Indigent Defense Participation by Private Contractors and the Role of Compensation as an Incentive

Abstract

The Sixth Amendment’s guarantee of the right to counsel for individuals accused of a crime is critical to ensuring a fair and just legal system. Despite popular belief, many indigent clients are represented by private attorneys who contract with court systems rather than employees of public defender offices. Understanding the incentives that motivate private attorneys to participate in the public sector by accepting indigent defense court cases is critical to shaping state and local policy related to representation. Prior research on incentives suggests that private sector employees are largely incentivized by income, while public sector employees are driven by a wider range of values. Despite the increasing participation of private-sector contractors in public sector work, the literature has not expanded its examination to include these hybrid workers. This paper examines the intersection of private-sector employees and public services through the lens of indigent defense by examining whether attorneys who participate in indigent defense as contractors do so based on profit-seeking interests. Using data collected from a survey of indigent defense attorneys in the State of Michigan, this paper concludes that private-sector workers who contract with public organizations do so based on income motives. This motive is consistent with traditional motivating factors of private sector employees.

Keywords:

• Indigent Defense
• Compensation
• Public Sector Motivation
• Incentives
• Public-Private Partnership

Disclosure statement

There are no conflicts of interest to report.

Notes

1 Powell v. Alabama, 287 U.S. 45, 71-73 (1932)

2 Supra note 1

3 Johnson v Zerbst, 304 U.S. 458 (1938); Hamilton v. Alabama, 368 U.S. 52 (1961); Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); Alabama v. Shelton, 535 U.S. 654 (2002); The history of the Right to Counsel in the United States is not a straightforward path, rather it’s a series of SCOTUS decisions, lower court decisions, State Constitutions, and an extraordinary amount of advocacy work that defined the modern understanding of the 6^th Amendment. For a thorough look at of the Right to Counsel pre/at the time of-Gideon see Beany, W.M. (1963). The Right to Counsel: Past, Present, and Future. Va. L. Rev., 49, 1150.

4 Gideon v. Wainwright, 372 U.S. 335 (1963)

5 Supra note 4