Some would suggest that public defender offices around the country facing crushing caseloads are beginning to compromise the quality of their legal representation. Stephen J. Schulhofer, the Robert B. McKay professor of law at New York University School of Law and David D. Friedman a professor of law at Santa Clara University School of Law writing on behalf of the Cato Institute, a libertarian think tank, propose radical reform to criminal represention of the indigent.
The executive summary of the report suggests that the current system is in violation of free-market principles that are honored almost everywhere else, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need.
The situation is comparable to what would occur if senior citizens suffering from serious illness could receive treatment under Medicare only if they accepted a particular doctor designated by a government bureaucrat. In fact, the situation of the indigent defendant is far worse, because the government's refusal to honor the defendant's own preferences is compounded by an acute conflict of interest: the official who selects his defense attorney is tied, directly or indirectly, to the same authority that is seeking to convict the defendant.
As a corrective, the authors propose a free market for defense services. The proposal suggests a voucher system. There are two variations. A lump-sum payment to the accused's lawyer of her choice or an hourly voucher paid in the same way. The report explores the pro's and con's of each proposal.
The authors contend that the voucher system is not as radical as it appears. Ontario, Canada uses a voucher system for indigent defense.
Some jurisdictions in this country use a voucher system for some offenses such as murder. It is not a pure system as proposed in the report, there are a pool of attorneys from which to choose. The system has two inherent flaws. Initially, hourly vouchers lend themselves to abuse. Some attorneys will prolong a proceeding with frivolous pleadings to access additional fees. On the other hand, lump sum vouchers face the opposite problem. Some attorneys will avoid issues or coerce pleas to get the representation over as quickly as possible, while earning the same lump sum.
The authors free-market theory also presupposes that every defense attorney in a jurisdiction will want to participate in the voucher program. The preeminent physician in a given community gets the same Medicare payment as any other physician in the community. Will a preeminent defense attorney who is paid $350 an hour by private clients accept a $65 hourly voucher from a indigent client? That is unlikely, but it is truly the free market at work.
To read the full report: http://www.cato.org/pubs/pas/pa666.pdf