Monday, September 06, 2010

The Coming Crisis in Indigent Defense

Jeff Blackburn here. Thanks for the comments, both on- and off-the wall, to my guest entry last week. I appreciated them all very much. I’m sorry for not getting back here sooner- I got way too busy last week. Besides, I figure lengthy absences from guest bloggers will help us all get what we know we want: the timely return of Mr. H. and his daily ministrations.

In this post I want to discuss the issue of indigent defense in Texas and take a look at where it is probably headed in the next period.

Hard Times Ahead for Counties

Some of you may have missed an audio piece by Ben Philpott that appeared in the Texas Tribune last week. Mr. Philpott interviewed some county officials to get their view of what lies ahead in the wake of the $18,000,000,000.00 (that’s eighteen billion dollars, folks) worth of cutbacks the legislature will have to make this session. You can find these interviews here.

The potentates he talked to all agreed that counties are in big trouble. Pointing to the consequences of the last time the State cut spending in 2003, the judges, commissioners, and others that were interviewed discussed the huge amount of expense that was dumped on counties after that session. These “unfunded mandates” included costs of road maintenance, indigent health care, and disease testing. They predicted more of the same this time and fretted over how they would be able to raise the money.

The Indigent Defense Elephant in the Room

One cost these officials failed to mention was indigent defense. This was curious, since we all know that the quality of justice is largely determined by the way we treat poor people accused of crime and that county judges and commissioners are much more concerned with justice than road repair or property taxes. Ok, maybe not- but they at least ought to be bringing up the subject. The cost of representing poor people already takes a substantial chunk of every county’s revenue, and that amount is likely to grow in the future.

This failure to deal with the reality of indigent defense costs is not exactly new. Ever since the passage of the Fair Defense Act and the creation of the Task Force on Indigent Defense, there has been real improvement. We now have more public defender systems, more indigent defense coordinators, and more money being spent on grants to counties. The move toward a public defender system in Harris County is a huge step forward. As Tony Fabelo, the current director of research at the Council of State Governments and an all-around brilliant guy, said at a Senate hearing in May, “In the last 10 years, we have made such huge progress in this area that we are no longer the laughingstock of the nation." Passing on the question of whether "not being a laughingstock" really constitutes “huge progress” (although I guess starting at near-zero and making our way to zero-point-something is a pretty big step, after all), everyone can agree that there has been substantial improvement. To the casual or starry-eyed observer, it would appear that things are just getting going to get better and better.

Of course, we’re not casual observers here and we certainly lack stars in our eyes. Except for a few anonymous posters every now and again, I’m pretty sure that we prefer critical analysis, forward thinking, and rational discussion. Since all that stuff tends to give the average voter a headache it is little wonder that the future of indigent defense in this state is not receiving much attention from the folks who are charged with funding most of it. That means it is up to the rest of us to deal with it. What follows are some basic points to consider for that discussion.

The lack of present attention by officials at all levels of government is going to make things harder to deal with in the future. We are heading into a disaster in indigent defense- a disaster that will get underway in the wake of the upcoming legislative session and keep unfolding over the next few years. Forget about progress, gradual or otherwise: we are on the cusp of a crisis that will likely wipe out the advances of recent years and take us to a whole new level of injustice in Texas.

How Bad Is It Now?

We currently spend $190 million dollars per year on the defense of poor people accused of crime. That level of spending puts us close to the national bottom: at $7.04 a head, we spend less on indigent defense than 44 other states, giving us a slight edge over places like Mississippi and Arkansas. Of this wholly inadequate sum, the state pays only about $28 million. County governments pay for the rest out of local property taxes.

The result of this piecemeal approach is that Texas is “not close to meeting the bar in terms of funding to have a constitutional system”, according to Jim Allison, the general counsel of the Texas Association of Counties. (See here for the full article.) That’s right: the guy who represents county judges and commissioners thinks that the current system is a failure. I respect Mr. Allison- he always calls it like it is. No one could successfully accuse him of being a wild-eyed, biased believer in the rights of the accused. When he says that a county-based system is broke it is.

