To Reform Indigent Defense, Bring the Market In

Tim Lynch

America’s criminal courts are in terrible shape. New York, Indiana, Louisiana, Idaho, Missouri, and many other states are mired in
litigation over their festering crises in indigent legal defense.
Public defenders want to do a good job for their clients but are
often stretched so thin by enormous caseloads that they feel as
though they are being forced to commit malpractice, like a doctor
with way too many patients.

One bright spot is Comal County, Texas, near San Antonio. For
the past two years, officials have been testing a pilot program
known as Client Choice, which takes the unprecedented step of
letting indigent defendants choose their own lawyer, instead of
having one assigned to them.

The idea is to bring market competition to indigent-defense
services. Let attorneys compete for the business of indigent
clients, and they will try to enhance their reputations by
providing quality representation. A market for defense services
already exists for wealthy and middle-class families, but the
market hasn’t been able to function in the indigent area because
clients have had no say in the selection of their attorneys.

Letting indigent
defendants choose their lawyers should be adopted more
widely.

In 1963 the Supreme Court held that poor persons have a right to counsel, but the Court left the funding and
selection procedure to local government officials. Over the past 50
years, the courts have typically assigned either public defenders
or private attorneys to handle their cases. These bureaucratic
models have been struggling all over the United States.

State lawmakers troubled by the indigent-defense crisis should
stop looking for Band-Aid solutions and instead study the Comal
pilot program. A new report from the Justice Management Institute,
titled The Power of Choice, found that when
market competition was introduced, the quality of legal
representation improved.

Before 2015, Comal County operated an “assigned counsel” system.
There was a roster of attorneys who wanted to be assigned to
criminal cases involving indigent clients, and unless the case
required some special skills, such as fluency in Spanish, the court
would use a rotation method to appoint them. The lawyers were
compensated on a per-case basis pursuant to fee schedules
established by the court. The fees, which fell below what the
market would demand, varied depending upon whether the case
involved a misdemeanor or a felony.

Under the Client Choice pilot program, indigent defendants can
either select their lawyer from the roster of attorneys or let the
court choose for them. Those who wanted to select their lawyer
would be given a packet of biographical information and a form to
indicate their top three choices. Lawyers on the roster retained
the option to decline clients if their own caseloads became too
heavy.

JMI evaluated Client Choice and made several notable findings.
First, 72 percent of defendants elected to make their own choice of
lawyers. Second, the indigent clients received better service.
According to the judges who were surveyed, many observed that
“defense lawyers were more assertive, better prepared, and more
frequently saw their clients.” Another judge noted that there were
fewer demands from defendants to fire their attorney.

Beyond the observations of judges, the JMI report found better
case outcomes for indigent clients who chose their own attorneys.
Instead of surrendering and always urging their clients to take a
plea deal, the attorneys who were freely chosen were more willing
to go to trial. Better defense work means fewer mistakes, and fewer
wrongful conviction lawsuits that will be borne by taxpayers.

Voluntary, freely chosen relationships are generally more
cordial. That’s important in the tense circumstances of a criminal
case. The JMI report found that indigent clients in the choice
model had greater feelings that their “lawyers advocated zealously
for them.” The lawyers, in turn, felt a greater responsibility
after having been chosen by the client.

One of the benefits of our decentralized criminal-justice system
is that different jurisdictions can try different policies and the
results can be studied so that best practices can be identified.
Policymakers say they want evidence-based research, and Client
Choice is an innovative policy that has now been tested and
evaluated. The bottom line is that it is successful.

Over the long term, lawmakers need to undo much of the
overcriminalization of conduct that has swamped the courts and
indigent defenders. In the meantime, the Comal County pilot program
ought to be scaled up statewide in Texas and other states.

Tim Lynch is the
director of the Cato Institute’s Project on Criminal Justice.

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