Low-Ball Rural Defense

Abstract

Focus on the deleterious effects of the privatization of different functions in both the criminal adjudicative system and criminal legal system on the whole has increased on both the scholarship and policymaking fronts. Much of this attention lately has been directed to privatized police forces, privatized prisons, and even privatized prosecutors. As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender—especially those in rural America, with about 90% of the country’s landmass and more than 20% of its population—gets lost in the shuffle. This Article centers these public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding. It opens with a comparison of two comparable criminal cases with very different results of the accused to spotlight what happens when public defense is privatized. The Article then discusses the specific perverse incentives that rural public defenders face and burden under when their services are procured by way of competitive bid—not with the intention of arguing that such services should never be bid out, but rather that any jurisdiction using such a system should be fully cognizant of the risks they incur when choosing to do so. The Article then introduces, for the first time, the concept of “noble cause corruption,” previously used to explain and to some extent excuse police malfeasance, in a new context to explain the consequences of some of the choices rural public defenders make while burdening under contract systems, presumably for the good of their clients.