Some Arizona jurisdictions have diversion programs where the county attorney will notify a potential defendant that they are going to be charged with a crime. The state sends defendants a letter explaining they have been selected for diversion and that, if they agree to participate in the program and successfully complete it, the state will not indict them. It isn’t just a dismissal; it’s almost as if it never happened.
One county’s program is particularly great. The woman who runs it is knowledgeable, fair, and very easy to deal with. Most importantly, she seems genuinely concerned with making sure everyone she supervises succeeds. Often, I get the feeling diversion programs and probation departments are run by people who hate criminal defendants, see no problem with forcing them to pay outrageous fines or jump through ridiculous hoops, and generally like to feel powerful by messing with other people’s lives. That’s definitely not the case with this program. The fines and other requirements are very reasonable, and when I have a client with a nasty case and a lot to lose, I strongly recommend they consider participating.
In that same jurisdiction, a lot of indigent defense work is performed by private defense attorneys who contract with the county. Many private criminal defense attorneys there use indigent defense contracts to supplement the income they get from private clients. Some of the jurisdiction’s criminal defense attorneys’ entire practices consist of contract work. In that county, most contracts pay an attorney a set amount per case, with different rates depending on how far the case progresses. If the attorney resolves the case before the defendant is arraigned, the attorney will be paid much less than he or she would for a case that ends up in superior court.
Recently, I spoke with the lady who runs the diversion program I discussed above. She mentioned some contract attorneys never returned her calls or responded to her letters. Many of their clients missed the opportunity for diversion and ended up being indicted. She wondered why those lawyers weren’t more eager to enroll their clients in diversion.
Ever the cynic, the first thing that came to my mind was that the attorneys got paid more if their clients didn’t get diversion. In fact, in that jurisdiction, a contract attorney will be paid over three times as much pleading out a case at the first pretrial than they would assisting the client to enroll in diversion prior to arraignment. In both instances, the attorney would have (hopefully) reviewed all of the police reports and other evidence. They would have (hopefully) looked into any potential factual or legal issues and spoken at length with their clients about the case. The only difference as far as time and effort goes is that in one situation the client gets diversion and the attorney gets a little bit of money, while in the other, the client gets convicted and the attorney gets much more money.
I’m not a big fan of pay-by-case contracts in general. They immediately create a conflict of interest between the lawyer and the client in that there is no financial incentive for the lawyer to do more than the bare minimum. Extra fees are usually difficult to get. However, although not providing any incentive for doing a thorough job isn’t ideal, actually incentivizing a bad result for the client seems much worse to me.
I hope those attorneys had good reasons for not enrolling their clients in diversion. It would be a real tragedy if they were sacrificing their clients’ futures for financial benefit, but I’m skeptical. They have a powerful incentive to throw their clients under the bus. A bad result for the client (i.e. indictment and conviction instead of dismissal) means more cash for them.
Buyers or managers might like the fact they know exactly how much each case will cost the county, but what’s the cost to the people being defended?