Tag: indigent legal representation

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.

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.