WBUR

Expert: Public Defenders More Effective In Representing Poor Defendants

BOSTON — Gov. Deval Patrick wants to overhaul the public defenders system in Massachusetts. Currently, the state pays private attorneys to represent indigent defendants. They’re hired under the Committee for Public Counsel Services, in the judicial branch.

Patrick is proposing a new state agency under the executive branch. It would be called the Department of Public Counsel Services, which would hire 1,000 staff attorneys.

Anthony Benedetti, head of the public counsel services committee, opposes the idea. He said the issues associated with the new plan are far greater than just whether full-time public defenders are less educated or skilled than their private counterparts.

“Not the cream of the crop. I’m talking about meeting minimal constitutional requirements. All you need to do is Google ‘public defender’ and look at what has been going on around the country, and in state after state you have systems which are underfunded, public defenders who are overworked, and so they are not able to provide effective representation,” Benedetti said.

“…Public defenders are better able to secure shorter sentences, better negotiate pleas and in general seem to produce quicker outcomes for their clients than do their contract attorney’s counterparts.”
– Radha Iyengar, London School of Economics

Radha Iyengar, who teaches at the London School of Economics, joined Morning Edition Tuesday to compare public defender systems across the country. She said the findings show that public defenders are more effective in representing indigent defendants.

“The findings are, in summary, that public defenders are better able to secure shorter sentences, better negotiate pleas and in general seem to produce quicker outcomes for their clients than do their contract attorney’s counterparts,” Iyengar said.

Although the findings show that public defenders are more effective in representing indigent defendants, the issue of cost is not as simple.

“On a pure wage-bill point, private attorneys will be slightly cheaper than public ones. But from a criminal justice budget point of view — which is of course the point of view that the state or federal government wants to take — it is still more costly to use private counsel than public defenders.”

Iyengar said that while salaries and benefits of public defenders cost the government more, private attorneys typically take a longer time to resolve a case, which raises overall costs.

Earlier:

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  • Laughman1001

    Quicker outcomes? Is that what the Constitution guarantees people who are charged with crimes and facing all the resources of the State pitted against them? Wonder why there is no mention of how effective PDs are as trial counsel? Probably because they are too busy trying to get a “quick” plea “outcome” instead of trying the case!

  • Laughman1001

    Quicker outcomes? Is that what the Constitution guarantees people who are charged with crimes and facing all the resources of the State pitted against them? Wonder why there is no mention of how effective PDs are as trial counsel? Probably because they are too busy trying to get a “quick” plea “outcome” instead of trying the case!

  • Seandohertyesq

    I guess we know where Mr. Oakes stands! We have to go to London to have someone chime in? In my experience as a bar advocate (fifteen years), public defenders are less experienced, more overworked and more apt to “plea someone out” when there is a legitimate reason to go to trial. Ms. Iyengar admits it would be more expensive to add more public defenders rather than stick with private attorneys who bear their own costs of overhead, health insurance, etc. We bar advocates are limited to two hours of “waiting time” in court per day so it is a falsehood that private attorneys can just sit and bill for it; in fact the opposite is true – we can’t bill for the time we actually have to wait because the state limits us! Adding more inexperienced public defenders will result in a backlog in the system. Eventually, private attorneys will need to be hired (and paid at the going private rate of $250-$300) to rid the system of the backlog, because whether you like it or not every individual is entitled constitutionally to an adequate defense.

    • Seandohertyesq

      Additionally, I failed to point out Ms. Iyengar’s reasoning is flawed to the extent her study involved federal courts where federal public defenders are well compensated, experienced and the case load is much smaller. She is comparing apples to oranges and does not take into account the huge caseloads in the district and superior courts in Massachusetts, where experienced advocates are not a choice but a necessity.

  • Dlevlaw

    I have been a bar advocate in MA for seven years and have also worked for three other state public defender systems. The system in MA works! I would like to see Ms. Iyengar’s research. I am surprised that she is comparing the federal system with the state system. The pure volume of cases in the state system would differentiate itself. Additionally, the bar advocate attorneys are treated no differently in representing clients as compared with a state employed public defender.

    • Dlevlaw

      I was able to locate a copy of what appears to be Prof. Iyengar’s report. It appears that her research specifically excludes data in which private attorneys handle 85 percent of the caseload (i.e., districts like Massachusetts).

