Under current law, when determining whether a defendant is financially eligible for appointment of counsel the court "may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant's financial circumstances as measured by [other factors listed in statute, e.g., income, assets, etc.]." CCP 26.04m. Furthermore, a judge can't incarcerate someone who is released on bail solely because the person requests the assistance of counsel. CCP 26.04r.Another thing that shows "how powerful the bond lobby is" was this lawyer's request to remain anonymous in these comments.
I read the underlying article, and it's not entirely clear to me what Merritt is proposing. It doesn't sound like he's proposing legislation (deleting the provisions I just cited, for example), but more like he wants a local vote on whether the county will pay for certain indigent defense expenses. Deleting those provisions wouldn't get them too far, anyway, since they would still face the constitutional law, which does not make a bond/no bond distinction.
A couple of years ago, a Mississippi county sued the state, arguing that it was illegal for the state to push indigent defense expenditures onto the counties. The county's suit survived a motion to dismiss but the county lost on the merits -- so basically the court held that it was possible for the county to pursue that kind of claim, but the county did not present facts sufficient to prove the alleged illegality. The county continued to provide indigent defense services while the suit was pending and thereafter, so the county itself was not sued for violations of the 6th Amendment.
The answer is bond reform, particularly something like partial cash bond. You're exactly right that keeping more people in jail only costs the county more money. The counties should want to get more pretrial detainees out of jail -- at best, enabling people to maintain employment while on bond will reduce the demand for indigent defense services, and at worst at least the county will only be paying for the lawyer instead of the lawyer and jail space. Partial cash bond would allow defendants to pay the 10% that currently goes to bondsmen to the counties. Defendants could assign that 10% to a lawyer or use it to pay fines and costs at the end of a case.
Bexar County used to have a program like this, before the bondsmen lobbied to take the option away, and the judges loved it -- more retained attorneys, and the attorneys had a vested interest in getting the clients to court because they lost their fee if the Defendant bond forfeited the 10%. I would not be surprised to see someone from the Bexar delegation float a bill to restore partial cash bond. Right now the Code basically sacrifices the counties to the interests of the bond lobby, and the fact that counties aren't screaming about this more shows how powerful the bond lobby is.
I'd like to learn more about the former system in Bexar County. Bail bond lobby or no, I like the idea of a system that uses economic incentives to compel its actors to comply. If you're not going to have a public defender office, using cash bonds to pay lawyers for the indigent makes a lot of financial sense, and if their fees depended on it, you'd better be sure those lawyers would get their clients to court on time.