You want fries with that?
The horror story Balko describes involves a death row inmate named Skinner who wanted DNA testing to be performed on evidence. “Despite Skinner's pleas, his court-appointed attorney failed to request the DNA testing at Skinner's trial. The attorney's failure to do so raised some troubling questions about his appointment.
[Skinner's] court-appointed attorney made a strategic decision to disregard his client's wishes, believing the testing would implicate him. That attorney, Harold Lee Comer, was a disgraced former prosecutor who lost his job after he was caught stealing money seized in a drug case. Skinner's trial judge, a friend of Comer's, assigned the attorney to represent Skinner and ordered him to be paid roughly the amount Comer owed the state for his own misconduct. In fact, Comer had actually prosecuted Skinner on an assault charge years earlier.”
Balko says that the voucher program would have kept this from occurring. “But it's a bit ridiculous to argue that a defendant should be denied after he made the request and his attorney—appointed with no input from the defendant, who had previously prosecuted the defendant as a DA, and who resigned from his position in disgrace—ignored the defendant's request for testing because he just assumed his client was guilty. If the proposed policy had been in place at the time, Skinner would have been able to pick and hire his own attorney, presumably one who either believed him, or at least wasn't beholden to a judge to pay him enough to offset the debts he owed to the state.
Balko refers to an article by Jordan Smith out of the The Crime Report, which discusses the idea in more depth, found here.
“Architects of the new system say they hope it will realign the interests of participants, create better lawyer-client communications—and a better defense—and increase the overall effectiveness of, and confidence in, the criminal justice system. The program…takes its cue from a 2010 Cato Institute report written by law professors Stephen Schulhofer from New York University and David Friedman of Santa Clara University, which proposed, in part, that instead of assigning lawyers to poor criminal defendants, those defendants, like their more affluent counterparts, should have the ability to choose the attorney to represent their interests. You can find the report upon which the pilot is based here.
So what do you think? Is this a good thing? A bad thing? Mixed? It depends?
Empowerment. I must admit that I'm both intrigued by and skeptical of this pilot project. The attractive part for me is that the intent here appears to be to truly help clients. Norm Lefstein is involved as a consultant, and many of the best ideas in indigent defense in the last few decades have come from this professor's brain. The Texas Indigent Defense Commission, a reform minded bunch, initiated the pilot project. They have always appeared to be client centered. And theoretically, empowering poor people has to be a good thing, doesn't it? When I ran a trial office in Kentucky, I was approached many times by our clients asking me to reassign their case to another attorney, usually because the attorney to which his case had been assigned had recently lost at a high profile trial. It would have been satisfying to simply give that client a voucher and tell them to go hire their own attorney. What's not to like? So I'm intrigued. Yet at the same time, a couple of concerns continue to nag at me about this pilot.
No more money. First, no additional money is being dedicated to the pilot, so it's not costing the taxpayers any more money. Let's face it: if you are going to hire qualified private attorneys it will cost a great deal of money to fund indigent defense in Texas or elsewhere. In Kentucky, where there is a full-time salaried public defender system, we fund indigent defense for under $50 million per year to represent about 160,000 cases. We have regularly computed that it costs under $250 per case at the trial level. Had we given our clients a voucher for $250, few if any attorneys would have been willing to take a public defender case, even a low level misdemeanor. There is an economy of scale that exists in a full-time public defender system that is not present in a voucher system. So will the money be available to make this pilot a success? I know many states are better funded than Kentucky is. And perhaps the political will will be there as well. Like many problems in public defense, much of the success of this pilot will depend upon the willingness of funders to pay for high quality.
Competition. Since the idea originated with the Cato Foundation, which is “dedicated to the principles of individual liberty, limited government, free markets and peace,” one can assume that one of the fundamental ideas underlying the pilot is that competition in a free market will result in a more efficient system. On the flip side, will a free market approach to public defense result in competition that drives the best lawyers out of the market, leaving only the McAttorneys of Comal County willing to take cases?
Supervision. One of the ABA Ten Principles is #10: “Defense counsel is supervised and systemically reviewed for quality and efficiency according to nationally and locally adopted standards.” Good supervision uses performance evaluations, case reviews, file reviews, mentoring, and other methods to ensure that the attorney is handling the case in a high quality manner. Will supervision be built into the voucher program? And does supervision by its nature undercut the free market aspects of this system?
Standards. One of the most promising developments over the past three decades has been the promulgation of national standards for criminal defense. The ABA and NLADA have both published performance standards, and many states have taken those standards and made them applicable to local practice. In many public defender programs around the country, standards are regularly utilized in evaluation, attorney development, and personnel decisions. In a truly free market, on the other hand, the customer determines the success of the business. Will the attorneys in the voucher program have to meet standards? How much regulation of those attorneys will there be?
Lighten up. It's a pilot. The good news in all this is that this is a pilot program. It will be closely watched by many. The Texas Commission will crunch the data that comes from it. The community will wait to see what comes of this.