Inequality of Public Defender Income

Everybody hates lawyers. That was the impression I got as a kid whenever my parents derided them or whenever I heard any lawyer jokes (quite a few). Eventually I came to realize that the biggest reason that lawyers are widely hated is that they make a ton of money. I concluded that to people who are not lawyers – like my parents – the vast sums of money they earn seem undeserved. This perception surely is not true for public defenders.
Public defenders generally get a good rep. People view public defenders like they view district attorneys, as hardworking lawyers working for a good cause. They argue just like the lawyers of top law-firms, but they do not get as much compensation, to say the least. To citizens who do not understand the significance of Gideon v. Wainright, however, public defenders are seen to be on the “wrong” side: the side of the criminals. Unlike district attorneys who are working to clean up the streets and crack down on crime, public defenders are straining to defend, among others, the very people who committed the crimes. So public defenders are the class of lawyers that are treated the worst: they earn neither the income of their private-practice counterparts, nor the moral support of most citizens. Recently, moreover, public defenders have been hurting even more heavily.
With the recent economic downturn, states have intensified their budget cuts. One resulting group of victims is the public defenders. Their workloads have increased drastically while their income has not; Miami-Dade Country lawyers have seen the number of felony cases per year per lawyer increase from 367 to 500 in just the last three years. Defenders are now strained to the point where they have begun to refuse new cases assigned by the state or have sued to refuse them. Some Florida officials have responded that the justice department simply has to bear the pain of a smaller budget just like any other department in the state. In response to this “take one for the team” mentality, once could argue that certain outcomes of inadequate public defender compensation, explored later on, violate the Constitution whereas inadequate budgets for the state agriculture department, for example, would not be as serious. Even if the above point is not true, however, the fact still stands that public defenders are not compensated enough when the economy did flourish. States should drastically increase compensation for its public defenders.
When the state increases the burden on public defenders double-fold, by lowering incomes and increasing caseloads, everyone gets hurt: public defenders, poor defendants, and the state all suffer. Public defenders suffer because they are incentivized to leave their position and find more lucrative jobs in the private sector. Sure, they will earn more money in the private sector, but they must take into account the opportunity cost of finding another job, undergoing the interview process, potentially moving to another city and settling down all over again, producing additional strains on themselves and their families. Public defenders are not compensated for what they deserve. If the nation places such a high importance on the jobs of public defenders that the very nature of their job is referenced in the Sixth Amendment and further reaffirmed in a Supreme Court case, then public defenders deserve to be compensated more. One can argue that the reasons why a public defender suffers are trivial because most of them end up earning more money by switching to private practice, thereby solving their own problems. But let us examine the problems of the defendants, which cannot be solved so easily.

When the state increases the burden on public defenders, the defendants suffer. Public defenders who are under immense stress from having to deal with so many cases simply cannot defend the accused successfully. Many public defenders only have time to review the general details of a defendant’s case. They have to accept and argue based on the police version of events because they do not have the time or funds to do more investigation into the minute details of a particular case. Because many petty crime cases share the same general details, and because public defenders must group cases by general details to be able to attend to all of their required cases, then the defendants are, in a sense, getting a cookiecutter defense; public defenders are unable to tailor each case to the specific circumstances of the crime, which would be more effective in gaining a verdict of innocent. Cookiecutter defenses are not equal to the defenses of richer defendants, so the poorer defendants suffer.
In addition, public defenders who are short on time are much more eager to convince their defendants to accept guilty pleas, thereby pressuring defendants to take a particular course of action that, unpressured, they might not take. A public defendant can easily use his position of authority to make it seem as if a guilty plea is the surest bet for a defendant and the safest path for him to take, when in fact the public defendant might only be saying so to help himself catch up with other cases. These examples are not uncommon and would mean that a public defender is not working purely on behalf of the defendant.
Finally, the state suffers when its public defenders do not receive adequate pay. The high turnover rate of public defenders means that after a certain point, the most experienced public defenders end up switching to private practice or alternative careers because they cannot handle the stress anymore and because they have to care for their families. As a result, the most experienced public defenders are continuously replaced by the inexperienced novices. On the whole, then, states suffer because they cannot do as good a job of defending the indigent accused because their best lawyers are always headed out the door. So although the state has twin paradoxical duties of prosecuting the indigent accused and also defending the indigent accused, the exit rate of the most experienced public defenders means that the state is not fulfilling at least one of those two duties.
A further implication of the high turnover rate is the state’s recurrent loss of money. When the experienced public defenders leave, the state must pay to train their less experienced replacements. Training costs both money and time. The time spent on training is intensified because those who train the novices are not the most experienced public defenders—they have already left! So public defenders with moderate experience do the training, which takes a longer time than if the most experience defenders did the training. But then the added stress on the moderately experience defenders increases: they have to train the novices and also worry about their own cases, thereby furthering the pressure on them to eventually quit the public service. Additionally, the money spent by the state on training would decrease its funds even more, leading to more budget cuts for the justice department in the future, which in turn leads to lower incomes for the defenders, leading to a higher turnover rate and more training for replacements, which causes more money. The state is then caught in a devastating positive feedback loop in which it must pay more and more money. A possible caveat is if the state increases the income of defenders with more experience, so that if a defender with ample experience leaves, the state can used the saved money to hire a cheaper replacement. But the increase in income for more experienced public defenders does not seem significantly high, or else they probably would not complain and quit.
Finally, perhaps the worst drawback for the state of low incomes is the fact that public defenders are persuaded not to do what they love. Public defenders love their jobs, which is why many of them have endured the piling on of cases for many years. But there comes a point where staying with the occupation one loves is not practical anymore—one has to think about the family. Many idealistic people start out as public defenders with a certain dream of doing what is right – providing counsel for the indigent so they are not taken advantaged of in the court system – regardless of pay. But sooner or later this idealism is destroyed, after which point public defenders then switch jobs. The destruction for this idealism is dangerous for any state because people lose their love for doing what is right, leading to less enthusiastic, and therefore less effective, public defenders. If these formerly idealistic, now cynical defenders pass their lessons on to the next generation, this loss of idealism could potentially be severe enough to be recognized, but by that time it will have been too late for the state. Maybe one day there will not even be enough public defenders who are initially idealistic and believe in the moral righteousness of providing counsel for those too poor to otherwise have it.
Everyone loses when states do not compensate public defenders enough. It is not that states should increase their incomes even in desperate times of financial woe; rather, it is that states should definitely increase their incomes in times of prosperity. As Rawls argued, inequalities should only exist when they help the least advantaged. The very essence of public defenders is helping the least advantaged. Their important role deserves to be recognized with higher incomes. If the compensation for public defenders were unequal compared to that of others, then those who originally did not consider this occupation would be drawn in, leading to more effective representation for underprivileged dependents, and those who originally were involved in this occupation would not lose their sense of right and wrong. So states should make the compensation for public defenders unequal—by paying them much more, not by paying them much less.

Sources:
http://www.nytimes.com/2008/11/09/us/09defender.html?pagewanted=2&em
http://www.oyez.org/cases/1960-1969/1962/1962_155/