Private versus public defense systems: comparison and effectiveness

Private or Public Defense

The United States criminal justice system is an adversarial one, in which the two sides that come into court are directly opposed to each other -- there is the prosecutor working for the local, state, or federal government and trying to prove that the defendant is guilty of a certain crime or crimes, and there is the defense team working for the defendant to prove that he or she is not criminally guilty. The way this system is set up requires that the rules of the court be known explicitly by both parties; as the judge is only there to mediate between these two sides, the structure and the system must be know by the prosecution and the defense before the trial begins. Prosecutors are of course familiar with the system as it is their job to work within it, but most defendants are at a great disadvantage here and thus must hire defense attorneys or have the court appoint a defense attorney if they cannot afford one. The difference between private and public defense attorneys is a matter of grave concern for some.

Private attorneys can cost a great deal of money, and while this is prohibitive for many and downright impossible for some, it also carries a certain sense of prestige and expertise that makes many people feel better about their chances in court (Gaines & Miller 2011; Siegel 2009). When it comes to incredibly high profile cases and attorneys it is likely that there is a difference in ability and certainly in the amount of resources that a private attorney can bring to an individual case, and thus for the very wealth hiring these ultra-expensive defense attorneys might be worthwhile (Siegel 2009). For the average citizen in the United States facing criminal charges, however, the issue is far from clearly decided.

Comparisons of conviction rates both in federal courts and in criminal cases that are tried in the most populous counties of the United States are statistically the same regardless of whether a public or a private defense attorney as representing the defendant (Siegel 2009; Gaines & Miller 2011). This initially suggests that there is not a great deal of difference in the selection of an attorney when it comes to the outcome of the case: prosecutors do not tend to focus resources on cases they are not fairly confident they can win, and thus the vast majority of criminal cases (ninety percent of federal cases and approximately seventy-five percent of cases in the most populous counties) result in guilty verdicts with the type of attorney having no discernible effect (Siegel 2009). This does not mean that differences don't exist, however. Though conviction rates are the same for public and private defense attorneys, research has also shown that defendants with public defenders are more likely to serve prison terms than those with private counsel (Gaines & Miller 2011; Siegel 2009). At the same time, prison sentences for those that retained private counsel tend to be longer when they are handed down, meaning that people with public defenders are more likely to go to prison in the first place than defendants with hired counsel, but they are in a statistically better position to receive shorter stays there (Siegel 2009).