The Cost of Representation Compared to the Cost of Incarceration

Fifty years ago the U.S. Supreme Court recognized the “obvious truth that a lawyer is a necessity and not a luxury when a defendant faces a criminal charge”. While the need for the assistance of council may have been obvious to the Court, legislators have not always seen things so clearly. The reluctance to adequately fund indigent defense is undoubtedly based on an unwillingness to spend money on attorneys to represent defendants who are perceived as most likely guilty. Providing defendants with representation is therefore seen as a waste of money; attorneys will only delay the inevitable and will make the criminal justice system less efficient. Indigent defense providers have typically responded to this sort of prejudice by pointing out that every defendant is presumed to be innocent and is entitled to due process of law. While that is certainly true, those arguments too often fall on deaf ears.

In addition to arguing that representation provides an immeasurable benefit to a defendant and the quality of justice he receives in court, indigent defense providers are now communicating the fact that representation provides a measurable benefit to society. The lack of adequate funding for indigent defense not only erodes the public trust in the criminal justice system, but it contributes to the high incarceration rate. An increasing body of research into the role and function of defense attorneys in the criminal justice system suggests that inadequate funding for indigent defense results in higher incarceration costs. This research suggest that under funding indigent defense does not save the state money. The criminal justice system is just that – a system. When one component of that system is not well maintained, the entire system functions less effectively.

Adequately resourced defense attorneys increase the effectiveness of the entire justice system. “When the system includes well-trained public defenders, cases move faster, and the system tends to generate and implement innovative programs”. The interconnectedness of the criminal justice system requires that every person operating within that system have access to adequate resources in order to ensure a just result.

With that in mind there is a growing recognition of the correlation between government spending on indigent defense and incarceration costs. A Justice Policy Institute report entitled System Overload: The Costs of Under Resourcing Public Defense identified five ways in which the poor quality of public defense can increase incarceration costs:

1) More pretrial detention for people who do not need it
2) increased pressure to plead guilty
3) wrongful convictions and other errors
4) excessive and inappropriate sentences
5) increased barriers to re-entry

The choice for policymakers is a simple one – either spend the money necessary to ensure that every defendant has an adequate defense, or continue to pay the costs associated with a criminal justice system that incarcerates one out of every 100 adults in the country.

The sooner counsel is provided, the better
Several authorities demonstrated the importance of providing counsel at a defendant’s first appearance before a judicial officer who has power to take away the defendant’s liberty. A study released in 2012 by the New York City Criminal Justice Agency entitled A decade of bail research in New York City documents how defendants who are incarcerated pre-trial have a worse case outcomes than defendants who are allowed to remain at liberty. Those that are detained pre-trial are more likely to be convicted, if convicted they are more likely to be sentenced to incarceration, and if incarcerated their sentences are likely to be longer.

Better to get it right the first time
Under funding indigent defense inevitably leads to excessive caseloads for defense attorneys. Like everyone else, when defense attorneys do not have the time or resources necessary to do the job properly, mistakes will be made. A 2011 report by the Better Government Association and the Center on Wrongful Convictions at Northwestern University, entitled A tale of Lives Lost, Tax Dollars Wasted and Justice Denied, concluded that wrongful convictions in 85 Illinois cases since 1989 had cost tax payers $214 millions.

Finding Cheaper and Safer Options
The active participation of defense counsel from the inception of a case ensure that defendants will have access to diversion programs, which are typically much cheaper and more effective at reducing recidivism than incarceration. Defense attorneys are in the unique position to effectively identify defendants who have substance abuse issues or mental health issues.

The Real Costs of Incarceration
The studies referenced identify the short-term savings associated with a reduction in incarceration rates; however, there is also evidence to suggest that there are long-term financial benefits associated with a reduction in the incarceration rate. A 2010 study by the Pew Center on the States entitled Collateral Costs: Incarceration’s Effect on Economic Mobility, found that incarceration carries significant and enduring economic repercussions. Former inmates work fewer weeks per year, earn less money, and have limited upward mobility. Past incarceration was found to reduce subsequent wages by 11 percent, cut annual employment by nine weeks, and reduce yearly earnings by 40 percent.

The Choice between Representation and Incarceration
Ultimately, the early appointment of counsel benefits not only the defendant but the entire criminal justice system. The reality is that defense attorneys reduce incarceration costs, increase efficiency, and increase the accuracy of the criminal justice system. Defendants benefit, society benefits, and even the victims of crime benefits by having their complaints resolved quickly and accurately.

The Morales Law Firm would like to thank The National Association of Criminal Defense Lawyers Champion for sharing this information with us. (March 2013)