Study Says Public Defenders Do Better Than CJA Lawyers

The New York Times reports on a new study by an economist at Harvard that says federal public defenders get better results than CJA lawyers (privately appointed lawyers under the Criminal Justice Act.) The 40 page study is here.

How much better? The study says the PD's clients sentences were on the average 8 months shorter.

I think federal public defenders do a great job. I always laugh when I get a call from a prospective client who tells me they want to get rid of their pd and hire private counsel so they can get a "real lawyer."

I also do a few CJA cases a year. It's how we private lawyers give back -- our way of doing pro-bono, taking cases for far less than we get in our private practices. In my district, we're not contract lawyers in that we don't agree to take a percentage of the court's case load or even a set number of cases a year. We get called occasionally, when the Public Defender has a conflict, and if we're free (usually 2 days from the time we get the call), we agree to take the case.

I'm not an economist or a statistician, but I think this study is seriously flawed. The first problem I have with the study is this incorrect premise:


This study analyzes the performance of attorneys in the federal indigent defense system using the fact that cases are randomly assigned between CJA attorneys and federal public defenders. In an effort to ensure ex ante fairness, each federal district assigns an annually determined fixed proportion of the cases to each group of attorneys.

Not so. In Colorado, for example, all indigent defense cases go to the Federal Defenders' office and only if they have a conflict (usually in multi-defendant cases since a lawyer generally can only represent one client in a case), does a CJA panel lawyer get appointed. In other words, if it's a single defendant case, a CJA lawyer never sees it unless the PD's office has some other type of conflict, like having represented a defendant in a prior case who ratted out the defendant in the new case, or if it's a case that has been going on a while and the client successfully petitions the Court to replace his PD with another lawyer.

In a multi-defendant case, the first one to appear before the court gets the public defender, and the remaining indigent defendants get CJA lawyers. Assignment doesn't occur, as the author implies in a footnote, either randomly or by the defendant's number in the list of indictees. It goes by who first appears before the court, meaning which one is arrested first. The first one to appear before the court gets the PD, regardless of their placement number on the list of indictees, then CJA lawyers are randomly assigned to represent the rest.

Yet, the author of the study says,"Since the probability with which a defendant receives a type of counsel is dependent on his or her defendant number within the case, I limit my analysis to the “first” defendant."

Several more times she describes the "first defendant" as the first one listed on the indictment rather than the first to appear before the court and request appointed counsel. Counsel isn't assigned until a defendant appears before the court. It's not like the Clerk's office assigns counsel when an Indictment is returned. There's no way to even know at that point which of the defendants are going to be indigent and requesting court appointed counsel as opposed to hiring private counsel.

The author also rails about the poor quality and inexperience of CJA attorneys.

Years ago, I served on and then chaired our federal court's Standing CJA committee that was responsible for selecting lawyers for permanent placement on our 150 lawyer CJA panel when vacancies arose. Inexperienced lawyers don't get on. Lawyers without federal sentencing guideline experience don't get on. Lawyers whose practice consists mostly of wills and estates or divorces don't get on. Lawyers with disciplinary problems don't get on.

As for 8 months difference in sentences, give me a break. In multi-defendant drug cases our clients are looking at mandatory minimum 10 year sentences if not 30 years to life. There may be 20 or more defendants in the case. I highly doubt the conclusion that the client who gets, say 16 years, 8 months or even 6 years,8 months had a better lawyer than the client who got only 16 years or 6 years. The outcome is more likely a result of who flips first (or last, which also can be a good bargaining chip), who refused to flip on principle and a host of other factors, too numerous to mention here.

Of course, the author of the study isn't a lawyer, but an economist, so these distinctions may have eluded her.

Then there's this grand conclusion:

CJA panel attorneys, on average, have less experience and attended lower “quality” law schools. This difference in experience and law school quality, combined with the effect of wages and caseload explain over half of the overall difference in expected sentence.

The author bases that finding on an examination of cases in a whopping three federal districts (what about the other 48?)

Later, she admits, "These districts were not chosen randomly and are not representative of the nation." So why include the findings at all?

The remainder of her conclusions, the author says, are restricted to "the set of districts that appear to randomly assign cases between two groups of lawyers."

