Monday, February 13, 2017

If crime is down, legislator asks, why are indigent defense costs rising?

A Republican state representative emailed to ask:
Do you think that indigent defense costs have exploded in Texas? 
I'm told crime is down. 
I'm told that probation numbers are down. 
But why is indigent defense $220 million?
On the assumption he's not the only person wondering about this, here's how Grits responded.
1. Crime is down, but per John Pfaff, prosecutors increased the number of convictions per arrest since 2001. See here and here
2. So the number of cases increased even as crime declined. 
3. With the increased number of cases came increased indigent defense costs.

4. Also, costs per case rose because of inflation as well as quality standards implemented in the 2001 law and by the Texas Indigent Defense Commission thereafter. This was necessary. Defense quality was and still is quite low. 
Those are the basics.
The key chart showing how prosecutors' decisions kept caseloads rising. even as crime fell after the turn of the century, comes from this Grits post:

Convictions, Arrests and Reported Index Crime 
as a Fraction of 2001 levels, through 2011

So, criminal court caseloads have become disconnected from crime rates in a way that's counter-intuitive but which is a big driver of indigent defense costs. Through the exercise of prosecutorial discretion, people are being charged and convicted in low-level cases which, when Grits was a young man, would have been dismissed. These are local decisions by local actors, even if DAs and judges like to blame state government for their woes. As Grits wrote recently, arguments about exploding indigent defense costs ignore the much greater unfunded mandates those local actors impose on the state. 

Grits is sympathetic with county officials who must cover the rising costs. But state regulations explain just part of the increase since 2001, and are likely less of a factor than the actions of local decision makers. Subsidizing those locals without holding them accountable for excessive volume underlying higher indigent defense costs won't eliminate the problem, it would just shift the burden to the state, which - new flash! - is funded by the same taxpayers as the locals.


Anonymous said...

Your chart is six years old. Do you have any more contemporary data? And one question: If a person is arrested on multiple charges filed by a law enforcement agency, how is that reported in the data? One arrest or several?

Except in the case of child sexual abuse cases where there might be some prosecutorial advantage to filing multiple charges (i.e., stacked sentences--which the Legislature has encouraged with amendments to the Penal Code)I just don't believe prosecutors are manufacturing new offenses out of whole cloth. As a general rule, most sentences for crimes arising out of the same political transaction are going to run concurrent. If anything, it would seem that creating additional charges beyond those filed by the investigating law enforcement agency would be politically disadvantageous by making crime appear to be far worse in a county than it really is. Moreover, there's certainly no financial incentive for prosecutors to file additional charges and increase costs of indigent defense. Since counties pay the lion's share of indigent defense costs as well as the DA's operating budget, any action that increases the burden on the county budget would only come back to haunt the DA or county attorney who competes for the same budget dollars. One final thought.. since judges typically approve the payments to appointed defense counsel, what responsibility do they bear? I would estimate that close to 90% of criminal cases are disposed of by plea agreement. If multiple cases arising out of the same transaction are being disposed of at the same time, it would seem that the judges could factor this into their fee award to the attorneys.

Anonymous said...

It would be interesting to see a fourth line on the chart reflecting any trends depicting the average number of days an offender sits in jail before a conviction is returned.

DLW said...

9:25:00 AM: "Moreover, there's certainly no financial incentive for prosecutors to file additional charges and increase costs of indigent defense."

Maybe or maybe not but in some locations there is certainly a POLITICAL advantage. A DA's office can show it is "tough on crime" while never being called on the carpet for its part in escalating costs.

Gritsforbreakfast said...

@9:25, arrest data are from DPS. Their definitions apply. Also, fyi, 2013 was the last time I compiled them, but these data always have a couple of years lag. Regardless, since the complaints about indigent defense always date to 2001, surely these years' experience are relevant.

Otherwise, it's an absurd red herring to say there are no "financial incentive for prosecutors to file additional charges." No one claimed that's what's going on, directly. The advantages of "tuff on crime" overreach are, as DLW said, political, not economic.

There is, however, an indirect money incentive which falls mainly on the electeds and managers at DA offices, not line prosecutors: When crime falls dramatically, DA offices must prosecute more cases per arrest or else lay off attorneys. In Texas they consistently chose the former, though the latter would have been more in keeping with "small government" philosophies.

Anonymous said...

Okay, apparently I'm missing something. Are the same political factors not applicable to law enforcement agencies with respect to falling crime rates? Are you aware of any sheriff's departments or police departments that have laid off officers due to falling crime rates?

Anonymous said...

There is a definite financial incentive for DA's office to file more cases. Previous DA in Wilco stopped filing multiple counts in one cause number, and chose to file separate cases arising out of the same transaction so as to make it appear as if there are more cases to be prosecuted. This justifies a DA to go to commissioner's court and ask for more money.

In addition, in counties with bifurcated prosecution offices (CA files misdemeanors, DA files felonies), all cases get filed. Get caught with 50 g. of meth, but you also had a gram of marijuana? One felony cause number, one misdemeanor cause number.

Gritsforbreakfast said...

