Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment’s Right to Counsel
Abstract: We provide the first empirical evidence on how campaign finance can distort criminal trial court behavior. Using data from Harris County, Texas, we find that elected trial court judges and criminal defense attorneys regularly engage in “pay to play,” where judges appoint attorneys who donate to their campaigns as counsel for indigent defendants. Judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments. These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a 27-fold return on her donation. Indeed, we find indigent defense appointments can be surprisingly lucrative, with many donor attorneys earning tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges. This apparent quid pro quo between judges and defense attorneys also appears to directly harm defendants. We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences. We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter. We also show how similar campaign finance and attorney assignment rules might enable pay to play in other states, affecting the right to counsel for millions of Americans.