How many are those? Check out footnote 11, in which she excludes from her study:

Districts with no cases covered by public defenders are: Eastern District of Wisconsin , Southern District of Georgia, Northern District of Alabama , Eastern District of Kentucky, Maine, Northern District of Mississippi, Southern District of Mississippi , Western District of North Carolina, North Dakota, Western District of Virginia, Northern District of West Virginia,. Districts with very few cases covered by public defenders are: Western District of Wisconsin (.92), Rhode Island (.99), Vermont (.88), Eastern District of Virginia (.97), Middle District of Georgia (.99), Northern District of Indiana (.94), Northern Marina Islands (.98), and South Dakota (.89).

Nor do I have any idea what her basis is for saying the remaining districts assign cases randomly between PD's and CJA lawyers. As I said above, it's not the case in Colorado. But the word "Colorado" doesn't even appear in the study.

Another suspect conclusion:

The difference in the probability of being found guilty combined with the lower plea rates by CJA panel attorneys suggests that: 1) CJA attorneys are performing significantly worse at trial and/or 2) CJA panel attorneys are not taking the “right” cases to trial.

How is she making a judgment call on what is a "right" case to take to trial? As if that can be determined by simply the crime charged and the possible penalty or the result? A lot more goes into the equation than that. Does the evidence against a particular defendant, both quantitatively or qualitatively have no role here? Again, too many factors go into that calculation to list here, but few, if any of them are statistical.

I have high praise for both federal public defenders and CJA lawyers. We all know state systems are very broken in some parts of the country, due to lack of adequate funding, but this study didn't look at them -- only at the federal system.

The author smears with far too broad a brush and a poor set of statistical criteria in my opinion. I'm glad to see that one federal defender contacted by the Times about the study agrees with me:

Jon M. Sands, the federal public defender in Arizona, said he did not recognize the picture painted in the study. Court-appointed lawyers, Mr. Sands said, “are seasoned and committed, and their sentences on the whole don’t vary that much from those obtained by public defenders.”

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     For what it's worth, so my biases are disclosed,  I too have never been a PD and am a panel attorney handling a few CJA cases every year.

       I've said before that I think FPDs are usually very good and that I think that both the very best and worst are found in private practice. I think there may be some plausibility to the suggestion that a higher perecentage of the "better" private lawyers opt out of the CJA than the "worse" lawyers because as you say the pay is substantially less than in privately retained cases but the appointed  cases are often MORE difficult than many involving paying clients. (I also consider it a form of pro bono work but I'm not sure lay people accept that)

      It appears to me that the study's flaws are overlooked by the author because (as with almost all such studies) the author has a prejudice which she is seeking to support. I happen to agree with her prejudice-- that many systems provide less than adequate indigent defense and that the most effective and efficient solution to the problem generally is the creation and maintenance of properly funded public defender organizations-- but the study must be viewed in light of the policy she prefers. She is looking to stress the benefits of the PD organizations and so perhaps does not ask let alone  answer all the questions an "objective" analyst might.

       I'd also point out  that appointments are often multiple for the same defendant in the same case. Quite frequently, a defendant will "fire" the first appointed lawyer (actually ask the court to allow the lawyer to withdraw and appoint a new one) and a second (sometimes more than second) lawyer will be appointed.

      It follows that since most defendants have a PD as the first lawyer and that those who don't have a PD as first lawyer are usually ones the PD's office can't represent that subsequent lawyers will almost always be private practice CJA lawyers. I'd suggest those cases often correspond with more difficult cases for the lawyer and with the defendants facing more serious exposure.

      I also know that appointment is not entirely random in amny districts. I have received calls  from  federal judges on occasion asking me to accept an appointment (rather than from the FPD office as with "routine" appointments) precisely because it is a difficult case for one reason or another and the judge wants to ensure the defendant has adequate counsel. I also know that the newest panel attorneys are not appointed the more difficult cases until they have proven themselves.

      I cannot agree with the sudy's conclusion as to "effectiveness" beyond accepting that the "worst" representation does come from certain private lawyers both appointed and retained. (I actually think the "worst" comes from some  retained lawyers as judges will remove "bad" lawyers from CJA panels)

      As for the expense or "efficiency" aspect, I don't think there is any question that PD offices are the least expensive way to provide adequate representation to indigents and I do advocate more, larger and better funded ones across the board in state and federal systems.

