By Bob Needham
Michigan Law
Expanding the use of full-time public defenders for low-income people facing arrest would improve their defense and save money as well, Professor Eve Brensike Primus argues in a new paper.
Most jurisdictions in the U.S. do not have dedicated public defender offices, said Primus, the Yale Kamisar Collegiate Professor of Law. Instead, they either use flat-fee contract lawyers—who are paid a specific fee for each piece of work performed—or assigned counsel, who are paid low hourly wages to work for an indigent defendant even though they may not be experienced in criminal law.
In a recent article in Michigan Law Review, Primus explains that those systems create financial incentives for lawyers to dispose of cases quickly—leading to lower-quality defense and ultimately costing those jurisdictions more financially.
“In the last 20 to 30 years, there has been a wealth of empirical assessment about the efficacy of public-defender offices, assigned-counsel systems, and contract systems,” Primus said. “The data is incredibly clear that public defender offices not only provide better, more effective representation, leading to more reliable outcomes—they also are more cost effective in the long term.”
Primus answered five questions about the issue:
1. Why do so many jurisdictions use the flat-fee contract and assigned counsel systems for the defense of indigent defendants?
Between a third and a half of the people who are indigent in this country are not represented by full-time public defenders, and it’s a somewhat complicated story as to how we got there. The first step was when the Supreme Court recognized a constitutional right to counsel for people who couldn’t afford to pay for their legal defense, but the Court never said anything about how to fund that right. For a lot of states, it was easier to pass the buck down to the county level, where judges would look at the roster of qualified attorneys and either ask or sometimes even conscript lawyers into representing poor people accused of committing crimes.
And then, if you flash forward to the 1970s, when the war on crime and the war on drugs ballooned the criminal dockets around the country, the volume of cases in criminal courts was getting higher. And the demand for representation for the indigent was getting higher because about 80 percent of the people who get charged in the criminal system are poor. Simultaneously, the Warren Court had expanded constitutional criminal procedure rights, making criminal defense representation a lot more complicated.
It was not politically popular to fund indigent defense. So you had a lot of people looking to provide for this constitutional right as cheaply as possible, and that’s where you see the emergence of the flat-fee contracts.
2. What is the biggest problem with the contract and assigned-counsel systems?
In this paper, I am not trying to say public defenders are better lawyers than assigned-counsel lawyers or contract lawyers. I’m looking at the structure of the systems. And the problem with the structure of assigned-counsel and flat-fee contract systems is that they pit the financial interests of the lawyers against the interests of their clients.
If you are paid a flat fee to handle every case that comes through the door and that fee is really low—such that you have to either take on contracts from a bunch of other places or you have to have a private practice on the side to make ends meet—you simply do not have the time or the financial incentive to invest time in each of those cases. There’s a lot of empirical research that explains how flat-fee contract lawyers don’t spend as much time with their clients. They don’t investigate as much, don’t file as many motions, and don’t get the same kinds of outcomes that public defenders do. Their clients get much longer sentences.
The assigned-counsel system has a similar structural problem. Even if the system pays them by the hour, often there are really low caps on the amount that lawyers can make. It means that we are incentivizing lawyers to spend less time on their cases. In some jurisdictions, we are incentivizing the wrong kinds of things. For example, there was a study from Philadelphia where assigned counsel got paid for trial time, but they didn’t get paid as much for preparation time. That incentivizes the lawyers to take cases to trial unprepared.
3. Is the solution as straightforward as moving toward public defenders everywhere?
In the article, I advocate for two things. One, more public-defender offices. That’s an easy no-brainer and incredibly cost effective in big urban areas. It is harder in more rural areas because the caseloads are smaller, but there are ways to create regional public defender models—putting several counties together, for example—that have been effective.
In a public-defender office, you have economies of scale. You have a built-in structure, built-in supervision, built-in training, and you have lawyers who can share overhead, resources, and intellectual capital. And because they’re salaried government lawyers, they don’t face the same problematic, structural incentives. Public defenders are incredibly overworked and underpaid, but they aren’t trading off their financial interests against their client’s interests.
Two, I advocate for more state structure. This is the more controversial part. We have some states—Maryland, Colorado, Alaska—where indigent defense delivery is organized at the state level. But then we’ve got a lot of jurisdictions—like Michigan, New York, and California—where each county is deciding for itself how it wants to structure indigent defense. In county-based states, there are different systems everywhere that vary a lot in quality. And it is very hard to lobby for funding in a state where each county defines a case differently; they don’t even have comparable data.
4. Knowing what we know now about the effectiveness of full-time public defenders, why haven’t more jurisdictions adopted that system?
Well, a public defender office can’t take everyone. If you have two people who are charged with committing a crime together, it is a conflict of interest for them to be represented by the same lawyer. So often, even if you have a public defender office, they will have to panel out a number of cases to private attorneys for conflict resolution.
