Is A Universal Public Defender A Good Idea?

The right to a lawyer at public expense in a criminal case is a means tested right. Should it be? A "Universal Public Defender" available to everyone charged with a crime, regardless of means, would be an alternative approach.

This wouldn't necessarily cost the public much more than the current system.

A very high proportion (ca. 80%-90%) of criminal defendants are already represented by a public defender. Public defenders have lower salaries than prosecutors, and higher caseloads. And, it would eliminate the time devoted to indigency hearings on the part of prosecutors, public defenders, and the judicial branch, reducing the expenses of each of these branchs of the criminal justice system. It would also reduce the expenses associated with dealing with the procedural misteps of pro se criminal defendants who are not indigent but don't want to spend money on a lawyer.

Defendants would retain the right to hire private counsel if they wish, and empirical evidence tends to show that even legally indigent people often do so with assistance from friends and family, when they have strong cases. Presumably, the truly non-indigent would opt out more often than other criminal defendants. So, the percentage of new cases in the public defender's case load might be a significantly smaller number than those where private criminal defense counsel is present today.

The public defender line item isn't a big share of state and local government budgets now, and a one time increase of perhaps 10-20% in this line item, would not crush their finances. Viewed as a percentge of the criminal justice system's cost including law enforcement, prosecutors, the judiciary and public defendants, it would be a smaller still one time percentage increase.

Universal systems also tend to be more politically popular than means tested ones, because a much larger share of the voting public would receive what amounts to insurance protection from an expensive eventuality. The expanded coverage of the right to criminal defense counsel might make that line item in the budget more politically popular.

What about middle ground? The right could be limited to felonies only, since it is a statutory rather than constitutional right, and could come with a duty to reimburse the state in cases where a conviction results.

This approach would protect rights systemically as well.

It would also hue closer to the notion that a criminal defendant doesn't have to disclose anything to the state in the context of a criminal defense - one must make a representation under oath as involved as a tax return in order to be declared indigent.

And, if acquitted defendants were not required to reimburse the state for their defense, then it would reduce the incentive of non-indigent defendants to plea guilty simply to reduce their out of pocket legal fees, and it would mitigate the harm suffered from being charged with crimes that the prosecution fails to prove beyond a reasonable doubt at trial.

Critics worry about putting an even larger share of the criminal defense bar on the public payroll.

Meanwhile, in another money and justice intersection, jurors in Los Angeles are getting surly about the fact that they are paid only a far below minimum wage $15 dollars a day and can't afford it. Jurors are probably more resigned in Colorado, but are also ill paid.