Wednesday, November 14, 2012

Hear legislative preview on indigent defense

The Texas Indigent Defense Commission yesterday held a two-hour legislative preview (see the agenda). You can listen to an audio file of the event and see a power point presentation from commission director Jim Bethke's presentation.

MORE: Find below the jump Grits' notes from listening online to the legislative briefing. Regrettably, the audio file cuts off just before the Texas Association of County's Jim Allison got to speak.
Indigent Defense Commission executive director Jim Bethke opened by pointing out that the "right to counsel is not discretionary, it's mandatory." March 18, 2013 is the 50th anniversary of Gideon v. Wainwright, and the commission is sponsoring a symposium commemorating the event, "Highlighting and taking stock of what Texas has accomplished and what Texas has still to do."

About half of states fully fund indigent defense, said Bethke. About 2/3 of states provide 50% or more of funding. Prior to passage of the Fair Defense Act,  Texas was one of six states that provided none whatsoever, leaving it up to counties.

The Texas Indigent Defense Commission is 100% funded through dedicated court fees, with their budget capped in 2013 at $31 million, said Bethke. However, the dedicated account brings in $34 to $35 million per year from court fees. The board has asked for all money dedicated in that account to be used for indigent defense and to be given authority to spend the "unexpended balance" (UB). Right now, there is $7.2 million from defendant court fees sitting in a TIDC account that is being used to certify the state budget but cannot be spent without legislative permission. Getting this authority would mean an extra $14-$18 million for indigent defense next biennium, he estimated.

In by far their biggest ask, TIDC wants state to share indigent defense costs more equally with counties. Right now, the state covers $.15-$.17 per indigent defense dollar statewide, and the commission has proposed in its Legislative Appropriations Request that the state increase that to cover about 50%. Essentially TIDC is suggesting that the state pick up the tab for all the additional indigent defense costs stemming from the implementation of the Fair Defense Act just more than a decade ago, about $70 million per year more than the state is putting in now. [Note: A knowledgeable reader emails to add that the increase stemmed in part from population growth and inflation, so one can't attribute all the increase on the Fair Defense Act.] That's an impressively large request for an organization led by Judge Sharon Keller (who chairs the commission, introduced Bethke and endorsed his suggestions).

The Texas Criminal Justice Coalition's Dr. Ana Correa echoed my own views when she declared regarding the $70 million, "If you don't ask it will not be given to you," wishing them luck and pledging her support. Half of people in county jails have not been proven guilty and need representation, she said (actually it may be a tad higher). Shortcomings in indigent defense can lengthen jail stays and boost county incarceration costs, which statewide average about $63 per day, per defendant.

The money presently coming from the state is really coming from court fees and it's a "disgrace" the extent to which the state relies on them, said Correa.

The Texas Public Policy Foundation's Vikrant Reddy discussed some of the ideas highlighted in this Grits post about his excellent briefing paper on indigent defense - particularly reducing penalties for certain offenses to fine-only levels so that counties wouldn't have to hire attorneys, an obligation which begins with Class B misdemeanor offenses. He advocated identifying Class B or even Class A offenses that could be reduced to Class C without harming public safety. He also suggested adjusting offense thresholds for theft for inflation, an idea familiar to Grits readers.

Reddy commented briefly on philosophy, messaging, and communication surrounding indigent defense to  GOP newbies entering the Legislature. It's not true, he said, that conservatives don't care about indigent defense. He quoted the CATO Institute declaring that indigent defense is arguably among the most defensible areas of public spending as part of the basic set of services surrounding criminal justice. Everyone cares about it, he said, and the only question is how best to deliver it. I won't iterate all he said, much of which is replicated in his paper, but read it for more detail.

Reddy praised Tarrant County's open file system and suggested that there are benefits to the indigent defense system from establishing one, reducing processing time. And he suggested a "voucher" scheme that has been tried in other nations, suggesting it's "not completely outlandish" that such a model might be adopted somewhere in the United States, perhaps somewhere in Texas. Jim Bethke added that the commission is working with the CATO Institute to establish a pilot "voucher" program.

Texas Fair Defense Project Executive Director Andrea Marsh spoke on how local advocates can have influence and the role of her own organization. Most ideas her group has brought forward come from local battles, she said, creating a "feedback loop" between local issues and state policy advocacy.

The Fair Defense Project receives about 350 intake complaints per year, she said, with perhaps 150 of them related to people who feel they should be entitled to appointed counsel but were denied.  She described myriad administrative failures that result in denial of counsel, often simply as a result of lack of communication. Sometimes court staff improperly refuse to give defendants paperwork to apply for indigent representation when they're out on bond. And she cited examples of people denied counsel for various improper reasons, including courts looking to non-spousal family members for payment. Or, sometimes courts will base their assessment on what the defendant's "future income," or what they think the defendant "should be" making instead of analyzing their actual income and telling the defendant, "You should be working more, you should be making more, you shouldn't be a student you should start working," etc.,"instead of looking at their actual current income."

Marsh went on to describe her organization's intake and litigation processes and a couple of their more high profile cases, but emphasized that in most instances her group is not looking to sue when they call counties about a problem.

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