Monday, July 25, 2011

Appointed counsel get worse results than public defenders, private lawyers

Indigent defendants with court-appointed lawyers receive worse outcomes than those with public defenders or retained counsel, according to a new paper from Thomas Cohen at the Bureau of Justice Statistics. He "examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders."

About 80% of criminal defendants nationally, says Cohen, are indigent, with just one in five hiring their own attorney. (The author excluded pro se defendants from the study because he's analyzing which type of lawyer gets better outcomes, but approximately 2% of all defendants proceed without an attorney.) Defendants were more likely to retain private counsel in more serious cases: "7% of defendants represented by private attorneys were charged with rape or other violent crimes, while about 4% of defendants with public defenders or assigned counsel were charged with these offenses."

Nor surprisingly, repeat offenders are more likely to be indigent: "criminal backgrounds were less common among defendants who retained private counsel. Nearly a third (31%) of defendants with private attorneys had no previous arrest history, while only about a fifth of defendants with public defenders (17%) or assigned counsel (19%) had never been arrested." Approximately half of those with public defenders or assigned counsel had a prior felony conviction, compared to 36% for those with private counsel.

The author also found racial disparities in who gets what type of counsel, though they more or less track relative socioeconomic differences among the races: "36% of defendants retaining private attorneys were white compared to 29% with assigned counsel and 26% with public defenders. Conversely, a higher proportion of defendants represented by public defenders (44%) or assigned counsel (47%) were black than defendants with the means to hire their own attorneys (34%)."

To get to the meat of the study, "In the nation’s 75 most populous counties, the overall conviction rates were about the same for felony defendants represented by public defenders (73%) or hired attorneys (72%)." However, "Defendants with assigned counsel, in comparison, faced a higher likelihood (78%) of conviction."

Even larger differences showed up at sentencing. "When examining the type of incarceration sentence imposed, convicted defendants represented by assigned counsel were significantly more likely to receive prison sentences compared to those represented by either public defenders or private attorneys. Nearly half (46%) of convicted defendants with an assigned counsel received a prison sentence, while approximately a third of convicted defendants with retained counsel (29%) or public defender (32%) representation were sentenced to prison."

Indeed, there's one critical metric where public defenders appear to be getting better outcomes, even, than privately hired lawyers: "Among convicted defendants sentenced to serve time either in prison or jail, those using public defenders received shorter average sentences than those with private attorneys or assigned counsel. Defendants with public defenders were sentenced to an average of 23 months of confinement, while those with hired attorneys or assigned counsel were sentenced to incarceration terms averaging 31 and 35 months, respectively." The difference in sentence length is mainly due to drug crimes. For reasons I cannot fathom, private attorneys' clients received substantially longer sentences for drug crimes than those represented by PDs: "convicted defendants with private counsel were sentenced to periods of confinement 37% longer than their counterparts with public defenders." I'd never have expected that outcome.

Appointed counsel received even worse sentencing outcomes: Comparing public defenders and appointed counsel, the latter received sentences 33% longer for violent crimes, 22% higher in property crimes, and 40% higher in "public order" offenses.

To summarize: "Indigent defendants represented by assigned counsel received worse case outcomes, particularly for property or drug crimes, than their public defender counterparts." What's more, there is little evidence "in support of the proposition that private attorneys secure better outcomes for their clients. Overall, ... defendants who hired their own attorneys were just as likely to get convicted and actually received longer sentences compared to defendants represented by public defenders."

The paper notes that, "Of all forms of indigent defense, the most popular and widely used are public defender programs." But Texas counties, of course, rely heavily on appointed counsel with only a few, smallish public defender systems around the state. (Dallas' is the biggest, and they supplement their PDs office with appointed counsel.) That's significant because, "In general, defendants represented by assigned counsel received the least favorable outcomes in that they were convicted and sentenced to state prison at higher rates compared to defendants with public defenders. These defendants also received longer sentences than those who had public defender representation."

These data suggest that most indigent Texas defendants are receiving lower quality legal representation than their counterparts in jurisdictions with public defender systems, and that poor-quality representation results in longer sentences and thus increased incarceration costs.

