Public defenders vs. assigned counsel vs. private attys: Round I lost count

As I sit here in the dark, lamenting the death (and dearth) of blogging public defenders, I’ll leave you to read this latest study that seeks to compare the effectiveness of public defenders, assigned counsel and private attorneys. This isn’t the first study that’s been done, nor should it be the last, but the results aren’t Earth-shattering by any means.

The study, published by a statistician at the U.S. Bureau of Justice Statistics, focuses on:

What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do  these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing  felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing.

By way of preliminary information, the public defenders are full-time attorneys employed by a governmental organization who exclusively represented indigent defendants, while assigned counsel are private attorneys appointed on an as-needed basis by the courts. You know who private attorneys are.

The findings of the study really aren’t surprising at all. There’s almost no difference to speak of between the three, except that private attorneys’ clients are more likely to get some form of probation and assigned counsel clients are more likely to end up incarcerated.

The similarities between assigned counsel and public defenders, however, do not carry over when examining case outcomes. Here, the descriptive analysis shows defendants with assigned counsel receiving outcomes that, on the whole, are less favorable compared to defendants with public defenders or private attorneys. In general,  defendants with assigned counsel are more likely to get convicted and sentenced to prison than their equivalents who are represented by public defenders or who have the means to hire their own attorneys.

Moreover, defendants with assigned counsel were sentenced to longer periods of confinement than those with public defenders. Another finding concerned the underwhelming evidence in support of the proposition that private attorneys secure better outcomes for their clients. Overall, the descriptive section showed that 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 one area in which private attorneys seemed to be doing better involved the decision by courts to incarcerate defendants. The descriptive analysis found defendants with private attorneys being incarcerated less frequently compared to their counterparts with indigent counsel.

In conclusion, these findings suggest that indigent defendants who are represented by assigned counsel are receiving less favorable outcomes compared  those with public defenders or private attorneys. They also imply that hiring an attorney does not automatically guarantee superior results; although, there is  some evidence that private attorneys are keeping their clients out of prison or jail to a greater extent than indigent counsel.

It’s also interesting to note, although not surprising, that private attorneys’ clients are less likely to have a criminal record and are more likely to be white.

In terms of defendant characteristics, these findings show that defendants represented by assigned counsel and public defenders have remarkably similar characteristics. In general, defendants receiving legal representation through these two forms of indigent counsel are charged with relatively comparable crimes and have similar criminal histories and demographic characteristics. In comparison, defendants with the means to hire their own attorneys are exemplified by different attributes compared to their indigent counterparts. These defendants tend to have less serious criminal backgrounds and are charged with an array of offenses both more and less serious compared to their contemporaries with indigent counsel.

However, these attorneys also provided legal advocacy to more defendants charged with less serious public-order offenses compared to defendants who could not afford to hire their own attorneys. Lastly, private attorneys represented minorities less frequently than public defenders or assigned counsel.

The one takeaway from this study is that there is some noticeable disparity in the outcomes obtained by public defenders/private attorneys and assigned counsel. The study notes that further research is necessary to determine if assigned counsel systems are truly disadvantageous to those defendants who are subjected to it:

A more interesting, and in some ways troubling, finding concerns the role of assigned counsel in felony case processing. 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.

Although the offense specific analyzes did not always find significant associations between assigned counsel and the case processing outcomes being modeled, for several of these models the likelihood of conviction and state imprisonment, as well as the length of sentence, were found to be significantly higher for defendants with assigned counsel representation.


16 thoughts on “Public defenders vs. assigned counsel vs. private attys: Round I lost count

  1. Jeremy Donnelly

    No real surprise. Some of the best lawyers in CT are public defenders. Some of the best lawyers in CT are private attorneys. Some of the worst lawyers in CT are public defenders. Some of the worst lawyers in CT are private attorneys. The only real benefit from hiring a private attorney is that you get to pick your lawyer. That being said, some people make some really poor choices on who they hire; but at least they had a choice and it’s their own fault. There are public defenders who I would trust in representing my own family. However, there are others who scare the hell out of me.

    1. Gideon Post author

      What struck me about the study’s findings re: private attorneys was how true it was. Private attorneys, in my experience, generally tend to represent clients either in really serious sex cases or less-serious drug, alcohol, BOP type cases.

      Of course, you have the sporadic murder and what-not, but I’ve rarely seen a private attorney file an appearance in, say, a home invasion, or store robbery.

      I wonder if that’s because of demographics? Is someone who commits a home invasion more likely to be poor? Put another way, do people who can afford to hire private counsel usually commit sex crimes and/or drug and alcohol related crimes?

      What’s your experience with that?

      And yes, terrible lawyering spans all three groups.

