The trouble with indigent defense | The Informant

Posted: April 17, 2011 by scaryhouse in Uncategorized

Via Right on Crime, the Cato Institute is suggesting an alternative system for defending those who can’t afford a lawyer: instead of public defenders and court-appointed attorneys, Cato suggests, how about a voucher system? Here’s the idea:

Of course, just because a person has the right to a lawyer, it does not mean they can afford one. In those instances, the state provides a lawyer. This is essentially a top-down system in which the government directly provides a service – and like any top-down government-provided service, it is inadequate.

Public defenders across the country are overworked and they cannot reasonably provide effective representation. (According to a recent New York Times article, the Public Defender in Missouri is literally turning away cases.) In some jurisdictions that lack a public defender, the Court selects a private lawyer to represent the defendant, but the Court is not necessarily interested in obtaining the best defense. It is more interested in moving its docket, so it selects a lawyer whom it knows is likely to plead out quickly and move on. Also, the Court must approve the defense attorney’s expenditures (which can be as low as $80 per case), so it exerts effective control over the defendant’s presentation of his case – although it is not exerting similar control over the prosecutor, whose expenditures it does not oversee.

Giving indigent more choices, Cato suggests, would spur competition among defense attorneys and give them greater incentives to do things like take cases to trial, devote more time to their clients, and generally better represent the interests of those more vulnerable defendants.

The paper brings up some great points about the inherent problems of the current system: under-funded public defender offices, court-appointed attorneys chosen by judges, and retaliatory budgeting. What the Cato paper doesn’t get in to is the institution of the public defender as an oversight body–an office with institutional knowledge of the system, with the capacity to aggregate data, notice trends, and even enter the political fray. We’ve seen a particularly active public defender’s office arise in San Francisco, for instance, where Jeff Adachi (the only elected public defender in the state) has noticed trends that have led to serious investigations of alleged police misconduct and evidence handling. Would a group of competing private defense attorneys be able to do the same?

via The trouble with indigent defense | The Informant.

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