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A Conservative Approach to Indigent Defense?

| April 15, 2011

Late last year, The Cato Institute published an intriguing paper on indigent defense reform. It is an attempt to apply limited government principles to an an exceptionally difficult criminal justice problem.

The authors, Stephen Schulhofer and David Friedman, begin by agreeing with the central holding of Gideon v. Wainwright that every criminal defendant has a right to counsel protected by the Sixth Amendment. “Of all the services that governments provide to the poor,” the authors argue, “[right to counsel] is arguably the one most defensible on libertarian grounds [because] judicial proceedings, including the opportunity to present a defense, are an intrinsic part of a broader service that government provides to the public as a whole – law enforcement and social protection.”

Of course, just because a person has the right to a lawyer, it does not mean they can afford one. In those instances, the state provides a lawyer. This is essentially a top-down system in which the government directly provides a service – and like any top-down government-provided service, it is inadequate. Public defenders across the country are overworked and they cannot reasonably provide effective representation. (According to a recent New York Times article, the Public Defender in Missouri is literally turning away cases.) In some jurisdictions that lack a public defender, the Court selects a private lawyer to represent the defendant, but the Court is not necessarily interested in obtaining the best defense. It is more interested in moving its docket, so it selects a lawyer whom it knows is likely to plead out quickly and move on. Also, the Court must approve the defense attorney’s expenditures (which can be as low as $80 per case), so it exerts effective control over the defendant’s presentation of his case – although it is not exerting similar control over the prosecutor, whose expenditures it does not oversee.

Schulhofer and Friedman looked at this issue the way conservatives often look at education. Conservatives want all young people to get an education, and they are willing to pay for it, but they often do not want the government to build schools – because it tends to do a terrible job of educating kids. Why not let the private sector build the schools while the government merely provides vouchers for parents to select the private school of their choice? In similar fashion, the Cato paper suggests replacing the inefficient indigent defense system with a voucher system. Indigent defendants can be provided with vouchers — and perhaps a list of options – and they can select whomever they prefer. It is a market-based solution that emphasizes personal liberty and minimizes the role of government.

It would be premature to announce that Schulhofer and Friedman have solved the indigent defense crisis in America. Their idea has limitations, which they acknowledge and address in the paper, and until it is implemented, the benefits of the plan are only theoretical. They should be lauded, however, for trying to bring a limited government perspective to a public policy issue that is desperately in need of reform.

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RIGHT ON CRIME is a national campaign to promote successful, conservative solutions on American criminal justice policy—reforming the system to ensure public safety, shrink government, and save taxpayers money. By sharing research and policy ideas and mobilizing strong conservative voices, we work to raise awareness of the growing support for effective reforms within the conservative movement. We are transforming the debate on criminal justice in America.

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