Rural Legal Scholarship: A Low-ball Defense

Maybell Romero of Northern Illinois University College of Law is work-shopping this paper, about privatization of indigent defense, on Wednesday, Dec. 2, on Zoom, sponsored by the SMU Deason Center for Criminal Justice Reform.  You can register here.  The abstract follows: 

Scholars and policymakers have begun to focus on the deleterious effects of the privatization of different functions in both the criminal adjudicative system and criminal legal system on the whole. Much of this attention lately has been directed to privatized police forces, privatized prisons, and even privatized prosecutors. As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender—particularly, the rural public defender—gets lost in the shuffle. This Article highlights such public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding. It conducts a case study from a small jurisdiction in Northern Utah to throw these difficulties into stark relief. The Article then discusses the specific perverse incentives that rural public defenders face and the burden under which their services are procured by way of competitive bid, not with the intention of arguing that such services should never be bid out but rather that any jurisdiction using such a system should be fully cognizant of the risks they incur when choosing to do so. The Article then suggests potential interventions that may be employed to mitigate or even eliminate some of the troubling aspects of using competitive bidding to procure rural indigent defense services.