Indigent federal criminal defendants represented by court-appointed private attorneys ?are, on average, more likely to be found guilty and? to receive longer sentences? than defendants represented by public defenders, according to a new study by a Harvard economist.

The study was conducted by Radha Iyengar, a postdoctoral fellow at the Harvard Institute for Quantitative Social Science, and was presented in June, 2007, as a working paper of the National Bureau of Economic Research.

Ms. Iyengar analyzed data from the Administrative Office of the U.S. Courts (AOUSC) Criminal Docket for 1997-2002, which reveals that: 25.3 percent of federal criminal defendants are represented by privately retained counsel; 1.81 percent proceed pro se; and 72.9 percent are represented by indigent defense counsel.

Defendants qualifying for indigent representation may be appointed a federal public defender??a salaried federal employee who represents indigent defendants full-time??or a ?Criminal Justice Act (CJA) Panel Attorney???a private attorney paid by the hour. Cases are randomly assigned to either the CJA panel or the public defender pool. During the study period, 54.3 percent of indigent defendants were represented by public defenders, and 45.6 percent were represented by CJA panel attorneys.

The study found that ?defendants with CJA panel attorneys are more likely to be found guilty.? Additionally, ?CJA panel attorneys are over 8 percentage points less likely to negotiate pleas for lesser included charges.? This is significant because ?plea bargaining is the only way to negotiate lower sentences for defendants.? Thus, ?the difference in the probability of being found guilty combined with lower plea rates by CJA panel attorneys suggests that: 1) CJA attorneys are performing significantly worse at trial, and/or 2) CJA panel attorneys are not taking the ?right? cases to trial.?

?Overall, the defendants with CJA attorneys have nearly eight months of additional jail time,? according to the study. ?The effect of having a CJA panel attorney ranges from a difference of about 5 months for violent offenses to?nearly a year and a half for weapons offenses.?

Moreover, ?even when plea bargaining, CJA attorneys take significantly longer to dispose of cases (by about 20 days, corresponding to about 10 percent longer),? Iyengar found. Overall, ?using CJA panel attorneys imposes a $5,800 per case cost on the federal system or a cost of $61.1 million per year.?

Analysis of data from California and Arizona reveals several reasons for these differences. ?The court-appointed lawyers tend to be quite young,? from small practices and? from lower ranked law schools,? said Iyengar. ?They have a smaller client base and fewer interactions with prosecutors.?
Judge Morris B. Hoffman, Colorado district court judge and co-author of a 2005 study on indigent defense representation was not surprised by a number of the study?s conclusions. However they represent their clients, explains Judge Morris, less experienced lawyers tend to do less well in plea negotiations, deciding which cases to take to trial, and in trial outcomes.

Iyengar concluded that ?the most striking result? of the study ?is the unintended consequence attorney assignment has on perpetuating discriminatory case outcomes on the basis of race.? While African-Americans make up only 13 percent of the U.S. population, over 30 percent of indigent defendants are African-American, according to Iyengar. ?About 4,000 cases per year involve minority defendants who are randomly assigned CJA panel attorneys,? notes Iyengar. ?Given the large fraction of defendants of African-American descent, it becomes obvious that poor quality representation may disproportionately affect them.?

?Though the procedures implemented to assign counsel are facially neutral, the difference in performance and the disproportionate impact this difference has on minorities may support a case for discrimination based on disparate impact,? the study suggests. These differences ?may legally constitute a case of discrimination under Title VI of the Civil Rights Act (1964).?

David Carroll, research director for the National Legal Aid and Defender Association, believes the study?s most important point is economic. ?There is a cost savings in establishing staff public defender offices,? says Carroll. See: An Analysis of The Performance of Federal Indigent Defense Counsel, by Radha Iyengar, Working Paper 13187, National Bureau of Economic Research (June 2007).

Copies of the study are available at http://www.nber.org/papers/w1317. Ms. Iyengar can be reached at: Harvard University, Center for Government and International Studies, 1730 Cambridge Street, Room 408, Cambridge, MA 02138, riyengar@rwj.harvard.edu, or at the National Bureau of Economic Research, 1050 Massachusetts Ave., Cambridge, MA 02138.

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