Thursday, September 24, 2009

Harris County has big financial incentives to create new public defender

The Harris County Commissioner's Court next week (September 29) is scheduled to consider a proposal to create a public defender office, and in preparation the Texas Fair Defense Project yesterday issued a new "white paper" (pdf) detailing benefits the county could expect if it establishes one. (Ed note: After some confusion, it's been confirmed that this item has been placed on the agenda.) Out of the 17 most populous urban areas in the country, only Harris County has no public defender and relies solely on appointed counsel.

According to the report, Harris would likely see significant financial advantages by creating a public defender office. Once established, "these offices do not significantly raise indigent defense spending and in fact generate savings in other areas of the criminal justice system," particularly reducing jail expenses, which are a major concern for Harris.

Public defenders typically are cheaper per-case than appointed counsel, says the report, but jail costs arguably may be the most important area a PD office would produce savings. "For example, the Hidalgo County Public Defender Office reduced the average number of days between arrest and disposition of an imprisoned misdemeanor defendant's case from 15 to 11 days." In Kaufman County, officials attribute reducing the county's average jail population from 306 to 246 inmates their new public defender.

Using an appellate public defender similarly can result in jail cost savings by reducing the amount of time defendants spend in jail post-conviction:
Bexar County‟s Appellate Defender Office has been successful in shrinking the number of post-conviction days individuals spend in county jail by expediting court proceedings and implementing filing deadlines that often are in advance of the 30-day time period allowed under the Rules of Appellate Procedure. These innovations have decreased the average time inmates spend in Bexar County custody after conviction from six months to 55 days. As a result, inmates are transferred to the Texas Department of Criminal Justice (TDCJ) more quickly ... and the County yielded a $531,000, savings in incarceration costs between October 2007 and August 2008 alone.
Because Harris County currently sends inmates to other counties and to a private prison in Louisiana, TFDP estimates that for every reduction of ten prisoners in the jail, the county saves $10,800 per month in money paid to other jail systems.

PDs also offer greater financial predictability on indigent defense and reduce administrative costs, says TFDP, because they "dramatically reduce the number of decisions judges have to make about attorney appointments, training and experience qualifications, caseload management and fee vouchers," which translates into savings in the time and money spent by court officials performing these functions.

In addition to the financial benefits, the paper argues that creating a public defender office would improve oversight of appointed attorneys and give decisionmakers more information about their activities.

Currently some appointed attorneys maintain caseloads that are far greater than the maximum recommended by the National Legal Aid and Defender Association. TFDP cited one attorney (who was paid $1.9 million over an eight year stretch) who carried as many as 12 capital cases in a single year as well as an above-guidelines caseload of non-capital felony clients. The Houston Chronicle reported in May that about a third of attorneys who take felony appointments in Harris have more appointed clients than recommended by these guidelines.

Further, appointed attorneys may be less likely to visit their clients in jail before going to court. Citing courtroom observations by a staffer in 2008, TFDP says that "attorneys frequently fail to meet with their clients promptly and in advance of formal court proceedings" and that "many lawyers clearly had never met their clients before the clients' first court date." (They knew this because "lawyers would call out client names, ask clients to identify themselves, and then introduce themselves to the clients," according to a footnote.)

PD offices also boost defense access to investigators. Texas public defenders from 2003-2005 spent between $38 and $49 per case on investigators in felony cases, according to a study out of Texas A&M, while cases with appointed lawyers saw $17-$18 spent on investigators per case.

PD offices increase professionalism, TFPD argues, by offering entry level positions and opportunities for advancement that enable them to recruit and develop young talent just like prosecutors, as well as offering better training and intangible but important benefits from greater institutional memory. They also allow specialization in areas where clients have "special needs" - particularly in cases involving mentally ill defendants (who represent about a quarter of defendants in the county jail, to judge by how many are taking psychotropic medication).

TFDP could have suggested another strong argument for creating a public defender office that was made Tuesday by Stephen Bright of the Southern Center for Human Rights in testimony (pdf) before Congress: Preventing the conviction of innocent people. Specifically citing Harris County's example, Bright said that sloppy representation by appointed counsel who take on too many cases increases the chance that innocent people will be convicted who receive inadequate representation.

