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."
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.