This Legislature and Beyond

You can bet that this session of the legislature will not be increasing funding for indigent defense while taking an eighteen billion dollar haircut. State Senator Rodney Ellis has already said so. That means that counties are going to have to keep paying the tab just to maintain the lousy system we already have. The question is whether they will be able to do that, much less improve things.

We are entering a time of shrinking county tax rolls and decreasing collections. What we are seeing on a statewide basis will be replicated from county to county. The effective collapse of real estate prices, the payment of interest on debts incurred in happier times to build jails and courthouses, and the deflation of asset values mean that county money is going to get harder to come by. The idea that most county governments will raise taxes to pay for anything, especially better representation of poor defendants, is close to ridiculous: you might as well ask them to build a mosque next to the courthouse.

Some reformers think that county cutbacks will be a good thing. They see them as a chance to create more public defender systems throughout the state.

Their logic goes like this: the best way to improve indigent defense is through the creation of “do-able” small county and regional public defender (pd) offices. Small or not, these organizations can do much better work overall than appointed lawyers. They also don’t cost as much, or at least their expense tends to break even with the amounts of money currently being spent. According to this thinking, the desire of county governments to reduce expenditures will lead them inexorably to the creation of local pd offices, and thus Texas counties will will wind up doing the right thing whether they wanted to or not.

I strongly agree that we need public defenders, although I think local offices are at best a stopgap solution. I also agree that counties are going to need to dramatically cut costs in the coming months and years. I just don’t believe that many of them will set up pd offices to do it.

How Bad Can It Get?

There are currently no performance standards or enforcement mechanisms to regulate how much a county pays for indigent defense. Funded, unfunded, or otherwise, the only “mandate” given to counties is the general one found in the federal and state constitutions. About the only thing the state government can do to a county that is persistently paying too little and violating the rights of poor defendants is to withhold grant money. Given the chump-change size of most of those grants that's not much of a threat. Losing one wouldn't make much difference to a county hell-bent on saving money. Nothing would stop such a county from blowing off a state grant and going on it's own.

A county government that did that could set up all kinds of horrible yet money-saving alternatives for itself. It could set up a contract system, where some lowest-bid lawyer agrees to handle all the cases for a fraction of what a real attorney would be paid. County attorneys and judges could hustle more people accused of misdemeanors into pleading guilty pro se. Counties could also just lower the amounts paid to appointed lawyers: how about $100.00 per felony? Given the number of under- and un-employed lawyers floating around the state due to tort reform there would be plenty of takers at that price.
Variants of those practices are in place all over Texas now. I haven't seen felony cases go for a hundered bucks a throw yet, but I have seen them go for $250. Either way, that kind of money is far too little to assure anything but the worst representation by the worst lawyer. The misdemeanor hustle, where prosecutors "plea bargain" with unrepresented defendants who aren't told about all of the real consequences of pleading guilty, is in full swing in counties throughout the state. Contract "systems", too, are already out there: one of my favorites, in Dawson County, is getting the job done for the whopping sum of $237.50 per case. Since that includes the cost of experts and investigators, we can all feel assured that every poor person charged with crime in that county is getting top-drawer representation and a throughly prepared defense.

As long as we have a piecemeal indigent defense system in Texas we will have only piecemeal reforms. Some counties like Harris will step up and do the right thing. Others, like Dallas, will actually raise taxes to at least maintain what they have. But for every county like that, there are ten others who will view raising taxes as a violation of their religion and cut costs across the board. In counties like that- in most of Texas, in other words-indigent defense costs will be among the first to go. If you think the quality of justice in Texas is low and uneven now, wait another three years and see how many counties have effectively given up due to lack of money.
The Solution: A State-Wide, State-Funded Public Defender System

Like most criminal justice problems in Texas, this one has a solution. If we had a decently funded statewide public defender system all kinds of things would happen: the quality and level of representation would go up, chronically underachieving lawyers would get swept out of the system, and Texas might even stop having to measure its progress by whether we have moved past the “laughingstock” level. Prosecutors and police might have to work a little harder and stop breaking the law as much. Who knows? We might even stop convicting so many innocent people.

