if they do not ordinarily do criminal work. These lawyers have to cover their office rent, utilities, secretaries, computerized research, and the like. In part to cover these overhead expenses (which average $80 per hour), private lawyers charge private clients close to $200 per hour or more.11
Assigned counsel, by contrast, earn only a fraction of that for court-appointed cases: Hourly rates for felony defense average less than $65, and rates for misdemeanors are often closer to $50. Moreover, hourly compensation is often capped around a few thousand dollars for felonies and several hundred dollars for misdemeanors (as little as $180 in New Mexico), meaning there is often no additional pay for investing more than ten or twenty hours.12
Some counties try to save money by using a third option, contract attorneys. The county contracts with a law firm, often the lowest bidder, to accept some or all court appointments in exchange for a flat fee per case or for the entire caseload. In other words, lawyers are paid per contract or per case, not per hour.
For both assigned counsel working under a fee cap and contract attorneys paid a flat fee regardless of what they do, the natural incentive is to invest little work and plead cases out swiftly. Conscientious lawyers strive in good faith to represent their clients zealously, but they are forced to juggle enough cases to pay their secretaries and office rent and put food on their tables. Preparing a case and proceeding to trial is almost never cost-effective, so it remains rare. For attorneys who carry both court-appointed and privately retained cases, minimizing work on appointed cases leaves more time for more lucrative private cases. Thus, studies of assigned-counsel systems find that low pay drives away qualified defense lawyers and discourages effective preparation.13
Contract attorneys face an inherent conflict of interest, encouraging them to do the bare minimum needed to earn their flat fees and scrape a profit from their low-bid contracts. The winning bidders are not the most zealous defenders, but the ones who put in the least work. Trial courts may like and favor such low bidders, because they make their clients plead guilty fast and thus spare the courts work. Empirical studies confirm that contract attorneys file fewer motions, seek less expert assistance, are less likely to take cases to trial, more often have their clients plead guilty immediately, and provide worse representation overall.14
Take, for example, a poor misdemeanor defendant in Chicago. His lawyer can earn only $30 per hour of out-of-court time up to a maximum of $150. If the lawyer persuades his client to plead guilty immediately, he stays under the cap. But if he investigates the case and prepares for trial, there is zero additional compensation beyond five hours’ work. Few lawyers will try cases for free instead of jumping at whatever plea is offered.
Or take a first-degree felony defendant in New Mexico, where assigned lawyers earn a flat $700 for the entire case (even less for less serious felonies). If the lawyer persuades the client to plead guilty immediately or before much investigation, the lawyer can cover several hundred dollars’ overhead and turn a profit. If instead he spends dozens of hours investigating, interviewing witnesses, negotiating, and preparing seriously for trial, he earns zero additional pay. In short, low hourly rates, flat fees, and fee caps discourage hard work and zealous representation.15
Let us be clear that we are blaming the system, not the defense lawyers. None of the criticisms discussed here depends on imputing greed or selfishness to well-meaning public servants. Regardless of their laudable motivations and intentions, the problem is baked into the system’s underfunding and overwork.
Third, underfunding hits not only defense lawyers but also their support staff. Because of custom, practice, and the rules of ethics, lawyers are not supposed to testify in their own cases. That means that prosecutors and defense lawyers must rely on others to interview witnesses, visit crime scenes, or conduct scientific tests if they want that evidence to be usable in court. This is rarely a problem for prosecutors because they build their cases on police detective work, with follow-up by in-house investigators, coroners, doctors, and forensic experts. Prosecutors likewise can rely upon larger staffs of paralegals and secretaries, and better libraries and technology.
Defense lawyers can rarely match the prosecution team. They have few if any in-house investigators to check possible alibis and no crime labs to analyze drugs or bullets. In Houston, for example, the district attorney’s office has funding for thirty investigators compared with zero for the defense. Across the country, funding for interpreters and medical and scientific experts is paltry, and courts are reluctant to authorize such expenses. Nevada judges have punished defense attorneys who request expert funding, and an Indiana judge even admitted that he had stopped assigning cases to a lawyer because he had filed too many motions, visited his jailed clients too often, and sought too much in reimbursements. Clark County, Washington closed down a contract attorney office for seeking too much money, and Montana officials have likewise threatened to terminate attorneys’ contracts for seeking modifications or too many psychological evaluations. Contract attorneys, who usually have to pay experts out of their own flat contractual fees, are often unwilling to cut into their already meager compensation. Defense lawyers’ libraries and computers may also be inadequate and outdated. Even bare necessities such as desks, bookcases, telephones, and private interview rooms may be in short supply, as they were in San Francisco and Prince George’s County, Maryland.16
Underfunding also means that the law on the books may not match the reality on the ground. The failure to provide adequate funding for needed expert witnesses is one example. Another is the failure to provide free lawyers in misdemeanor cases. The U.S. Supreme Court has held that misdemeanor defendants have a right to court-appointed counsel in any case in which they ultimately receive actual jail time or even a suspended sentence. Even though states are bound to follow these rules, sometimes they do not. So, for instance, the Chief Justice of the South Carolina Supreme Court openly criticized the requirement of lawyers for suspended sentences as “misguided, . . . so I will tell you straight up we [are] not adhering to [that requirement] in every situation.” Some Michigan courts do not even offer counsel in misdemeanor cases. In many other situations, judges and prosecutors routinely bargain with unrepresented defendants, do not tell them their rights to counsel, and get them to waive (give up) their right to appointed counsel.17
Excessive Caseloads
The twin problem of underfunding is overwork. Professional standards recommend that defense attorneys carry a maximum of 150 felony cases, or 400 misdemeanors, per year. Even these benchmarks are contested and seem very high, particularly if lawyers lack private investigators and other support. Assuming time off for two weeks’ vacation and government holidays, there are roughly 240 working days a year. The recommended caseloads mean that a lawyer would handle one felony every 1.6 days or almost two misdemeanors a day. Obviously very, very few of those cases could proceed to trial or even receive significant investigation or motions practice.
In reality, however, defense lawyers routinely juggle far more than these recommended caseloads, sometimes hundreds more. Miami’s public defenders face annual caseloads of nearly 500 felonies or more than 2,200 misdemeanors, yet that office’s budget was recently cut by an eighth. In Chicago, Atlanta, and Utah, annual misdemeanor caseloads exceed 2,000. As noted, even as criminal caseloads keep rising, the number of public defenders lags behind the number of prosecutors, driving up each public defender’s caseload.18
Underfunding also exacerbates caseloads for assigned counsel. If they are paid low and capped amounts per case, they may have to accept more cases than they can handle well in order to make a living.19
Contract attorneys have it worst of all. Some contracts require the winning bidder to accept however many cases are filed, often for the same overall flat fee. If caseloads jump, they must do far more for the same amount of money by getting rid of cases as fast as possible. One county contracted with a three-person firm to handle about half of its caseload for just over $400,000, amounting to 1,523 felonies plus 3,587 misdemeanors that year. That works out to about $80 per case for all fees and costs. Each case averaged less than one minute of private-investigator time. Of the more than 5,000 cases that year, only 12 went to trial—less than one quarter of one percent. Two of the lawyers split the felonies, meaning each disposed of about 761 felony cases that year, almost all by guilty plea. A single associate handled all