Archive for November 29, 2007
Justice does not come cheap
Nov 29th
Radley Balko has this fantastic piece in Reason, making a compelling argument for greater funding for public defender offices nationwide.
His starting points are the high-profile DNA exonerations, the Duke lacrosse case and Kevin Davis’ Defending The Damned [Davis was profiled on our sister blog, PD Stuff, here].
The piece first explores the prevailing perception of public defenders and why it is mistaken.
[Davis’ book] should make readers reconsider the contempt routinely heaped on public defenders. Perhaps, given recent headlines, there’s actually some merit to the public defender’s familiar complaints about inadequate funding, heavy caseloads, and prosecutorial misconduct.
As U.S. Supreme Court Justice Hugo Black once wrote, if the state aims to take away someone’s freedom, the defendant has an “absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’?”
He then tackles the central point: Funding.
Most public defender’s offices don’t have those resources. A 1999 U.S. Justice Department study of the country’s 100 most populous counties found that 97 percent of their law enforcement budgets went toward police, courts, and prosecutors, with the remaining 3 percent going to public defenders. That study didn’t include less populous, rural areas of the country, where the public defender position rotates among private-practice attorneys or is filled by a single lawyer in private practice who receives a stipend of a few thousand dollars per year.
Finally, he artfully tells us why it is imperative that public defenders should have the same resources as prosecutors:
The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it’s also obliged not to violate our rights in the process.
If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.
Tip of the hat to Skelly. The comments to Balko’s piece are also very interesting. Be sure to check them out.
Some things that I don’t get
Nov 29th
My earlier post on two interesting studies has prompted some responses in the blogosphere. Okay, two. Scott offered his own thoughts here and then there was this.
It looks like a message board, but from Web 1.0. My post was linked along with the following comment:
“Attorneys who attended higher-tier law schools (based on 2005 U.S. News & World Report law school rankings) do not obtain better sentence outcomes for their clients than their peers who attended lower-tier schools”
This is obviously not true. It is beyond dispute that “attorneys” from lower-ranked schools can’t even tie their shoes.
Ah, okay, sarcasm, you say. That’s what I thought. Then it got weird. Someone followed up with:
Do attorneys from higher tiered law schools represent enough criminal defendants to get a statistically meaningful sample size?
I thought the point of going to such a school was to avoid having to deal with such people.
Uh… That prompted the following response:
No. The point of going to a higher tiered school is to avoid being one of those people. A better pedigree means that you wonÂ’t be a contract “attorney.” I put “attorney” in quotes because they are not real attorneys and are a shame to America. Moreover, sometimes they are called “JD-Paras” or some crap to make it clear that they count as 3/5ths of a human. Law firms that hire them are engaged in an act of charity by employing these lazy lay-abouts (and teasing them with offers of employment) and teaching them the value of real work.
Once you are above it all, you can choose any job you want regardless of your qualifications.* Just like some people orgasm at the thought of helping their clients avoid criminal liability for anally raping the environment, some people like working with poor people accused of rape. (Obviously when rich people are accused of rape, local counsel must obtain the services of people that work at large firms.)
If you are a trust-fund baby, you can even afford to work for the lower classes.
*This isn’t really true with the exception of one or two places.
And finally this:
AWC: “A better pedigree means that you [won't] be a contract ‘attorney.’ I put ‘attorney’ in quotes because they are not real attorneys and are a shame to America.”
Me: Nail on the head. They are not only NOT attorneys, they are barely human to hear my friend tell it.
I took a friend out to lunch yesterday who clerked for a magistrate judge last year to cheer him up. He went to a TTTT, got the job completely by connections, and did only pretty well at said school. Suffice it to say that in trying to find a job within arguably the most competitive legal market in the country, he’s finding it tough. He also has to eat so he’s working as a K atty.
Wow, I thought the rumors were, well, just rumors. He tells me that he and his compatriots are housed at an off-site warehouse in a large, badly-ventilated, dimly-lit, windowless room. They are literally made to “work” in virtual silence for hours at a time before taking bathroom breaks — too many of which will result in immediate dismissal. Sometimes they are sent home inexplicably at, say, noon because the work has dried up or the client is trying to save funds. Any diversion from the stated norm is, um, “frowned upon.” No phones, no internet, no escape.
Perhaps this is what John McCain went through in Nam.
Are large document productions modern-day prison camps?
I still think it’s all a joke. After all, this is a website run by a reputable company: Findlaw. Although it is called Infirmation, which redirects to Findlaw Careers, or Greedy Associates.
What do you guys think?
Two new studies on sentencing disparity and attorney performance
Nov 29th
Stumbled across two new interesting studies last night, both by David Abrams of the Univ. of Chicago Law School. The first one, entitled “Do Judges Vary In Their Treatment of Race” tries to take on the burning question of racial disparity in sentencing from a different angle.
Does the legal system discriminate against minorities? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges systematically differ in how they sentence minorities, avoiding potential bias from unobservables by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants…In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.
The second, entitled The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability, seeks to measure attorney ability (duh).
We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year.
We also examine the correlation between attorney characteristics and case outcomes. Experienced attorneys achieve substantially more favorable outcomes for their clients (defendants) than less experienced attorneys. Defendants represented by more experienced attorneys are more likely to avoid a prison or jail sentence, and those who do receive a sentence serve shorter terms on average. We do not, however, find any statistically significant differences in sentencing based on the attorney’s legal educational background.
Attorneys who attended higher-tier law schools (based on 2005 U.S. News & World Report law school rankings) do not obtain better sentence outcomes for their clients than their peers who attended lower-tier schools. Lastly, and somewhat surprisingly, we find racial disparities in attorney performance: attorneys of Hispanic origin achieve lower average incarceration than all other racial attorney groups.
Well, there you have it. Going to a top tier school has no bearing on your likelihood of success in the public interest field and in criminal defense. This is not surprising to me at all. The closer you are to the top of the tier, the more the focus is on securing lucrative jobs at big firms, which involve writing briefs and – if someone can please, please, explain to me what this means – document review. The towards-the-middle-and-bottom-of-the-tier schools seem to provide a healthy mix of the academia and the practical. That is what prepares you to practice successfully in this field. Not only knowing how to write that darn appellate brief, but also knowing how to try that case first.
HT: Andrew Leigh
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