Via CrimProf Blog.


Anonymous said...

Could it be that those represented by private counsel in drug cases get longer sentences because they are also those individuals higher up the ladder within an organization and are more able to hire private counsel - but not able to minimze their sentences because of their greater involvement in the organization - a criteria leading to longer sentences in the first place?:~)

Anonymous said...

The premise -- that longer sentences are evidence of bad representation -- is specious. Just the sort of bald accusation that you would challenge if it came from the mouth of a conservative, law-abiding person.

Gritsforbreakfast said...

4:20, this isn't a "bald accusation," it's a recitation of findings by a statistician from the Bureau of Justice Statistics. I'm not accusing anybody of anything, I'm reporting what Mr. Cohen found when he crunched the numbers. It's not like he made them up. What do you think explains the data?

3:28, that could be it. I found that datapoint puzzling.

Anonymous said...

Fascinating. Do these conviction include plea agreements?

Anonymous said...

You get what you pay for. In this day and age even bad legal representation for the middle and lower class is simply unaffordable. Justice is what you can afford and for most of us it isn't much. A court appointment is equivalent to nolo contendre.

Hook Em Horns said...

Not surprising...sadly.

Gritsforbreakfast said...

Yes, 4:57, almost all of the convictions are plea agreements. PDs and appointeds took 3% of cases to trial. Private pay attorneys took 4% to trial.

4:58, I'm not sure "you get what you pay for" is the lesson here. Indigents with public defenders get as good or better outcomes as those with money to pay, according to these data.

Anonymous said...

Its also a know fact that if you do the right things in life like obey the law you won't have to worry about a lawyer.
I don't care to hear about what if I was wrongly accused watch who you hang out with.

Anonymous said...

The bottom line IMO is money, I have heard court appointed counsel tell defendants that they are working for the court. If the defendant cannot come up with some some of money to pay the appointed counsel then they will be able to do little more than plea them out. PD's I assume are salaried county positions, similar to a prosecutor. While it may be unethical to sail your client up the river no matter the merit of the case, without money for a good defense it appears to happen everyday.

Anonymous said...

to 7/25/2011 05:08:00 PM

Your statement that if one obeys the law, one will not need a lawyer is simply not true. Do you live under a rock?

Debt Collection Laws said...

Good Info..

Anonymous said...

There is nothing in this paper that suggests any of this data came from Texas. When you search the word Texas in the paper that word does not appear. Please do not suggest "These data suggest that most indigent Texas defendants are receiving lower quality legal representation than their counterparts in jurisdictions with public defender systems, and that poor-quality representation results in longer sentences and thus increased incarceration costs." Your comment distorts the scope of this data. It appears this data is from Federal systems that that have PD offices often funded far better than any state system. We have recently had one PD office fail in Texas. There are many criticisms of the effectiveness of the latest Harris County PD office. Of the few others in Texas they are underfunded and when you talk to attorneys who left those offices, they saw a lot of pleas because of high case loads. There are other PD offices around the US that counties and government agencies are being sued because of various problems. 3:28 was exactly correct to point out that private attorneys may be handling more difficult cases. These cases have so many factors that statisticians often oversimplify matters just as Grits tried to oversimplify the results of this data.

Gritsforbreakfast said...

5:28, no, this data is from state courts in the 75 largest counties. Good try though.

And though Texas isn't mentioned, most indigent defendants in Texas are represented by counsel appointed off a wheel, not public defenders. So if appointed counsel generate worse results in aggregate, in Texas that's how our indigent defense systems are for the most part run. Hence my conclusion.

Finally, nobody said PDs have no problems, just that private attorneys in state court generate no better outcomes for their clients in aggregate than PDs, and that remains true regardless of your attempts at obfuscation.

Anonymous said...

