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.