Analyzing lawyering’s impact on sentencing outcomes

Judge Morris Hoffman, an academically minded Colorado state court judge, has this op-ed today in The New York Times entitled “Free-Market Justice: Why do private lawyers do better than public defenders?”.  The piece discusses the results of an econometric study on the effectiveness of public defenders, which he first discussed in this article, entitled “An Empirical Study of Public Defender Effectiveness: Self-Selection by the ‘Marginally Indigent,'” published last year in the Ohio State Journal of Criminal Law.  Here are snippets from Judge Hoffman’s op-ed:

We looked at all 5,224 felony criminal cases filed in Denver in 2002.  Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive….

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers…. [And] when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more)….

What in the world could explain such a result? It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits….

Our data suggested that, contrary to the law’s rather binary notion of indigency, a large chunk of felony criminal defendants are what we have called “marginally indigent.”  They could, if they had to, tap hidden resources, or the resources of family and friends, to retain private lawyers. But what drives that decision?  Just what you’d expect from any rational consumer of criminal defense services: a combination of the seriousness of the offense and the likelihood of conviction….

[M]arginally indigent defendants who choose public defenders tend to be guilty.  And of course if that’s true, it’s not at all surprising that public defenders would achieve less favorable outcomes. More work needs to be done to confirm these results. But if they hold, and hold nationally, they could have important policy implications…. If self-selection by guilty, marginally indigent defendants is driving a big part of this effectiveness difference, the remedy may simply be to tighten the mechanisms we use to determine indigency.  This solution would not only reduce the outcome differences between public defenders and private defense lawyers, but it would also give taxpayers more bang for their public defender buck.