Indigent defense costs growing rapidly, remain insufficient

Yesterday, Grits spent some time listening online to the portion of the March 21st Texas House Criminal Jurisprudence Committee meeting devoted to indigent defense topics. Here are a few highlights.

Texas Indigent Defense Commission executive director Jim Bethke was the main witness and had several observations worth relating. Overall, about 55% of criminal defendants receive appointed counsel, Bethke said. The statewide felony appointment rate is just more than 70 percent; the misdemeanor rate is 44 percent.

Counties indigent defense costs have risen dramatically since the passage of the Fair Defense Act in 2001. Over most of the next decade, filings increased even though crime declined. But even in recent years, when filings have finally begun to go down, appointment rates for indigence continue to rise. There are several reasons for that, he opined:

1. State oversight and greater transparency and accountability since creation of the Fair Defense Act and the Indigent Defense Commission.

2/3: Two major lawsuits: Rothgery v. Gillespie, 2008, defined when right to counsel is triggered. After that ruling, counties couldn't wait until indictment was issued to appoint a lawyer (ed. note: though implementation was mixed and spotty). Also influential was a class action suit against Williamson County regarding people charged with misdemeanor cases not getting counsel assigned. In that suit, the Texas Supreme Court ruled in favor of the Fair Defense Project which eventually secured a favorable settlement. As a result, Williamson's misdemeanor appointment rate rose from 8 percent to around 46 percent last year.

4. New legislation clarifying that prosecutors cannot solicit waivers of counsel from defendants in order to interrogate them.

(One might also add the fact of the 2008 Great Recession, the prevalence of low-wage jobs, the collapse of oilfield employment, and the large number of people facing collateral consequences from prior offenses as contributing factors to defendants' rising need for appointed counsel.)

Bethke said that misdemeanor appointment rates are lower in part because it's cheaper to hire a lawyer for low-level cases. But he also granted that for many years there has been a culture in Texas of not appointing counsel in misdemeanor cases, even though it has been required since 1972. Appointment rates for misdemeanors range by county from a low of about 25 percent to between 60 and 70 percent on the high end, he said.

The passage of HB 1318 gave Texas new data, Bethke pointed out. (See prior Grits coverage.)  The Texas attorney with the most appointed cases reportedly disposed of 1,353 cases last year. That would mean that lawyer pled out 4-5 cases every single day the courthouse is open.

The highest paid court appointed lawyer in the state last year made a total of $497,000 from fees paid for representing indigent defendants. That's an exception, though. The median paid to attorneys receiving cases was just over $16,000, Bethke told the committee. On average, attorneys who take appointments spend 57 percent of their practice on those clients..

Chairman Herrero said he found the growth curve on indigent defense costs "alarming." What's even more alarming is that Texas' indigent defense spending remains markedly low. Texas spent $238 million total on indigent defense in FY 2015 and $209 million of that came from the counties. Texas was 48th or 49th per capita on indigent defense spending when the Fair Defense Act was passed in 2001; we've moved up a couple of slots since then to 45th or 46th. But, per capita, we're #10 out of the ten largest states.

Bethke said about half of states fully fund indigent defense in the state budget; two-thirds of states fund at least half or more of indigent defense costs. Texas is the largest state for whom indigent defense is primarily a county responsibility. Under the governing federal case law, indigent defense is not a "state" nor a "county" responsibility but a "government responsibility," he declared.

Chairman Herrero suggested that the charges brought are "state v. defendant" so it should be state who pays for indigent defense. Grits prefers counties have some skin in the game. They already get to offload costs of high sentences onto the state through incarceration costs. I don't necessarily agree that counties should get to prosecute folks for free.

I do agree attorneys must be adequately compensated. Bethke gave these figures for average appointed attorney fees per case (2015): $651 for a felony; $208 for misdemeanor; juvenile $394. (This is a pittance: One recalls that when Rick Perry faced criminal charges, he spent more than $2 million on his defense team.)

Texas A&M's Public Policy Research Institute received a $400K to create a "smart indigent defense web portal," Bethke noted.

Rep. Joe Moody suggested that, in addition to payment, the state should be more transparent about defense lawyers with sustained findings of ineffective assistance of counsel! There's an interesting thought. (Meanwhile, Judge Alcala wants to grow the list!)

Rep. Terry Canales suggested that, because of increased border enforcement by DPS and other agencies, more crimes are being prosecuted in the border region and so local indigent defense costs are going up.

Bethke noted that Hidalgo County recently had TIDC grant funds taken away because of a juvenile court judge. All appointments go to two attorneys and none go to the juvenile public defender office Sen. Hinojosa passed legislation on the topic giving public defenders preference. But TIDC won't renew their indigent defense grant until that judge changes his practices.

Jim Allison, General Counsel, County Judges and Commissioners Association, fears we're headed for a "constitutional breakdown" because of counties differing capacities for providing indigent defense. One reason for rising appointment rates, he said, is that in the past counties had been neglecting to make appointments they should have been making and now are doing a better job.

Allison contends that reliance on county funding creates an inherent inequity. County funding comes from property taxes. State funding, by contrast, comes mostly from special fees on bail bondsmen and lawyers. (Ed. note: Last session, the Lege did for the first time put in a small amount from General Revenue.) Allison contended the constitutionality question is parallel to school funding issue: The need for funding does not correlate to the tax base.

Becky Bernhardt of the Texas Fair Defense Project talked about how effective counsel can be measured. Two not-very-sufficient measures used most commonly, she said, were speed and money. If a system runs fast, people probably aren't getting effective representation; too slow and people sit in jail. The fluidity of the process makes the "sweet spot" hard to judge.

Too little money is often used as an indicator but it's also not perfect. TX went from 49th to 47th in spending since the passage of the Fair Defense Act, she said, but even spending much more money on the current system would not ensure good outcomes.

She recommended the committee focus on the American Bar Association's 10 principles for a quality indigent defense system, honing in on these particular element where Texas faces challenges:

• Independence
• Caseload management
• Appointing lawyers early in the case, timeliness
• Adequate funding
• Parity: Defense lawyers need investigators and experts
• Training and supervision

She also referred the committee to the Texas State Bar's Performance Guidelines for attorneys in non-capital cases to help answer the question of how to judge appointed attorneys' work. Among the outcomes for effective representation, policy makers should look at dismissals, acquittals, the length of sentences defendants are getting, whether they're getting access to diversion, and then compare those outcomes to retained cases.

The Texas Public Policy Foundation's Marc Levin told the committee their priority should be to reduce the number of jailable crimes in Texas. He suggested shifting penalties for low-level marijuana possession from a Class B to a Class C would reduce indigent defense costs. (He also endorsed expanded use of cite-and-summons law.)

Levin said that Texas Supreme Court Chief Justice Nathan Hecht had appointed him to a committee to evaluate Texas' criminal statutes to identify offenses that should be reduced. Upon hearing this, remarkably, Rep. Leach requested from Levin a list of 100 offenses the Legislature should reclassify! Now there's a Tea Party conservative unafraid to embrace a decarceration agenda to save counties money!

MORE: While we're on this topic, I should mention that the Indigent Defense Commission's dataset on county-level indigent defense has grown into a truly awesome resource, right down to providing attorney-level data searchable across counties. If it weren't for all this amazing documentation they've generated (and the legislature's agreement and authorization, it should be added), we'd never know that lawyers disposed of up to 1,353 indigent criminal cases in a single year or pocketed nearly half a million dollars for representing poor people. Texas may not be willing to adequately fund indigent defense, but we're documenting the hell out of the underwhelming job we're doing.

AND MORE: See coverage of the hearing from the Texas Association of Counties.