by Casey J. Bastian

Among an individual’s rights enshrined in the U.S Constitution is their Sixth Amendment right to assistance of legal counsel. The principle ensures an accused person in America is able to defend against a criminal prosecution. This right has been expanded by the Supreme Court of the United States and defense systems codified by Congress. Yet not all counsel is created equal. The type of defense counsel is an important factor when examining federal justice system outcomes.

A paper released by the Urban Institute examines the difference in counsel types and federal justice system outcomes. The paper is entitled Counsel Type in Federal Criminal Court Cases, 2015-18 (“Paper”). Researchers analyzed data obtained through the Bureau of Justice Statistics’ Federal Justice Statistics Program (“FJSP”). The FJSP is an administrative data set submitted annually by the Administrative Office of the U.S. Courts (“AOUSC”) and the United States Sentencing Commission’s Monitoring Database (“USSC”). The FJSP data is also supplemented by information submitted by the Bureau of Prisons, Executive Office for the U.S. Attorneys, and the Marshals Service. The AOUSC collects data about criminal defendants in cases disposed of in federal district courts, including the type of defense counsel representing the defendant when at case termination. The USSC data consists of sentences imposed pursuant to the federal Sentencing Guidelines and type and length of sentence imposed.

As noted, the Supreme Court has issued opinions clarifying and expanding the Sixth Amendment right to counsel. A 1938 case, Johnson v. Zerbst, 304 U.S. 458 (1938), ensured that indigent defendants in federal prosecutions receive court-appointed counsel. Gideon v. Wainwright, 372 U.S. 335 (1963), extended this right in 1963 to indigent state defendants charged with felony offenses. The Supreme Court would later extend this right to lesser charges at both the state and federal level in Argersinger v. Hamlin, 407 U.S. 25 (1972), and Alabama v. Shelton, 535 U.S. 654 (2002). These rulings place the burden on the government to safeguard due process rights in an effort to guarantee a fair trial. This is done through the appointment of counsel to represent those who are financially unable to afford counsel, i.e. — indigent.

In 1964, Congress passed the Criminal Justice Act (“CJA”). The CJA formalized the system of federal public defense as we know it today. The CJA forced federal courts to adopt a variety of means to provide a defense for the indigent. District courts provide representation through public and community defenders, as well as “CJA panel attorneys.” Panel attorneys come from the private sector but are contracted by the government to primarily provide counsel in two circumstances. First, this approach is used when a district does not have a federal public defender. The Southern District of Georgia and the Eastern District of Kentucky are two such districts where instead defendants rely on CJA panel appointments. A second reason for panel appointments is when public defenders are low on staff resources, or there are conflicts of interest.

As a result of the CJA, there are 81 federal defender organizations across the U.S. This includes community defender organizations and federal public defender’s offices that serve 91 of the 94 federal districts. As federal entities, the federal public defender’s offices are supervised by a chief federal public defender who is appointed by the U.S Court of Appeals to a four-year term. These federal employees are organized under, and report to, one of 13 regional circuits. This helps maintain a degree of autonomy from the district court in which they provide indigent counsel. Community defender offices are non-profit organizations supervised by a board of directors and incorporated under state law. These organizations receive grant funding from the federal judiciary to support operations. Those defendants not qualifying for an indigent defense or choosing to forego the use of an appointed counsel can either hire private counsel or defend themselves.

While this system is considered the “gold standard” of public defense systems, there remains legitimate concern about whether those affording private counsel receive better outcomes within our adversarial system than those having to rely on appointed counsel. While indigent defense systems are offered in a variety of manners throughout the U.S., criticisms are frequently levied at them. These criticisms include, or are related to, a lack of resources to mount an effective defense, inadequate experience in defending the indigent against specific criminal charges, and courtroom workgroup membership, referring to how prosecutors, public defense attorneys, and judges regularly work together in and out of the courtroom.

A majority of existing research is directed towards the differential effects of different counsel types, such as private attorney versus public defender. The significant percentage of this research used data from local and state courts. Very few focused on public defenders in the federal system. This places limitations on the understanding of corresponding federal outcomes. There is only one study that previously compared the effectiveness of CJA panel attorneys and federal public defenders. That study found individuals represented by the federal public defenders were less likely to be found guilty and on average received shorter sentences if there was a conviction. The study also found that CJA panel attorneys performed better when equitably compensated and had higher federal caseloads.

Other prior studies have found that a public defender is more likely to work with the prosecution due to the courtroom workgroup dynamic. Due to their familiarity with the prosecutors and their heavy caseloads, public defenders can be more likely to convince their clients to accept a plea agreement. And prior research has found that private attorneys have clients less likely to be found guilty during trial. However, when those clients are found guilty, the “trial penalty” typically results in sentences up to 64% longer for those defendants.

