How Much Justice Can You Afford?

In today's New York Times, a Colorado judge details the findings of an examination of every criminal case filed in Denver in 2002 to try and answer the question of whether defendants are better off with public defenders or retained counsel representing them. Unlike studies with similar goals that use conviction/acquittal rate as a measure of outcome, this study focused on what the judge correctly says is the most important issue to most defendants: length of sentence.

The results aren't particularly encouraging for PDs - their clients end up getting 3 years more on average than with their retained counterparts. The judge, who has great respect for PDs, explains this result by noting the presence of what he calls "marginally indigent" defendants - those who technically are entitled to a PD but have some means (usually family or well wishers) who scrape together money to hire an attorney. As the judge sees it, the marginally indigent innocent defendant is more likely to hire counsel, whereas the guilty one is less likely to expend resources on a lost cause.*

That's a plausible explanation and has one other impact on sentences. Those defendants with the kind of support networks that could raise those funds probably have better sentencing arguments to make (ties to the community, oversight from family, etc.) than the lost causes represented by PDs.

* Yes, that means innocent people are convicted of crimes. It happens.