Nineteen states currently have systems like that. Although there are plenty of problems with such outfits, they are doing a far better job than we are. These states have already created models for us to go by.
Will it ever happen here? Yeah, sure...right after we get those courthouse mosques built. In the meantime, we will have to settle in for a long period of local budget implosions, sorry representation of the poor, and the certain knowledge that we could have avoided it all in the first place if we had done the right thing and set up a real system when we had the chance.


Anonymous said...

Another typical liberal "solution" in need of a problem! Why don't we just get Obama to federalize indigent defense like he has health care and be done with it? What is that you say? The voting public is not in the mood for more "do good" tax expenditures in Washington? Well guess what! That applies to Austin too! I think most people in Texas are quite satisfied with the way the criminal justice system works here. A handful of anecdotal mistakes may warrant tweaking the system here and there where affordable. But this kind of liberal "tax and spend" nonsense is, thankfully, a non-starter in this state in these difficult economic times!

TexasParoleNow said...

What an educated and enlightened person the previous poster was! Let me guess, you have tea bags hanging from the brim of your "gimme" cap! The provision of attorneys for indigent defendants is not a matter of a liberal nonsense, it is a right guaranteed in the Constitution, which that type like to spout but completely fail to understand.

Hook Em Horns said...

I would submit that indigent defense is already in crisis since the state will spend any amount of money it deems necessary to prosecute while we are left, frequently, begging a judge for adequate funding.

One more note. I enjoy it, immensely, when one of these "red's" gets caught up in the "tough on crime" machine and calls one of us the save them. Funny how attitudes change!

Pamela Lakatos said...

I have been involved in Criminal Law my entire professional life-approximately 32 years. The problems are not “anecdotal mistakes” –the problems are systemic and ugly. Anyone in Texas who is “quite satisfied with the way the criminal justice system works here” is either deliberately blind or viciously callous.

A State wide PD system seems to be the optimum way to address the crushing burdens placed upon local politicians who find it almost impossible to withstand the vocal opposition of their constituents whenever the topic of “paying for lawyers to represent the criminals” hits the table.

Of course, these days even prosecutors are feeling the pinch.
No proposed solution will be perfect but it is time we quit avoiding the problem as every day that passes is one more opportunity lost.

gravyrug said...

If it is in fact the case that "...most people in Texas are quite satisfied with the way the criminal justice system works here.", I'd bet that's because most people in Texas don't KNOW how the criminal justice system works here. Lack of proper indigent defense means there will be people in jail that don't need to be there, which will cost us more in the long run.

D.A. Confidential said...


Interesting and thought-provoking post. I have often wondered whether a PD system would be possible or preferable here in Travis County. I don’t know the logistics of establishing one, or how much many it would cost/save compared to the appointment system we have now, but I’m pretty sure the existing defense bar would be resistant. A lot of those guys make their living taking appointments. A tough job because I see how hard most of them work, and how little they get paid for their efforts. I also see the abuse they take from their clients as court-appointed lawyers, and wonder if a PD system might shake-up some of the mistrust leveled at the defense bar.

One gripe, though. After calling for “critical analysis, forward thinking, and rational discussion” you feel the need to take a swipe at a whole group of people who are, I would guess, valuable contributors to this debate by saying:

“Prosecutors and police might have to work a little harder and stop breaking the law as much. Who knows? We might even stop convicting so many innocent people.”

I work plenty hard, as do my colleagues, and if I see any of them breaking the law I’ll let you know. And are we really convicting “so many innocent people”? Can you cite figures for that?

If you truly want a rational debate, one that bridges all sides, you’re going to have a hard time engaging folks while running them down.
That aside, I look forward to reading more about the PD issue.


Anonymous said...

People who do whatever they want to and have no respect for the law need a lot of liberals to defend them and say they're innocent.

Anonymous said...

And those who are wrongfully accused need adequate funding to prove their innocence, in spite of Constitution's requirement that the State prove their guilt.

