Does raising indigent defender pay rates improve defendant outcomes? Evidence from New York

ABSTRACT

Beginning 1 January 2004, the rates paid to assigned counsel – private attorneys who defend the indigent in criminal cases when a public defender does not – were raised from a maximum of $40 per hour to $75 per hour in the state of New York. This article examines the extent to which this relatively large pay increase affects case outcomes. Efficiency wage theory would suggest paying workers higher rates can improve their productivity, and the results of this analysis are consistent with this. Using a difference-in-difference approach, I find that after the assigned counsel rate increase, case outcomes significantly improved in counties with higher poverty rates relative to those with lower poverty rates. The likelihood of conviction and the likelihood of pleading guilty both fell by more than two percentage points in high-poverty counties compared to low-poverty counties after the rate increase, and the differences in the likelihood of being convicted are especially pronounced for cases involving violent felonies. The results suggest raising assigned counsel rates can be an effective policy tool to improve indigent defence systems that are in need of reform.

KEYWORDS:

• Criminal law
• attorneys
• efficiency wage
• indigent defence

JEL CLASSIFICATION:

• K14
• J38
• H42

Acknowledgements

The author thanks the individuals at the New York State’s Division of Criminal Justice Services, in particular Diane Cavin, Leslie Kellam, Renee Konicki, Dean Mauro, and Theresa Salo, for providing the data set and for discussing details related to it. The author would also like to thank MTSU’s Faculty Research and Creative Activity Committee for awarding the grant that made the acquisition of the data possible.

Disclosure statement

No potential conflict of interest was reported by the author.

Disclaimer

This data is provided by the New York State Division of Criminal Justice Services (DCJS). The opinions, findings, and conclusions expressed in this publication are those of the authors and not those of DCJS. Neither New York State nor DCJS assumes liability for its contents or use thereof.

Notes

¹ Though there are some limitations to the data used to calculate the New York figures that are discussed later in the article, this is the best available estimate.

² The lawsuit seeking higher rates was filed by the New York County Lawyers’ Association. In May 2003, Justice Suarez of the Supreme Court of New York issued an injunction raising the rates to $90 per hour. The New York State Assembly then approved an hourly rate of $75, effective 1 January 2004 (The Spangenberg Group 2003).

³ Observations for which there is unclear or missing data on the arrest location, the defendant’s race, ethnicity, or sex, or the disposition of the case have been dropped from the analysis.

⁴ High-poverty counties (whose average poverty rates are between 13% and 27.1%) are Allegany, Bronx, Cattaraugus, Chautauqua, Chemung, Chenango, Cortland, Delaware, Franklin, Jefferson, Kings, Montgomery, New York, Oneida, Oswego, Queens, St. Lawrence, Steuben, Sullivan, and Tompkins. Medium-poverty counties (whose average poverty rates are between 10.7% and 13%) are Broome, Cayuga, Clinton, Erie, Essex, Fulton, Greene, Herkimer, Lewis, Livingston, Monroe, Niagara, Onondaga, Orleans, Otsego, Schoharie, Schuyler, Seneca, Ulster, Washington, and Yates. Low-poverty counties (whose average poverty rates are between 4% and 10.7%) are Albany, Columbia, Dutchess, Genesee, Hamilton, Madison, Nassau, Ontario, Orange, Putnam, Rensselaer, Richmond, Rockland, Saratoga, Schenectady, Suffolk, Tioga, Warren, Wayne, Westchester, and Wyoming.

⁵ New York City consists of Bronx, Kings, New York, Queens, and Richmond counties. In addition to relatively high-poverty rates there, the high cost of living potentially makes assigned counsel sensitive to rate increases. Furthermore, court-appointed counsel represent 82% of felony defendants in the most populous US counties (Harlow 2000), making these counties of particular interest.

⁶ I make this assumption in light of the fact that counties rather than the state provide a majority of indigent defence funding in New York (Spangenberg 2006). Given that there is a strong positive correlation between poverty rates and felony charges (I obtain a correlation coefficient of 0.61 when I correlate the county-level annual poverty rates with the number of felony cases per capita appearing in the data), this would likely add strain to the system. Furthermore, the fact that attorneys removed themselves from assigned counsel panels ‘in large numbers in the late 1990s’ (The Spangenberg Group 2006) likely further strained indigent defence services in these counties. Given this assumption, I would expect an effective policy to show improvement in case outcomes for high-poverty areas regardless of any differences across counties in the percentage of cases being handled by assigned counsel. Unfortunately, due to the lack of systematic collection of this type of data, I cannot make definitive statements about these percentages or changes in them, though I have no reason to suspect that time-varying trends in these percentages are driving the results.

⁷ Annual county-level population estimates from the U.S. Census Bureau were used in these calculations.

⁸ I assume arrest rates and charge rates are positively correlated.

Additional information

Funding

This work was supported by the Middle Tennessee State University Faculty Research and Creative Activity Committee.