Court-appointed lawyers and the complexity of the legal system

There’s no shortage of horror stories about the lawyers (public defenders and otherwise) who are appointed to represent indigent criminal defendants. They are grossly underpaid and overworked, and as a result they can routinely be found sleeping through trials, skipping factual investigations, and ignoring legal arguments that could save their clients. A recent story on their difficulties.

It would be better if we could decently fund the defense of criminal defendants, and it’s worth fighting for. But I’m afraid that securing funding for lawyers for those accused of crimes is always going to be really hard, politically. The Supreme Court can (and did) mandate that everyone be provided a lawyer at public expense, but they can’t supervise every political subdivision of the country to make sure they live up to this promise, through tough budget years and tougher political environments. I am afraid it is sort of a doomed promise.

If we could go back in time, a better arrangement might be: have a system where you don’t need to be a master of legal intricacies to defend yourself against any charges, and one in which the criminal sanction is deployed much more sparingly. As is, we have chosen to create a supremely complex legal system, which every day puts a historically unprecedented number of people at risk for their liberty — and we have seen that this creates a demand for legal representation that we are not able to fill.

EDIT: I made some clarifying comments below, in response to Rob Cobbs, that might make this clearer:

“Generous procedural safeguards + well-funded court-appointed criminal defenders” might be the first-best system. But it relies on legislatures at federal, state, and local levels getting together every year and allocating scarce funds to the benefit of accused criminals. Accused criminals are not a class with great public relations. But so: a system that tends to rely on politicians explicitly budgeting large amounts for the protection of unpopular groups may have a problem getting funded reliably. We may find that we need to look for a second-best solution.

(Note also that complexity that nominally favors criminal defendants may have offsetting political consequences that are bad for defendants. So we might think that legislatures responded to the criminal procedure revolution of the ’50s and ’60s by drafting broader criminal statutes with higher penalties, to address concerns that criminals were getting off too easy because of their pesky constitutional rights. Bill Stuntz is associated with a version of this argument.)

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