The Truth About Public Defenders

Attorney Marc J. Victor

It was over a quarter of a century ago when I first began representing people charged with criminal offenses. As a young inexperienced criminal defense attorney, I often wondered why someone would voluntarily part with their hard-earned money to hire me when they could likely secure a criminal defense attorney from the Public Defender’s Office for free. It seemed I had an impossible case to make to my prospective clients.

However, it soon became apparent that most people held preconceived, and often erroneous or seriously flawed, ideas about public defenders. I often heard people refer to public defenders as public pretenders or simply proclaim that public defenders were actually on the prosecutor’s side. I found myself correcting people who believed public defenders were somehow not actually lawyers. Given my financial incentive, it would have been easy for me to simply confirm their erroneous beliefs in the name of securing a fee.

As I have been informing my prospective clients for many years now, my opinion about the skill level of public defenders generally is about the same as my opinion about the skill level of privately retained criminal defense attorneys. Indeed, there are well-qualified, ethical, highly dedicated, creative, thoughtful attorneys in both camps. As you should expect, like in every other profession, there are flunkies in both camps too. After many years of practice as a private criminal defense lawyer, my opinion is that the percentage of great lawyers in both camps is about the same.

To be clear, if I were charged with a serious criminal offense, there are many public defenders who I would be thrilled to have represent me. However, therein lies one of the most serious problems with public defenders; you don’t get to select your champion. Nor do you have any right to change your public defender if you are assigned someone who fails to impress.

Many private criminal defense attorneys have written about why it makes sense to hire a private criminal defense attorney if you are charged with a crime. They cite reasons such as much higher caseloads for public defenders; less time to work on each case; many public defenders are young and inexperienced lawyers; and overall budgeting, funding, and pay problems. I generally agree with these points. However, there is a more fundamental reason why hiring a private criminal defense attorney usually makes sense. This point unfortunately always escapes those who write about this issue.

The fundamental reason why hiring a private attorney makes sense is because capitalism simply works better than socialism. I know I just cracked open a can of worms, but it’s a can we Americans desperately and urgently need to crack. Sadly, the current misguided fascination with socialism in America, and all the related “free” handouts, highlights the desperate need to again dispel the failed promises of socialism and instead champion the endless successes of free-market capitalism.

To be clear, I’m not defending what we sometimes call “crony capitalism.” Corporations and other businesses that employ the coercive powers of government to gain an advantage over their competition, or to simply remove their competition entirely, is an example of government that has strayed from its fundamental purpose of protecting our rights. That we sorely need to have a rational discussion in our country about the fundamental purposes of government is a critically important subject I’ll leave for another day.

Unfortunately, the scope of this article is such that I can’t get into a substantial economic discussion about capitalism vs. socialism. Fortunately, much has already been written on this point. That notwithstanding, at this point in human evolution, we ought to be past this issue. It shouldn’t be a mystery why the Soviet Union is long gone and the United States is the lone superpower. Nor should it be a mystery why South Koreans generally live better than North Koreans or that West Germans generally lived better than East Germans or even why the standards of living in Singapore and Hong Kong have risen so spectacularly. The free market competition of capitalism results in delivering goods and services at the most efficient pricing. Like everything else, legal services are not immune to economic realities.

Unlike public defenders, private criminal defense attorneys thrive or fail at the whims of the market. And, that’s the way it ought to be. Like other service providers in a free market, private criminal defense attorneys are therefore incentivized to deliver their services in a way that’s focused on client satisfaction. Like other service providers in the free market, good private criminal defense attorneys are rewarded and bad ones are punished economically. As such, private criminal defense attorneys care about earning five-star reviews, referrals, and repeat business. We make more money when we do a good job for our clients. If we don’t, we go out of business.

Public defenders are mostly immune from market forces. They work in a government-controlled environment where their salary is scarcely related to their job performance. Public defenders need not worry about five-star reviews or future referrals. Similar to the ongoing devastation of our health care industry, as government control increases and market forces are removed, quality of service and care diminish. As an analogy, think about the quality of care received by our veterans at the V.A. hospitals. This is truly the main reason why hiring a private criminal defense attorney makes sense if you are able to do so.

To be fair, I certainly recognize that money isn’t the only motivating factor. Indeed, there are several things more important than money. Ethical criminal defense attorneys, like ethical public defenders, have an obligation to attempt to improve our criminal justice system. Like most people, we want to live in a just society. Any free society needs a criminal justice system. As such, we ought to do our best to speak out and improve it. As a private criminal defense attorney for many years, I’ve not felt the least bit constrained about speaking out loudly on social, economic, or political issues. That some public defenders care deeply about our justice system and do a wonderful job of speaking out about what’s wrong with our justice system does not change the analysis.

