Is a client better off with a salaried public defender or court-appointed private counsel? My answer (one that clients hate to hear) it depends. I expect that most states will shift to public defender dominated systems fairly soon. My county had no public defenders when I began practicing here. All criminal defendants who could not afford an attorney (about 90%) got an assigned attorney in private practice. Most of the “street lawyers” in town were on the list. The quality of those on the list reflected the same range of skill as the local private bar.
We were generally hostile to the idea of changing the status quo. The amount of the fee was totally within the discretion of the trial judge. I did occasionally get screwed when a judge felt a $50 fee was sufficient for the trial of misdemeanor trespass, even it took 6 hours to handle. Those cases were the exception though. I think our local judges understood that if they were too stingy with fees, lawyers would stop taking court-appointed cases. Pro se defendants take a lot more time to get through the system. Most attorneys on the court-appointed list thought we had a fairly good thing going. We figured that any changes would not benefit us.
Politically though that system’s days were numbered. The fiscal camp was outraged at the amount of money being spent and the increases every year. Essentially individual judges decided how much would be paid and just handed the bill to the government. Each new prosecution brought an incremental increase because the state would have to pay a private lawyer for that particular case. It was politically unpopular for millions to be handed over to lawyers.
There was also the quality camp. That group was concerned about whether defendants were getting competent counsel. While most counties had a method of screening lawyers for the court-appointed list, the most heavily weighted factor was length of experience. There was anecdotal evidence of egregious incompetence, but it was not really possible to systematically evaluate just how well or badly court-appointed counsel were doing. However the anecdotes were persuasive.
The fiscal camp likes public defender’s offices because the cost is fairly predictable from year to year. The pay is comparable to what prosecutors and other government attorneys earn. There is less political fallout because less money is going into the hands of “greedy attorneys.” A mostly private appointed counsel system is not sustainable politically because legislators will always see it as a giveaway to lawyers (not a popular group) and criminals (only group more vilified than lawyers). It took about 10 years of intense lobbying by federal judges to get fees in federal cases raised. Hourly pay to attorneys in private practice will always be a politically poisonous issue. Since the state is paying the public defenders the same as the thousands of other lawyers who work full-time for the government, there is less a sense lawyers at the trough.
The quality camp likes public defenders because there is a mechanism for getting rid of poor performing lawyers. The chief public defender can supervise the work of assistants and remove anyone he believes is incompetent. Whether this will actually happen in practice remains to be seen. All government enterprises are notoriously slow to drop dead wood. We have a public defenders office here now that has 1 public defender, about 12 other attorneys and support staff. They are motivated and talented and several members of the private bar moved to the PD’s office after it opened. I considered it. Our PD’s office now handles about 70% of the criminal cases. We still have court-appointed lawyers who take cases when the PD’s office has a conflict. I am still on that list.
Whether public defenders are better can be argued forever, but the shift driven by the fiscal camp and quality camp is inevitable.