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If You Pay the Piper, Do You Call the Tune? Public Defenders in America's Criminal Courts

Published online by Cambridge University Press:  27 December 2018

Roy B. Flemming
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Type
Review Article
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Law & Social Inquiry , Volume 14 , Issue 2 , Spring 1989 , pp. 393 - 414
Copyright
Copyright © American Bar Foundation, 1989 

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References

1 The landmark cases regarding the right to counsel are, of course, Gideon v. Wainwright, 372 U. S. 335 (1963), Argersinger v. Hamlin, 407 U. S. 25 (1972), and In re Gault, 387 U. S. 1 (1967). On the question of the criteria defining effective counsel, see Strickland v. Washington, 466 U. S. 668 (1970). As for whether the Sixth Amendment guarantees anything more than competent representation, see Morris v. Slappy, 461 U. S. 1 (1983).Google Scholar

2 See Paul Wice, Criminal Lawyers: An Endangered Species (Beverly Hills, Cal.: Sage Publications, 1978), and his equally pessimistic reappraisal five years later, “Private Criminal Defense: Reassessing an Endangered Species,”in William F. McDonald, ed., The Defense Counsel (Beverly Hills, Cal.: Sage Publications, 1983) (“McDonald, Defense Counsel”). Wice provides no data on the “market shares” of public and private attorneys. Local markets vary with respect to the dominance of public defense work, which reflects court policies regarding indigency criteria, and market concentration. For example, in nine medium-sized jurisdictions during 1980 the proportion of felony cases handled by publicly paid attorneys ranged from 34% to 80%. The degree to which these attorneys and 15 “regular” attorneys in each jurisdiction dominated the felony market ranged from 46% to 90%. See Peter F. Nardulli, James Eisenstein, & Roy B. Flemming, The Tenor of Justice: Criminal Courts and the Guilty Plea Process 192 (Urbana & Chicago: University of Illinois Press, 1988).Google Scholar

3 Information for the following discussion comes from Robert L. Spangenberg et al., National Criminal Defense Systems Study: Final Report (Washington, D. C.: U. S. Department of Justice, 1986) (“Spangenberg et al., National Criminal Defense”).Google Scholar

4 Id. at 14–15.Google Scholar

5 Because of limited space this discussion scarcely scratches the surface of the varied ways states and localities organize their indigent defense systems. Indeed, the line between public defenders and other systems is often hard to draw; moreover, some localities have mixed systems. More detailed descriptions can be found in Nancy Albert-Goldberg & Marshall J. Hartman, “The Public Defender in America,”in McDonald, The Defense (cited in note 2).Google Scholar

6 Spangenberg et al., National Criminal Defense at 12.Google Scholar

7 Id. at 19.Google Scholar

8 For the sake of simplifying the following discussion, some of the complexities surrounding intergovernmental transfers have been ignored, as Spangenberg et al., National Criminal Defense at 23–24, point out with respect to public defense. Moreover, by 1982, 15 states had developed statewide public defender systems, a development which complicates these comparisons and leads to an underestimation of public defense expenditures. It also should be pointed out the figures for both public defense and prosecution expenditures are not solely related to criminal matters, although they represent by far the largest proportion of the expenditures.Google Scholar

9 Bureau of Justice Statistics, Justice Expenditure and Employment in the U. S. 1971–79, tables 22 & 24 (Washington, D. C.: U. S. Department of Justice, 1984).Google Scholar

10 See Katherine M. Jamieson & Timothy J. Flanagan, eds., Sourcebook of Criminal Justice Statistics-1986, table 1.1 (Washington, D. C.: U. S. Department of Justice, 1987).Google Scholar

11 See, e. g., Stuart A. Scheingold, The Politics of Law and Order 37–57 (New York: Longman, 1984).Google Scholar

12 For example, the downturn in the Texas economy since 1985 has prompted Dallas county officials to question the costs and perceived favoritism of the court's assigned counsel system. See Alan Van Zelfden, “Indigent Criminals Drain Judicial System,”Dallas Times Herald, Sept. 4, 1988. Jurisdictions facing rising defense costs generally switch to public defenders systems. See Spangenberg et al., National Criminal Defense at 37.Google Scholar

13 David Sudnow, “Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office,” 12 Soc. Probs. 255 (1965).CrossRefGoogle Scholar