While this prior research examined the effectiveness of public defenders, it is outdated and limited in terms of types of counsel compared and which outcome the study examined. Only a handful have directly examined federal public defense, considered unique among all indigent defense systems. Those studies have found that, opposed to state or local defenders, federal public defenders are “well paid, have extensive courtroom experience, and are more likely to have graduated from a top-tier law school.” Private attorneys typically have less experience in the federal system and are often unfamiliar with the application of a guidelines-based sentencing structure. Based on outcomes, public defenders appear inherently more adept at navigating this complex process.

CJA panel attorneys have also reported feeling disadvantaged. They often do not have access to the same specialized resources and training available to the federal public defenders. As such, CJA panel attorneys have to seek help from the public defender organizations on training topics and information related to federal proceedings. Clients of these attorneys seem to fare worse than the clients of federal public defenders, according to prior research.

Due to the lack of research on the federal systems, the Urban Institute focused on “how these types of counsel vary across a number of case processing, legal, and extra-legal variables using recent data types” in federal case outcomes. The paper reveals the “relationship between type of counsel and two outcomes related to sentencing decisions: incarceration and sentence length.” The current study focused on the three types of defense counsel in the federal system and employed “both descriptive statistics and multiple regression analyses” to address three aims.

The first is an examination of any association between case outcome and the type of counsel. Second, is to describe the type of counsel present in the federal criminal cases during the four-year period and how each type of counsel varies by case, defendant characteristics, and federal judicial district. Third, is an assessment on the unique impact the type of counsel has on case processing outcomes. To assess each outcome, the researchers used five models. Model one included only counsel type. Demographic variables are incorporated in model two. Model three added various case factors, and model four added variables related to a specific district. An interaction effect between counsel type and trial conviction variables was added to the fifth model. These various modeling approaches allowed the unique contribution of each group variable to be determined, and the overall fit of each model could be assessed. These factors are important to future research on federal justice system outcomes.

Throughout the 2015–2018 period, representation by counsel type was fairly constant. Approximately one-third of defendants were represented by public defenders, 43% by CJA panel attorneys, and 23% by private attorneys. One of the first findings was that in the federal system, over 94% of all defendants are found guilty regardless of counsel type. Over 91% of these convictions resulted from guilty pleas. When comparing both CJA panel attorneys and private attorneys to public defenders, convictions were more often the result of pleas when the counsel type was the public defender.

As to those defendants convicted, 93% of those represented by CJA panel attorneys went to prison, compared to 91% for public defenders, and 84% for private attorneys. Public defenders had the highest rate of “within-rage sentences” at 46%. CJA panel attorneys secured such sentences at a rate of 39%, and private attorneys at 35%. But private attorneys secured a higher percentage of judicial downward departures at 29%, followed by public defenders at 27%, and CJA panel attorneys at 24%. Over 75% of defendants represented by public defenders and CJA panel attorneys were subjected to pretrial detention, compared to less than half of those represented by private counsel. When a defendant is subjected to pretrial detention, it leads to a 39% higher rate of incarceration.

The paper did note that in the regression analysis, when using model three, the “effect of private counsel switches.” In this model, defendants represented by public defenders have diminished odds of being incarcerated. Both private attorneys and CJA panel attorneys have greater odds of a defendant being incarcerated “once criminal history, offense type, and other factors are controlled.” However, this was anticipated because if a defendant has a criminal history, they are 46% more likely to receive a term of incarceration regardless of counsel type.

According to the analysis method, while the above is true, public defenders appear to be pressured to “emphasize rapid case processing over vigorous criminal defense.” It appears that private attorneys are better resourced to “mount a strong defense for their clients and feel less pressure to expedite case processing.” Researchers then posed the question: do private attorneys secure more favorable incarceration outcomes by going to trial, even when the trial results in a guilty verdict? The paper indicates this is not supported under model five. Public defenders frequently secured better sentences after trial compared to either CJA panel attorneys or private attorneys.

The paper concludes by noting that “future research could advance the current study in a few ways.” As indigent status will be constant among those represented by the CJA panel attorneys or the public defender in any study, it “would be prudent to include controls for socioeconomic and employment status in future analyses to better isolate the effects across all three counsel types examined here.” In the current study, data concerning socioeconomic and employment status were factors not taken into account, but it would be possible to link these data points into the FJSP if recorded.

There are several avenues for examining counsel type outcomes beyond incarceration and sentence length. More focus could be placed on pretrial, sentencing departure, and procedural justice outcomes. This includes self-reporting of attorney satisfaction or perceptions of fairness. Examining early involvement of counsel on pretrial outcomes could eventually impact later case outcomes because pretrial outcomes are a “strong predictor of conviction and incarceration.” Research is moving in this direction already at the state level, and the time is ripe for similar research at the federal level. 

Source: Counsel Type in Federal Criminal Court Cases, 2015-18, Urban Institute.

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