May 10, 2006
Legal Department
Indigence Incentives
Ken Lammers is discussing the conflict of interest that exists between a criminal defendant and his court-appointed attorney when there is a cap on the fee for the case. Put simply, once the attorney has worked enough on the case to hit the cap, he's working for free. That gives him a strong incentive to bring the case to a swift close by mounting a weak defense or encouraging his client to plead guilty.
Ken takes a lot court-appointed indigent defense cases, and he doesn't like that argument:
Does the defendant have a valid argument? The claim that he cannot trust the defense attorney's advice is not valid. It assumes bad faith and unethical behavior on the part of the defense attorney. I spend much of my time interacting with people who make their living doing indigent defense and we talk about our trials. I've never heard, and do not suspect, that any of them tell their clients to plead guilty because of the loss they will incur if the client chooses to go to trial.
I don't think Ken knows what he's talking about. Oh, I'm sure he's right about the legal issues, but I'm equally sure he's wrong when he implies that fee caps are not an incentive to rush the defense. I'm pretty sure they are.
If Ken or anybody else doing court-appointed defense is reading this, they're probably steamed at me right now, because they hate hearing this accusation. They always insist that they treat their indigent defense clients just like their paying clients. And maybe some of them are right about their own behavior. I can't see into their hearts. But I'm quite sure they're wrong about defense attorneys as a statistical group.
The reason for my certainty is simple economics: If defense attorneys don't change their behavior in response to incentives, they're unique among all humankind.
Consider this: If you touch something that hurts you, you'll flinch away from it. This is a reflexive response that happens mostly within the nervous system. No higher-order brain function is involved in causing the flinch. Yet experiments have shown that if you hand someome a cup of coffee that is unexpectedly hot, they will be significantly less likely to drop it if you first tell them it's an expensive cup. Somehow the knowledge of the cost moderates their reflexes.
Or consider that economists have long predicted that driving behavior responds to incentives just like anything else in economics: People buy more of something if the price goes down. One of the major costs of reckless driving is injury in car accidents, and if you reduce the chance of injury, people will respond by driving more recklessly. Econometric studies have shown that this is more than just theory: People in cars with seat belts (and later air bags) get into more accidents than people without them (even controlling for things like age and prior driving record).
If people respond to incentives in such disparate situations, I think it's realistic to assume that defense attorneys are not exempt from the effects of incentives.
I don't know enough about lawyering to say how they respond in any detail, but I can guess that in general they make a series of time-and-cost saving decisions in gray areas where there are no clear rules. Should they spend one more hour researching the law? Or one more hour trying to find a witness? Should they make one more trip to interview their client? These little decisions will add up, and they will change the lawyer's estimation of how winnable the case is. And then the client will make his own decision about what to do based on the lawyer's estimation.
Understand, I'm not saying that defense lawyers are being unethical, and I'm certainly not taking a side on whether the courts should take notice of this behavior. I'm just saying that lawyers will respond to the incentives they encounter, just like everyone else.
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