Improve Legal Defense for Poor with Free‐​market Solution

December 7, 2010 • Commentary
By Stephen J. Schulhofer and David Friedman
This article appeared in the Atlanta Journal‐​Constitution on December 7, 2010.

Criminal defense systems are in a state of perpetual crisis. Leading authorities surveyed by the American Bar Association portray existing arrangements as “shameful,” “abysmal,” “pathetic” and “deplorable.” In a recent statement, former Manhattan District Attorney Robert Morganthau, along with 61 other former prosecutors, charged that indigent defense is pervaded with “systemic failures” so grave that they prevent prosecutors from fulfilling their responsibilities “to produce just outcomes that inspire public confidence.” All of society has a stake in putting an end to this scandal.

In part the problem reflects inadequate resources. But there is a compounding problem that has been largely ignored: In every American jurisdiction, the person who has the most at stake — the accused — is allowed no say in choosing the professional who will provide one of the most important services he will ever need: a legal defense.

Many of the steps proposed to fix indigent defense are complex and, above all, expensive. But the system’s most basic flaw could be cured by a reform that is straightforward, cheap and yet almost never considered. The power to select the defense attorney need only be transferred, by means of a voucher system, from the government to the person he or she will represent.

Indigents commonly mistrust the public defender assigned to them, viewing him as part of the same court bureaucracy that is trying to put them in prison. Nearly everyone would regard it as outrageous for one side in a civil case to have the power to appoint the other side’s lawyer. And yet, in a criminal case, where the plaintiff is the state, this happens every day. If the defendant is indigent — and roughly 80 percent of felony defendants are — it is the state that selects his attorney.

Though ample funding for indigent defense is plainly important, providing it inevitably requires tough, politically difficult choices. And even with increased resources, problems will remain in any system where the defendant’s attorney is chosen for him by the state, because attorneys are likely to be selected for their ability to serve the court system. Moving cases through the process quickly might please the judge, but what about the clients who want a thorough defense of their innocence?

That foundational defect can be corrected by simply permitting the person accused of a crime to select his own attorney. That is, after all, the mechanism most of us use most of the time to control the quality of the goods and services we buy. Even if the accused cannot judge perfectly among available lawyers, at least the decision will be made by someone with an interest in making it correctly.

Counsel for indigent defendants are already paid by the government. A system of defense vouchers would permit defendants to select the lawyer who, by representing them, would earn that fee. If they preferred, defendants could choose the public defender or an attorney recommended by the court, but the choice would be theirs. Indigent defense would cost no more than at present; attorneys would be compensated in the same way as before, with either hourly fees or lump‐​sum payments per case.

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.

Many other countries permit indigent defendants to select the lawyers who represent them in criminal court. The province of Ontario has used defense vouchers for some time, apparently with considerable success. Of course, a voucher system will not solve every problem, but at any level of funding, defense vouchers can produce gains both for indigent defendants and for all the rest of us.

About the Authors
Stephen J. Schulhofer
David Friedman