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.