14 Id. at 275.Google Scholar

15 See James Eisenstein & Herbert Jacob, Felony Justice 19–39 (Boston: Little, Brown & Co., 1977) (“Eisenstein & Jacob, Felony Justices”).Google Scholar

16 Sudnow, 12 Soc. Probs. at 273.Google Scholar

17 Blumberg, Abraham S., “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession,” 1 Law & Soc'y Rev. 15 (1967).Google Scholar

18 Id. at 25.Google Scholar

19 Id. at 27.Google Scholar

20 Skolnick, Jerome, “Social Control in the Adversary System,” 11 J. Conflict Resolution 52 (1967).Google Scholar

21 Id. at 60; emphasis added.Google Scholar

22 Most public defenders in the court were assigned on a zone or horizontal basis to individual courtrooms and handled “normal crimes.” Sudnow (12 Soc. Probs. at 275) notes that a smaller division of more experienced defenders set outside the “regular ordering of relationships” dealt with murder, rape, major robberies, “dope ring operations,” or cases that attracted media attention. The relative infrequency of such cases meant that their normal features could not be constructed, which presumably complicated guilty plea negotiations. Moreover, because of the gravity of these crimes, the “privacy of the P. D. -D. A. conviction machinery” could “no longer be preserved” as public pressure mounted for a “full-blown jury trial.” Sudnow felt these trials amounted to no more than “show trials,” but he offered little evidence for this claim. The defenders in these cases perhaps may have included some of the more adversarial lawyers that Skolnick discovered.Google Scholar

It warrants noting that for three months McIntyre observed and as she notes “to a lesser extent participated with” a team of public defenders assigned to the elite Homicide Task Force who handled the sentencing phase of capital or death penalty cases. In comparison she devoted “many other field days” observing more routine cases. It is a difficult as well as speculative question whether her perspective of public defenders was shaped by her possibly more involved and detailed experiences with defenders who dealt with such nonnormal nonroutine cases. See McIntyre at 7.Google Scholar

23 Skolnick, 11 J. Conflict Resolution at 59 (cited in note 20).Google Scholar

24 Id. at 62.Google Scholar

25 Id. at 62.Google Scholar

26 Milton Heumann, Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys (Chicago: University of Chicago Press, 1977).Google Scholar

27 Id. at 3.Google Scholar

28 Id. at 69.Google Scholar

29 Lynn Mather, Plea Bargaining or Trial (Lexington, Mass,: D. C. Heath, 1979).Google Scholar

30 Expectations about conviction and type of sentence evidently shaped not only the plea versus trial decision of public defenders but also whether there were charge reductions in cases, a rough measure of adversarial bargaining or negotiations. The likelihood of charge reductions varied with “expected risk,” that is, conviction rates for different charges multiplied by the percentage of state prison sentences for the charges. The correlation between these expected risks and the proportion of defendants convicted on the original charge was -.61 (p < 0.01). This calculation is based on the data drawn from id., tables 3–2, 3–3, & 4–1.Google Scholar

31 See, e. g., Nardulli, Peter F., Flemming, Roy B., & Eisenstein, James, “Unraveling the Complexities of Decision Making in Face-to-Face Groups: A Contextual Analysis of Plea Bargaining Sentences,” 78 Am. Pol. Sci. Rev. 912 (1984).Google Scholar

32 There is of course a large autobiographical literature written by attorneys, most of it self-congratulatory, although there are notable exceptions. See, e. g., Alan Dershowitz, The Best Defense (New York: Random House, 1982). More self-critical and offering useful insights into the practice of private and public criminal law respectively are Seymour Wishman, Confessions of a Criminal Lawyer (New York: Times Books, 1981), and James S. Kunen, How Can You Defend Those People? The Making of a Criminal Lawyer (New York: Random House, 1983).Google Scholar

33 The table is not an exhaustive listing of the research. Many studies on plea bargaining obviously describe in varying detail the role of defense attorneys. The general rule in selecting the items for the table was that they should focus primarily on defense attorneys and offer a conceptual perspective from which to explain their role in criminal courts.Google Scholar

34 Robert Hermann, Eric Single, & John Boston, Counsel for the Poor: Criminal Defense in Urban America (Lexington, Mass.: D. C. Heath, 1977).Google Scholar