In some places, such as Smith County, some of the judges have a handful of attorneys under contract to represent indigent defendants. I believe they are paid a set amoumt per month. In one court there is an obvious pattern of these attorneys telling their client to plead guilty and let the judge set the sentence. This judge, Jack Skeen, is notorious for giving very harsh sentences. One has to wonder why any attorney would recommed their client allow him to set their sentence. I recently had the opportunity to see some financial information from an attorney that had one of these types of contracts a couple of years ago. Approximately 70% of this attorney's total income came from the county. If 70% of someone's income comes from a certain source, do you think they are going to do anything to jeopardize that. I suspect that's why these attorneys in Skeen's court sell out their clients.

"Don't trust your soul to no [Texas court appointed lawyer] caust the judge in the town's got blood stains on his hands."

San Marcos Lawyer said...

As some one who is in the trenches I think that one main reason for the disparity in senteces is that PD offices are trained and steeped in the concept of mitigation and doing "Simmons " work. This is a far different focus than just cutting a deal. It means understanding your client and his or her psycho/social history. If most of us were trained in this and had the resources to do Simmons work right the results would even out. Dave Sergi

Anonymous said...

I have always believed that a public defenders office is a better way to go than appointment. While appointed counsel get paid about twice what the prosecutors get, and public defenders would presumably be paid less on a per-case basis, appointed counsel have a financial incentive to dispose of the case as quickly and easily as possible. Public defenders, on the other hand, like prosecutors, if not paid on a per-case basis, would spend the time and energy that the case deserves, whether that is a little or a lot, because they get paid the same either way. In larger counties, my guess is that this would be the cheaper way to go, aside from also getting better results. And while a public defender has the same ethical obligations to represent his client as paid counsel, it would not suprise me to learn that prosecutors give more credibility to public defenders-- a) they will have to deal with these attorneys time and time again and know that if they are lied to then the defense attorney cannot expect to be trusted in later dealings and b) they know the public defenders ethics will not be challenged by an exorbitant fee (I'm not saying all paid defense attorneys are incapable of withstanding that challenge, but a prosecutor's perception that a lawyer's honesty is for sale is more likely to come into play if the lawyer is being paid a lot). Also, prosecutors know that public defenders can make their lives harder on a regular basis, which would hopefully lead to more collegiality and compromise on both sides, and thus better resolutions in the average case. I think this study confirms what makes sense to me.

The Homeless Cowboy said...

C'Mon they had to do a study to find that out?????

Anybody whose ever been to prison could tell you that, or even spent a month or two in County lock up.

This is not a well guarded secret and it is tottally true, mostly because the court appointed attorney resents having the case thrust in his / or her face without any chance to get paid decently. Therefore not much energy is expended other that signing cop out papers and washing thier hands. See Ya Later BYE.

Yes I guess I am a bit cynical.

Anonymous said...

"Its also a know fact that if you do the right things in life like obey the law you won't have to worry about a lawyer.
I don't care to hear about what if I was wrongly accused watch who you hang out with.

7/25/2011 05:08:00 PM"

You know 5:08, you have an amazing faith in the government. Maybe you're right. So, I think we should just do away with all those pesky constitutional rights. After all, we can trust the government. As long as you don't do anything wrong you have nothing to fear from the government, right. Let's do away with the constitution and just leave it all in the hands of our trustworthy government officials and politicians. If you don't do anything wrong, you have no need for constitutional rights, do you. If you don't do anything wrong, there's nothing to fear from the government. Isn't that right 5:08?

Anonymous said...

Anonymous 5:08 stated:

"Its also a know[n] fact that if you do the right things in life like obey the law you won't have to worry about a lawyer.
I don't care to hear about what if I was wrongly accused watch who you hang out with."

Really? Try reading the NY Times July 25, 2011 story 'A Revenge Plot So Intricate, the Prosecutors Were Pawns'. Upright citizen set up by an ex-boy friend for multiple violent crimes. When she tried to address who she was hanging out with she ended up getting "hung out" to dry by the system that was supposed to protect her. After 7 months in jail her business was destroyed and her home was lost to foreclosure.

You know not of what you speak. :~)

DLW said...

I want to speak to some of the comments suggesting that court appointed counsel has a financial incentive to dispose of the case as quickly as possible.

Actually, they make more money per case if they contest matters and/or take the case to trial. Note that I am speaking of true court appointed counsel and NOT the contract Lawyers.

easttexas said...

