How Trump could use vouchers to improve the courts

While the Department of Justice has historically left indigent defense for local and state governments to handle, the Obama administration made history by involving itself by filing “statements of interest” in places like Alabama, Georgia, Idaho, New York, Pennsylvania, Virginia and Washington to improve access to courts.

The President-elect hasn’t specifically made any comments about access to justice but he gave some indication of what he thinks of the Sixth Amendment guarantee of effective assistance of counsel when Khan Rahami, the suspected New York City dumpster bomber, was charged. Trump lamented that the defendant would “be represented by an outstanding lawyer.” Little does he know.

While Donald Trump may disagree that the criminally charged deserve a competent lawyer, tackling the nation’s problem of Indigent criminal defense is one of the best ways for his administration to demonstrate how free market principles can salvage a system.

{mosads}I’ve been represented by five public defenders and not by choice. Courts appointed them over my objection when I wanted to represent myself. One didn’t even contact a potential alibi witness at all. The witness died and his testimony is gone forever. I tried to release this attorney several times but no court would allow it. Of all the indignities associated with criminal prosecution and incarceration, the worst was being unable to tell someone who was representing me but had only his interests in mind: you’re fired.

In light of the way the press portrays the public defender as the underpaid, overworked martyr, the moral hazard involved in having an attorney appointed to represent you in a criminal matter is hard to for someone like me to explain.

Between 5000 and 10,000 people are wrongly convicted every year in this country. Most of them are represented by public defenders.

While the crisis of criminal defense is usually cast in terms of caseload, very few people acknowledge that public defenders often abandon their ethical and professional obligations because there is no consequence to doing so. Public defenders have been known to confer with clients only in the courtroom and nowhere else, thus compromising their basic right to confidentiality, and advising them to plead guilty regardless of the evidence against them or their actual guilt. We’ve routinely excused professional misconduct from these lawyers because they say they’re burdened.

And we foist them upon poor people – as many as 85 percent of defendants in criminal cases they can’t afford a lawyer. Unsurprisingly, 90 to 95 percent of them plead guilty and give the state’s case little adversarial testing. If it produced even one wrongful conviction, our current public defense system fails to protect its clients. If it’s convicting thousands of innocent people, then it’s one of the largest abuses of the poor.

Introducing competition – and client choice – into indigent defense might be the way to reform the system and protect vulnerable populations. What we need is a private public defender.

Over six years ago, law professors Stephen J. Schulhofer and David Friedman proposed the idea of using incentives to align the interests of the lawyer and the indigent client. Their idea was a voucher system, much like ones used for private schools and low income housing under HUD’s Section 8 program. 

Eligible defendants would receive a voucher which they could use to hire an attorney of their choice. 

They began testing this idea almost three years ago in Texas. The Comal County Client Choice Project started in early 2014 although vouchers weren’t distributed until months later. Evaluation of the two-year project should be coming shortly. But using other non-legal programs as a guide, we find that vouchers can work. For example, in Washington DC, 91 percent of voucher recipients graduated from school as compared to 56 percent of students who didn’t.

HUD’s Housing Choice Voucher program has enjoyed support from Republicans for many years because of its efficacy. 

Just this month, choice – because it causes competition and therefore improvement – was touted by incoming Secretary of Housing and Urban Development, Ben Carson, as essential to the housing voucher program’s success.

This isn’t to say that a public defense voucher system wouldn’t have limitations. With the voucher, the state will not be paying the attorney’s usual hourly rate so there’s a risk that certain lawyers will refuse the vouchers, much in the way that certain landlords refuse tenants with housing subsidy certificates.

There’s also a chance that defendants will flock to well-known defense attorneys, thinking they’ll provide them with a flamboyant trial. If that attorney accepts all comers – and to make a decent living off these vouchers an attorney would have to handle many cases –  then his client’s’ right to a speedy trial may be endangered.  At least in theory, the caseload-overload problem isn’t automatically solved under a system of client choice.

But what vouchers would address is the lack of accountability, and the lack of quality in public defense. We have become so focused on providing an attorney to every defendant – something that we should do – that we have lost sight of what the Supreme Court has held, namely that representation has to be meaningful, effective.

Vouchers will put out of business those attorneys who don’t deserve the license, and ultimately improve the quality of indigent defense and therefore the quality of justice for all.

Right now localities relieve the pressure on public defenders by appointing private attorneys, sometimes with no pay.  In Louisiana, attorneys have been drafted and told they must represent defendants without a fee, a situation that seems ripe for attack by the Fight for 15 movement. Even if the Trump Administration were to give tax credits to lawyers – considered corporate welfare by some –  for time worked on a poor defendant’s case, it would improve the quality of representation rendered.

Many people are right to question the effects of privatization in criminal justice. Human rights abuses have surfaced in private correctional facilities, mostly because companies cut costs and services and endanger their wards.  It is said they do this out of greed.

Stinting on services to a poor client is also a form of greed.  A voucher system for indigent defendants is much more dignifying than the current public welfare model where the defendant is forced to suffer through substandard representation over which she has no control.

The Department of Justice has been very effective in using the money pulpit – the Office of Justice Programs has more than $2 billion for local initiatives –  to induce states and localities to comply with federal rules and objectives. The Prison Rape Elimination Act is an example of this. If states didn’t get in line with the PREA’s requirements, they lost federal funding. The Department of Justice under Jeff Sessions could do the same with indigent defense and require more than just one Texas county to try a voucher system.

When you tell a person in need that they have no choice, you turn them into a beggar. It’s not just that we need more attorneys to solve the indigent defense crisis; we need better ones. The only way to raise the standard of criminal defense is to introduce competition and choice where there is none. 

Chandra Bozelko served more than six years in the maximum-security York Correctional Institution, Connecticut’s only women’s prison for nonviolent crimes that remain on appeal. She is the author of Up The River: An Anthology. Her writing has appeared in the Wall Street Journal and the National Review. She is a 2017 John Jay – Harry Frank Guggenheim Criminal Justice Reporting Fellow, focusing on indigent defense under the Trump Administration. 

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