Also, in some places, you’ve got a whole generation of lawyers who really like the freedom and autonomy that comes with handling cases on the side quickly for a little bit of extra money. So there’s entrenched opposition in a lot of jurisdictions to getting rid of the assigned-counsel or contract systems because people enjoy being a part of those systems.
Finally, you’ve got bar associations who have for a long time touted the importance of the involvement of the private bar in criminal defense. Some of that is grounded in a paternalistic belief that the system needs the private bar to ensure a certain level of quality. It’s a relic from a time when we didn’t have professional defense organizations the way we do now.
5. What will it take to expand the use of public-defender systems?
Organizations like the Sixth Amendment Center and the National Legal Aid & Defender Association analyze the health of indigent defense delivery systems. When they issue a report, it has the effect of catalyzing legislative, executive, or judicial action. That’s what happened in Michigan. A report in 2008 led the ACLU to sue, which ultimately led to the development of public defender offices around the state. We had about four in 2008; we now have more than 30. You can see those kinds of pushes happening around the country, moving systems from assigned counsel or contract systems to public defender offices.
In fall 2023, the American Bar Association promulgated new standards for indigent defense delivery systems and finally released evidence-based national public defense workload standards for the first time. So we are at a critical moment now where indigent defense systems are looking at workload standards and formulating strategies for how they’re going to provide effective representation. I’m hoping that the new standards, along with the data that I collect in my article, will lead a lot of policymakers to recognize the value of both public defender agencies and more centralized state indigent defense structures.
—————
Professor Primus was recently honored with the Faculty Award for Innovative, Interdisciplinary, and Inclusive Teaching. She is the founder and director of MDefenders and the Public Defender Training Institute. She also directs the Data for Defenders project, which promotes creative and evidence-based criminal defense advocacy through the strategic and effective use of social science research. Primus has won multiple teaching awards for her instruction in criminal procedure, evidence, and habeas corpus courses. She co-authors one of the nation’s leading criminal procedure textbooks and writes about structural reform in the criminal legal system, with a particular focus on indigent defense reform. The U.S. Supreme Court and lower appellate courts have cited her scholarship. Before joining Michigan Law, Primus worked as a criminal investigator for the Public Defender Service in Washington, D.C., and as a trial and appellate public defender in the Maryland Office of the Public Defender.
Michigan Law
Expanding the use of full-time public defenders for low-income people facing arrest would improve their defense and save money as well, Professor Eve Brensike Primus argues in a new paper.
Most jurisdictions in the U.S. do not have dedicated public defender offices, said Primus, the Yale Kamisar Collegiate Professor of Law. Instead, they either use flat-fee contract lawyers—who are paid a specific fee for each piece of work performed—or assigned counsel, who are paid low hourly wages to work for an indigent defendant even though they may not be experienced in criminal law.
In a recent article in Michigan Law Review, Primus explains that those systems create financial incentives for lawyers to dispose of cases quickly—leading to lower-quality defense and ultimately costing those jurisdictions more financially.
“In the last 20 to 30 years, there has been a wealth of empirical assessment about the efficacy of public-defender offices, assigned-counsel systems, and contract systems,” Primus said. “The data is incredibly clear that public defender offices not only provide better, more effective representation, leading to more reliable outcomes—they also are more cost effective in the long term.”
Primus answered five questions about the issue:
1. Why do so many jurisdictions use the flat-fee contract and assigned counsel systems for the defense of indigent defendants?
Between a third and a half of the people who are indigent in this country are not represented by full-time public defenders, and it’s a somewhat complicated story as to how we got there. The first step was when the Supreme Court recognized a constitutional right to counsel for people who couldn’t afford to pay for their legal defense, but the Court never said anything about how to fund that right. For a lot of states, it was easier to pass the buck down to the county level, where judges would look at the roster of qualified attorneys and either ask or sometimes even conscript lawyers into representing poor people accused of committing crimes.
And then, if you flash forward to the 1970s, when the war on crime and the war on drugs ballooned the criminal dockets around the country, the volume of cases in criminal courts was getting higher. And the demand for representation for the indigent was getting higher because about 80 percent of the people who get charged in the criminal system are poor. Simultaneously, the Warren Court had expanded constitutional criminal procedure rights, making criminal defense representation a lot more complicated.
It was not politically popular to fund indigent defense. So you had a lot of people looking to provide for this constitutional right as cheaply as possible, and that’s where you see the emergence of the flat-fee contracts.
2. What is the biggest problem with the contract and assigned-counsel systems?
In this paper, I am not trying to say public defenders are better lawyers than assigned-counsel lawyers or contract lawyers. I’m looking at the structure of the systems. And the problem with the structure of assigned-counsel and flat-fee contract systems is that they pit the financial interests of the lawyers against the interests of their clients.
