Publicly Contracted Private Counsel: Defense Attorney Quality, Pay, and Defendant Outcomes

• In Event: Economics of Crime: Arrest & Sentencing

Abstract

Governments increasingly outsource public services to private actors, but these contracted workers often face a “public-work pay disparity,” earning less for public service work than they would in the private market. This paper focuses on the public provision of defense counsel outsourced to private attorneys and explores two main questions: How does the quality of publicly contracted defense attorneys affect case outcomes and recidivism? And how do changes in pay influence the composition and performance of these attorneys? Using administrative data from North Carolina and the quasi-random assignment of court-appointed attorneys to cases, I estimate the quality of private attorneys providing public defense. The results reveal substantial variation in attorney quality as measured by the likelihood of case dismissal, incarceration, probation, and pleading guilty. For felony cases, a one-standard-deviation increase in attorney quality raises the likelihood of dismissal by 5.5 percent and reduces incarceration by 6.5 percent; comparing attorneys at the 90th and 10th percentiles, defendants assigned higher-quality counsel are 2.4 percentage points more likely to receive a dismissal and 1.5 percentage points less likely to be incarcerated. The estimates for misdemeanor cases are similarly large: a one-standard-deviation increase in attorney quality raises dismissals by 5.4 percent and reduces incarceration by 5.3 percent, probation by 8.4 percent, and guilty pleas by 10.6 percent. I also find that assignment to a higher-quality attorney increases one-year recidivism by about 3 percent for misdemeanor defendants. To study compensation, I exploit an unanticipated 2011 statewide reduction in hourly pay for court-appointed attorneys. The pay cut worsened defendant outcomes by an amount comparable to a 0.75 standard deviation decline in attorney quality. In misdemeanor cases, dismissals fell by about 5 percentage points, incarceration rose by 4 percentage points, and guilty pleas rose by 6 percentage points. The adverse effects reflect both lower performance among incumbent attorneys and negative selection into the pool of contracted attorneys. The pay cut also had no significant effect on one-year recidivism but increased three-year recidivism by 2.5 percentage points. These findings raise concerns about the quality of outsourced public representation for low-income defendants and suggest that insufficient compensation for publicly contracted workers may amplify broader social and economic inequality.

Author

• Taylor Jordan Landon, Brigham Young University
  Presenting Author