Hopefully the Harris Commissioners Court will heed the arguments in this white paper and move forward next week toward creating a new defender office. So far there's been no media coveage of the TFDP report, so I hope commissioners will take the time to educate themselves on the subject. Given their chronic jail overcrowding problems, it might be a chance for Harris County to kill more than one bird with a single stone.

RELATED: See this letter (pdf) to the Harris County Commissioner's Court from the Texas Criminal Justice Coalition and an array of religious and community groups supporting the creation of a public defender office.


BorkBorkBork said...

The sooner you let some people out of jail the sooner start committing more (substance-abuse related) crime.

So there is a corresponding increase in money required for police and also there is an uncounted societal cost for those crimes. Many criminals commit multiple crimes for each one they are actually caught, driving the cost even higher.

Gritsforbreakfast said...

That's not really a valid economic comparison, BBB - police costs are constant, set annually in the budget, while jail costs get tangibly bigger every day Harris pays for inmates housed in other counties.

Unless you're willing to just pay higher taxes ad infinitum (and for all I know, maybe you are), you can't lock them all up forever. This isn't prison - most people in county jail are there awaiting trial and are actually eligible for bail.

BorkBorkBork said...

Most people in jail are legally eligible for bail and bail is actually set for most of them, albeit in an amount that they can't actually afford. The amount of bail is a policy issue not so much a legal issue.

Defense attorneys can attempt to get a PR bond or challenge the amount of bail but the county doesn't compensate court appointed attorneys for doing it so they don't. Maybe you can get a petition drive together to fix this?

Just because a person in jail is legally eligible for bail doesn't mean they won't start committing more crime as soon as they are released. Also police overtime pay busts the annual budget so if we don't consider the extra policing needed to handle the earlier releases we get to make up the difference with overtime pay instead of normal pay. Yippie!

Gritsforbreakfast said...

BBB, they budget the overtime every year, it's not something extra like the out-of-county jail costs.

As for personal bonds, it seems like you may be a new reader so you may not know that's a long-time bailiwick on this blog - see this post and the links at the end.

Anonymous said...


The Harris County Commissioner's Court could potentially consider a proposal to create a public defender office.


BorkBorkBork said...

The only reason the court appointed attorneys don't get them a bond reduction or personal bond is that the county doesn't really compensate them. If the county paid say $300 for the effort the jail backlogs would already be draining. This is something they could start doing TOMORROW without hiring any employee, creating any offices, or whatever. If your calculations are correct about the cost of jail this would pay for itself immediately.

Or at least it would SEEM to pay for itself immediately.

Somewhere around 97% of the people currently in jail will plead guilty. A high percentage of those take a deal for "time served" so the plea bargain is basically "if you plead guilty you get out today, otherwise you wait in jail for the next court date." Needless to say this creates a very coercive situation, especially when there is a family depending on the income normally earned by the jailed individual.

Sometimes the evidence against these people is weak and sometimes the police just made a mistake. When you remove the coercion of jail some of these folks will fight the charges because they no longer have an incentive to plead guilty. So now consider that if the number of people who plead guilty drops by 1% the number of cases scheduled for trial increases by 33% and suddenly all those jail savings evaporate. If the pleas drop by 3% you've just doubled the number of trials. Double the trials means double the appeals, and ultimately double the judges and courts.

Anonymous said...

This will never happen.
Public Defenders don't make big donations to judges re-election campaigns.

BorkBorkBork said...

There is some "cost" when things like this happen"
Man charged with indecency with a child while out on bail for the same crime

... but how do you calculate the damage that it does to the victims?

Gritsforbreakfast said...

See BBB, I think that example is a complete red herring. The fellow in that case MADE BAIL. That has nothing to do with a public defender helping process cases more efficiently through the system. It's just inapplicable to the current debate.

Also, are you really arguing for keeping people in jail pretrial when police "made a mistake" and accused the wrong person in hopes that they'll plead guilty and avoid the cost of a trial? That's how I read your comment at 4:13, but please correct me if I misinterpreted.

