Abstract

http://ssrn.com/abstract=1710780
 


 



Reforming Indigent Defense How Free Market Principles Can Help to Fix a Broken System


Stephen Schulhofer


New York University School of Law

David D. Friedman


affiliation not provided to SSRN

September 1, 2010


Abstract:     
Criminal defense systems are in a state of perpetual crisis, routinely described as "scandalous." Public defender offices around the country face crushing caseloads that necessarily compromise the quality of the legal representation they provide. The inadequacy of existing methods for serving the indigent is widely acknowledged, and President Obama has recently taken steps to give the problem a higher priority on the national agenda.

Proposals for improvement commonly stress the need for more resources and, somewhat less often, the importance of giving indigent defense providers legal independence from the government that funds them. Yet virtually every suggestion for reform takes for granted the feature of the current American system that is most problematic and least defensible — the fact that the indigent defendant is never permitted to select the attorney who will represent him.

The uniform refusal of American jurisdictions to allow freedom of choice in indigent defense creates the conditions for a double disaster. In violation of free-market principles that are honored almost everywhere else, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need. The situation is comparable to what would occur if senior citizens suffering from serious illness could receive treatment under Medicare only if they accepted a particular doctor designated by a government bureaucrat. In fact, the situation of the indigent defendant is far worse, because the government's refusal to honor the defendant's own preferences is compounded by an acute conflict of interest: the official who selects his defense attorney is tied, directly or indirectly, to the same authority that is seeking to convict the defendant.

We see this situation as the source of grave problems. As a corrective, we propose a free market for defense services, one that would, so far as possible, function in the same way that the existing market functions for affluent defendants who are able to retain their own counsel. Though we do not doubt the importance of resource levels, we see budgetary vulnerability and implicit conflicts of interest as inherent in any system where the defendant's attorney is chosen for him by the state. We seek to show that at any level of resources, freedom of choice for the indigent defendant can produce gains for both himself and for the public at large. We also discuss in detail how such a system could be implemented and why it can be expected to provide a practical and effective cure for many of the major ills of indigent defense organization.

Number of Pages in PDF File: 24

working papers series


Download This Paper

Date posted: November 19, 2010  

Suggested Citation

Schulhofer, Stephen and Friedman, David D., Reforming Indigent Defense How Free Market Principles Can Help to Fix a Broken System (September 1, 2010). Available at SSRN: http://ssrn.com/abstract=1710780 or http://dx.doi.org/10.2139/ssrn.1710780

Contact Information

Stephen J. Schulhofer (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
David D. Friedman
affiliation not provided to SSRN ( email )
Feedback to SSRN


Paper statistics
Abstract Views: 324
Downloads: 69
Download Rank: 190,409

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.360 seconds