State should pick up more local indigent defense costs, but not all of it

The Texas Judicial Council issued a resolution supporting 100% state funding for indigent defense, which at present is mostly paid for by counties. Along that same vector, the Texas Indigent Defense Commission's Legislative Appropriations Request asked the state to pay for half the total indigent-defense cost in the next budget, up from 12 percent in the last one, rising to cover the full cost in six years. Grits supports additional funding for indigent defense from the state, but I disagree with my friend Jim Bethke, executive director of the TIDC, that the state should take over all of it.

There are lots of reasons it's beneficial for counties to still have skin in the game. The state pays for 100% of prison costs, for example, so local prosecutors seek the longest possible sentences knowing the expense won't come from the county budget. Mass incarceration is driven by local decision making. And economics provides a practical check on government behavior which carries more weight than moral and ethical arguments can typically muster.

Besides, having the state pick up the tab for indigent defense isn't real tax relief. The overall burden would be the same on the taxpaying public, they're just shifting burdens from property taxes to sales taxes. That's a smoke and mirrors move. In the end, you can't reduce government costs without reducing the size of government. 

The best way to reduce county indigent defense costs is to reduce penalties on common, victimless crimes so the government won't have to hire a lawyer. Reduce low-level pot possession from a Class B to a Class C misdemeanor, for example, and that's 70,000+ fewer cases where, if the defendant turns out to be indigent, they're eligible for county-paid representation. You'd pick up thousands more by reducing all driving-with-suspended-license cases to a Class C. And reducing penalties for low-level possession of harder addictive drugs from a State Jail Felony to a Class A misdemeanor would also dramatically lessen indigent defense costs, as well as shifting some of the system's volume to presently under-utilized county courts.

You can't reduce the cost of government and simultaneously insist that it perform every function that it did when you spent more money. So it's better for the Lege to make thoughtful choices about which criminal offenses merit counties paying for indigent defense instead of reflexively picking up the tab for local decisions. That's how we got a $7 billion prison budget (after a $458 million bump in 2015).

So, Grits supports the state picking up more of the tab - a 50/50 split could seem reasonable to me - but for now I remain unconvinced about full state funding. Do that and locals would allow costs to rise unfettered, with no practical checks on local actors regarding accountability for their own decisions or resulting systemic costs.

All that said, the Lege enters the session facing a multi-billion dollar shortfall, so this discussion could become moot. There are a ton of competing priorities. And I support the levels of state funding TIDC is seeking in the next budget, even if Grits wouldn't go any farther. So, if asked, I agree with TIDC's appropriations request for the coming biennium. But after answering, Grits would add, sotto voce, "for now."