    I think your objections are well founded. (none / 0) (#2)
    by JSN on Sat Jul 14, 2007 at 12:14:37 PM EST
    One of the issues that you touched on is related to the selection of the data. It may be the investigator had to work with what she was given.

    I have never worked with federal court data so I can't comment on the data quality. I gave up on Iowa Court data because the data quality was so low. I am not very optimistic about the data quality being improved during my lifetime. Our County Attorney told me the new state computer system rejects their passwords so they are stopped in their tracks. Then they get yelled at for not using the system.

    I'm not a researcher (none / 0) (#3)
    by Deconstructionist on Sat Jul 14, 2007 at 12:47:06 PM EST
      but the federal courts are obsessive about collecting and tabulating data. I think the problem is the inherent limitation of "objective" data in this context.

      You simply cannot compare cases thoroughly  based on objective data. I might have two cases where defendants are charged with identical statutory offenses and have very similar criminal histories  but factors which cannot be quantified present very different cases in the real world.

       Sometimes my client will be acquitted;  sometimes a client  will be convicted and get a  lesser sentence than a different client I have had with the same charges and similar CH. I'm the same lawyer in each case so the variation cannot be explained by the quality of representation. If quality of representation was the primary factor in outcomes then every individual lawyer would have very similar outcomes in "objectively" similar cases. That isn't the way it works.

      Now, a VERY large sample will reduce but not eliminate the effect of this reality because over a long period of time time many different lawyers will each  handle many cases and most will be be presented with many of these variations that will exist in "objectively similar cases" but I don't think the study  here analyzes a large enough number over a long enough period of time to really even reduce the distortion.


    Identical Charges and Criminal Histories! (none / 0) (#4)
    by JSN on Sat Jul 14, 2007 at 01:01:09 PM EST
    No problem if the charge is public intoxication if it is something
    more serious LOL.

    If you were talking state county court (none / 0) (#5)
    by Jeralyn on Sat Jul 14, 2007 at 01:07:12 PM EST
    and DUI's or public intoxication, 8 months difference in sentence could be significant. For most federal felonies, due to our draconian sentencing laws, unfortunately it's a drop in the bucket.

    via slashdot ==> (none / 0) (#6)
    by Sumner on Sat Jul 14, 2007 at 01:20:15 PM EST
    We get 5 to 6 pub. intox arrests per day, (none / 0) (#13)
    by JSN on Sat Jul 14, 2007 at 03:08:59 PM EST
     10 minor drug arrests per week and 10 to 12 DUI arrests per week and so the sample sizes are large and for first offenders (18 to 20 years old) the criminal histories are very similar. They get run though an assembly line justice system with very little variation in the outcome.

    In our county we call minor drug offenses "breathing on a police officer". They get stopped on a traffic violation the cop smells the dope and starts looking for evidence. They ask if they can search the car and most of the time the kid says no problem. In one case when the officer opened the trunk she found a meth lab.

    For repeat offenders (25 to 75 years old) is would be nice if the range in sentences was a small as eight months. We have some of our  residents in prison serving sentences for felony DUI convictions. In our state an aggravated misdemeanor can result in a prison sentence and there are a few folks in prison serving enhanced aggravated misdemeanor PI sentences for what started out as a simple misdemeanor. I did some checking and found out that a third of PI and DUI prison inmates had never been treated for alcohol abuse.

    The sample size for serious drug offenses in our county is too small to tell if there are similarities in criminal history or circumstances of arrest. It is a lot harder to get the evidence on an experienced drug trafficker than on some kid who is smoking a joint in a public place.


    Not sure what your point is there (none / 0) (#7)
    by Deconstructionist on Sat Jul 14, 2007 at 01:20:23 PM EST
      I get clients with identical charges and very similar criminal histories all the time-- in cases with very severe potential penalties.