Arrests continued to outpace crime, 10:30, just not by as much as prosecutions did. Bottom line: Pfaff's point from the national data holds for Texas and explains a large portion of increased indigent defense costs.

Anonymous said...

Grits, the DPS arrest data has no relation to indictments, informations or convictions. Regardless of the number of crimes being committed in a single transaction, only the most serious charge is going to be recorded for UCR purposes.

From the DPS Crime in Texas Report:

Hierarchy Rule – When several offenses are committed simultaneously by one person or group of persons the hierarchy rule in UCR mandates that only the most serious offense is recorded for statistical purposes. Arson is an exception to this rule.

It is not at all uncommon for multiple charges to be associated with a single arrest. For example, burglary suspects might very well have been responsible for multiple burglaries by the time they are charged and arrested. For drug offenses, it's not uncommon for multiple drugs to be recovered from the suspect with possession of each substance constituting a separate offense. Same thing if the perpetrator was in possession of a firearm or stolen property.

The only relevant statistic to determine whether prosecutors are padding charges would be the number of cases ACTUALLY FILED by law enforcement with prosecutors' offices. I'm not sure where, or if, that data is recorded. Nevertheless, until you know for sure how many cases prosecutors' office are receiving on intake, there is simply no way to make the broad generalizations you are making here.

Anonymous said...

Smith county, isn't that right Grits?

Anonymous said...

Anonymous 2/13/2017 10:30:00 AM, as long as clearance rates remain as low as they have been for years, not to mention societal demands that police officers/deputies wear many more hats in terms of job responsibilities, I don't think layoffs are a likely proposal.

In answer to the broader question asked by the legislator, costs are going up for everything. In the case of indigent defense, more people are expecting a better job be done and by more qualified representatives. That increases costs over the public defenders of old or the hack plea mill types that should be disbarred on general principle. I've been told that a growing number of voters expect criminals to be held accountable for all the crimes they committed, the trading of one case for ten making for easier dockets but upset victims, but I can't verify that.

Gritsforbreakfast said...

So basically, 6:14, you're saying "Unless you provide data which doesn't exist I won't believe you." Your idea seems to be that crime didn't really decline but instead police tacked on more offenses per arrest, a contention for which there is not a shred of evidence and which flies in the face of reason. But whatever. I get that working from actual data instead of supposition is out of fashion these days. I can only tell you what the data say. If you don't like it, I can't fabricate different information to please you. We have to work from what exists.

Anonymous said...

Grits said: "So the number of cases increased even as crime declined." Not true for misdemeanors; true for felonies. See the FY2016 Office of Court Administration's Annual Statistical Report, p.10-15, here:

Indigent defense costs have gone up because: 1) a higher percentage of defendants are getting appointed counsel than before the passage of the Fair Defense Act (see Texas Indigent Defense Commission's FY16 Annual Report, p.12:, 2) inflation, and 3) some counties have increased fee rates for appointed counsel, which is to be expected to deal with inflation.

As the report notes on p.12: "Since the passage of the Fair Defense Act in 2001, overall appointment rates in Texas continue to increase statewide. This is especially true of misdemeanor appointments, which have doubled over the last fifteen years. The Fair Defense Act’s implementation of a framework for the appointment of counsel, including appointment timelines, formal appointment lists, and appointment guidelines, has played a crucial role in driving the upward trend in state appointment rates."

Truthsayer said...

Where is the requirement for cost-benefit analyses of the court-and-prison system?

Environmental agencies and regulatory proposals get hammered by corporations using requirements for economic analyses, but cops, courts, and prisons get a pass.

No wonder the latter cost so much.

Lee said...

In a word. Overcriminalization.

Anonymous said...

Thank you, 9:12. I would venture to guess that the increased use of court appointed attorneys in misdemeanor cases is the single biggest reason for increased indigent defense costs. I can remember a time in my county where the vast majority of misdemeanor defendants would routinely accept the state's original plea offer and waive the right to a court appointed attorney. This was true for defendants in and out of jail. With the Fair Defense Act's emphasis on the early appointment of counsel, most, if not all, misdemeanor defendants are now represented by court appointed attorneys. Whether this is a good or bad thing as a matter of public policy is open for discussion. But it is undeniable that this change has greatly driven up indigent defense costs. Ding, ding, ding... Here's the answer for the inquiring legislator.

Truthsayer said...

i recall my criminal procedure instructor saying that plea bargains were uncommon before the war on drugs.

Anonymous said...

Prosecutors' policy decisions are responsible for a significant portion of the increase in indigent defense costs. Here's an example out of Victoria County:

DLW said...

I see prosecutors run up the costs in many ways. One way I see pretty often is where a Citizen has a felony and a misdemeanor. He is in jail, with a Court appointed Lawyer on both cases. He is convicted and sentenced to prison time on the felony. The Government will refuse to dismiss the misdemeanor and send him on to TDCJ. The Citizen won't plead because he is doing time locally which will count against his prison time. So the County feeds him and pays for his Lawyer to do more work just so they can get a conviction of some insignificant misdemeanor.