Thursday, July 10, 2008

Requirement to appoint indigent defendants a lawyer not an "unfunded mandate"

IMO it's a mistake for prosecutors and Texas counties to label additional indigent defense costs stemming from the Supreme Court's Rothgery decision an "unfunded mandate," which is what Shannon Edmonds from the prosecutors association said in a column by Fort Worth Star Telegram editorial writer Linda Campbell.

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.

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.

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.

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:


Anonymous said...

That's how poorly educated our DA's are. If the law calls for a defendant to be represented, they write into the local paper saying how unfair it is. God forbid a DA have to have an opponent, instead of being able to pound on some poor pro se schmuck.

Anonymous said...

Hmmmmm, who do I believe here? A man with an actual college and law degree who works in the field and reviews legislative action for a living or a knee jerk liberal college dropout?

I guess I'll go with Shannon.

Anonymous said...

Okay 6:54 that was really petty. I respect Shannon, but think "unfunded mandate" is not the appropriate designation in this particular situation, and that is all Scott was saying. In county government we do what we can to work with what we have. When SB 7 became law we all jumped through alot of hoops to change a system that had been in place for decades, and for the most part most counties did a good job meeting the "intent" of the law if not the "letter" of the law. Now SCOTUS has further explained the counties duty and I am sure most (as they did with SB7) will try to do as they should. I certianly don't see believing that every defendant, no matter what their economic hardship might be, deserving a lawyer ... as "knee jerk liberalism" college degrees not withstanding. I also have never considered a law degree proof of superior knowledge.

Gritsforbreakfast said...

It's not a question of WHO you believe, 6:54. Don't you have your own opinions, or do you simply follow others? One of the problems with too much education is it discourages people from thinking for themselves.

William F. Buckley famously pronounced that he'd rather be governed by the first thousand names in the Boston phone book than the faculty of Harvard. Or as (also late) comedian Jerry Clower put it, there are many people in the world who have been educated beyond their intelligence. Indeed, law schools are full of them.

This post wasn't intended to dis Shannon, merely to disagree with him. I've known Shannon for quite a few years and respect him. We often disagree, sometimes find common ground, and IMO mostly manage to do so in a civil fashion. In this case, I think his inappropriate use of the term actually harms counties' efforts when they show up to complain about ACTUAL unfunded mandates that really are optional instead of constitutional requirements. Saying so shouldn't insult anybody or get their dander up.