In my personal experience, there are two kinds of lawyers who get the most general public hatred.  There are “ambulance chasers,” personal injury lawyers who tend to push the envelope in terms of common sense notions of civil responsibility.  There are also criminal defense lawyers, who get the blame for people we all assume to be guilty being let go without criminal punishment.  That criminal defense lawyers can get such a bum rap is probably one of the most unfortunate parts of our criminal justice system.  In the American cultural zeal to punish the guilty, we often tend to forget how imperfect our perceptions can be and end up making some pretty poor prejudgments as a result.  It also results in the indigent defendants getting short-changed by politicians and activists who think the route towards justice is putting as many people in jail as they can.

Gregory Peck as Atticus Finch in the film To Kill a Mockingbird.

The Boston Herald recently did an “expose” on the disparity in pay between private lawyers who take cases from the public defenders’ office and prosecutors.  While an average prosecutor earns approximately $40 an hour to prosecute murder cases, a defense attorney can get up to $100 an hour.

Of course, this comparison is nonsense.  Prosecutors don’t pay for their own support staff, their access to LexisNexis or WestLaw or their reference books, rent and utilities for their office.  Prosecutors also paid regardless of what they actually do in a given day.  For example, that $100/hr defender who shows up in court to defend a client at 9 AM only to have to wait until 2 PM (not uncommon) for his 30-minute hearing can only claim, under current regulations, 1.5 hours, or $150 in compensation.  The prosecutor he went up against gets paid for 5.5 hours, or about $220.

The other glaring problem with this analysis is the paper’s failure to recall recent local history.  The Massachusetts system for providing legal services to the indigent is a private-public hybrid system.  There is a public defender’s office run by the state, but it doesn’t have the resources to take on all the cases that qualify for the service.  So the office farms out some cases to private practitioners.  The problem with this system was that the compensation rates were set by the state, and were the lowest rates in the region.   As a result, many lawyers stopped taking the overflow cases because they couldn’t afford to take the financial loss.  The consequence of this was that drug dealers and aggravated assault defendants were being freed without trial because the defendant’s legal right to a lawyer couldn’t be provided for.  After much hand-wringing (and a foolhardy attempt by our Buffoon-in-Chief Mitt Romney to blacklist the private lawyers who were “on strike”), the pay rate was eventually raised.  Given the alternative, isn’t it preferable to pay these attorneys enough to take cases rather than having violent criminals let free because there weren’t enough public defenders to defend them?

In Jacksonville, Florida, the public defender position is an elected position, much like the district attorney.  This makes things even worse. During the last election cycle, Republican Matthew Shirk, didn’t campaign on a platform of better defense or holding police accountable for wrongdoing. No, he campaigned on promises of budget cuts and demanding more money from impoverished defendants.  Naturally, he won. His first act as public defender elect was to fire the senior staff, including one of the state’s leading experts in juvenile delinquency law and the subjects of an Oscar-winning documentary about an innocent child tried for murder after having a confession beaten out of him.  While his stated reason for these firings were budgetary, Shirk’s own salary is higher than the average salary of the attorneys he fired.  He allegedly also never consulted the personnel files of these attorneys before making the decision.

The adversarial system only works when there’s a decent adversary to work against.  If you handicap public defenders and their private sector counterparts by limiting their budget, you not only hinder the defendants that are currently using the service, but you discourage other attorneys from becoming public defenders.  Most people who go into the public sector know that the pay scale is skewed against high-skill jobs.  But there are still reasonable limits.  Eventually you will end up with a lopsided justice system where the only people who can get a fair trial are those who can afford it.  We may twitch at the notion of spending so much money defending people we all presume to be guilty, but isn’t that a much better alternative than risking someone be put in jail for something they didn’t do?