If you are paid a flat fee to handle every case that comes through the door and that fee is really low—such that you have to either take on contracts from a bunch of other places or you have to have a private practice on the side to make ends meet—you simply do not have the time or the financial incentive to invest time in each of those cases. There’s a lot of empirical research that explains how flat-fee contract lawyers don’t spend as much time with their clients. They don’t investigate as much, don’t file as many motions, and don’t get the same kinds of outcomes that public defenders do. Their clients get much longer sentences.
The assigned-counsel system has a similar structural problem. Even if the system pays them by the hour, often there are really low caps on the amount that lawyers can make. It means that we are incentivizing lawyers to spend less time on their cases. In some jurisdictions, we are incentivizing the wrong kinds of things. For example, there was a study from Philadelphia where assigned counsel got paid for trial time, but they didn’t get paid as much for preparation time. That incentivizes the lawyers to take cases to trial unprepared.
3. Is the solution as straightforward as moving toward public defenders everywhere?
In the article, I advocate for two things. One, more public-defender offices. That’s an easy no-brainer and incredibly cost effective in big urban areas. It is harder in more rural areas because the caseloads are smaller, but there are ways to create regional public defender models—putting several counties together, for example—that have been effective.
In a public-defender office, you have economies of scale. You have a built-in structure, built-in supervision, built-in training, and you have lawyers who can share overhead, resources, and intellectual capital. And because they’re salaried government lawyers, they don’t face the same problematic, structural incentives. Public defenders are incredibly overworked and underpaid, but they aren’t trading off their financial interests against their client’s interests.
Two, I advocate for more state structure. This is the more controversial part. We have some states—Maryland, Colorado, Alaska—where indigent defense delivery is organized at the state level. But then we’ve got a lot of jurisdictions—like Michigan, New York, and California—where each county is deciding for itself how it wants to structure indigent defense. In county-based states, there are different systems everywhere that vary a lot in quality. And it is very hard to lobby for funding in a state where each county defines a case differently; they don’t even have comparable data.
4. Knowing what we know now about the effectiveness of full-time public defenders, why haven’t more jurisdictions adopted that system?
Well, a public defender office can’t take everyone. If you have two people who are charged with committing a crime together, it is a conflict of interest for them to be represented by the same lawyer. So often, even if you have a public defender office, they will have to panel out a number of cases to private attorneys for conflict resolution.
Also, in some places, you’ve got a whole generation of lawyers who really like the freedom and autonomy that comes with handling cases on the side quickly for a little bit of extra money. So there’s entrenched opposition in a lot of jurisdictions to getting rid of the assigned-counsel or contract systems because people enjoy being a part of those systems.
Finally, you’ve got bar associations who have for a long time touted the importance of the involvement of the private bar in criminal defense. Some of that is grounded in a paternalistic belief that the system needs the private bar to ensure a certain level of quality. It’s a relic from a time when we didn’t have professional defense organizations the way we do now.
5. What will it take to expand the use of public-defender systems?
Organizations like the Sixth Amendment Center and the National Legal Aid & Defender Association analyze the health of indigent defense delivery systems. When they issue a report, it has the effect of catalyzing legislative, executive, or judicial action. That’s what happened in Michigan. A report in 2008 led the ACLU to sue, which ultimately led to the development of public defender offices around the state. We had about four in 2008; we now have more than 30. You can see those kinds of pushes happening around the country, moving systems from assigned counsel or contract systems to public defender offices.
In fall 2023, the American Bar Association promulgated new standards for indigent defense delivery systems and finally released evidence-based national public defense workload standards for the first time. So we are at a critical moment now where indigent defense systems are looking at workload standards and formulating strategies for how they’re going to provide effective representation. I’m hoping that the new standards, along with the data that I collect in my article, will lead a lot of policymakers to recognize the value of both public defender agencies and more centralized state indigent defense structures.
—————
Professor Primus was recently honored with the Faculty Award for Innovative, Interdisciplinary, and Inclusive Teaching. She is the founder and director of MDefenders and the Public Defender Training Institute. She also directs the Data for Defenders project, which promotes creative and evidence-based criminal defense advocacy through the strategic and effective use of social science research. Primus has won multiple teaching awards for her instruction in criminal procedure, evidence, and habeas corpus courses. She co-authors one of the nation’s leading criminal procedure textbooks and writes about structural reform in the criminal legal system, with a particular focus on indigent defense reform. The U.S. Supreme Court and lower appellate courts have cited her scholarship. Before joining Michigan Law, Primus worked as a criminal investigator for the Public Defender Service in Washington, D.C., and as a trial and appellate public defender in the Maryland Office of the Public Defender.
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