How free market principles can help to fix a broken system.

• Author: Schulhofer, Stephen J.
• Position: Law & Justice

MOST CITIZENS would consider it shockingly unethical for an attorney representing one side in a lawsuit to be selected or paid, even indirectly, by the opposing party. Yet, this gross impropriety occurs daily in this country on a massive scale. In criminal cases, the great majority of defense attorneys are paid directly or indirectly by the prosecuting party--the state.

Most of those who are arrested and prosecuted are indigent, and the Supreme Court has ruled that the government has a constitutional obligation to provide lawyers for people who cannot afford to hire their own. To meet this constitutional obligation, three basic defender systems have emerged in jurisdictions around the country.

First, public defender organizations are staffed by government attorneys who represent virtually all of the indigents in the jurisdiction. Second, some cities and counties have made contractual arrangements with individual attorneys or private law firms to handle indigent cases for a fixed fee. Third, still other jurisdictions use "assigned counsel" programs. That is, private attorneys are appointed on a case-by-case basis for indigent defendants.

The danger of a publicly funded defense should be obvious: the decisions of the attorney are bound to be affected by the desires of his employer. That is line for public defenders and assigned counsel in criminal cases just as it is for private attorneys in civil cases. While the lawyers and those who assign them to cases--judges, government officials, or private firms contracting with government--no doubt are interested in preventing conviction of the innocent, they are less strongly committed to that objective than are innocent defendants, and they are likely to have other objectives, such as getting criminals off the streets and reducing court backlog, with that goal.

If attorneys for the indigent are to be paid at all, they must be compensated by someone other than their clients. The resulting conflict of interest clearly is undesirable, but how can it be prevented? The problem is by no means merely theoretical. Authorities of all stripes routinely conclude that our criminal defense systems are "scandalous." As one researcher notes, "year after year, in study after study, observers find remarkably poor defense lawyering."

In one Tennessee county, for instance, the public defender office had six attorneys handle more than 10,000 misdemeanor cases in a single year. An average of one attorney-hour per case...