  2. Jen

    I’m not surprised assigned counsel secured the worst outcomes. In my – limited – experience, they tend to care more about their paying clients than their assigned clients. “That dude’s not paying me, so I’m not going to work as hard.” I think only some of them actually have that thought, but all lawyers have to make judgments as to which cases come first and it wouldn’t shock me that subconsciously they were thinking about the money – not to mention, their paying clients probably have easier cases (for all the reasons Gideon stated in his first comment – even though he posed it as a question).

    1. Gideon Post author

      That’s a valid point. The study raises another one – that I didn’t quote – and that’s the fact that in some jurisdictions, PD offices may keep the “less culpable” defendant in a conflict situation, giving the “heavy” to the contract attorney, so as to lighten their own caseload. I know of several offices in CT that do that. The justification being that since we handle 80+% of the criminal docket, we have more than enough difficult cases to handle, so when we can, hand them off to someone else.

      1. Jen

        A previous office that I worked at had a strict “we keep the most culpable person” policy because our ONE contract attorney was overworked. But, at my most recent office (which was a conflict public defender office), the PD’s Office routinely gave us the most culpable client even though we had less resources than they did. It aggravated me to no end, mostly because of my previous office policy.

        So, that makes sense.

        1. Gideon Post author

          We have about 20 “assigned counsel” at the disposal of my particular office, so it’s not so bad. But we get all the murders and most of the other serious crimes, so every once in a while, we send out the “heavy” in a case, to give us some reprieve. I don’t mind the policy, but I can see how it can become unfair if done continually.

  3. Jeremy Donnelly

    I agree. Certain crimes appear to be commited by certain classes of people. Also, my clients tend to come to me with more traditionally impressive credentials. Therefore, you can more easily advocate a lighter sentence. Although, I’ve always felt that that can cut both ways. Someone who had tons of opportunities is less forgivable than someone who’s been dealt a bad hand in life, at least that’s what I think. Then again, that’s a generalization as well.

    1. Gideon Post author

      That’s interesting, because that’s exactly the opposite of how the system views defendants. Privileged defendants are given a pass due to their privileged upbringing/background, but the troubled ones are held to a higher standard. It’s ass-backwards.

  4. REvers

    It doesn’t surprise me that private counsel get probation a bit more often. A PD’s client is most often in jail (at least around these parts) and thus has a much more limited ability to do those types of things that can earn his way into a probationary sentence. Things like counselling, inpatient treatment, DUI School and the like. Although it’s not terribly uncommon here to get the state to agree to let somebody out of jail to do inpatient treatment, the opportunities to do that are somewhat limited; there are only so many free beds available, after all. Private clients generally have at least a little access to some resources so it’s easier to arrange, and thus more likely to be.

  5. Gael Mueller

    As both private and assigned counsel (and a 15 year public defender) I am still amazed that these studies do not cover the severity of the crime or the criminal history of the defendant. I believe it invalidates the entire study.
    As a public defender I had support staff and other attorneys to discuss cases with or to receive courtroom coverage if I was busy in other courtroom. It is a major advantage.
    As a private attorney I have a closer relationship with my clients and discussions can be very frank.
    As assigned counsel, I find that I get the client with the worst record and the worst set of facts. Very often I receive the mentally ill or psychologically damaged client based on my past public defender experience. I currently have four homicides with those defenses on my desk as assignments.
    For me this is not a bad thing. I think my extensive experience in the areas provides these clients with the best representation. Their sentences, if it comes to that, will be very, very long. That is the nature of the crimes that they are alleged to have committed.
    It is not good or bad representation.

    Maybe I am being too sensitive, but I resent the reports that say that any of us, as a class, are dump trucks.

    1. Gideon Post author

      They do, actually. The second part of the study takes that into account and tries to control for those factors. The problem, obviously, that detailed information is not kept on initial charges, what they were subbed down to, what the client finally pled to, etc.

  6. Pingback: What if we focused on things that really mattered? | a public defender

  7. a

    What about clients who are set up to fail on probation (eg, probation violations- which carry the burden of preponderance)? I imagine those who can afford an attorney can also afford to keep up with their probation costs. In most of our cases, our client is so desperate to get out of jail they’ll take the first terrible probation offer they get (since they can’t afford to bond out), won’t be able to afford transportation or classes and bam, probation revoked: That’ll be years in jail. (your article on sex offenders is relevant here as well). (ps, thanks for having this blog!)

  8. CPSdoc

    Well, this certainly explains the difference in outcomes in regards to Child Protective Services.

    Thank you for the links, as well as the explanation (and the comments). We will use them in our documentary.

  9. Robert Elstermeyer

    “The findings of the study really aren’t surprising at all. There’s almost no difference to speak of between the three, except that private attorneys’ clients are more likely to get some form of probation and assigned counsel clients are more likely to end up incarcerated.”

    Read this quote carefully, haha. There’s no difference except that you go to jail? Wtf?


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