Study shows public defenders are better

Or at least the results they achieve are better for clients as compared to those represented by CJA attorneys in Federal Court. The study is entitled “An Analysis of the Performance of Federal Indigent Defense Counsel” and is available here [pdf]. The abstract states:

In the U.S. federal court system, indigent defendants are represented by either public defenders who are salaried employees of the court or private attorneys, known as Criminal Justice Act (CJA) attorneys, who are compensated on an hourly basis. This study measures differences in performance of these types of attorneys and explores some potential causes for these differences. Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act.

The study reaches many interesting conclusions. Among them, the impact of this disparity on minorities:

Since the poor in the U.S. are disproportionately from minority communities, inequities in systems that disadvantage them have the unintended consequence of perpetuating discriminatory practices on the basis of race. The use of lower-performing CJA panel attorneys impacts minority communities in several ways. First, as Table 1 illustrates, over 30 percent of indigent defendants are of African-American descent while they constitute only 13 percent of the U.S. population. Furthermore, only 19 percent of defendants who can afford to retain their own counsel are African-Americans. About 4000 cases per year involve minority defendants who are randomly assigned CJA panel attorney. Given the large fraction of defendants of African-American descent, it becomes obvious that poor quality representation may disproportionately affect them.Second, districts with high minority and immigrant populations have a higher fraction of their cases covered by CJA panel attorneys. A simple correlation between the fraction of cases covered by CJA panel attorneys and the fraction black defendants yields a correlation factor of 0.77. This correlation may be due to district specific factors such as cases per year, prevalence of urban centers, and other factors related to local geography and culture.

Third, in districts that do not randomly assign, blacks are significantly more likely to be assigned a CJA panel attorney than whites. Immigrants are also slightly more likely to be assigned CJA attorneys (although this difference is only significant at the 0.10 level).In part this difference is due to selection of cases based on crime type (the inclusion of crime fixed effects explains about 1/3 of the difference in the probability of assignment to a CJA panel attorney between blacks and whites).

The performance gap between CJA panel attorneys and public defenders is larger among non-randomly assigning districts than among randomly assigning districts. This could be due to case selection decisions on the part of the attorneys (i.e. CJA panel attorneys are assigned cases which are more likely to end in conviction).

However, because it is unclear how much of the gap is due to performance, the higher fraction of blacks assigned to CJA panel attorneys raises questions about whether race affects the quality of the representation indigent defendants are assigned. Thus, an initial decision to create a two-tiered system without racial consideration can percolate through the system to have racially-linked negative consequences.

HT: C & F

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