Who is Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes

• Author: Thomas H. Cohen
• Published date: 01 January 2014
• Date: 01 January 2014
• DOI: http://doi.org/10.1177/0887403412461149
• Subject Matter: Articles

Criminal Justice Policy Review

2014, Vol 25(1) 29 –58

© 2012 SAGE Publications

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DOI: 10.1177/0887403412461149

cjp.sagepub.com

461149CJP25110.1177/0887403412461

149Criminal Justice Policy ReviewCohen

1Bureau of Justice Statistics, Washington, DC, USA

Corresponding Author:

Thomas H. Cohen, Bureau of Justice Statistics, 810 7th Street, NW, Washington, DC 20531, USA.

Email: thomas.h.cohen@usdoj.gov

Who is Better at Defending

Criminals? Does Type of

Defense Attorney Matter

in Terms of Producing

Favorable Case Outcomes

Thomas H. Cohen1

Abstract

The role of defense counsel in criminal cases constitutes a topic of substantial

importance for judges, prosecutors, defense attorneys, scholars, and policymakers.

What types of defense counsel (e.g., public defenders, privately retained attorneys, or

assigned counsel) represent defendants in criminal cases and how do these defense

counsel types perform in terms of securing favorable outcomes for their clients?

These and other issues are addressed in this article analyzing felony case-processing

data from the Bureau of Justice Statistics. Specifically, this article examines whether

differences in defense counsel representation matter in terms of the probability of

conviction and severity of sentence imposed. Results show that private attorneys and

public defenders secure similar adjudication and sentencing outcomes for their clients.

Defendants with assigned counsel, however, receive less favorable outcomes compared

to their counterparts with public defenders. This article concludes by discussing the

policy implications of these findings and possible avenues for future research.

Keywords

criminal court, courts, sentencing

Introduction

The Sixth Amendment to the U.S. Constitution establishes the right to counsel in

federal criminal prosecutions. The U.S. Supreme Court expanded the defense counsel

right for indigent defendants in a series of cases decided in the 1960s and 1970s. One

Article

30 Criminal Justice Policy Review 25(1)

of the landmark decisions that occurred during this period was Gideon v. Wainwright

(1963) where the U.S. Supreme Court held that a defendant charged with a felony,

including state crimes, had the right to government provided counsel. The Supreme

Court further extended the defense counsel right to juvenile court proceedings in In re

Gault (1967) and to defendants facing imprisonment for either felony or nonpetty

misdemeanor offenses in Argersinger v. Hamlin (1972).

While the Supreme Court has recognized the right to defense counsel in most crimi-

nal proceedings, it has not mandated how the provision of criminal defense should be

provided by the states. For this reason, states have adopted a variety of approaches to

defending the criminally accused including the utilization of some combination of

public defender systems, assigned counsel programs, or contract attorneys (Neubauer

& Fradella, 2011; Spangenberg & Beeman, 1995). In addition, defendants with the

means can always hire their own attorneys. The ability of some defendants to hire their

own attorneys, coupled with the fact that indigent representation is not uniformly

applied by the states, raises several questions. What types of defense counsel represent

criminal defendants and how do these attorneys perform in terms of securing favorable

outcomes for their clients? Are private attorneys more effective in keeping their clients

from being convicted and receiving harsher punishments than public defenders or

assigned counsel? How do assigned counsel systems perform in comparison to public

defenders?

This article will address these key questions about the role of defense counsel in

criminal cases. First, it will detail the types of defense counsel currently employed in

state courts and highlight prior research examining the effectiveness of public defend-

ers, assigned counsel, and private attorneys. The data utilized in this article will be

described and then a bivariate analysis examining how frequently the various types of

defense counsel including public defenders, assigned counsel, and private attorneys

are employed and whether key case outcomes vary by these defense attorneys will be

provided. This article will then build on the bivariate findings by attempting to model

the outcomes of conviction, incarceration, and sentence length for the purpose of dis-

cerning whether associations at the bivariate level hold when other factors related to

these outcomes are statistically controlled. The article will conclude by discussing the

possible repercussions and implications inherent in the current research.

Types of Defense Counsel in State Courts

Although the U.S. Supreme Court requires states to provide representation to indigent

defendants, the method of defense counsel provision is not specified. Consequently,

states have adopted different approaches to providing counsel for poor defendants.

The major types of publicly financed defense counsel representation provided by the

states include some combination of public defender systems, assigned counsel pro-

grams, or contract attorneys (Neubauer & Fradella, 2011; Spangenberg & Beeman,

1995). These systems of indigent defense are applied in a blended format throughout

the states.