Tag: david friedman

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.

Cato Unbound: Property Rights in Social Democracy

This month at Cato Unbound, Daniel Klein touches on a topic I’ve long found fascinating – Where do property rights come from? Although he doesn’t answer directly, he does challenge one popular modern idea, namely that property rights are merely grants of permission by the state, which retains a residual ownership. This idea, which Klein terms “overlordship,” I find disturbingly popular among my left-of-center friends.

While the state is certainly tasked with enforcing the claims commonly called property rights, I have a hard time agreeing that the claims themselves – as opposed to their enforcement – are produced only, or primarily, by the state. Consider three objections.

First, there have been plenty of societies where the state is either nonexistent or else a very different creature from the one we know today. Yet those societies have had moral claims about personal and even real property all the same. (This is where one of this month’s contributors, David Friedman, should have plenty of interesting thoughts to add, thanks to his work on stateless societies.) In societies like these, social norms about property didn’t vanish. They were just enforced through other means.

Second, as I said in the pitch text this month:

[I]f the government stopped existing tomorrow, would you still own your property? A simple answer might be: You’d hope so. Even if you didn’t have any guarantees of it, you could still make the moral claim, couldn’t you? Or does it really all depend on the state, whose disappearance would throw your ownership claim into confusion?

I doubt very much that anyone would renounce their property claims and consider themselves paupers if the state were to disappear. Yes, our money would be worthless, but our money really is a creation of the state, and no one can sensibly deny it. Property in other things, though, would remain, even if our enforcement mechanisms suddenly became a lot cruder, less effective, and costlier, which they might well do if the state were to vanish. (On the other hand, Friedman makes medieval Iceland look pretty attractive, especially compared to its contemporaries.)

Third, people of all political persuasions continually observe instances where they think that the state has behaved wrongly in its treatment of property rights. If the state were the true owner of all property in society, and if our property rights were merely the assignments it temporarily made, we would have very little ground to object to any state actions at all. Did the state just raise taxes? We can’t object. Did the state just lower taxes? Again, we can’t object, and by the very same token: The state is the real owner, after all, and it may gift its property as it thinks best.

No one reasons this way. And it gets worse, particularly when we consider removing the property rights of defenseless minorities. That should be fine, right? Their property was only a temporary assignment, wasn’t it? And the owner – the state – can do as it pleases?

One possible objection here is that a democracy wouldn’t allow such a re-assignment, but people making this objection appear to have more faith in democracy than I do. And what if their faith were disappointed? Even if the majority approved of it, I’d like to have some justification for saying the state had done wrong here. And clearly I do.

It seems to me that our real moral intuitions on the nature of property, as on so many other things, are that (1) the state must be able to account for its actions on principles of abstract justice, (2) we are competent to think about state actions as potentially either good or bad, and (3) we can and should change the course of the state’s behavior to be more in keeping with our ideas of justice.

It’s clearly a further leap from all of this to an individualistic account of property rights, but that’s where Klein is heading. Along the way he takes some possibly surprising shots at social contract theory, too. Libertarians who have been feeling complacent as they read these lines would do well to read Klein’s full essay, which might just shake them up.

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.