Tag: indigent defense

‘Client choice has never been tried in the United States before’

Instead of the public defender system, how about providing poor persons who are accused of a crime with a voucher that they can use to hire their own attorney to represent them in court? Comal County, Texas will give this system a try in a few months.

From the San Antonio-Express News:

“Our belief is that a system of client selection can lead to improved services. Whether in fact that’s something that will occur needs to be empirically tested,” [former Indiana University School of Law dean Norman) Lefstein said. “I certainly hope that this will not be the only experiment in the United States involving client selection of counsel.”

But it will be the first. Results of the pilot program, including the costs, case outcomes and client satisfaction levels, will be tracked by the Justice Management Institute of Virginia.

“We’ve done an initial set of interviews with folks in Comal County to document how things operate,” said Elaine Borakove, institute president. “Client choice has never been tried in the United States before, so we’re very excited.”

The initiative was sparked by a 2010 Cato Institute paper calling for the use of free-market forces to address problems with America’s indigent defense systems, whether they’re based on court appointments or salaried public defenders.

The 2010 Cato paper mentioned is titled, “Reforming Indigent Defense,” by Stephen Schulhofer and David Friedman. In this blog post, David Friedman recalls the skepticism he received onthis idea 20 years ago from Judge Richard Posner. Another post here from Radley Balko.

NYT Reports on Indigent Defense Vouchers in Texas

Yesterday, the New York Times reported on a pilot program involving indigent defense vouchers that will soon begin in Comal County, Texas.

Some background: Fifty years ago, the Supreme Court held that anyone accused of a crime who could not afford an attorney would have one appointed to him by the court. The Court did not say how these attorneys would be financed, but jurisdictions around the country have drifted toward the public defender model. To the extent that indigent defense is debated among policymakers, it has pretty much centered on how much money should be spent on the public defender offices.

That’s about to change. In Comal County, policymakers are going to try using a system of vouchers. Like the school voucher concept, the idea is to put money directly into the hands of the customers, who will then decide which attorney they would like to retain. If a certain law firm earns an excellent reputation for handling criminal cases, more customers will turn to them for help, and they will hire and train more lawyers. The attorneys who do a lousy job will get less and less business. The market process in action.

According to the NYT article, the Texas Indigent Defense Commission became aware of the voucher proposal when the Cato Institute advanced the idea in a 2010 paper:

The intellectual parents of the movement toward letting poor people choose a lawyer are the law professors Stephen J. Schulhofer of New York University and David D. Friedman of Santa Clara University, who first published their idea in American Criminal Law Review in 1993. A revised and compressed 2010 version, in Policy Analysis, a Cato Institute publication, caught Mr. Bethke’s attention.

Here is how the Cato paper summarizes the benefits to be realized from a voucher system:

We maintain that defense vouchers will improve the quality of legal representation for the poor. Better legal representation will, in turn, produce at least three benefits to the community:

  • Improving defense services will reduce the liklihood of mistakes. That is, it will be less likely that innocent persons will be wrongfully convicted of crimes.
  • Improving defense services will also minimize adverse consequences to the innocent persons who would have been acquitted under current systems of indigent defense. That is, a better defense means it is more likely that those innocents will be released from custody even sooner (pre-trial) and with less disruption to their lives and the lives of their family members.
  • Improving defense services will bring more complete information to the sentencing phase of the criminal justice system—making it more likely that just punishment will be imposed on those who are guilty of committing criminal offenses.

This is a good example of how think tank work can have an impact on policy. And one of the benefits of our decentralized criminal justice system is that jurisdictions can try different policies and we can then see what works well. 

Stay tuned on the defense voucher experiment.

Reforming Indigent Defense

The Wall Street Journal law blog has a piece up on how the budget crisis is impacting public defenders:

Funding constraints have prompted states and counties to lay off public defenders, hold the line on salaries, and reduce the amount defenders can spend case investigators and staff training, the WSJ reports.

Public defenders maintain that they should be insulated from budget cuts for two reasons, the first being that they were sorely underfunded before the recession came along.  Secondly, they point to the fact that states have a duty, enshrined in Gideon v. Wainwright, to provide indigent criminal defendants with the right to counsel.

Stephen J. Schulhofer and David Friedman recently published a Cato Policy Analysis, Reforming Indigent Defense that proposes a free market solution: use vouchers instead of public defenders. This would eliminate the overhead of keeping defense attorneys on the public payroll and improve the quality of representation. As they put it in a related op-ed:

Vouchers would greatly improve the quality of defense representation, because attorneys hoping to attract business would have to serve their clients well. Better representation will, in turn, produce at least three benefits for society. First, improving defense services will reduce the potential for mistakes. It will be less likely that innocent persons will be wrongfully convicted and less likely that the actual perpetrators will remain free to repeat their offenses.

Second, improving defense services will minimize adverse consequences even for those who would be acquitted under current systems of indigent defense. A better defense makes it more likely that the innocent will be released from custody sooner, with less disruption to their lives and less expense for the jails that hold them.

Third, improving indigent defense will bring better information to the sentencing process — making it more likely that appropriate, cost-effective punishments will be imposed on those who are guilty.

My colleague Tim Lynch will speaking on Capitol Hill today at a related event, The Last Sacred Cow: How Congress Can Cut Criminal Justice Spending Without Compromising Public Safety.

David Friedman: The Machinery of Criminal Defense

I once went to another Washington think tank to hear an advertised lecture by David Friedman, “author and professor of law and economics at Santa Clara University.” The great libertarian author of The Machinery of Freedom, speaking at a liberal-establishment Washington think tank? Cool. So I showed up early, took a seat by the wall, and was crushingly disappointed to discover that the speaker was in fact some other David Friedman, who was decidedly no libertarian, and I was pinned in and couldn’t leave. They told me later that an intern got the wrong bio off the web. Always blame the intern.

So anyway, I just wanted Cato-at-Liberty readers to notice that our new paper “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System,” which Tim Lynch wrote about here, is in fact co-written by “the real David Friedman,” the son of Milton Friedman, the professor of law and economics with a Ph.D. in physics, the author of the early libertarian classic The Machinery of Freedom as well as such other books as Hidden Order, Law’s Order, and Future Imperfect – yes, that David Friedman.

So even if you didn’t think you were interested in the topic of voucherizing legal aid for indigent defendants, just consider that David Friedman is always interesting.

Reforming Indigent Defense

We know that most of the people arrested and prosecuted in our criminal courts are indigent.  We also know that indigent legal representation is scandalous in many places around the country.  What to do?  The conventional remedy to this problem has been a plea to spend more money on our overburdened public defender organizations.  However, a new Cato paper takes a fresh look at this subject and proposes an entirely new model for the delivery of indigent legal services – defense vouchers that will empower defendants to choose their own attorneys.  Authors Stephen Schulhofer and David Friedman explain how such a system could be implemented and why it can be expected to provide an effective cure for the major ills of indigent defense organization.

From the Executive Summary:

The uniform refusal of American jurisdictions to allow freedom of choice in indigent defense creates the conditions for a double disaster. In violation of free-market principles that are honored almost everywhere else, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need. The situation is comparable to what would occur if senior citizens suffering from serious illness could receive treatment under Medicare only if they accepted a particular doctor designated by a government bureaucrat. In fact, the situation of the indigent defendant is far worse, because the government’s refusal to honor the defendant’s own preferences is compounded by an acute conflict of interest: the official who selects his defense attorney is tied, directly or indirectly, to the same authority that is seeking to convict the defendant.

Check it out.