Anonymous said...

If you want to talk about the societal costs of crime, then you should be advocating going after white collar crime like we do drug crime. I would argue that white collar crime is much more costly to society than drug crime. White collar crime paid a large role in the current housing crisis. Many people were enabled to borrow more than they should have been and housing prices were often inflated through fraud. Yet, no one is investigating. Our current treasury secretary is guilty of tax evasion. How much tax revenue has been lost due to middle and upper class people cheating on their taxes. How about we start tax cheat task force within local law enforcement the way we had drug task forces? (by the way, before somebody tries to debate that poing its sarcasm, I'm not advocating that). If we were to choose to aggressively investigate and prosecute certain crimes we could fill the jails up with a whole different class of people. You aren't worried about the cost to society, you just have a need to look down on other people so you can feel superior and people involved in the criminal justice system are easy targets.

Another point that could be made is that the war on drugs has cost our society much more than it has benefitted. The cost has been both economic and in our civil liberties.

Anonymous said...

Establishing a county public defender system makes sense from a variety of perspectives - cost, substantive justice, due process protections, and basic social fairness.

It also makes sense to establish a statewide public defender system in Texas. As it is the "injustice" that Texas is so famous for is largely the product of its failure to provide meaningful legal representation to those who cannot afford a private attorney.

Instead, many cases are processed with the superficial appearance of due process protections without substantive due process. Perhaps we should revisit history and review the Scotsborough Boys case and the later case -- Gideon vs. Wainwright.

BorkBorkBork said...

Holding people in jail pre-trial creates "time served" pleas even when the evidence is weak enough to be successfully challenged at trial. More accused people will fight the charges when freed from the coercion of jail. Even if they ultimately plead, it will require more court appearances and more negotiation to hammer out an agreement when the accused is not under the extreme duress of incarceration and is able to make calm, rational decisions. If we allow this to happen we have merely shifted the costs from the jail to the courts so the savings are not what they seem.

By the way, I think the current system stinks. I personally believe that every county should have a public defender's office with a budget required by law to be equal or greater than the budget of the District or County Attorney.

Thomas Hobbes said...

Just a couple of quick points . . .

Grits - The item is contained in the mid-year budget review document on the County's web site.

BBB - It would be a pretty sad state indeed if appointed attorneys won't seek personal bond release simply because they aren't paid for it. It also may suggest why lawyers aren't necessarily the best administrators. A defendant at liberty can assist in his/her defense and doesn't have to be visited on a fairly inflexible schedule that eats up billable time and parking fees - both of which leave money in the lawyer's pocket and time on his/her calendar.

Anonymous said...

Well, some public defenders don't seek bail either. The Bexar County PD doesn't:

Not that that is right, but what do you expect when you have a former prosecutor in charge?

Anonymous said...

Judges don't like being reversed.

Solution: appoint a former prosecutor as Appellate Public Defender. Advise her that "post conviction jail time" is a priority. Briefs should be filed well before the thirty days permitted. Don't waste resources with bail issues.

I'll lay odds that the reversal rate was substantially higher before the creation of the office.

The APD will claim it's due to more bad CCA precedent, not lack of effort or skill in her office.

Curious said...

I read the white paper - and I have one question - who wrote it?

I don't mean the agency - I mean who are the individuals who wrote it.

Gritsforbreakfast said...

I believe the author is Amanda Marzullo.

Curious said...

I don't trust an agency that isn't willing to be public with their information. It doesn't look legitimate. If you look at the research published by the National Institute of Justice - for instance - you're going to see the names of the researchers/writers.

I think it is a HUGE red flag that this paper is presented almost anonymously.

I never heard of Amanda Marzullo and I've in this area for many years.

Much of the information in this "white paper" is vague and not based on emperical research.

One of my complaints over the years in working in the CJ system is that we make policy based on anecdotal information.

This doesn't look any different to me. It isn't that I am opposed to a PD Office - I would just rather make the decision using valid research.

Gritsforbreakfast said...

The author was named in the accompanying press release, fwiw. I wouldn't read a lot into that.