My court appointed attorney wanted me to take the first deal offered, 15 yrs for first offense drug delivery charge! Ended up taking the 3rd deal, 10 yrs probation with 15K fine...

Anonymous said...

Court Appointed may just not plead out as well as public defenders due to less familiarity with those they are bargaining with. Raw data such as this raises questions, seldom answers.

previous post 4:57

Anonymous said...

2:14 - In most of the drug cases I deal with a 10 year probation term is not considered a positive outcome. This is particularly so for deferred adjudication. An indigent defendant is usually going to be tripped up eventually by onerous conditions of probation - not to mention the money involved. And woe to the probationer that picks up another case in that 10 year span. Probation terms of this length are frequently traps for indigent clients.

Of course, it is their decision. . .

Kevin Stouwie said...

I think it's hard to draw too many conclusions about the research, because it was not limited to Texas.

A national study such as this may well show one thing nationally, but shows a different thing if limited to Texas.

Finally, my own experience in reviewing inmates' sentences is that the most obnoxiously inappropriate sentences given the actual facts of the crime (and the county of conviction) seem to almost always involve court appointed attorneys.

easttexas said...

I tripped up once, judge told me what will happen if I showed my face in his courtroom again. That was in 1990. Done my 10 yrs deferred adjudication with no other problems.
Paid my fines, fees, etc. Funny note, the original county put a hold on me for $4.50, wouldn't release me until it was paid. The PO I had used his credit card to pay the damn thing.. LOL

Thomas R. Griffith said...

Hey folks, please don't spend your frigin time replying to the goofball that goes by the tick-tock name (5:08 PM). When you acknowledge dummies you assist them in their attempt to highjack GFB post. Plus it just invites them to hang out with us.

With that said -
Hey Grits, I learned the hard way that an attorney/lawyer can refer his buddy that's specializing in Divorce, Estates & Wills to families seeking representation regarding a felony. (We'll call him Daniel R. Jackson).

He can assure them that he's, "one of the best", accept the case, a down payment, pick a jury, stumble through the Motion process, agree that's he's ready for trial 5 times despite the Motions not being Agreed or Denied, plea bargain away his client at lunch recess and simply walk away with little or no consequences. Which goes to explaining a portion of the - "Almost all of them are plea agreements". Then he can honestly say that's he's got felony jury trial experience.

Q.*Re: the Study - Is there anyway to find out how many of them are real Criminal Defense Attorneys/Lawyers? Thanks.

Note: We can thank God that nowdays you can vett thier butts prior to hiring. In Harris County you can go to the District Clerks website and put in your Attorney/Lawyer name or Bar Number to discover Motions filed & cases. Don't be surprised to learn that your Best was simply the best in Real Estate or Divorce.

Anonymous said...

So, I guess it is just tough luck for those serving inappropriately lengthy sentence and for those whose crime it also is to be poor!

Tina Trent said...

"Nearly a third (31%) of defendants with private attorneys had no previous arrest history, while only about a fifth of defendants with public defenders (17%) or assigned counsel (19%) had never been arrested."

And that's the explanation. If the study's authors didn't bother to factor this in, the study isn't worth the bandwidth it occupies.

Except as propaganda of the "poor poor felons" stripe. Which seems to be progressing apace at the NYT and Crime Report. Anonymous #2 certainly has it right: the premise that longer sentences are evidence of bad representation is specious.

But specious is clearly the name of the game here -- some lobbyists in Texas want to have more money thrown at poor defendants, so they get some academician to cook up some numbers to make their case.

On the public dime there, too. The research coming out of the current DOJ is some of the purest agitprop I've seen.

Anonymous said...

The report Henson refers to considers only four Texas counties: El Paso, Dallas, Harris, and Tarrant. Only 40 of 75 counties are actually used in the report.

In states with public defender systems in every county or in the largest counties, the criminal defense bar is typically less vibrant and less experienced. As the report suggests, those states may find Larry the Real Estate Lawyer augmenting his income with a few spillover cases the PD's office couldn't take.

