Indigent defendants faring worse than two decades ago

Readers will recall recent reportage from the Texas Tribune's Neena Satija finding that defendants in Travis County with appointed counsel fared far worse than people who hired lawyers. Of those accused of petty drug possession, 80 percent were convicted who had appointed counsel compared to 48 percent who could afford to hire a lawyer, a Council of State Governments report found.

So I was interested to run across an old Bureau of Justice Statistics document from 2000 analyzing national statistics on defense counsel in criminal cases. (As far as I can tell, they've done nothing similar since.)

Back then, according to that document, conviction rates for defendants with retained and publicly paid attorneys were essentially similar, and the bigger difference was in the sentence received: "Of defendants found guilty in Federal district courts, 88% with publicly financed counsel and 77% with private counsel received jail or prison sentences; in large State courts 71% with public counsel and 54% with private attorneys were sentenced to incarceration."

So the big difference from hiring a lawyer came not from whether or not one was convicted, but whether or not one received a jail sentence. That's a big difference from today, when hiring a lawyer in the Travis County CSG analysis meant defendants were much more likely not to be convicted at all.

But even that's not the full story. According to the 2000 BJS report, "State defendants with public counsel [were] sentenced more often to prison or jail, but for shorter terms than those with private lawyers."

That was especially true for defendants convicted of drug crimes in state court, where average sentences back then were 97 months for defendants with a lawyer paid by the state compared to 140 months for people who hired a lawyer!

So in some ways, state defendants with publicly financed counsel fared better than people with private lawyers. Hiring a lawyer made you less likely to be sentenced to prison but, if you were sentenced, you were likely to be punished more than 40% longer if you retained counsel.

By contrast, today hiring a lawyer both makes one much less likely to be convicted and less likely to be punished harshly. The system has shifted more to the benefit of well-off defendants than it was 20 years ago, to judge by these data.

Despite serious disparities, defendants were receiving something closer to equal treatment, whether or not they could afford to hire a lawyer, during the period covered by that BJS study compared to now.