Wednesday, January 10, 2007
WHAT'S A PD WORTH?
From the pages of the NY Times opinion section on Monday January 8, 2007 ,
comes this startling analysis from Judge Morris Hoffman of the criminal bench in Denver, Colorado:
a PD is not as econometricly effective as a private attorney.
Put simply, a defendant in Denver gets a less severe sentence when he/she hires a private lawyer.
Before the emails in capital letters star flooding in , lets look at the study in depth:
Judge Morris- a criminal court judge, writes that he started with a strong bias in favor of the efficacy of public defenders. Morris, along with two economists from Emory University, reviewed all 5,224 felony criminal cases filed in Denver in 2002.
From the article:
Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive. Thus, acquittals counted as zero. Probationary sentences likewise counted as zero, unless the probation was combined with some jail time.
We counted halfway-house sentences as 120 days, which is typical for Denver defendants. We counted the initial length of a prison sentence without decreasing it for early release or increasing it for parole violations. Life sentences we arbitrarily counted as 110 years.
My economist friends were able to use regression analyses to control for other variables (such as whether a case was plea bargained or went to trial), to minimize the chance that the differences we found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.
The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.
But our most notable finding was hidden in one of the variables we had controlled — the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, if for no other reason than that such cases carry higher bonds, and defendants who can’t make those bonds are often rendered indigent by their pretrial incarceration. The length of their clients’ sentences would of course be distorted by the fact that they handle more serious cases with longer potential sentences.
But when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more).
The study also recognized that indigency is not a binary system: meaning it is not correct to say someone is either indigent or not indigent. The study recognized that defendants make rational economic choices when deciding to accept a designation of indigency- and a public defender, or to raise funds and hire a private attorney.
Again from the article:
Imagine a guilty, marginally indigent defendant facing a relatively minor felony (for which he will most likely get probation). Now add to the mix the fact that his crime was captured on videotape, meaning he has a small chance of avoiding conviction. It is unlikely such a defendant would deplete his and his family’s and friends’ resources to hire a private lawyer when he could get a free public defender to achieve the same result.
At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine that he is innocent. Wouldn’t that defendant do everything in his power to marshal the resources to hire a private lawyer, if he believed, rightly or wrongly, that the private lawyer were more likely to achieve an acquittal?
In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course if that’s true, it’s not at all surprising that public defenders would achieve less favorable outcomes.
Rumpole theorizes that there are more variables then the study takes into account, but the study is a good start. The variables that would tend to support the findings of the study are that the Public Defenders tend to be more inexperienced and have more cases than a Private Attorney, a combination that would support the findings.
But on the other hand, could there be a systemic bias against an indigent defendant? Sensing a weakness, do prosecutors unintentionally make stiffer plea offers to PD’s? Are fees for the “unwinable” cases so exorbitant that those cases tend to stay with the PD’s? The author’s statement that indigent defendants who choose to stay with the PD tend to be guilty creates a bias in the analysis. Therefore, this bias needs to be accounted for before a true econometric statement can be made that PD’s are less effective than Private attorneys.
OK-have at it.