Scott Cobb said...

Good idea, Jeff.

We should start by creating a state-wide public defender office covering every county in Texas to represent defendants in capital trials.

Anonymous said...

Jeff unfortunately barely hints at the fact that the average PD office is itself underfunded with attorneys that are overworked. There are some counties that can afford to pay good lawyers much better than than the meager amounts suggested. Those counties are also providing experts when requested. There are too many folks trying to railroad the idea of PD offices while ignoring the room full of Pink Elephants in PD offices that already exist.

Atticus said...

Interesting and thought provoking comments, Jeff. And D. A. probably made you wish you could take back or rephrase your final "swipe". Actually, MOST of the folks involved in our criminal justice system are working hard to do justice rather than blindly seeking convictions.

That being said, you have certainly raised some interesting points, although I doubt our cash-strapped Legislature will be in any position to do much about them.

Maybe some baby-step, pilot programs would help. It would be interesting to see them tried in multi-county rural areas rather than the multi-million dollar P D project slated for Harris County. The results might produce some improvements in the quality of representation and cut costs at the same time...

Anonymous said...

And what about the "poor kids" who need additional money for education? And the "poor prisoners" who need better care? and the "poor elderly" who need more? What we need is better outside the box thinkers, not more government workers thinking of reasons to spend more and more tax dollars. Which is a limited resource for you "liberals". No offense. Name calling(tea bagger) will not help you. Try to think differently.

Not Getting Rich said...

As a criminal defense lawyer, I am interested in comparing the costs of an appointment system versus a PD office in, say, Smith County. The admin costs of a PD (office space, benefits, investigators, etc) would seem to make it much more expensive than an appointment system. Lawyers in Smith County earn $300 for a misdemeanor plea, and there is a cap of $750 for a misdemeanor trial, and it is extremely rare to get an investigator appointed in misdemeanors. From that sum, the lawyer must pay his office rent, staff, insurance, etc. I am doubtful a PD system would reduce costs, at leasdt here.

Angee said...

As we have learned here one capitol murder case, outcome unknown, can wipe out the entire annual budget in some counties. Someone had asked if paying an extra $10 a month on property tax to keep the death penalty on the table is something voters would go for. I doubt they would.Being a property owner comes at a high cost and a lot of former property owners no longer have property. Some of us that do own property are buckling under the burden and wondering if ownership is worth all of the extra costs.
If people can't get proper representation Maybe it is time to cut back some of the bs laws and concentrate on violent offenses.TX would cringe at the idea. We throw many in jail where a fine would be sufficient and jobs, even meager ones, could be saved.
This sounds like the perfect time for plea bargains to be rejected. Many if those cases lack the evidence to stand up in court and would end up being dismissed.
If funds were sufficient to do so we would continue building prisons and making sure that everyone got the maximum sentence allowed by the law. After the sentence is served with no rehab or recognition of the mentally ill upon release we would decide more folks need civil commitment.I don't see Texans getting any kinder or more compassionate but many are getting a smaller or no paycheck. A nation, a state or a county in financial crisis had better get used to the idea. Somewhere along the line maybe the realization will dawn that over-incarceration in killing us and something must change. Financial hardship is beginning to show on both sides of the table. The lack of finances is the only glimmer of hope for getting back to justice and stopping the revenge and the attitude of teaching others a lesson. It would never happen in a thriving economy. If all pleas were rejected and all inmates took a serve-all the entire system would go belly-up. Within months we would have a severe case of gridlock and change would come.There would be no choice.

Anonymous said...

All those people who have to be defended. Maybe they should slow down on the behavior that causes them to have to be defended. Is that too much to ask? Most of us are too busy defending them to ever think about what they are doing that causes us to have to rush out and defend them again and again. It's too easy for us to blame somebody else for their behavior.

Whitney said...

