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The Sixth Amendment guarantees that “in all criminal prosecutions, the accused
shall…have the assistance of counsel for his [sic] defense.” The Warren court, through Gideon v. Wainwright, implemented this right by requiring the state to provide lawyers to criminal defendants who face imprisonment. In 1964, the passage of the Criminal Justice Act (CJA) heralded the establishment of a federal indigent defense system intended to ensure that everyone, regardless of wealth, had representation to ensure a fair trial. The federal indigent defense system relies on both salaried government workers (public defenders) and hourly-wage earning court-appointed private attorneys (CJA panel attorneys). Over fifty years after the passage of the CJA, there is still a great deal of variation in the quality of services that is provided to the poor potentially related to this appointment of private attorneys. 1 Given that federal funds support both types of attorneys, the variation in performance raises questions of whether the current system meets its legal obligations of fairness as well as whether it is a cost efficient means of providing effective counsel.

This study analyzes the performance of attorneys in the federal indigent defense system using the fact that cases are randomly assigned between CJA attorneys and federal public defenders. In an effort to ensure ex ante fairness, each federal district assigns an annually determined fixed proportion of the cases to each group of attorneys. I attempt to verify if this occurred by testing how well a set of observable case and defendant characteristics predict what type of attorney assignment. I reject districts-years in which observables can significantly predict whether a defendant is assigned a CJA panel attorney. After identifying districts in which randomizations appears to be effective, I estimate the difference in probability of guilt and sentence length between CJA panel attorneys and Federal Public Defenders. Defendants with CJA panel attorneys are on average more likely to be found guilty and on average to receive longer sentences. Overall, the expected sentence for defendants with CJA panel attorneys is nearly 8 months longer. Decomposing these differences suggests they are largely due to differences in attorney performance when negotiating a guilty plea and the selection of which cases to plead rather than to take to trial.

I next compare the characteristics of the two groups of attorneys in 3 federal districts to better understand the relationship between attorney characteristics, payment structure, and performance. CJA panel attorneys, on average, have less experience and attended lower “quality” law schools. This difference in experience and law school quality, combined with the effect of wages and caseload explain over half of the overall difference in expected sentence. Procedurally, the difference in outcomes appears to operate through plea bargaining as higher experience levels and wage rates encourage higher plea rates and lower negotiated sentences. These results appear consistent with the hourly wage structure of CJA contracts which provide incentives for CJA attorneys to take longer to resolve cases. The lower plea rates by CJA panel attorneys overwhelm any cost-saving generated by paying them lower wages. My estimates suggest that using CJA attorneys imposes a cost of approximately $61 million per year due to higher court costs.

The analysis presented in this paper attempts to establish the nature of the relationship between wage structure, human capital, and specific capital on the selection into and performance of individuals engaged in a service providing industry. The practice of criminal law by its nature offers clear metrics, such as win rate and sentence length, to measure worker performance and the indigent defense systems which relies on both salaried workers (public defenders) and hourly-wage earning court-appointed private attorneys, such as Criminal Justice Act (CJA) panel attorneys. Random case assignment results in lawyers of varying experience and quality trying similar cases. This provides a mechanism to evaluate how variation in market and lawyer characteristics affects their performance. Moreover, because the CJA panel is voluntary, involvement in it may provide non-pecuniary forms of compensation. The value of alternative forms of compensation, such as client recruitment or on-the-job training, is often difficult to identify or measure. Typically, variation in non-pecuniary compensation is linked to variation in monetary earnings as well as occupation and job type. It is therefore often difficult to isolate the impact of alternative types of compensation on job performance. The potential for on the job training that occurs in the indigent defense market comes at the cost of outside market wages. Thus, as the gap between the wage paid to indigent defense lawyers and the market wage shrinks, the relative value of non-wage compensation becomes more salient. Thus a comparison between these two types of attorneys provides some valuable insight into how workers respond to opportunities to obtain on-the-job training, which in this situation is trial experience, and the consequences of these workers’ decisions on their job performance.

Separate from the economic question of measuring performance, there is a policy concern regarding the fairness of the current court system. The two-tiered system of indigent defense, in which a substantial fraction of the cases are covered by contract workers, is also used in many state systems. Because the federal system handles only about 5 percent of all criminal cases and is thought to attract substantially higher quality public defenders and contract workers, it is not directly comparable to many state criminal justice systems. To the extent that we believe the overall level of performance in the federal system is higher, we may be especially concerned about the quality of services provided to indigents in the state system. Indeed both anecdotal and empirical evidence suggests that there is considerable room for improvement in the provision of counsel to indigents. The quality of services received by indigent defendants varies widely and is associated with differences in the practices of federal panel attorneys. This variation raises the question of whether improvement needs to occur in both types of workers or if one type of worker is underperforming. The evidence presented in this study may be of some assistance in developing the set of reforms and improvements needed in state indigent defense systems which in many cases parallel the structure of the federal system.

Of especially great concern is that the difference in outcomes between CJA panel attorneys and public defenders presented in this paper are correlated with the race of the defendants. Specifically, districts with a higher fraction of caseload assigned to CJA panel attorneys are also districts with more minority defendants. Additionally, in non-randomizing districts, blacks are more likely to be assigned a CJA panel attorney than are whites. As a result, poor representation in the federal indigent defense system disproportionately impacts minorities. Because there does not appear to be an invidious purpose behind the creation of the current indigent defense system, the systematic provision of poor quality counsel likely does not violate ex-post differences in outcomes may violate the Civil Rights Act. Thus, the seemingly neutral system intended to provide counsel to financially needy defendants results in de facto discrimination against minority defendants.

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