At the end of the day, the decision to either hire a private criminal defense attorney or to use a public defender ought not to be a real decision at all. Public defenders are only for people who are indigent. If you have an actual choice to hire a private criminal defense attorney, pretending you are indigent to obtain a public defender is fraudulent and unethical and puts even more of a strain on an indigent defense system that can hardly afford to accept more cases. To obtain a public defender, many judges require a financial affidavit sworn to under oath. Lying on that affidavit can result in additional criminal problems. Ethical clients don’t avail themselves of scarce resources for indigent defendants if they are not truly indigent.

I know many public defenders who I admire greatly. They ought to be paid more money. Because public defenders are mostly immune from the important financial incentives present in the private sector, expecting them to work harder without any financial incentive to do so is simply unreasonable. Think about having a crushing caseload that keeps flowing like a river running over its banks. Expecting public defenders to spend as much time as a privately retained attorney on each case is pure fantasy. At the end of the day, our time is what we criminal defense attorneys sell. As I have witnessed many times over my career, spending sufficient time on a case can make all the difference in the outcome of that case.

Finally, there are some other less well-understood issues to consider when determining who will defend your freedom. It is often the case that specific public defenders are assigned to the same courtrooms regularly dealing with the same judges and prosecutors. Over time, disincentives can develop to “rocking the boat” by filing motions, conducting interviews, and pressing other time-consuming issues. The “courtroom workgroup,” as it is sometimes referred to, can sometimes operate as an efficient case processing machine effectively lowering the crushing workload for all interested parties. While this process of expediting cases may benefit the courtroom workgroup, some individual defendants may pay the price with less favorable sentences.

It isn’t the case that the boat always needs to be rocked. However, there are times when it is in the client’s best interest to rock the boat hard. Private criminal defense attorneys, who don’t often appear before the same judge or always deal with the same prosecutor, can sometimes be more willing to rock the boat hard in order to get the best result for the client.

In addition to important differences in market forces, caseloads, and incentives, the scope of work is often very different too. Public defenders virtually never get involved with a case before formal charging. At almost all times in my legal career, I’ve had many clients in a pre-charge status. I’ve personally witnessed the substantial advantages we have achieved in cases when we were retained prior to formal charging. Preparing for the initial release hearing is an example of an important task that normally occurs long before any public defender is appointed. Having a prepared advocate at the initial release hearing often represents the difference between freedom and incarceration.

Many private attorneys generally assist with issues far beyond the usual scope of a public defender’s role. This can be a great help to a client who is facing the countless issues that often arise before, during, and after a criminal case is resolved. Issues, like obtaining the return of the seized property, exonerating the bond, terminating probation, or reinstating rights, are pesky issues that often remain long after the public defender is on to the next case. These are but a few of the additional tasks often engaged in by private lawyers who maintain a broader scope to their usual mission. Keeping clients happy throughout the entire ordeal is always foremost on the private criminal defense attorney’s mind.

In conclusion, if you can afford to employ the services of a private criminal defense attorney, you should. After all, the vast majority of criminal cases can result in a loss of liberty. Although there are things of equal importance, nothing is more important than your freedom. To be fair, nothing guarantees a client will achieve a better result with a private attorney instead of a public defender.

That said, being charged with a crime is a big deal, and the criminal defendant is generally well served by obtaining the best legal representation possible. Keep in mind, private criminal defense attorneys can no more set their rates than members of other professions. It is the market forces of supply and demand that control the rates. If you want to hire a private criminal defense attorney who is in high demand, you should expect the lawyer’s fees to be set accordingly.

Hiring a criminal defense attorney is a critically important decision. I suggest you gather as much information as possible and shop around to carefully interview candidates to fight for your freedom. Remember it’s easy to make big promises, but it can be harder to keep them. Beware of slick private criminal defense attorneys who are quick to recklessly make big promises to secure a fee. We know what criminal defendants want to hear. The private criminal defense attorney who has the guts and the integrity to tell you what you need to hear or even what you don’t want to hear is likely the best choice.

Both clients and lawyers need to work together as a team in order to achieve the best possible defense. Like any other relationship, earning a high level of trust should always be a major goal. If you can’t achieve a high level of trust with your lawyer, you may be better served by finding a different lawyer. In any event, the best policy is to avoid the need for a criminal defense attorney in the first place.

Attorney Marc J. Victor

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