After spending a few years away from ICLE and directly engaging in the day to day grind of indigent criminal defense as a public defender, I now have a new appreciation for the ways economic tools can explain behavior that I had not before studied. For instance, I think the law and economics tradition, specifically the insights of Ludwig von Mises and Friedrich von Hayek on the importance of price signals, can explain one of the major problems for public defenders and their clients: without price signals, there is no rational way to determine the best way to spend one’s time.
I believe the most common complaints about how public defenders represent their clients is better understood not primarily as a lack of funding, as a lack of effort or care, or even simply as a lack of time for overburdened lawyers, but as an allocation problem. In the absence of price signals, there is no rational way to determine the best way to spend one’s time as a public defender. (Note: Many jurisdictions use the model of indigent defense described here, in which lawyers are paid a salary to work for the public defender’s office. However, others use models like contracting lawyers for particular cases, appointing lawyers for a flat fee, relying on non-profit agencies, or combining approaches as some type of hybrid. These models all have their own advantages and disadvantages, but this blog post is only about the issue of price signals for lawyers who work within a public defender’s office.)
As Mises and Hayek taught us, price signals carry a great deal of information; indeed, they make economic calculation possible. Their critique of socialism was built around this idea: that the person in charge of making economic choices without prices and the profit-and-loss mechanism is “groping in the dark.”
This isn’t to say that people haven’t tried to find ways to figure out the best way to spend their time in the absence of the profit-and-loss mechanism. In such environments, bureaucratic rules often replace price signals in directing human action. For instance, lawyers have rules of professional conduct. These rules, along with concerns about reputation and other institutional checks may guide lawyers on how to best spend their time as a general matter. But even these things are no match for price signals in determining the most efficient way to allocate the scarcest resource of all: time.
Imagine two lawyers, one working for a public defender’s office who receives a salary that is not dependent on caseload or billable hours, and another private defense lawyer who charges his client for the work that is put in.
In either case the lawyer who is handed a file for a case scheduled for trial months in advance has a choice to make: do I start working on this now, or do I put it on the backburner because of cases with much closer deadlines? A cursory review of the file shows there may be a possible suppression issue that will require further investigation. A successful suppression motion would likely lead to a resolution of the case that will not result in a conviction, but it would take considerable time – time which could be spent working on numerous client files with closer trial dates. For the sake of this hypothetical, there is a strong legal basis to file suppression motion (i.e., it is not frivolous).
The private defense lawyer has a mechanism beyond what is available to public defenders to determine how to handle this case: price signals. He can bring the suppression issue to his client’s attention, explain the likelihood of success, and then offer to file and argue the suppression motion for some agreed upon price. The client would then have the ability to determine with counsel whether this is worthwhile.
The public defender, on the other hand, does not have price signals to determine where to put this suppression motion among his other workload. He could spend the time necessary to develop the facts and research the law for the suppression motion, but unless there is a quickly approaching deadline for the motion to be filed, there will be many other cases in the queue with closer deadlines begging for his attention. Clients, who have no rationing principle based in personal monetary costs, would obviously prefer their public defender file any and all motions which have any chance whatsoever to help them, regardless of merit.
What this hypothetical shows is that public defenders do not face the same incentive structure as private lawyers when it comes to allocation of time. But neither do criminal defendants. Indigent defendants who qualify for public defender representation often complain about their “public pretender” for “not doing anything for them.” But the simple truth is that the public defender is making choices on how to spend his time more or less by his own determination of where he can be most useful. Deadlines often drive the review of cases, along with who sends the most letters and/or calls. The actual evaluation of which cases have the most merit can fall through the cracks. Often times, this means cases are worked on in a chronological manner, but insufficient time and effort is spent on particular cases that would have merited more investment because of quickly approaching deadlines on other cases. Sometimes this means that the most annoying clients get the most time spent on their behalf, irrespective of the merits of their case. At best, public defenders are acting like battlefield medics and attempt to perform triage by spending their time where they believe they can help the most.
Unlike private criminal defense lawyers, public defenders can’t typically reject cases because their caseload has grown too big, or charge a higher price in order to take on a particularly difficult and time-consuming case. Therefore, the public defender is stuck in a position to simply guess at the best use of their time with the heuristics described above and do the very best they can under the circumstances. Unfortunately, those heuristics simply can’t replace price signals in determining the best use of one’s time.
As criminal justice reform becomes a policy issue for both left and right, law and economics analysis should have a place in the conversation. Any reforms of indigent defense that will be part of this broader effort should take into consideration the calculation problem inherent to the public defender’s office. Other institutional arrangements, like a well-designed voucher system, which do not suffer from this particular problem may be preferable.