Our Hollywood mythology of public defense brims with keenly principled young lawyers eager to throw themselves into the exoneration of hapless victims wrongly accused, and of course we should expect it to. That's part of what myths are for: establishing ideals. But in this case, the reality falls so far short of the ideal that one wonders if anyone goes to the movies at all anymore.
The flaws inherent in our public defender system are myriad and sometimes seem insurmountable. Case loads are formidable (perhaps impossible?). Supervision is questionable. For those who sincerely value the adversarial system and the (purported) right to effective counsel the problems surrounding the public defense system as it exists should be of concern. The brain drain I posit here is plausible, though I have only my experience at one law school, coupled with the job search process as I have encountered it thus far, to back it up. But because I think an honest account of the experience may be instructive to those outside the system, here it goes.
Law school is absurdly expensive. The University of Texas School of Law costs about $230,000 for three years. It is right in the middle of the pack. Berkely tops the charts at a shade under $300,000 ($293k). Southern University, at the bottom, a mere $90,000. Many of my classmates are borrowing a significant portion or all of that money to get their J.D. and most of us will work for free for a substantial part of both our summers. Read: more debt. Unsurprisingly, the pressure to unload that debt is very real, and ever present from the day you walk in the door.
There is a group here that supports students who want to pursue public interest work in the summer. Their slogan is “Make Love, not Law Review.” The cause is admirable; the slogan is cute. But it is also unfortunately indicative of what I perceive to be a contributing flaw to the public exercise of justice. Law Review is how law students indicate to employers that they are worthy of employment. Effectively, students are glorified editors, not a reviewers of laws, but it is highly competitive and the source of many nervous breakdowns. At many schools, it is restricted to the top 10% of the class.
I say without apology that, at least from Texas, almost all of those who make law review will take high-paying, big firm jobs (or competitive clerkships). Let me insert a disclaimer that UT Law is a big firm factory, while places like Yale produce more academics and judges, and I cannot speak to their distributions. Very few will go into public interest (prosecution, non-profit, government, etc.), and even fewer will become public defenders. Of the entire UT class, only 13% will go into public interest at all. I will hazard a guess that that 13% is not the top of the class. At the risk of offending my peers, public interest is just not as competitive (nor as desirable for many) as firm jobs. It is, in essence, much easier to make love than law review.
This presents a problem when considering indigent defense. There are truly qualified, dedicated individuals who throw themselves wholeheartedly behind the cause of providing defense that is essential to our judicial scheme. But I cannot ignore the fact that the best and brightest of my graduating class will by a large majority pursue careers in the private sector. I suspect the same is true of most strong law schools. It may play out differently as you move down the ranks (or up, into the real intelligentsia). Most of us are going to take the best (financial) opportunity we can get. Lawyer salaries vary widely. Large firm (BigLaw) starting salaries are easily upwards of $120,000. Public Defense, in contrast, averages in the low $40,000s. That is roughly a difference of 1/3 of the debt the hypothetical law student is carrying around. By all counts, criminal law is the least lucrative (with the exception of white collar criminal defense, which, for salary purposes we can lump in with BigLaw).
At Texas, the bottom 25% does find employment. Setting aside the exceptional cases, that bottom 25% is headed to small firm private practice and the public sector. The top 25% in contrast, by and large, is not. There is a brain drain as the best move up, either in esteem (judiciary, politics, academia) or economically (BigLaw). The middle 50% ends up, unremarkably, split. This is and ugly fact of life at law school.
So taking the above as at least a premise for argument, perhaps the system is still fair: after all, prosecutors are also public and state employees. The match-up is even. But it isn’t. Prosecutors are paid about $10,000 more than their defense peers. Obviously to the crusaders on either side, this is not enough to change course. But policy is made at the margins. A law student looking at their options might find that $10,000 highly persuasive. And thus, the better applicant again will take the higher paying job. That leaves, economically, the dregs for public defenders.
Since the Supreme Court ruling in Gideon v. Wainwright, decided in 1963, indigent criminal defendants charged with serious crimes have had a right to counsel provided and paid for by the state. A common lament is that indigent defense can be something of a farce. A classmate of mine who is wholeheartedly dedicated to becoming a public defender recently told me that the average indigent defendant spends some seven minutes with his counsel. A recent Federal District Court case out of Washington found that the publicly appointed defense counsel spent less than two hours on average on any one misdemeanor case. The court noted that the public defense system amounted to little more than a “meet and plead” and that there was little concern or attention to any actual innocence claim, and virtually no investigation. Another recent study amassed data on the time spent on cases by salaried public defenders versus court appointed counsel (paid hourly). It found that appointed counsel spends more time, but also averages longer sentences (indicating it may be even less effective).
If we do value the holding in Gideon, the system of public defense absolutely MUST be reformed. A good start would be equalizing the pay of prosecutors and defense attorneys, so there is at least a purported equality between the two sides. Another option is debt forgiveness in exchange for years to combat the brain drain. At least for state schools, this seems feasible, but it must be more than nominal debt forgiveness. $5,000 won’t cut it. Finally, if the salary remains low, reduction of the caseloads is absolutely central to effective representation because defenders will simply give up or burn out if they continue to be so incredibly overworked. System overhauls are never cheap, easy, or pretty, but this one is overdue.