Twenty Years After

Yesterday's New York Times Sunday Review has an article that describes current plans by a county in Texas to implement an idea from an article that I coauthored in 1993. It was published again in a shorter form aimed at a more general audience in 2010. It was that version that brought it to the attention of someone prepared to try it out.

The idea is quite simple. Under current law, someone who is charged with a felony and cannot afford a lawyer has one provided for him. The system has been extensively criticized as providing very little protection to defendants, mostly on the grounds that the money available is inadequate to fund a serious defense. In some places the lawyer is appointed by the judge, in some there is an office of the public defender. In none does the defendant  have control over the choice of the person who is supposed to represent his interests.

Steve Schulhofer, at the time a professor at the University of Chicago Law School where I was a faculty fellow, came to me with an idea. While one problem with the system might be inadequate resources, another was poor incentives. A lawyer who wanted to be paid to represent indigents did not have to please his "clients," he had to please whoever appointed him. However little he was paid, he could always do less work than that. And one obvious way to please the judge or whoever else was responsible for choosing lawyers to defend the indigent was by persuading the defendant to agree to plead guilty, thus saving everyone else a lot of time and trouble.

Steve's solution was simple: a voucher system. Whatever the state was willing to pay, let the defendant choose the lawyer. For details, see the shorter version of our article. It struck me as an obviously good idea, and we ended up jointly writing the article.

Steve was viewed as on the left wing of the Law School faculty, so our collaboration led to a certain amount of discussion among our colleagues as to which of us was subverting which. I thought the question was adequately answered when we gave a workshop on the paper and I had the pleasure of hearing Steve Schulhofer lecturing Judge Posner, a prominent legal scholar generally, if somewhat inaccurately, viewed as a conservative, on the virtues of the free market.