      If I have client A charged with distributing 50+ grams of crack and one prior conviction resulting in 3 criminal history points where the government is claiming it can attribute 150-500g and Client B with the same "objective" factors, and the charges against A are dismissed because
    I win a motion to suppress based on an illegal search and seizure, the fact B gets convicted and receives a 120 month sentence it doesn't mean A had better representation. it means the unquantifiable facts of the case were very different. Then consider you might well have a case where the guy with the good 4th amendment claim presents a far worse "objective" case in terms of seriousness of offense and criminal history and the shortcomigs of attempting to explain results becomes even more pronounced.  


    I think much of the faulty comparitive (none / 0) (#14)
    by sarcastic unnamed one on Sat Jul 14, 2007 at 03:18:32 PM EST
     You simply cannot compare cases thoroughly  based on objective data. I might have two cases where defendants are charged with identical statutory offenses and have very similar criminal histories  but factors which cannot be quantified present very different cases in the real world.
    "analysis" done re: P Hilton is a good case in point.

    In fact, it was her case and the resulting hooha that opened my eyes to this fact.


    Another thing (none / 0) (#8)
    by Jeralyn on Sat Jul 14, 2007 at 01:37:54 PM EST
    The assumption that CJA attorneys get worse plea deals than federal defenders because they are less experienced at negotiating with prosecutors fails to account for the number of CJA attorneys who were federal prosecutors or federal defenders in their former life.

    In a CJA wiretap case I'm now working on with more than 30 defendants, some of the lawyers got together this week to consider jointly attacking the wiretap orders, applications, etc. Of the five of us at the meeting, all appointed under the CJA, two had been AUSA's (one of whom also served as the Federal Defender for the Distict) in their prior lives and have more than 30 years experience, one had 20 + years experience including recently winning a life verdict in a long and difficult federal death penalty trial and one, while new to the CJA list, had ten years experience as a state public defender at the trial and appellate level.

    To suggest that any of them are handicapped by a lack of skills in negotiating with federal prosecutors is laughable.

    INAL (none / 0) (#15)
    by Sailor on Sat Jul 14, 2007 at 05:28:56 PM EST
    but I think the stats show the PDs care while the assigned lawyers resent the profit loss.

    JM is an obvious exception.


    p.s. What they should have compared is folks with $$ who can pick and choose their lawyers v. folks w/o $$ who have lawyers assigned to them.


    A few more points (none / 0) (#9)
    by Peter G on Sat Jul 14, 2007 at 01:39:09 PM EST
    I agree with most of your criticisms of this lame "study," JAM, and with the excellent supplemental points made by Deconstructionist, which are consistent with my experience.  There are a few mistakes in your post, though. First of all, there are not 51 federal districts, there are something like 90.  (Many states, unlike Colorado, have more than one.  Think "Southern District of New York," "Middle District of Pennsylvania," "Central District of Illinois," and "Northern District of California," for example.  Not to mention the "District of Puerto Rico.")  

    Also, it is required that every CJA Plan provide for the appointment of private counsel, rather than the FPD, "in a substantial proportion of the cases."  18 USC 3006A(a)(3).  So, I think you're mistaken in suggesting that CJA panel counsel get appointed only when the FPD has a conflict. (Note also that the FPD can be conflicted out of a case by having represented a grand jury witness, so even a sole defendant can need CJA panel counsel for that reason.)  

    I also do think that the hiring standards for AFPDs have gone way up in recent years (which obviously is a very good thing), while the average quality of CJA panel members, if anything, has gone down, due to the need for much larger panels to provide separate counsel for each eligible defendant in the many large, multi-defendant drug conspiracy cases that are so prevalent.  These two phenomena are unrelated, but probably do lead to on-average better results for defendants represented by the FPD than those with appointed counsel.  But the study you cite couldn't prove that.

    I took the number of 51 (none / 0) (#12)
    by Jeralyn on Sat Jul 14, 2007 at 02:51:35 PM EST
    from the author's report...of course, you are right that several states have more than one district. Another mistake she made.

    Re: Colorado, we have our own CJA plan. Regardless of what the national plan says, I just know how it has worked here, and it's not the way the study's author states.  

    I just checked our plan and it makes no reference to when the pd's are appointed vs. CJA lawyers.  It says only statistics regarding same may(not will) be kept by the clerks office.