  • Mike

    If it’s cost savings the Governor is after, he’s not going to get it. He’s going to need more than 1,000 employees to fill this bureaucracy . He’s going to have to put them in offices and pay for their rent, support staff, equipment, insurance, pensions etc. The cost of the current criminal defense system is being overstated because the Governor is including the costs of civil matters the bar advocates handle (48,000 cases last year) — civil matters like juvenile care and protection proceedings (where bar advocates represent both children and their parents) and mental health proceedings.
    A better idea would be to obtain a greater monetary contribution from the indigent defendants themselves. Presently their contribution (payable to the court) is between $150 and $250 per case, but I’ve seen as high as $500. The kinds of cases for which we are assigned could also be reduced. Eliminating incarceration penalties on types of crimes where defendants never go to jail anyway would help — cases like operating a motor vehicle after suspension of driver’s license and other minor motor vehicle violations, trespassing, disorderly conduct, etc. If the only penalty is a fine, the defendant is not assigned an attorney and must represent himself or provide his own attorney.

  • KBR

    Here, here, Attorney Doherty – a London School of Economics teacher commenting on bar advocacy work in Massachusetts? How much did THAT cost this member-driven station? Is the Governor considering the costs of operating a new Department of Public Counsel Services in addition to employing private, full-time, pension-saving, health-care provided, paid-vacation/holiday/sick time staff? Has the Governor and NPR-staff read “Comparing the true costs of prosecution and indigent defense in Massachusetts: Correcting the DAsā€™ disinformation campaign”? It’s tiring and frustrating listening to and reading all the rhetoric and poorly-researched articles. Maybe we should go to London to be heard?

  • Frances Tucker

    Il would like to know how Prof. Iyengar compiled her stats to conclude public defenders are more efficient. My experience shows costs are driven by the district attorneys; the Asst DA’s are under 30, for the most part, without any world experience, and are afraid to settle cases on their own so they engage in endless continuances and prosecutions of cases that should be dumped. Cases in point: this month, the DA in Suffolk County is insisting on re-trying a case where my client has already done his time in jail but his conviction was overturned by the Appeals Court. What’s the point? Just to get a notch in his belt? This is a waste of time and the Commonwealth has to pay me to defend the guy. Another case, an assault charge, has been continued 5 times because the witnesses don’t show up. A co-defendant has already confessed to being the assaulter but the judge keep granting the DA continuances and not dismissing, as he should. Don’t blame the lawyers as if we want to keep these ridiculous cases alive; we don’t. Quicker outcomes are up to the DA’s and the judges.

  • Lawrence M. Frisoli

    It is inconceivable that in this budget environment the administration would propose hiring 1,000 state employees with pensions, health insurance, benefits, overhead, and administrative costs.

    How is this going to save any money?

  • Adam Malinowski

    Against the backdrop of recent high profile stories involving patronage problems with a state-run probation department and a state sanctioned inept parole board, it is inconceivable that the Commonwealth should add one more agency to the mix. The Committee for Public Counsel Services is not in need of repair or replacement and the public/private partnership is fulfilling the constitutional mandate of effective assistance of counsel to all citizens.

  • Gordon Martin

    As one who was a District Court Judge for more than 20 years, I found the current Massachusetts system worked well.

  • Michael Reinhardt

    Comparing the Federal system and the state district courts-where all state criminal courts originate-is not even apples and oranges; more like apples and orangutans.The professor concluded that Federal defenders resolved cases quicker because of greater experience and a more developed relationship with prosecutors than private defenders. This simply is not true at the state level. Most bar advocates are highly experienced and have extensive experience in the district court(s) in which they appear. The problem in developing good working relationship with assistant district attorneys is solely due to the high turn over and rotation of ADAs. In order to obtain cost savings, the state would have to hire inexperienced attorneys at entry level salaries to replace experienced private counsel. This would, of course, cause delays-and increased costs-as well as a decline in the quality of representation.

  • Citizen

    I am very skeptical of the data used to compile this report.
    In today’s legal environment, it is a totally skewed outlook to say that it “works well”. works well for whom? Certainly not the defendants who receive inadequate representation or those that are “tricked” into plea bargains for cases that have absolutely no evidence but the prosecutor will “plea” bargain in anticipation that they can make the defendant think that they have damning evidence.

    Even people that are completely innocent of the charges accept these plea deals on the advise of the public defender who assures them that “if you dont take this deal then you are going to get far worse” Its no longer a question of guilt or innocence, its now a question of what costs the most, workload, and punishment for a defendant exercising their right to trial. what happened to our founding fathers vision of “innocence until proven guilty”? Its been completely perverted by the current Judicial systems.

    Teh title “Public defender” in this country is a joke, the judiciary is completely ineffective and the Public Defender is no longer working for the defendant, instead they are having lunch with the prosecutor and making back room deals for conviction rates.

    I would gamble to say that a very high percentage of incarcerated prisoners are wrongfully convicted, even if its a small number its unacceptable, the damage to good American families and individuals lives are threatened on a daily basis by overzealous and abusive police officers, Judges with political ambitions, prosecutors with no other concern than conviction rate and Public Defenders that have no interest in the Public’s defense.

