Tuesday, February 27, 2018

On the institutional basis for ineffective assistance: Travis Jail Reduction Docket

Travis County will make unspecified changes to their "jail reduction docket" to counter criticisms that it operated as a plea mill coercing guilty pleas out of jailed misdemeanor defendants in exchange for their freedom. Misdemeanants who couldn't make bail would be herded into the courtroom in bunches, meet their lawyer for the first time sitting on a bench in the courtroom, and typically plea guilty in exchange for time served and their freedom. As Grits noted earlier, this has been going on for at least two decades.

In their defense, "Since 2014, there has been a 50 percent increase in defendants who have received a personal bond at Jail Reduction Docket." So use of personal bonds for misdemeanants has been increasing. Judge Elisabeth Earle said judges want to do more personal bonds but "Sometimes lawyers don’t want to present them." (Read: Sometimes Austin criminal defense lawyers provide ineffective assistance to their clients, and judges pretend there's nothing we can do.)

Otoh, there may be a practical reason lawyers aren't going the extra mile: The Statesman article noted that, "pay for attorneys who resolve cases in the jail reduction court was lowered in 2016 from $275 to $175," which hardly bodes well for quality representation but which likely does reflect (or even overstate) the amount of time presently spent on each case. Perhaps the problem is simply that nobody's getting paid enough to investigate a client's background even minimally to make the case for a personal bond?

Of course, just because there's a structural, institutional "nudge" embedded in the system encouraging ineffective assistance doesn't excuse it. Attorneys are professionals obliged to exhibit at least minimal levels of competence at their craft. However, the Jail Reduction Docket seems to rely and thrive on underpaid attorneys not putting up much of a fuss.

All of which to me constitutes further evidence that Travis County needs a public defender if the commissioners court wants competent representation for the indigent. The private bar has, for too long, controlled that process and their clients' interests - not to mention the taxpayers' interest, and the interests of justice - have suffered as a result.

See prior coverage at the Austin Chronicle for more detail.


Steven Michael Seys said...

This has been business as usual for most North Texas counties since at least the 1960s. Henry Wade set the standard of abuse of power in Dallas County and the rest of NT counties hurried to copy lest they be left behind.

Anonymous said...

Grits, how else are they going to make criminals of us all and therefore disenfranchise all of us? As you know, the rich white male is superior to us all and thus entitled to rule the rest of us, true justice be damned! Assert power at all costs. Lazy defense attorneys (often beta white males) are simply a cog in the wheel of this whole process of subjugation. The south will fight any efforts at change to this modern form of Jim Crow.

..... and for those who wish to sneer that I am just whining, I am an intelligent white female, I have worked my entire life, and yet have decided my contributions to society have never been welcome in the south; and never will. Just as so many brown and black folks in the south especially, will never be afforded an opportunity to realize their full potential precisely because of entrenched practices such as criminalizing so many aspects of life. The plea rate of about 95% will ensure it remains in place until the legal profession grows a set and stands up to the system.

I dread the future for my granddaughter.

DLW said...

I have not ever and will not ever participate in one of these "jail call" dockets which probably go on in most of the Counties in Texas. I cannot speak for the Lawyers that do but here is the problem they face. If they participate and the DA makes a plea offer, the Lawyer is ethically required to convey that offer to the Defendant and explain the options to the Defendant. If the Defendant says he or she wants to take the deal, the Lawyer is bound by that decision.

Clearly, many Defendants take the offer because the other option is going back to the lockup to wait for a trial or other contested hearing that might resolve the matter.

The Lawyers all know they have a duty to investigate the case but what are they to do when the offer is conveyed to the Defendant and the Defendant wants to take the deal that day?

I recognize that there is a financial incentive for the Lawyer appointed at Jail Call to resolve the case in that the payment, no matter how small, will be made relatively quickly. But you must also recognize that the appointed Lawyer with make a larger fee if the case isn't handled at Jail Call and he or she spends billable time working on the case.

The Judges and County Commissioners Court have incentives to desire to move the cases quickly. It costs less money and the commissioners like that. It removes a case from the Court's docket and the Judges like that.

I'm not smart enough to know the answer but I know, after 40+ years of practicing Law, that it is more complicated than opining that the legal profession needs to grow a set and stand up to the system.

Anonymous said...

I used to work at Travis County when they started the rocket docket, which was originally a response to overcrowded jails here. It was the wrong answer then and the consequences years later prove the skeptics were right. The correct answer, as imperfect as it is, remains the same: Local officials must employ prosecutorial discretion and similar flexibilities to prioritize enforcement of laws that have actual victims. Significant numbers of "criminals" will be spared arrest so that truly bad actors can be justly processed through the system. Trying to re-jigger the details of other approaches are never going to solve the problem. The tax increases that would be necessary to fund better solutions are politically unfeasible.