35 Id. at 159–60.Google Scholar

36 Nardulli, Peter F., “‘Insider's’ Justice: Defense Attorneys and the Handling of Felony Cases,” 77 J. Crim. Law & Crim. 379 (1986).Google Scholar

37 Id. at 416.Google Scholar

38 Charles Perrow, Complex Organizations: A Critical Essay (New York: Random House, 1986) (“Perrow, Complex Organizations”).Google Scholar

39 See, e. g., Michael McConville & Chester L. Mirsky, “Criminal Defense of the Poor in New York City,” 15 N. Y. U. Rev. L. & Soc. Change 582, 592–610 (1986–87).Google Scholar

40 See Eisenstein & Jacob, Felony Justice 285 (cited in note 15). Bench trials also were relatively common in Chicago not because the workgroups were unstable as in Baltimore but because they expedited the flow of cases; see id. at 251. In 1982, public defenders assigned to criminal court participated in only 208 jury trials but in over 1,500 bench trials. This suggests that public defenders bowed in some measure to the efficiency expectations of the bench. See Jim Spencer, “No Glamor, No Money: Public Defenders Still Seek Justice for All,”Chicago Tribune, Jan. 8, 1984, at B–10.Google Scholar

41 Nardulli, The Courtroom Elite 189, 196, 199, 203, 212 (Cambridge, Mass.: Ballinger Publishing Co., 1978).Google Scholar

42 In asserting that in Cook County's courtrooms public defenders were “real lawyers,” McIntyre makes much of a footnote to a study of how the city's criminal justice system responded to the 1968 disorders after Martin Luther King's assassination. Although the study was highly critical of the public defenders, the footnote indicated that public defenders did not see themselves as “bureaucratic functionaries” and “did not act as such” during the court proceedings (at 49). She completely ignores Balbus's detailed analysis of these events, which at several points directly contradicts this description. More importantly Balbus notes that until outside legal groups applied sufficient pressure, the public defender's office at the institutional and political level worked with the courts and prosecutors rather than oppose them. See Isaac D. Balbus, The Dialectics of Legal Repression 172, 185–86, 191–92, 200 (New York: Russell Sage Foundation, 1973).Google Scholar

43 Milton L. Rakove, Don't Make No Waves… Don't Back No Losers: An Insider's Analysis of the Daley Machine 221–32 (Bloomington: Indiana University Press, 1975).Google Scholar

44 Id. at 114.Google Scholar

45 Bryan D. Jones, Governing Buildings and Building Government: A New Perspective on the Old Party 152–78 (University: University of Alabama Press, 1985).Google Scholar

46 See “Feds Probing Ghost Payroll,”Chicago Sun-Times, Nov. 22, 1987.Google Scholar

47 See Thomas E. Cronin, Tania Z. Cronin, & Michael E. Milakovich, U. S. v. Crime in the Streets 151 (Bloomington: Indiana University Press, 1981).Google Scholar

48 Id. at 66.Google Scholar

49 Perrow, Complex Organizations 165–69 (cited in note 38).Google Scholar

50 See, e. g., James Eisenstein, Roy B. Flemming, & Peter F. Nardulli, Contours of Justice: Communities and Their Courts (Boston: Little, Brown & Co., 1988).Google Scholar

51 Perrow, Complex Organizations 167. It should be noted that Perrow is making a theoretical point and not necessarily a typology of organizations. Because McIntyre lodges her study within the institutional school, however, it is useful to think about her analysis in light of Perrow's distinctions.Google Scholar

52 Eisenstein & Jacob, Felony Justice at 156 (cited in note 15).Google Scholar

53 Id. at 157.Google Scholar

54 Spangenberg, National Criminal Defense at 26 (cited in note 3).Google Scholar

55 See “Public Defender Cuts Cases Back,”New York Times, Sept. 16, 1988.Google Scholar

56 Efforts to control caseloads and increase salaries may well reflect the internal demands of the defenders rather than with how cases are actually handled as McConville and Mirsky suggest in their analysis of the crises, reforms, and labor problems of New York's Legal Aid Society. See McConville & Mirsky, 15 N. Y. U. Rev. L. & Soc. Change passim 652–902.Google Scholar