PDs and Private Lawyers: The Missing Data

 Posted on August 25, 2010 in Uncategorized

The data for this study are from Cook County (Chicago), Illinois, and are a random sample of 2850 offenders convicted of felonies in Cook County Circuit Court.

Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Journal of Criminal Justice (2010).

I asked here, if you don't know whether hired lawyers beat more cases outright than PDs, how can you possibly reach the conclusion that there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders?

The answer: you can't.Here are some numbers, from the Bureau of Justice Statistics' Special Report, Defense Counsel in Criminal Cases:

Case disposition (public counsel / private counsel):75 largest counties Guilty by plea: 71.0% / 72.8%Guilty by trial: 4.4 / 4.3Case dismissal: 23.0 / 21.2Acquittal: 1.3 / 1.6U.S. district courtsGuilty by plea: 87.1% / 84.6%Guilty by trial 5.2 / 6.4Case dismissal 6.7 / 7.4 Acquittal: 1.0 / 1.6

In state court (the 75 largest counties) private counsel beat 23.8% of cases outright, compared to public counsel's 24.3%. Defendants in those counties were 0.98 times as likely to win their cases outright with hired counsel as with appointed counsel. More evidence for Hartley's position.

But wait: In federal court, private counsel beat 9% of cases outright, compared to public (about half PDs and half appointed private lawyers) counsel's 7.7%. So defendants in federal court were 1.17 times as likely to win their cases outright with hired counsel as with appointed counsel.

Why the difference? Because not all jurisdictions are the same. You can't assume, based on statistics from other jurisdictions, that Chicago's PDs do better than hired lawyers any more than you can assume they do worse.

Outcomes after convictions (as measured by Hartley's last three dependent variables: Primary Charge Reduced, Incarceration Decision, and Sentence Length), even outcomes after guilty pleas, are entangled with trial decisions.

For example, in Hartley's data (Cook County 1993) defendants who were convicted after trial were 3.48 times as likely to be incarcerated, and received sentences 46.87 months longer, with hired lawyers as with public defenders.

One way to account for this is as Hartley and his colleagues do: "These findings reveal that the so called jury trial penalty might only be applicable for defendants who retain a private attorney."

Another way to account for it is this: these findings reveal that, because they have more confidence in their lawyers, facing severe sentences, defendants with hired counsel might be more likely to go to trial than defendants with public defenders.

Or this: these findings reveal that defendants with hired lawyers might be likely to try less-defensible cases, thereby irritating judges and inviting a trial tax.

Or even this: these findings reveal that people facing serious charges and maintaining their innocence, who if they lose will be more severely punished, might be more likely to hire lawyers than others are.

For Hartley's statistics to mean anything at all about the relative merits of public and private counsel, we would have to know how many cases each type of lawyer got dismissed or acquitted or, at a bare minimum, how many cases in Cook County were dismissed or acquitted in 1993 (because if that number is small enough-imagine if five felony cases were tried that year-then it might not affect the rest of the data).

Even then, there may, as a commenter has pointed out, be more variables than could possibly be accounted for to reach any meaningful conclusion.