In 2017, six counties in North Carolina changed how they paid their public defenders. Previously, the counties paid private attorneys an hourly rate to represent indigent people charged with crimes. Under the new system, indigent defense would be handled with flat-fee contracts—an attorney would agree to represent a given percentage of a county’s indigent cases in exchange for a set amount of money. Five years later, a study documented the results: People represented under the flat-fee system were more likely to be convicted, far more likely to be incarcerated, and more likely to plead guilty without a trial. Flat-fee lawyers spent less time on each case and were significantly more likely to dispose of a case on the same day they met their clients. A similar study in South Carolina produced similar results. On average, flat-fee attorneys spent 50 percent less time on each case.
Those outcomes were entirely predictable. States first started moving to flat-fee contracts in the 1980s and 1990s, as soaring crime rates overwhelmed already-inadequate public defense systems. State legislatures then exacerbated the problem with new laws that created new crimes, lengthened sentences for existing crimes, and created new death-eligible crimes, which take considerably more person-hours for investigation and preparation. Flat-fee contracts were cheaper and more predictable than other methods of delivering indigent defense.
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Setting up a full-time public defender office required start-up costs and added expenses like office space, overhead, and benefits for staff. Paying private attorneys by the hour was expensive, and a nightmare for anticipating a reliable budget. Fixed fee contracts create a competitive system in which cities and counties award contracts to attorneys and firms willing to take on the most cases for the least amount of money. So they quickly became the most common way of providing indigent defense. In 1986, about one in ten indigent defendants were represented by an attorney operating on a fixed fee. By 2013, it was more than half.
But if the goal is to provide a zealous, constitutional defense, flat-fee contracts have been a catastrophic failure. They provide an incentive for attorneys to offer the barest of bare-bones defenses. They reward efficiency over quality. In some jurisdictions, including Houston and most of Mississippi, contracts are awarded by judges themselves. So any defense attorney with a flat-fee contract who bogs down a judge’s docket with motions or appeals a judge’s ruling risks offending the person with significant control over their livelihood. Before Idaho revamped its system a few years ago, some prosecutors could wield influence over which private attorneys were given contracts.
It isn’t as if these problems hadn’t been anticipated. As early as 1985, the American Bar Association issued a scathing report about how flat-fee contracts had undermined public defense in San Diego. That same year, the California State Bar called for such contracts to be banned. In a damning study in the 1990s, one contractor boasted to researchers that he generally spent all of 30 seconds with clients before persuading them to plead guilty. A study from the U.S. Department of Justice warned of the perils of flat-fee contracts in 2000, and the California State Bar issued yet another warning in 2006. In 2001, the Atlanta Journal-Constitution wrote about a rural attorney in Georgia who was handling more than 400 felony cases per year for a flat $30,000 fee. Between those cases and the attorney’s private practice, he often had 40 or more hearings per day. He typically met with his clients outside the courtroom for just minutes before persuading them to plead guilty. A 2003 report found that attorneys paid with flat-fee contracts in Pennsylvania “are not taking the time to visit clients in jail, file motions, conduct effective investigations, or respond to mail from clients.”
None of this seemed to deter elected officials. A 2013 Sixth Amendment Center study found that five California counties had contracted indigent defense to a law firm that had earned the nickname the “Walmart of public defense.” A 2025 Wren Collective study of 24 California counties still using flat-fee contracts found that “private contractors attempt to undercut each other in a bidding war because they know that the county will award the contract to the lowest bidder.” In one of those counties, contract attorneys averaged 500–600 felony cases per year. Current ABA recommendations put the maximum number of low-level felonies an attorney can ethically handle per year at 59. Those counties also have some of the highest incarceration rates in the state.
Flat-fee contracts also typically don’t come with added funds to hire investigators or expert witnesses. The ABA recommends hiring investigators for nearly all serious crimes. Many dedicated public defender offices use them even for misdemeanors. But if the money for an investigator has to come out of a flat-fee contract, there’s little incentive for those attorneys to use one. In 2017 the ACLU sued 11 rural counties in Nevada that used flat-fee contracts. The organization found that contract attorneys in those counties rarely used investigators. One attorney used an investigator just once in 109 felony cases. Another used one in just seven of 453 cases. Still another had 333 cases in the first 8 months of 2016, but hadn’t used an investigator or expert witness in any of them. A 2023 study found that more than half the counties in Texas—where flat-fee contracts are common—had no expenditures for investigators in 2020 at all.
Some jurisdictions have even used flat-fee contracts for death penalty cases. The combination of profoundly high stakes and lowest common denominator attorneys produced some jaw-dropping stories that are now part of the lore of the mass incarceration era. Texas attorney Joe Frank Cannon, for example, boasted to the Wall Street Journal in 1994 that he was able to tear through his trials “like greased lightning.” At the time, ten men he’d represented were already on Texas’s death row. Cannon would later make national headlines for sleeping through significant portions of two clients’ death penalty trials. Ron Mock represented 19 clients in capital cases, and 16 were sentenced to die. When asked by the New York Times about allegations that he often showed up for trials smelling of booze, Mock replied, “I drank a lot of whiskey. I drank whiskey with judges. I drank whiskey in the best bars. But it never affected my ability.”
