Texas counties have a big problem with actual unfunded mandates - i.e., when Congress or the Legislature create new responsibilities for local government but refuse to pay for it. But that's not what's going on with the Rothgery decision. Instead, Texas is one of a handful of states where counties weren't already meeting the minimal constitutional standard for indigent representation. SCOTUS told Texas and similarly situated states that they'd too narrowly interpreted their duty to appoint counsel under the Sixth Amendment. Campbell wrote:
Texas law had been interpreted to generally not require appointment until the first court hearing after indictment for defendants who are free on bond. In Rothgery’s case, the 5th U.S. Circuit Court of Appeals said he wasn’t entitled to a lawyer until the prosecution got involved.Fundamental constitutional obligations of government are not "unfunded mandates." In 43 other states before Rothgery, defendants who made bail were eligible for appointment of counsel. The US Constitution requires counties to appoint counsel when they want to prosecute someone, and SCOTUS told Texas counties they must play by the same rules as the rest of the country, that's all.
Wrong, the Supreme Court said in an 8-1 ruling.
Justice David Souter wrote that "a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."
On one level, it’s understandable that judges might not appoint lawyers for defendants while they’re out on bond.
Taxpayer dollars are limited. A defendant who’s out of jail might hire his own lawyer, strike a plea deal with the prosecution or not even face prosecution if the case gets dropped or no-billed by a grand jury. Less cost to the public.
But without legal help, a defendant might be pressured to plea, misnavigate the system or linger in legal limbo. In Rothgery’s case, it would have been more efficient and cost-effective to avoid the expenses associated with indicting him, re-arresting him, holding another hearing, housing and feeding him in jail, getting the district attorney to review and drop the case charges — and then having to fight a federal civil rights lawsuit all the way to the Supreme Court and then some.
I also disagree with Campbell when she writes, "What we don’t know is what’s a reasonable time frame for making those appointments." It's true that SCOTUS gave no guidance on this topic, but Texas law is clear when counsel must be appointed. According to a recent Texas Lawyer story:
Under Code of Criminal Procedure Article 1.051(c), an indigent defendant in a county with a population of 250,000 or more is entitled to have an attorney appointed by the end of the first working day after he or she requests the appointment of counsel. An indigent defendant in a smaller county is entitled to have an attorney appointed not later than the end of the third working day after requesting an attorney.So that's the timeline. All SCOTUS did was say the requirements for appointing counsel are the same for indigent defendants who make bond as for those who remain in jail.
I've got a lot of sympathy for counties when they face actual unfunded mandates that put untenable pressure on local budgets. But I've little truck with those who use the phrase to blame someone else for counties' failure to provide a constitutional level of legal representation.
Prior related Grits posts:
- Rothgery ruling 'trumped' counties leeway to delay counsel appointments
- A possible explanation for Rothgery confusion
- Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
- What does Rothgery really mean?
- SCOTUS to Texas: Provide counsel earlier in the process
- Rothgery v. John Wiley Price: Move to slash Dallas defender budget couldn't come at worse time
- When does the adversarial process commence?
- Number arrested with no charges filed closer to 2% than half
- Rothgery oral arguments reveal new insight about murky systems
- Do they really have to appoint you a lawyer when you ask for one?
- SCOTUS to decide in Texas case when right to counsel attaches