Citation

Goodman JC, Porter P. Int. Rev. Law Econ. 2002; 22(1): 25-39.

Copyright

(Copyright © 2002, Elsevier Publishing)

DOI

10.1016/S0144-8188(02)00066-2

PMID

unavailable

Abstract

A frequent criticism of the United States' system of criminal justice is that it is biased toward the rich who can afford better legal representation. This study accepts the premise that additional defense spending is productive but finds no reason to expect that this is unfair. When the quality of legal defense is heterogeneous any system that promotes equality of treatment is either prohibitively expensive or must restrict the rights of an individual to defend herself. Recent advances in the concept of "fairness" expand the set of distributions that can be claimed to be fair. Within this set is a distribution of defense expenditures and quality of representation that protects individual freedoms, is not overly costly and is fair.

By recognizing that defense expenditures are a cost for the accused a system of prosecutorial responses to increased defense spending that removes unfairness from the system are developed. The appropriate response is found to be a less than equal proportional increase. There is some archival and much anecdotal evidence to be presented to support the premise that this is how our present system works.

The system of public defenders serves as a baseline for "fair" treatment, it defines the kind of defense you can get for nothing. The system of plea bargaining, with certain convictions and bargained sentences, provides more equality than the system of trials since there is less opportunity for the defendant to use wealth.