Sunday, January 05, 2014

Twenty Years After

Yesterday's New York Times Sunday Review has an article that describes current plans by a county in Texas to implement an idea from an article that I coauthored in 1993. It was published again in a shorter form aimed at a more general audience in 2010. It was that version that brought it to the attention of someone prepared to try it out.

The idea is quite simple. Under current law, someone who is charged with a felony and cannot afford a lawyer has one provided for him. The system has been extensively criticized as providing very little protection to defendants, mostly on the grounds that the money available is inadequate to fund a serious defense. In some places the lawyer is appointed by the judge, in some there is an office of the public defender. In none does the defendant  have control over the choice of the person who is supposed to represent his interests.

Steve Schulhofer, at the time a professor at the University of Chicago Law School where I was a faculty fellow, came to me with an idea. While one problem with the system might be inadequate resources, another was poor incentives. A lawyer who wanted to be paid to represent indigents did not have to please his "clients," he had to please whoever appointed him. However little he was paid, he could always do less work than that. And one obvious way to please the judge or whoever else was responsible for choosing lawyers to defend the indigent was by persuading the defendant to agree to plead guilty, thus saving everyone else a lot of time and trouble.

Steve's solution was simple: a voucher system. Whatever the state was willing to pay, let the defendant choose the lawyer. For details, see the shorter version of our article. It struck me as an obviously good idea, and we ended up jointly writing the article.

Steve was viewed as on the left wing of the Law School faculty, so our collaboration led to a certain amount of discussion among our colleagues as to which of us was subverting which. I thought the question was adequately answered when we gave a workshop on the paper and I had the pleasure of hearing Steve Schulhofer lecturing Judge Posner, a prominent legal scholar generally, if somewhat inaccurately, viewed as a conservative, on the virtues of the free market.


At 11:57 AM, January 05, 2014, Blogger Tibor said...

It is good to know that some people are able to set aside ideological differences and judge ideas by their merit.

I'm pretty sure a lot of radical libertarians would be against this because it is still not complete laisezz-faire, as for them you either want to push the "red button" or you're "obviously a socialist".

A lot of people on the left would probably also condemn this as "neoliberal".

But the effect seems to be that a lot of people, poor people in particular, get a better stand in the judicial machinery and have to feel a bit less like Josef K...and noone seems to be worse off.

At 12:14 PM, January 05, 2014, Blogger jdgalt said...

I would go a little further: entitle the defense to the same funding the prosecution gets.

In fact, I wouldn't be too averse to socializing the profession of law, on the grounds that we have too much of it now.

At 12:42 PM, January 05, 2014, Anonymous Anonymous said...

John, what does socializing the profession of law mean? All lawyers working for the county?

At 1:14 PM, January 05, 2014, Blogger Unknown said...

Well said Tibor. As a radical libertarian i think we would be better off without the government. Unfortunately many others think that any and all cooperation with government for any reason makes you a socialist.

At 1:52 PM, January 05, 2014, Blogger Tibor said...

Noah: Yes, I think so as well. But I don't see how a move in the right direction can be a bad thing. It seems to me that the proponents of the "red button" expect the society to collapse and then arise anew in a libertarian fashion...why they expect that I don't know, it seems like wishful thinking to me. Mostly these scenarios have lead not to freedom but to horrible tyrannies, because after a collapse of the previous social institution chaos comes and people are afraid and want order and security above all...which is gladly provided by those who want to rule and have few scurpules.

You may be able to start from scrap if some new land (or sea) becomes available, otherwise it is better to go step by step.

I had a discussion with a couple of Rothbard fans who criticized Milton Friedman because he proposed things that (in their words) were only supposed to improve the system, to make it more efficient but not to change it. They argued that if he used the same amount of effort and time to persuade people to (e.g.) shift to entirely private education instead of advocation school vouchers, it would be better. I think that is mistaken. Even if your eventual goal is to get there, you stand a much better chance to persuade people to make a little change and then when that becomes the new norm and people see that it actually works better, it is easier to argue to go further. And in this particular case it has the "educational" effect of actually choosing the school. You are still subsidized, but you become a customer and you can and have to choose for yourself.

Also, they sometimes claim there is really no difference between the voucher system and regular school system, because it is both socialist. This is thinking in absolute terms of "right" and "wrong", it makes good high and mighty rethorics, but I very much doubt they actually behave that way...that is, that they would be indifferent between the two education systems had they the opportunity to choose themselves.

At 5:48 PM, January 05, 2014, Blogger David Friedman said...

One of the questions I thought about at the time was whether a libertarian should approve of the government paying the legal costs of indigent defendants. I concluded that it was at least arguable that he should. When the government charges someone with a crime it is imposing costs on him—whether or not he is guilty. It isn't unreasonable for the government to have to bear some of those costs.

To put the point differently, with an adversary system the defendant's lawyer is in a sense serving the government--helping it distinguish innocent defendants from guilty ones. Having the government pay the cost is no more inappropriate than having the government pay the prosecutor's salary or upkeep on the courthouse. And while I may ultimately want to shift all of that to the private sector, doing so is far outside the range of what I can reasonable expect to accomplish any year soon.

At 6:44 PM, January 05, 2014, Blogger Mark Horning said...

County (or District) Attorney is an elected office. Thus there is a built in incentive to use whatever means necessary to win cases.

Public Defender is an appointed position with all of the issues you correctly describe.

I would think that the solution would be obvious, appoint County Attorney's and elect County (or District) defenders. Just as CA's campaign on how many "bad guys they put away" CD's would campaign on how many "innocents they saved from being unjustly convicted."

At 8:01 PM, January 05, 2014, Anonymous Anonymous said...

A good idea is a good idea, regardless of one's ideology.

At 5:37 AM, January 08, 2014, Anonymous Scott H. said...

Well, from a constitutional standpoint you would have the 14th amendment guaranteeing equal protection before the law. What's more equal than everybody gets the same legal funding?

I think libertarians are likely to be OK with this special exemption to laissez-faire. It only applies to protecting citizens against their government.


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