D.A., good comments generally, but it seems pretty naive to imply that DA's don't break the law and that if anyone did, they'd be reported. What about Bill Bishop in your own office? An appellate court found that he willfully withheld evidence in Laura Hall's trial. What happened to him - was he fired? Reprimanded? There is generally no penalty for prosecutors who break the law in this way. The Innocence Project (in New York) conducted a study of wrongful convictions and found that in about half of the cases studied (33 out of 74), prosecutorial misconduct was a factor, including suppression of exculpatory evidence; knowing use of false testimony; coercing witnesses; evidence fabrication and making false statements to juries. Now I don't believe that DA's want to convict an innocent person; I do, however, think that they like to win, just like defense attorneys, and a lot of them probably don't really care if the case is crap. Plus, you're in Travis County, which is generally considered to be the exception to all the rules in Texas. I mean, it's probably a safe bet that the institutional culture in your office is slightly different from say, Smith County, or Randall County. Again, maybe they do give a damn in Austin, but we have 254 counties that do it their own way. Having said that, your comments here show that you are a smart, thoughtful, well-meaning guy, but I also think you've had the luxury of not having to deal with some of the righteous asshole prosecutors in the far-flung regions of this state.

Anny, 7:29, Jeff does say he is in favor of a well-funded PD office; its true that underfunded offices can be terrible, and it's clear from his post that he doesn't think it will happen here anytime soon. But there are states (Colorado, Washington DC and more) that adequately fund the PD office and the results speak for themselves. PD offices can provide training for new attorneys on how to try a case, plus you have older, experienced attorneys in the next office you can lean on, caseload limits, investigators, support staff and pooled resources (again, this is in a fully funded and staffed office); you just can't get these things in an appointed system.

Atticus: The Task Force on indigent defense has been doing exactly what you suggest: pilot program public defender offices in mostly rural areas, ranging from misdemeanors to mental health to capital murder to appeals. The big question, as many of these grants begin to end, is whether counties will continue to fund these offices without support from the state, or whether they'll close the doors in order to save money by reverting back to an appointment system and just lowering what they pay for appointments. Just because you get a higher quality of defense with a public defender doesn't mean that the county is going to continue funding the program, hence the need for a truly state-funded system so that in hard times, counties won't close the doors.

Anonymous said...

First thing, Texas is already looking toward a statewide PD office for capital cases. The West Texas Regional Public Defender for Capital Cases is on that track, little at a time. I don't know that they will ever hit all the big counties, but they are trying to cover the vast majority of the state with the protections the United States Consitution and the Texas Constitution require.

I don't know when being conservative or Republican became synonymous for being unable to think, but 3:00 is certainly there. Truth be told it is more fiscally responsible to look for ways to save by using defense services "in bulk" as opposed to the current system. The Founders had specific concepts in mind, ideas that this country has embraced for decades, and the fact is that it is just hard for the state to meet those burdens in a recession. Why is being more responsible by pooling our money a "liberal solution in need of a problem?"

I think people in Texas enjoy that we are tough on crime. I think most people would rather tax and spend $10/day on a prison that $5/day on a probation office. I don't think anyone is satisfied with innocent people being convicted. I don't believe Texans are proud of making mistakes or avoiding the right solution because of the cost.

Having pride in this state does not mean you have to be a total dumbass. Be proud of what we have, but be more proud by admitting a willingness to fix problems and do what's right.

Anonymous said...

Anonymous said...
All those people who have to be defended. Maybe they should slow down on the behavior that causes them to have to be defended. Is that too much to ask? Most of us are too busy defending them to ever think about what they are doing that causes us to have to rush out and defend them again and again. It's too easy for us to blame somebody else for their behavior.

9/07/2010 10:24:00 AM
NICE TRY but none of us who work in the court system, on either side of this issue, will believe that you do. Give up.

The Team said...

D.A. Confidential said, "I work plenty hard, as do my colleagues, and if I see any of them breaking the law I’ll let you know. And are we really convicting “so many innocent people”? Can you cite figures for that?"

Well D.A. we all know you are not going to snitch on anyone. But regarding your request for figures, try this on for size.
The 'King of Nolo Contendere' left us all some 'figures' to suck on in the comments section of a Post titled 'Plea-Bargaining 201'
over at Simple Justice.