Texas indigent defense plans require courts to set minimum standards for lawyers taking felony appointments. It is pointless to compare Texas or a local Texas criminal defense bar's outcomes (with no specific data!) to another state where a PD's office takes the majority of felony cases and where the handful that are left are picked up by non-criminal defense specialists.

This report cannot support the blog's headline or conclusion, but it certainly advances a point of view toward legislating government budgets for PD offices. What will you say, Mr. Henson, when the PD's office is funded less per defendant than is the DA's office, and PD attorneys making $30K annually are piled under with four times the caseload recommended by ABA and other groups?

Remember—PD offices won't have hot check slush funds or the police force at its disposal. Any Texas effort at a PD office will likely face all manner of efforts to slash its budget annually. Its director won't be elected like the DA; it'll be a political appointee favored by the commissioners court. (Unless appointed by the district judge as are auditors)

Also, the report alleges that PD offices in those states get the results they do because they are part of the courtroom workgroup. To a great extent, that happens in Texas, where the criminal defense attorneys aren't a bunch of unknown stragglers stopping by felony court on their way to a divorce proceeding, but rather, people who do criminal defense work all day every day.

This report doesn't reflect what I know and how I practice law.

Texas has a vibrant criminal defense bar and this report simply does not present its readers with sufficient Texas data. Make all the excuses you want for the report. Say that because we don't have PD offices, we don't have the comparisons.

My fear is that a rise of PD offices will weaken Texas' criminal defense bar rather than improve outcomes for Texas defendants. I could be wrong. But I think it is better to focus on sensible laws and sentencing rather than attacking the defense bar working for low pay.

Graham Baker
San Antonio, Texas

Gritsforbreakfast said...

Graham, I understand your fears but I also understand that they conveniently coincide with your own economic self interest.

In my own experience, most of the true travesties of justice one sees in Texas criminal courtrooms happen on the watch of court appointed attorneys. If your experience differs, you're welcome to your point of view, but I think most observers would agree with that assessment. Also, reporting BJS study outcomes is far from "attacking" the defense bar.

Finally, I never said the study was Texas specific, but they studied the MODEL Texas uses for indigent defense, which turns out to generate worse outcomes. Contrary to your conclusion, I didn't "attack" anyone. But your defensiveness tells me this study reports facts about indigent defense systems that you're not comfortable having aired. There's simply no reason at all to believe Texas' results using the appointed model would be any better than the rest of the cases analyzed in the study.

Anonymous said...


My economic interest is not implicated by what Texas does with indigent defense. I left journalism (small market papers, TAC's County Magazine, Hoover's) to become a criminal defense lawyer because, like you, this work interests me. We both want a better criminal justice system. Your opening cheap shot aside, let's look at few facts about this report.

The report indicates that sixty percent of the defendants had public defenders; twenty percent private counsel; and twenty percent appointed counsel. The report compares jurisdictions with and without public defender systems in the same analysis.

In jurisdictions where the PD is king and only the rich white folks have private lawyers and a few poor black or Hispanic folks who showed up for arraignment after the PD filled its docket for the month got stuck with counsel who don't do much criminal defense, then sure, the appointed-counsel cases are going to be the worst.

And as the report states, the indigent defendants getting appointed counsel represent the highest percentages of repeat offenders and minorities. And the report blames the indigent defense lawyer?

But in Texas, the appointed counsel system means the folks taking the cases are, mostly, skilled criminal defense lawyers. And in Texas, sentences are quite harsh. And long probations, which are favored in some jurisdictions as an unfortunate money-making scheme, count in this report as part of the sentence calculations.

So the report compares jurisdictions featuring dozens of variables beyond the control of the lawyer, and this blog interprets the outcome to mean Texas defendants are harmed by their appointed counsel.

Given the political movement afoot to impose more public defender offices (without the funding the DAs get), which will mean more Texas government (prosecutor) control over indigent defense and discovery rules, I don't believe it is inappropriate to characterize this as an attack–intended or not–on Texas defenders.

The comparison between the nation (with many PD offices) and four Texas counties is simply invalid, and I think you have drawn a conclusion that's just not supported but the date replied upon for the report.