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.
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I hesitate to bring this up, but I feel it's something out there that few people seem to be willing to admit. A lot of players in the criminal justice system like the fact that defendants can't bond out of jail. Why? Because it gets them to plead guilty instead of demanding a jury trial. In serious felony cases where the defendant is looking at prison time, the incentives aren't as clear, but in misdemeanor cases, there is overwhelming pressure to plead guilty just to get out of jail. And if even 20% of those misdemeanor defendants demanded a jury trial, you would see caseload backlogs like you wouldn't believe. Think about it. If you are too poor to post a $500 or $1000 bond (which generally means you, friends, and family can't come up with $50-150 for a bondsman or the full amount in cash), and you are told that you can plead guilty and get out today or tomorrow, or you can demand a jury trial and wait anywhere from 2-5 weeks for a trial, which are you going to choose? Assuming you are guilty and more likely than not to lose at trial, you almost certainly will choose to plead guilty and get out today. That may not be a bad thing, many will say, since you are guilty. Fine. But what about the innocent or those who have at least a 50/50 chance of acquittal at trial? If you are on bond, and can keep working, and paying your rent, and spending time with your family, while you wait for a trial, you are much more likely to demand a trial than if you are in jail, face the real possibility of losing your job, your housing, of having your social security check cut off, etc. And the fact is that courts depend on a huge percentage of defendants pleading guilty in order to function. There is no way they could continue with the number of courts and prosecutors they have now if even 20% more of those defendants chose to demand a jury trial. So, you've got at least two participants in the system (judges and prosecutors) who have at least some incentive in keeping pre-trial misdemeanor defendants in jail (the judges incentive is a bit more complicated than the prosecutors in that some counties charge back against individual judges' budgets for defendants sitting in jail on charges out of their courts), and some would argue that appointed counsel, who already face perverse incentives in getting clients to plead (you often get paid way more per hour of work for a plea than for a trial), also like the fact that a jailed client is not only more likely to plead, but more likely to plead the first day you meet them.
Sister, you're bringing me down. :-(
I fear you're exactly right, though, certainly on the DAs incentive (I'd like to learn more about the chargeback issue with the judges' budgets).
Good to hear from you. Hope the new year finds you well.
A system which requires that defendants who can post a bond not be eligible for counsel has got to be oppressive and unconstitutional. I have run into that issue and it is very troubling to have to try to hire a lawyer and post bond with small amounts of cash. The system simply is not working in Texas. For most people life is over when they hit the county jail and can't bond out if they are accused and facting significant jail time (cases with mandatory minimum sentences for instance). So is the case, because no work, no pay, no lawyer. But most people don't make enough to hire a lawyer to do them any good even if they are out. So they stay in and get indigent counsel and get screwed just as badly. If lawyers and bonds were priced reasonably, and you could stay out on bond and hire a reasonably priced lawyer a lot of guys would have a fighting chance. As it stands now, they don't because they can't both post the bond and hire a lawyer.
What I meant is that they can't post bond and hire a lawyer (too expensive), and can't both post bond and get an appointed lawyer because the judges won't let them.
And, 123(nicepiccutiepieareyoufor real)txpd is pretty much right on target. (okay, I am a male chauvinist pig but I do appreciate beauty)
"I like the idea of a system that uses economic incentives to compel its actors to comply. "
You mean like routinely paying an attorney substantially more for a guilty plea than for a dismissal?
"You mean like routinely paying an attorney substantially more for a guilty plea than for a dismissal?"
Uh, no, just the opposite - I prefer economic incentives that compel folks to comply with the interests of justice instead of thwarting them. If dismissals were paid more than pleas, for example, that would be an example of an economic incentive that protected defendants' rights.
And, 123(nicepiccutiepieareyoufor real)txpd is pretty much right on target. (okay, I am a male chauvinist pig but I do appreciate beauty)
Ha! I wish. That pic is my alter-ego, Veronica Mars. She is both prettier and smarter than me.
Sorry Scott, my sarcasm was misdirected, I know I preach to the choir.
Wonder why judiciary in Harris County have never been taken to task for violating law about posting bail and the appointment of indigent defense counsel? It is common practice at the Harris County Criminal Courthouse for defendants that have secured their release on bail - cash bail, surety bond, personal bond, or property bond - that do not have "hired" defense counsel to routinely have their bail revoked. Judges and their court staff are often overheard advising defendants and their families and friends that if you posted bail you can "hire" an attorney. If a defendant on bail advises the court that he can not hire legal counsel then the defendant is often advised he will be jailed for failing to hire legal counsel. Appointed counsel is regularly only available for those defendants detained, especially those charged with misdemeanor offenses. I certainly wish someone would just make the rounds at this courthouse and report on what is actually occurring and its legality.
If a guilty guy can scrounge up $150 to get out of jail, then he should use it to pay the lawyer $150 to plead him guilty so he can get his probation and get out of jail.
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