The complicated problem is that the Gideon decision created attorney-client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.
Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.
The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.
The top-down approach is doomed to fail. For everything Judge Lasnik can dream up to force criminal-defense lawyers to do for their indigent clients, there are a hundred other ways the lawyers can do poor jobs. It’s criminal-defense policy Whac-A-Mole.
The bottom-up Comal County approach has some potential. If indigent defenders’ income, like “free-world lawyers'” income, depends on clients’ choosing them, some lawyers will excel and others will follow suit or fail.
That is the opposite of what can happen when indigent defenders’ income depends on judges choosing them, which is that some lawyers suck up to the judges at their clients’ expense and others follow suit or fail.
I’d be curious to know what political maneuvering was required to get Comal County to try the free market in indigent defense. Most of all, I’d like to know what the arguments were against it…and who made them.