"In my experience as a career prosecutor, there are three kinds of cases with many exceptions, that go to trial; the very serious, the very solid, and the very close. The other 95% are pled..." - Casey O'Brien Harris County ADA.

Did you get that, it was straight from the horses mouth? 95% pled from the 70's clean up to his departure in the 2000's. False arrests and subsequent wrongful convictions obtained via plea bargain abuse 95% of the time. Oh yea folks, the 'King' & D. A. Confidential both got permission slips to do so directly from the Supreme Court in the 70's and the taxpayers got/get the tab that included prison expansion. Thanks.

Q.- What percentage do you see pleading out? A. ?
Q.- What does plea bargaining abuse and the coming crisis have to do with each other? A.- Figures.

The Team said...

D.A. Confidential said, "… And are we really convicting “so many innocent people”? Can you cite figures for that?"

Try this on for size. The 'King of Nolo Contendere' left us all some figures to suck on in the comments section of a Post titled 'Plea-Bargaining 201' over at Simple Justice.

"In my experience as a career prosecutor, there are three kinds of cases with many exceptions, that go to trial; the very serious, the very solid, and the very close. The other 95% are pled..." - Casey O'Brien Harris County ADA.

Did you get that? 95% pled from the 70's clean up to his departure in the 2000's. These weak cases were not serious enough to present to a jury but are considered wins despite the convictions being obtained via plea bargain abuse due to defendants not being told that Texas looks at it and treats it as pleading Guilty.

We can thank the Supreme Court for handing out permission slips in the 70’s basically giving a green light to the courts to run the economy/country into the ground. AKA: ‘the coming crisis.’ Saying that if we don't plea out the weak, the system will stall out. Thanks.

Anonymous said...

It was no big deal for "The Team" but it was a night of terror for the one they victimized.

Anonymous said...

I disagree with the suggestion that a high percentage of defendants take pleas they would otherwise decline if they knew nolo was looked at as a plea of guilty. I see defendants plea daily in cases and the courts and their attorneys tell them that it is the same as a plea of guilty for most circumstances.

The argument cuts both ways. I see people plea guilty or no contest in marginal cases to take the benefit of a good offer, to get the case behind them, and to keep the decision out of the hands of Texas jurors. Some of these cases people are not guilty of the offenses, but they want to be out of jail and move on with their lives and many don't trust jurors.

The suggestion that only guilty people plea in cases is crap. It just doesn't hold true. But, would you take away their rights to get along with their life and prevent a worse miscarriage of justice as they languish in jail awaiting a group of 12 people that cannot follow the law to screw them over?

Anonymous said...

When you interview the youth who are admitted to TYC you see that they are not innocent.

Hook Em Horns said...

Anonymous said...
The suggestion that only guilty people plea in cases is crap. It just doesn't hold true.
There are certain cases you don't take to trial in front of a Harris County jury if you get a decent offer. Guilt or innocence rarely enters into the decision, it is based more on the strength of the State's case (that is an entirely different subject, by the way) and whether the risk is worth the potential outcome.

In courts where unsigned search warrants re-appear weeks later magically signed, questions over due process and probable cause linger in front of a judge that shows NO INTEREST in ruling on them, you have to ask yourself, is it worth it?

I will submit that many, not all, court appointed lawyers in Harris County are reluctant to use the CCA for matters that would seem obvious to most of us for fear of pissing off the person they work for.

I also agree with the premise that most people who support the system as is have never worked in it or experienced it first hand or are, indeed, part of the problem.

Anonymous said...

The Associated Press

Suspected burglar found after fall through ceiling

A man fell through the ceiling of a Pico Rivera shop on Saturday, landing in the arms of sheriff's deputies who were searching for the suspected burglar of three businesses.

Another one for the Innocence Project.

Whitney said...

Anny on 9/11: you, sir, are a jack wagon.

Anonymous said...

If the US would stop sending so much money overseas then maybe there wouldn't be such a crisis in indigent defense.