Privatizing Due Process: Issues in the Comparison of Assigned Counsel, Public Defender, and Contracted Indigent Defense Systems

Abstract

As the costs of providing counsel to poor defendants in criminal cases takes an ncreasingly heavy toll on public resources, many communities have turned to contract systems to provide a service that has traditionally been offered by ad hoc assigned counsel and public defenders. While contracting, like other forms of privatization, is popularly associated with cost reductions, there have been few rigorous studies that demonstrate the superior efficiency of any particular indigent defense program type including contracting. Moreover, the results of studies of program effectiveness or quality are contradictory and inconclusive. This article draws upon theories of privatization, first, to provide a framework for comparing contract programs with assigned counsel and public defender systems, and, second, to begin to stipulate the conditions under which contracting might prove an acceptable means of providing counsel to the poor.