The Lawyer Does Make a Difference

In murder cases in Philadelphia, at least. A study by M. Anderson and Paul Heaton for the Rand Corporation, “How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes” [PDF] concludes that the quality of the lawyer and the quality and quantity of the lawyer’s work are significant factors in explaining the outcomes of criminal cases.

This conclusion will likely strike any practising lawyer as trivial: one of the beliefs we hold (and cherish) is that our efforts and talents matter, that not all lawyers are created equal. Yet, seen from the outside and through the long lens of public policy, justice, in criminal law certainly, is seen as a function of “the system” and the provision of “a lawyer.” We may suspect that this is not as successful a policy as we’d like it to be; but, given that it’s rarely if ever possible to compare an outcome with a sufficiently similar counter-factual version—the “apples and oranges” problem—our suspicion can’t rise to the level of fact.

In Philadelphia there’s a system in place that makes it much more possible to say we’re comparing “apples” only. The abstract explains:

One in five indigent murder defendants in Philadelphia are randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. The authors exploit this random assignment to measure how defense counsel affect murder case outcomes. Compared to appointed counsel, public defenders in Philadelphia reduce their clients’ murder conviction rate by 19% and lower the probability that their clients receive a life sentence by 62%. Public defenders reduce overall expected time served in prison by 24%. They find no difference in the overall number of charges of which defendants are found guilty. When they apply methods used in past studies of the effect of counsel that did not use random assignment, they obtain far more modest estimated impacts, which suggests defendant sorting is an important confounder affecting past research. To understand possible explanations for the disparity in outcomes, they interviewed judges, public defenders, and attorneys who took appointments. Interviewees identified a variety of institutional factors in Philadelphia that decreased the likelihood that appointed counsel would prepare cases as well as the public defenders. The vast difference in outcomes for defendants assigned different counsel types raises important questions about the adequacy and fairness of the criminal justice system.

Among the possible reasons for the disparity were “the use of integrated teams by the public defender” and the lack of “financial incentives” offered to private attorneys to support adequate case preparation.

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