Perverse Incentives Hurt Poor Defendants
Religion & Liberty Online

Perverse Incentives Hurt Poor Defendants

public+defenderSince the landmark Supreme Court decision Gideon v. Wainwright (1963) every state has developed a system of public defense. The decision guaranteed that those accused of felony offenses are entitled to a lawyer under the rights outlined in the 6th Amendment, which include, the right to a jury trial, a public trial, and pertaining to Gideon, “to have the assistance of counsel for his defense.” In the wake of the Gideon decision each state was required to develop a system of public defenders to represent those who did not have a legal counsel, and especially those who could not afford a lawyer. Because of low funding for public defense, and the increasing number of cases filling courtrooms, more states are requiring defendants to pay a fee for their assigned defender—whether they are found guilty or not.

An April 2016 New York Times article Fordham University Law professor John Pfaff, highlights more weaknesses in the public defense world and in the odd funding mechanism. Forty-three states now require defendants to pay for a public defender, even though the only reason they have a public defender in the first place is because they cannot afford a lawyer. The Times article highlights the current policy in South Dakota where a defendant is required to pay $92 dollars an hour regardless of the verdict. The result of this policy is that the defendant might have to pay hundreds of dollars a day to be proven innocent for a crime for which he or she was mistakenly arrested.

The State of Louisiana funds much of its indigent defense through court fees. A June 2016 Atlantic article highlighted in detail some of the problems in the public defense system in Louisiana. They found that local revenues from court fees actually fund 70 percent of the public defense systems budget, a majority of which were tickets for traffic violations. A violation of any law besides a parking violation warrants a $45 court fee, sent to the district’s public defense office. The system relies on the flow of money from criminal activity. Districts that collect more traffic tickets, specifically districts with heavy interstate traffic, have an advantage over those without a natural place to collect a significant amount traffic fines. This creates perverse incentives: more crime means more money.

The Louisiana system works differently than the South Dakota system. Instead of everyone paying court fees, only the guilty pay in Louisiana. The problem with this system is that it leaves lawyers in the morally difficult place where they are paid by the guilt of those they defend. Innocent verdicts mean less money for the district office because only the guilty pay the $45 court fee. This sets the stage for perverse incentives for prosecutors to do whatever is necessary to achieve a guilty verdict.

The whole system of defense in both states reveals common problems in the system: the poorer you are the more likely you are to receive a lower quality, the more likely you are to serve time or pay a fine, and the more likely you are to have system that is incentivized against you. The poor suffer most from the compounding effects of the requirements surrounding goverment defenders, and the urban minority and lower class white populations are even more likely than the suburban populations to feel the effects of these policies and their perverse incentives.

Anthony Bradley

Anthony B. Bradley, Ph.D., is distinguished research fellow at the Acton Institute and author of The Political Economy of Liberation: Thomas Sowell and James Cone on the Black Experience.