In a 2010 article about another notorious lawyer, the New York Times wrote, “A good way to end up on death row in Texas is to have Jerry Guerinot represent you.” In one case, Guerinot had met with his client just one time, and for all of 15 minutes, before her trial. She was convicted and sentenced to death. For most attorneys, preparing for and trying a single death penalty case should take up nearly all of their time. In 1996, Guerinot tried four death penalty cases in seven months. He tried those cases while also trying hundreds of other felony cases, and while serving as the part-time prosecutor in another town. All of those clients were convicted and sentenced to death.
Finally, there’s Jerome Godinich, whose obscene caseloads have provided fodder for journalists for two decades. In 2009, Godinich attracted national media attention after two of his clients were executed before they had exhausted their appeals because Godinich missed the filing deadline. Between 2006 and 2009, Harris County judges paid Godinich over $713,000 to handle 1,638 cases for 1,400 defendants, including 21 capital cases. In 2017 alone, he handled more than 600 felonies. He has continued to get referrals despite accumulating dozens of complaints from clients, some of whom said they waited months or even years in jail as their cases dragged on, rarely if ever hearing from their attorney. In 2022, he made more than a half million dollars from indigent cases.
A 2024 study by the Wren Collective found that of the 40 lawyers appointed to handle death penalty cases in Houston in 2022, 12 were simultaneously carrying at least 100 other felony cases.
Public choice theory posits that we shouldn’t assume that elected officials and people in public service will necessarily act in the public interest. It isn’t that people in public service are more corrupt or uniquely selfish, it’s that we’re all biased toward our own interests, and there’s nothing about public service that insulates us from those biases. To put it more simply, incentives matter, so our incentives should reflect our priorities.
And the problem isn't just with public defenders. The system is rife with misaligned incentives.
In 2010, a Raleigh News & Observer investigation found a video from the North Carolina state crime lab in which two blood-spatter specialists ran through multiple experiments, but weren’t getting the results they wanted. After several tries, they finally got a result that mimicked the blood patterns on a defendant’s shorts, bolstering the prosecution’s case. The two analysts then high-fived. The broader investigation found that analysts at the lab repeatedly botched or faked test results, and failed to inform defense attorneys of tests that were exculpatory for their clients.
The problem was that the crime lab fell under the auspices of the state’s Department of Justice. So analysts were trained, not to be impartial and deliver publicly credible analysis, but to be team players for prosecutors, and to be uncooperative and hostile to defense attorneys. Prosecutors even weighed in on the analysts’ performance reviews.
The scholar Roger Koppl has found in recent years that dozens of crime labs around the country are funded by fees collected from criminal defendants, but only if they’re convicted. This means that these labs’ funding—the money for their equipment, their overhead, their salaries—it’s contingent on producing results and testimony that get convictions.
In Mississippi, the peripatetic medical examiner Steven Hayne was able to monopolize the state’s criminal autopsies for the better part of two decades because the state’s coroners and prosecutors contracted those autopsies out to private doctors. Any medical examiner who didn’t tell them what they wanted to hear jeopardized future contracts. Hayne kept prosecutors happy with damning testimony that at times could be preposterous. In one of his more notorious cases, for example, prosecutors claimed that a brother and sister simultaneously held a gun and killed the sister’s husband as he slept. Hayne claimed that he could tell by the bullet wounds and bullet pattern that there were two people holding the gun. At least 11 people he helped convict have been exonerated, including several who had been sentenced to death.
Probation and parole are another area where misplaced incentives have been destructive. In both cases, the goal should be to help people who have been convicted graduate out of state custody and resume their normal lives. But many states have privatized these services, with fees paid by those on probation or parole themselves. This means that every successful completion of those programs is one less paying customer for those companies. The companies have a strong incentive to “violate” those on probation or parole, and prevent them from completing their sentences. Studies of privatized probation in Missouri, Florida, Tennessee, Kentucky, Alabama, Mississippi, and Georgia have found that under private probation systems, people found guilty of misdemeanor offenses like traffic violations can be sentenced to probation if they’re unable to pay, with additional fines and fees due to the probation companies. Though those offenses aren’t punishable with incarceration, failure to complete the probation programs can result in incarceration.
Other public defender systems can be problematic too. Louisiana has mostly moved to full-time public defender offices, but most get significant funding from fees paid by their own clients. This means that not only do public defenders lose money for their offices if they get an acquittal, they’ve been told by the state to act like a debt collection agency to recoup fees from clients who were already too poor to hire a private attorney.