    The Clerk shall also maintain a public record of appointments of private lawyers and, when appropriate, statistical data reflecting the probation of appointments between lawyers from the Federal Public Defender Office and private lawyers.

    It also, like Deconstructionist mentioned happens in his district, expressly allows judges to bypass  appointing counsel on a random basis:

    The objective of this plan is to ensure competent and effective representation of
    each person to whom legal services are provided. While the Court's policy is to make
    appointments from the panels primarily on a rotating basis, the appointing judicial officer must evaluate the nature and complexity of the matter or case, the experience of the lawyers on the lists, geographical locations and availability, and any special circumstances in making the appointment.

    Anyway, enough.  The study, in my opinion, is based on faulty criteria which has led to unsupported conclusions.


    I think she was referring to 51 districts (none / 0) (#10)
    by Deconstructionist on Sat Jul 14, 2007 at 01:47:58 PM EST
      because that is the number of districts the study looked at (but only 3 more in depth as to the background of the lawyers) not because she was implying she thought there are only 51 federal district courts.

    Oh, ok (none / 0) (#11)
    by Peter G on Sat Jul 14, 2007 at 02:26:37 PM EST
    I didn't see that in the post, although maybe I missed it.  I didn't go and read the "study" or the NY Times article, I admit. I have so little respect for "research" done by economists and other statistics-crunchers on highly individualized problems like criminal defense cases.  As you say, Decon, unless the sample were really large, it is hard to believe that a study like this could reveal the actual factors affecting outcomes -- even if a sensible definition of "better outcome" had been selected in the first place.

    Unreliable Study on FPD's and CJA Counsel (none / 0) (#16)
    by womanwarrior on Sun Jul 15, 2007 at 12:47:58 AM EST
         Not to mention another huge variable:  the luck of the draw to which judge the case is assigned.  There are some judges who will really take into account sentencing arguments and adjust the sentence to the individual.  There are others who rigidly stick to the guidelines, no matter how good the lawyer is.  There are some judges who will let the lawyers try their cases; other judges act as a third prosecutor.  The best lawyer does not decide the case.  
         There are clients afraid to go to trial when they have a good case, and clients who want to go to trial even though the evidence is overwhelming.  
         And Sailor, many of us CJA lawyers do care about our clients a lot.  I have clients who stay in touch with me years after their case is over.  And I still try to help them when asked. We take these cases not for money, but because of our belief that poor clients deserve as good a lawyer as rich clients. And sometimes we are the only positive contact in the system that helps with rehabilitation.  

    Why do defendants fire their 1st lawyer? (none / 0) (#17)
    by Ben Masel on Sun Jul 15, 2007 at 01:07:43 AM EST
    Often because the defendant  believes they've got a tryable defence, while the Atty. either does not, or just doesn't want to commit the time to go to trial.

    I once rosecuted a case in which defendant (none / 0) (#18)
    by oculus on Sun Jul 15, 2007 at 02:32:13 AM EST
    walked.  The judge told him that, given he wanted to be relieved of his court appointed lawyer, he was a lucky man indeed.  

    I agree with the former (none / 0) (#20)
    by Deconstructionist on Mon Jul 16, 2007 at 10:36:45 AM EST
      but I don't agree that it is at all common that lawyers "don't want to commit the time to go to trial." Of all the things I spend my time doing I love going to trial by far the most. That's why I became a lawyer and one of the main reasons I practice the type of law I do.   If I considered trials a burden, I'd do real estate closings.

       Negotiating plea agreements is not tremendously exciting or often rewarding work but it is a huge part of any defense lawyer's job because it is so very often in the best interest of the client.

      Criminal defense lawyers are self-selected. No one with much foresight is selecting it for the money as there are far more lucrative (and easier)  options available. "Philosophical" considerations are undoubtedly also a major factor for many people who choose to be criminal defense lawyers but I will assert that the desire to have frequent trials is a huge factor and that very few "real" criminal defense lawyers ever duck trials for personal or financial considerations.


    FD gets first shot at cooperation--- (none / 0) (#19)
    by lindalawyer on Sun Jul 15, 2007 at 12:52:40 PM EST
    One other possible factor. -------