Tuesday, February 07, 2017

Unfunded mandates and indigent defense

On Thursday, the Senate Finance Committee will consider a budget request from the Texas Indigent Defense Commission to move toward fully funding indigent defense at the state level, portraying the proposal as "property tax relief." The Texas Association of Counties is mounting a full-court press in support of a TIDC plan to increase state funding of indigent defense from 12 percent to 50 percent in the next biennium, a tough sell in a tight budget environment where legislators face a multi-billion dollar shortfall.

Grits remains unconvinced that full state funding of indigent  defense is a good idea, even if money were available in the budget, though I've written before that I wouldn't mind some increase in the state amount. But IMO the debate has been misframed as an "unfunded mandate" from the state to counties in a way that ignores much more significant unfunded mandates in the other direction.

The most important unfunded mandate in the criminal-justice system comes from local government decision makers - especially prosecutors and judges - making choices about imprisonment at TDCJ for which state government must pay 100 percent of the costs. So there's a political incentive for locals to demagogue as "tough on crime" and maximize use of prison because they aren't accountable for the expense of incarceration. And many of them, particularly in rural jurisdictions, gleefully succumb to that incentive.

Indigent defense is one of the few areas where counties incur additional expense when they choose to over-use the justice system. Fordham law prof John Pfaff has documented how, beginning in the 1990s, prosecutors dramatically increased the proportion of cases they pursue. From 1994 to 2008, "the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3," and the trend holds for Texas. Local decisions to maximize incarceration for the most part came with few economic consequences for county officials except for jail and indigent defense costs.

So making counties pay for indigent defense ensures they still have some skin in the game when it comes to mass incarceration. I agree indigent defense must be better funded. But Grits isn't sure it's a good idea to eliminate the last vestiges of economic accountability for counties when it comes to local decision making on criminal justice.


DLW said...

Indigent defense cost is caused to some degree by the bail bond system we have and the refusal to change it. "Tough on crime" Judges and prosecutors recommend high bonds and by the time many citizens have paid a bondsman, all or much of the money available for hired counsel has been used up.

Unknown said...

Perhaps it is the costs of prosecution and incarceration that should be shifted to counties and cities, since these are areas where locally elected officials have discretion. Indigent defense is not discretionary -- it is required by the Constitution -- and state legislators create the laws under which defendants are prosecuted, so the state should bear the cost of indigent defense.

Gritsforbreakfast said...

I would go for that deal if we make the change all at one time, Unknown. But eliminating county ID costs without making them accountable for prosecution and incarceration doesn't serve that end. They do IMO need to have SOME skin in the game to keep them from maximizing volume, sentence length, etc..

sitilou13 said...

The indigent defense only goes so far!! It stops at the Court of Criminal Appeals. No one can get a court-appointed lawyer at that stage of the game – YET, the Court of Criminal Appeals does NOT even look at a Habeas Corpus appeal, IF it is done PRO-SE, it is ignored by the Court!!