Well-intended funding for law enforcement can also go awry. The federal government has long given out drug enforcement grants based in whole or in part on raw arrest numbers. This incentivizes police agencies to rack up arrest figures by rounding up low level offenders. Building a case against a major supplier takes time and resources, and may only result in a few arrests. Even assuming it was possible to eradicate illicit drugs—and a half century of the modern drug war provides strong evidence that it isn’t—any narcotics unit that managed to do so would lose the funding that pays their salaries. There are similar problems with any grants that are tied to eradicating any specific type of crime, be it gambling, prostitution, or gangs.
Even high-minded reforms aimed at reducing incineration can be shot through with poor incentives. Drug courts were supposed to be a way to treat addiction without incarceration. But drug courts are also under pressure to prove their effectiveness. And because most addicts fail at quitting many times before they succeed, drug courts often take only first-time or second-time offenders, or people with no other convictions. These are often people who may not even be addicted, but were merely caught with an illicit drug and might otherwise get off with a fine or warning. So in an effort to demonstrate their “success,” drug courts can mean people who aren’t actually addicted are forced to go through treatment, while actual addicts who need help are turned away. Studies have shown that drug courts have largely failed to reduce incarceration.
The liberal argument here isn’t necessarily about state versus private. It’s just about properly aligning incentives. A better approach to forensic analysis for example, would be to periodically send evidence to private crime labs to analyze independently. If state analysts know that their work could be scrutinized at any time, but don’t know exactly which time, we mitigate the cognitive bias that can infect even the most conscientious analysts. The incentives shift from wanting to please the prosecutors or police to whom they report to not wanting to be caught in an embarrassing mistake.
An even better approach would be to make crime labs independent of law enforcement entirely. At the innovative crime lab in Houston, director Peter Stout periodically tests his own analysts with fake cases for which he knows the “correct” result. He also rewards analysts who spot fake cases, which helps him better disguise them. This system not only keeps his analysts on their toes, it serves as a sort of filter for which areas of forensics are credible and which aren’t. If analysts in a given specialty repeatedly fail the test cases, perhaps they shouldn’t be testifying in court. But it also shows how some fields can’t be tested, and thus probably shouldn’t be used to put people in prison. For example, Stout points out that one can't recreate “blood spatter patterns” from a murder without hitting someone with a murder weapon. So there's no way to establish a ground truth on what the pattern fitting the state’s theory of the crime would look like. And there's also no way to test analysts on their accuracy.
There are similar problems with fields that can’t establish a margin for error. DNA is legitimate science. We can say with precision what percentage of the population has a given DNA marker, so we can then calculate the odds that someone other than the suspect could have left a sample with the same number of markers. But for more subjective fields, we can’t calculate a margin for error. We don’t know what percentage of pry bars or screwdrivers could have created the precise marks left on a door frame. We don’t know what percentage of people could have left the vague bite marks on a murder victim’s skin. We can’t say for certain that no other gun could possibly have left the same microscopic marks on a bullet that the suspected murder weapon did. In some cases, this sort of analysis can exclude a suspect or a gun, but this sort of analysis is often used to say only this person could have left these marks, or only this gun could have fired this bullet.
As for probation or parole, cities and states could still opt for public or private systems, but the officers or companies shouldn’t be paid or rewarded based on how many cases they have. Ideally, they’d be rewarded or paid based on how many people successfully complete their sentences and don’t reoffend in a given period of time. But even a flat fee would make more sense than a model that incentivizes perpetual probation.
Research suggests that the best model for indigent defense is a full-time office staffed with attorneys who only do criminal defense, along with investigators, support staff, and social workers. Such offices should be funded with public money, and overseen by an appointed board with enough independence to ensure clients are getting a zealous defense, but also to advocate on behalf of public defenders when it comes to funding, pending legislation, and other policies.
Some of the incentive-driven problems in the criminal justice system are the product of unintended consequences—of lawmakers not fully grasping how incentives have been misaligned, followed by a general lack of political will to fix them. But many of these problems were entirely intentional—they reflect the values and priorities of the people who created the policies, and of those who have the power to change them.
Flat-fee public defense contracts are popular because they benefit the people who award them. Judges get defense attorneys who persuade clients to plead guilty early and don’t slow down their dockets with motions and challenges. Prosecutors get token opponents who don’t force them to prove their cases in front of a jury. County and city leaders get a system that efficiently incarcerates people for a fraction of the cost of a more robust public defender system. The same is true of putting crime labs under the auspices of a law enforcement organization, or systems in which prosecutors or police contract forensic analysis to private actors. They get the “expertise” that helps them win convictions.
None of this makes for a just or fair or constitutional system. It doesn’t provide for objective, science-based expertise, ensure a fair defense for the poor, or even improve public safety. The good news is that many of these problems are fixable. We just need to make sure that the system’s incentives are aligned with the values we want to prioritize. The hard part is convincing the people who hold power that they should value fairness, justice, and equality under the law over tough-on-crime platitudes, mass incarceration, and easy convictions.
