Appointed counsel in Austin radically increases chance of conviction on drug charges; police pursuing victimless drug cases as crime declines

Defendants in Travis County were far more likely to be convicted of state-jail felony drug charges if they were indigent with an appointed attorney compared to those who hired their own lawyers, according to a KXAN-TV report based on a new Council of State Governments analysis. And police are making more arrests for low-level drug possession, even as jail bookings for all other offenses have declined. (Your correspondent was briefly quoted in the KXAN story.)

Perhaps the most disturbing finding was the effect an appointed lawyer had on case outcomes: The report found that, "80 percent of people in the past five years were found guilty on drug charges if they used a court-appointed attorney. If they paid for their own attorney, only 48 percent were found guilty on drug charges."

These are similarly situated defendants demonstrating radically different outcomes based on how (and how much) their lawyers are paid. Certainly, it's a bad look for the "managed assigned counsel" program in Travis County. Grits believes we'd see much better outcomes from a full-time public defender office. In Harris County, for example, the public defender office "achieved a greater proportion of dismissals, deferred sentences, and acquittals, and a smaller proportion of 'guilty' outcomes, than assigned counsel. HCPD secured acquittals on all charges at three times the rate of appointed and retained counsel."

The Travis County data demonstrate how failure to invest in one part of the system can create even greater costs for taxpayers down the line. By underpaying attorneys who then do not adequately vet cases, more people (2/3 more) are convicted, which then leads to extra costs for incarceration in state jail or supervision on probation. For that matter, some percentage of those sentenced to probation will also be revoked and eventually incarcerated, too.

The upshot: if indigent drug defendants in Austin received a comparable quality of defense as people who hire private lawyers, it would reduce incarceration costs significantly down the line.

In addition, the report cast light on the disturbing trend of law enforcement focusing on victimless drug-possession cases as crime overall declines. From the CSG report:

Bookings in Travis County for arrestees with SJF increased while overall bookings declined

• Overall jail bookings in Travis County decreased by 14% between 2013 and 2017, but bookings of arrestees with SJF increased by 9%

• SFJ-DP [drug possession] bookings increased by 34%

Why would drug arrests increase during a period when crime and jail bookings overall declined?

My theory: Crime may have declined but the number of police officers and prosecutors stayed the same or increased over the same period, and those people need something to do with their days. At the same time, there are FAR more people using drugs than are routinely arrested, so there is a deep pool of petty, low-risk offenders into which law enforcement may cast its nets. And even if they're only catching "little fish" - state jail felony drug cases involve less than a gram of a controlled substance - at least they're going through the motions of making arrests and enforcing the law. Essentially, this is rent seeking behavior on the part of law enforcement.

Together, this rent seeking activity, combined with institutionalized incentives for poor-quality lawyering among appointed counsel in Travis County, prioritize the interests of players in the system over both defendants' constitutional rights and systemic equity. Thus it's understandable why things would be this bad, just not acceptable.