Russell Hebets Aug. 19, 2011

Reading through the CrimProf Blog recently I discovered a study about if hiring lawyers was really beneficial in felony cases. The study is called “Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes,” and it was written by Thomas Cohen a statistician for the U.S. Bureau of Justice Statistics. It brings up three questions for this post, first what did the study conclude about the difference between private attorneys and public defenders? Second, are there any areas where the study may be incorrect or areas of future study? Finally, this post will provide an accounting analysis showing whether or not spending the money on hiring lawyers is actually worth it.

There are two separate portions of the study. When looking at the data in the aggregate and not controlling for variables such as criminal history and demographics the study found one important difference between the outcomes of public defenders and private attorneys. Public defenders’ clients were 9% more likely to be incarcerated than the clients of private attorneys. Considering that most defendants are simply trying to get the best outcome in a bad situation this would appear to be a significant difference. However, the second part of the study that did control for criminal history and demographics concluded that private attorneys only produced better outcomes in cases involving the destruction of property or public disturbance. These better outcomes were deemed to be a very weak relationship by the study.

The major flaw in this study is easy to understand when the conclusion is read. Cohen argues that public defenders produce good outcomes because they specialize in criminal defense and have extensive knowledge of the criminal defense system and good relationships with members of the criminal defense systems. Cohen goes on to say that most private attorneys do not specialize only in criminal defense and this might be one reason they can only attain similar outcomes to the public defender. What Cohen does not consider is that there is a class of attorneys, albeit a small class, who specialize only in criminal defense. These attorneys have all the benefits that he attributes to the public defender. In addition, since their more distracted general law counterparts are already as good as public defenders it is safe to assume that this class of attorneys can produce even better outcomes than public defenders. For future areas of improvement the State Court Processing Statistics (SCPS) could ask one question about what types of law the private attorney practices and thus begin to answer the true question which is whether private criminal defense specialists are better than their public counterparts.

Cohen’s primary conclusion is that specialization in law produces better outcomes, but he does not follow this line of thought to its logical end. If you are considering hiring an attorney you should find one that specializes in your particular offense. Some attorneys specialize in DUI, others sexual assault, others in major felonies. Cohen also fails to point out that public defenders, like all professions, have some attorneys who are good and others who are not good. You do not get to choose which public defender represents you, but when choosing a private attorney you can shop around and select a highly specialized attorney who gets along with you. Also the main drawback of public defenders is that they can be over worked. When looking for a private attorney you can gauge whether or not they respond to your calls, how engaged in the case they are, and thus screen your attorney to make sure they will make the time for your case. There are many factors involved when hiring a defense attorney and if done properly it should be easy to dramatically improve your outcome and peace of mind during your legal proceedings.

The real question for most potential clients is whether or not the higher cost of a private attorney is really worth the few percentage point difference in whether or not they go to jail. Accounting actually provides a way for a client to analyze these costs. First, accounting formulas are taken to determine what a person’s future salary is worth in dollars today. Then the probability that they will go to jail with both a public defender and private attorney is taken (this probability is the rate of convictions times the rate of incarceration). For the private attorney their fee is put in as lost earnings, and then you compare if the client actually stands to gain money. If the client would likely save money in present dollar terms they should hire a lawyer. Using the statistics from the U.S. Bureau of Justice Statistics, assuming three different income levels in the Denver area and finally assuming attorney’s fees of $6,000 you can see the results below. As you can see for almost everyone besides those making minimum wage hiring an attorney makes economic sense. This is consistent with the idea that public defenders are a great benefit to those with economic need. If you would like to calculate this cost for yourself using your exact salary and attorney fee here is a spreadsheet—just change the salary column and the attorney fee column.