    Wake up America, how many more of our sons and daughters wrongfully accused, will have to be financially ruined or have their freedom stolen, in defense of over zealous charges and judiciary staff before we have had enough ?

  • rmdesq

    Mr. Oakes and others at WBUR:

    I must admit to being disappointed in this piece. At issue currently is whether there are significant cost savings in Governor Patrick’s plan to dismantle the current CPCS program (which provides private counsel at a significantly reduced rate to represent criminal defendants in the District and Superior Courts, as well as counsel to represent parents and children in child welfare matters, and other civil matters such as involuntary commitments, and mental health issues) and instead create a new administrative agency, under his direction, of staff attorneys. Professor Iyengar’s opinion is irrelevant to this issue: her statistics are based upon her report of the federal defenders program, and specifically excludes models, such as Massachusetts’, which include both public defenders and private counsel. When can we expect a retraction and a clarification of these facts? Or will you be content to let listeners rely on these erroneous statements, and probably repeat them to others?

    In the event that you make an effort to correct the record, please note the following facts, which are easily verifiable: Governor Patrick has stated that his planned agency would provide salaries ranging from $40,000 to $50,000. He has failed to publicize the inescapable fact that the Commonwealth would also be required to provide benefits such as health (and probably dental) insurance, disability insurance, vacation time, sick time, malpractice insurance, and, most significantly, pensions- 1000 more pensions, just for the attorneys (likely more, as some will undoubtedly retire or move on, and others hired). Additionally, this new agency would need support staff, 500 by his report (with similar benefits, and of course, upward of 500 more pensions), office space across the state (there are indigent litigants in every city and town, from Springfield to Boston, to New Bedford, to Andover, and everywhere in between), supplies, furniture, etc. As far as I can tell, no actual budget (read “numbers”) exist currently to support his assertion that this plan is a cost-saver – we will have to wait until his proposed budget is released, which won’t happen for several months.

    I am an attorney, and for many years I accepted court appointments through the CPCS program to represent indigant clients in civil matters. I never drew out my representation of my clients to make more money, nor did any of my colleagues. We work for a significantly reduced rate – when was the last time an attorney offered to work for you for $50/hour? As private attorneys, we are responsible for our own overhead (office, supplies, support staff, malpractice insurance, health insurance… the list is endless).

    As a resident of the Commonwealth, I completely understand, and support, the need to reduce governmental spending, but it must be done thoughtfully, and this is not the way. Believe me, not a one of us got rich billing the Commonwealth for our services. I did this work for many years because I believe in the Constitutional right to competent, zealous legal representation, regardless of the ability to pay, and feel confident in saying that the CPCS attorneys with whom I had the privilege to work share this belief. These are experienced legal practitioners, who are committed to their jobs. These are the ones you want representing your friends and families.

  • notway

    What does someone from London know about the operation of our public defender system?

  • former NYC and MA PD

    New York City is expanding public defenders offices and reducing private attorney court appoint defense attorneys. The difference between NYC’s plan which is already underway is that prior to expanding PD offices, New York passed a caseload cap law which will be phased in over several years. MA should not expand the public defender system without putting in place caseload caps for PDs. If MA doesn’t implement statutory caseload caps for PDs, we’ll have ineffective public defenders due to crushing caseloads. The Governor and legislative need to look at the NYC plan in its totality and how it’s structured.

  • Laureninker

    1,000 new attorneys will not be enough for all of the criminal cases, and there was no mention of all the civil ones. by the time salary and benefits of all new attorneys and staff are factored in, the commonwealth will end up paying more, not less than with the status quo. i do think that the ada’s should be paid more. i was a prosecutor for my first five years out of law school. the reason the adas are so young is that people marry and have children, and, understandably move to jobs that pay more.

  • jonas

    What rot!!!! To allow the DA dude to refer to appointed counsel as maserati criminal defense is hogwash. Look, we know that he is a politician but, come on, doesn’t government radio have some sense of responsibilty?

  • Corinne Diana

    I don’t know about London, but if what Radha Iyengar says is at all true in Massachusetts, there are certainly other factors to consider, not the least of which is the level of experience and competence of the prosecuting attorneys. As a rule, the youngest, least experienced prosecutors are assigned to the district courts, which is where most of the private attorneys are assigned. My experience is that prosecutors often take a case further and take longer to resolve it than necessary: they are less experienced than their superior court counterparts, they want to be known as tough, and they have little or no leeway to resolve cases short of trial. Their bosses, after all, want them to get as much trial experience as possible. They are not necessarily interested in quick resolutions, even though most cases never go to trial, but much time is wasted on the way.

  • Ms. Thomley

    can my mom come with me and be in the meeting with me?Ā  Last time the Public Defender shut the door abruptly infront of my mom and dad last time I went to a meetong with him. Why cant my parents come in even though I’m 21 yrs. old.

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