand, I agree with you that Ps overcharge for leverage (although usually in serious cases). But penalizing the taxpayers, who fund both sides of the criminal system, makes no sense. It's robbing Peter to pay Paul. Also, such a system fails to account for wide variations in jxs. For example, here in NY, the P overcharge more on LI, yet they win more trials even if on lesser offenses. Yet, in a jx like Bronx, the P lose many serious cases because all of the witnesses are poor, have records and drug problems, or they fail to show up at all, plus juries hate cops there. So the outcome in Ds favor has less to do with guilt/innocence than with randomness.

So penalizing the loser of criminal trials is as arbitrary as the system itself, which is outrageously arbitrary.

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anothernjlawyer (Apr 19, 2017 - 8:56 pm)

It's far from a perfect idea, I'll grant you that. It's probably a bigger issue on the Federal level than the state one as well.

If a prosecutor's office had a limited budget every year (not just "the State pays") and overcharging could lead to reductions in that budget via responsibility for defense costs, that could create a financial disincentive not to overcharge.

Crafting a way it could work fairly / effectively would be a lot more complicated. Some thoughts:

1) P responsible for D's costs if D gets a directed verdict?

2) Jury asked, after judgment of acquittal, whether it believes P either had meritorious basis for charge / proved charge by preponderance, and if not, P responsible for costs?

3) D can make an "offer of judgment" by offering to plead to a lesser offense, and if P fails to convict on more serious offense, P responsible for fees?

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thirdtierlaw (Apr 19, 2017 - 7:03 pm)

I disagree with the haggling over every .05. I do some out of contact ad hoc work and though the State pays really poorly, they cover all expenses and I've never gotten any push back for time I've billed. They don't argue because it isn't their money being spent. It is taxpayers footing the bill.

You are right that they PD's are only billing $62 an hour which is less than any cut rate ID associate. However you're looking at the math wrong. How many of those cut rate ID people keep 100% of everything they bring in?

Most of these government contractors are solo/small firm attorneys with very low overhead. So that money goes straight into their pockets. Very few criminal cases, that involve indigent clients, require multiple attorneys to work them.

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porochi (Apr 19, 2017 - 11:56 pm)

That's how it works around here. Private attys sign up to take appointments and agree to a low hourly rate. But some attys augment their practice quite well taking appointments. They do volume appt work. The indigent legal defense system around here would collapse overnight if the PD's office took all the cases. We have PD's here but it's a small office and the private bar does the bulk of the work. In fact, I've known members of the private bar complain that the PD office should just go away because they are taking business from members of the private bar who want more appointments.

Sounds like the author of the Cato article just discovered round wheels work better than square and is happily trumpeting the news...

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adamb (Apr 20, 2017 - 7:50 am)

In nyc, they went the opposite direction and funded more conflict defenders. So assigned counsel shrank, and now there are two PD offices per borough.

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trollfeeder (Apr 20, 2017 - 9:39 am)

NYC is kind of a hybrid system in that they award those contracts to profit and non profits. There is that for profit sweatshop firm in queens, which is far different from say NDS in Manhattan.

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adamb (Apr 20, 2017 - 10:11 am)

Typical NY cronyism.

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