Saturday, March 24, 2012

DA race highlights Travis diversion program populated mainly by better-off defendants

Grits is thankful for Travis County's contested DA primary if only because it means we get some actual journalism on otherwise obscure courthouse subjects when the challenger attacks the  incumbent, and vice versa. In that vein, Steven Kreytak at the Austin Statesman has a story today titled, "Blacks, poor underrepresented in Travis County second chance program," March 24) which opens:
Defendants who are black or unable to hire their own lawyers have been underrepresented in a Travis County district attorney's office program that gives select felony defendants a rare chance to escape their charges without a criminal record, according to an Austin American-Statesman analysis.

Travis County District Attorney Rosemary Lehmberg said she is concerned about the imbalance and hopes to further diversify participation in her pretrial diversion program, which she started in 2010, with more education for defense lawyers about it.

Lehmberg said she hopes to encourage defense lawyers to be on the lookout for clients who would qualify and succeed, especially African Americans.

But defense lawyers interviewed said they know about the program, and some believe that it's Lehmberg's rule that disqualifies anyone with a prior criminal record that has led to the dearth of participation by black defendants and people represented by court-appointed lawyers.

They said many defendants who require court-appointed lawyers often have a disqualifying criminal record.
This is coming up because District Judge and Democratic DA challenger Charlie Baird has made it an issue in the race:
The program has been criticized by former District Judge Charlie Baird, Lehmberg's challenger in the May Democratic primary for the county's top felony prosecutor position.

Baird called the entry requirements discriminatory, saying he does not believe that prosecutors are rejecting applications because of the race or ethnicity of defendants. He said he would allow defendants convicted of some misdemeanor crimes to participate and would expand the list of crimes considered for the program, although he said he is still developing specifics on his proposed new criteria.

Baird said he wants more people to get the chance to avoid a felony conviction, which can forever affect a person's ability to secure things such as loans, jobs and housing.

"The collateral consequences of a felony conviction are just devastating to an individual who is truly repentant, remorseful and who otherwise would live a good, solid, happy life supporting themselves and their family," he said.

The American-Statesman analysis comes after a review of court files, data from Lehmberg's office and data from the Travis County court administration office.

The analysis found that although African Americans made up about 32 percent of those arrested in Travis County on new felony charges during 2010 and 2011, they account for 9 percent of the 131 defendants who have been accepted into the pretrial diversion program since its creation in 2010.

About 73 percent of felony defendants in Travis County during the previous two years were found to be poor and given a court-appointed lawyer. About 11 percent of defendants accepted into the pretrial diversion program were represented by court-appointed lawyers.

Lehmberg said she has already taken some steps aimed at ensuring the program is fairly administered.

Late last year she added two trial court prosecutors — Monica Flores, a Latina, and Craig Moore, an African American — to the panel that decides who gets into the program. That panel had previously had three veteran white male supervisors in her office.

"I do not agree with (Baird) that the answer to this is to throw open the doors to the program to anybody," Lehmberg said. "This program is intended to provide an opportunity to nonaddicted defendants with no record who made a mistake and want to accept responsibility and go on with their lives."
I don't believe the reason the program has few black folks in it is that there weren't enough minority prosecutors in decision making slots. Instead, there's something about the criteria set by the DA - perhaps especially surrounding prior convictions or indigence - that's playing into those distinct ratios, something probably more related to class than race. When just 11% of defendants in the program have appointed counsel compared to 73% overall, that tells you there are barriers to entry that for the most part only the well-heeled are overcoming. Maybe the answer isn't to "open the doors ... to anybody," but perhaps it's worth considering cracking the door a bit wider to avoid such disparate outcomes.


Anonymous said...

I thought the principal reason for pretrial diversion was to help people with a clean record avoid having a conviction on their record? If they already have a rap sheet, what the hell difference does one more conviction make?

So Charlie Baird is promoting "affirmative action" for the pretrial diversion program? That's kind of funny actually.

Atticus said...

A very thoughtful comment, Grits. Baird must be on to something here if she's already making changes. Sounds like more changes may be needed.

Soronel Haetir said...

I can fully understand why a prosecutor would not offer such a program to those who already have convictions, even misdemeanors. But what possible legitimate reason is there for using whether the person is indigent as any sort of factor?

Anonymous said...

What are the fees associated with this that the problem? Or, could it be the reporting requirements of the program that make it difficult for indigent?

Anonymous said...

Getting somebody into the program requires extra effort. There's an application and approval process. You have to work your way up the chain of command. Often, it's only a last ditch offer of settlement to avoid a trial. The fist six or seven appearances, it's not even offered as a possibility. The appointed attorney isn't paid until the case closes.

A plea is simply quicker and easier. The appointed attorney is paid quickly. The case is closed quickly. The docket is efficiently moved. The judge is happy. More appointments are forthcoming. Everybody wins. (except the Defendant)

On those rare cases where diversion is prior to indictment, the attorney is only permitted to bill half of the regular appointed fee because the case is dismissed pre-indictment.

Gritsforbreakfast said...

If that's true, there's your explanation right there! Appointed attorneys won't work to get their clients into the program if it a) takes extra effort and b) results in them getting half the fee!

That would explain the result almost entirely with no racial implications, per se, at all. If that's right, it's not even a class issue so much as ill-considered economic incentives imbedded in appointed counsel fees.

Anonymous said...

"inability to pay" up front fees is actually a disqualifyer for pre trial diversion. Statute should require prosecutors to assess a sliding scale fee amount based on income.

Anonymous said...

"appointed attorneys won't work to get their clients into the program if it a) takes extra effort and b) results in them getting half the fee!

It's like that everywhere. Appointed counsel would prefer to not work as hard. Always, follow the money to understand why people make the decisions they do.

No matter what County, usually, pre-trial diversion cases are cases that are defendants with money to pay an attorney and are "weak" cases.

Prosecutors are quick to use Pre-Trial Diversion with cases they are afraid they can't win at Trial.

Brian Tillman said...

I think the point of Baird's comment was that a FELONY conviction has major consequences for defendant's lives, and a deferred adjudication doesn't remedy the problem. It severely limits a person's choices with regard to occupation and finding a place to live, even with a deferred. There is a problem with being poor in the system, and it's not just here. In Travis county, if you are arrested and poor, you go to jail call (about seven days after being arrested), with an appointed attorney. If you DO request a trial, you get to sit in jail and wait, OR you can just take time served and get out today, which is what most do. Of course, now you have a conviction, so you are banned from felony pretrial diversion now should you ever get arrested for a felony. People with resources get PR bonds, or they bond out, and almost NEVER plead out to minor cases like dwls or weed, because they can go take a class or do some community service to get rid of them. Maybe the criteria should be no felony diversion for people with Felony history.