Thursday, April 26, 2018

Travis managed-assigned-counsel program an unmitigated catastrophe

The Texas Tribune's Neena Satija authored an excellent story about the Travis County managed-assigned-counsel system, but IMO she cut them too much slack for truly crappy outcomes.

The new system was created due to "widespread allegations of favoritism and concerns that overloaded attorneys were providing poor representation." 

Judge Mike Lynch told her he "is confident that the new system in Travis County is far better than the old one."

However, the concentration of indigent defense cases among a handful of lawyers WORSENED after the move to a managed-assigned-counsel system, Satija reported. "According to data from the Texas Indigent Defense Commission, the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017 — compared to an average of 428 in 2014, the year before the new system began."

We also know that those clients are getting worse outcomes as a result. A new analysis from the Council for State Governments Justice Center found that 80 percent of state-jail-felony drug defendants are convicted when represented by appointed counsel, compared to 48 percent of those who hired attorneys.

Further, Satija reported that defendants under the new system, "also spent an average of nine days in jail last year, up slightly from eight days in 2014. That’s still much longer than similar defendants who could afford their own lawyer: They spent an average of just one day in jail last year."

So lawyer caseloads are higher, not lower. Indigent defendants are sitting in jail longer. And people represented by appointed counsel in drug cases are a whopping 67% more likely to be convicted than people with retained counsel.

That's an unmitigated catastrophe! A failure on every level.

Former Texas Indigent Defense Commission chief Jim Bethke championed the new system when it was created but has no explanation for its persistent and obvious failures: “I wish I had a good explanation for that, but I don’t,” Bethke told the Tribune. "I believe in what that program's doing. Do I think it can be done better? Absolutely." 

For my part, I do not think it can be done better under a managed-assigned-counsel regime. Local lawyers wanted to control the process and, when control was given to them, they adjusted the system for their own benefit, not in the public interest.

Bottom line, when this shop was created Grits opined that Travis County should have created a public-defender office instead, and this news confirms that premonition. Yes, it would cost more, but Travis County will also  have to pay more to improve the system under a managed-assigned-counsel program. And we can already see that doubling down on this failed program would amount to throwing good money after bad.


Anonymous said...

The problem here is not about money, it's about the lack of horsepower and pigs. Everyone sold CAPDS as a solution because the corrupt judges would no longer be involved in the process. So, a bunch of criminal defense lawyers with absolutely no experience ended up running CAPDS. Not a lick of organizational or budgetary sense/skill among them. Now we have appointed (assigned) lawyers with over 600 cases a year making in excess of $200K per year from CAPDS.

While CAPDS may have lofty goals, they are fostering a system which encourages case churning and excessive billing for simply pleading out clients without hitting a lick to ensure the plea is voluntary. No investigation, no research, and no lawyering beyond signing a CAPDS voucher to get paid.

Of course the defendants with retained lawyers get better results. Those lawyers actually do what lawyers are supposed to do for their clients as opposed to simply being pigs as the trough of expendable defendants while churning through 500+ appointments a year from CAPDS.

Anonymous said...

Correlation ≠ causation. The statistical metric is insufficient information to condemn the system.

Yes, indigency often leads to a poorer outcome in criminal court, but there are multiple independent factors at work here. Often the same poor choices, psychiatric conditions, addiction, bad upbringing, etc. that lead to indigency also lead to recidivism.

Recivist defendants are far more likely to require and qualify for appointed counsel than those with cleaner records. Many such recidivists wind up sitting out their sentences, sometimes by choice, or sometimes by inability to make bail. Recividists, addicts, and others are often less worried about any criminal record, and more concerned with getting their legal situation resolved. Yes, sometimes it's about settling to obtain freedom, and that's wrong. All I am arguing is that the statistical metric employed requires additional analytical factors.

Many fail to qualify or apply for pretrial programs or deferred probations that may lead to dismissal.

Anonymous said...

There is no doubt that our criminal justice system disproportionately harms poor people. They are jailed for not being able to abide by rules that poverty often prevents them from being able to follow- not having money for a bus ride to see a PO can mean revocation and jail time. However, an inadequate indigent defense system leaves the poor people of Travis County without even a ticket to the game, let alone a seat at it.

The problem with CAPDS is that the lawyers could care less about their clients and gave up on them long ago. They mantra in the courthouse is that 'they aren't being paid to do that' when asked to follow best practices. Would we accept that excuse for a doctor who told you that you weren't getting stitches after surgery because he wasn't being paid to do it? Absolutely not.

Travis County should not be saying 'we just can't afford a public defender' while paying one million dollars for a program that could be handled by one staff person. Assigned Counsel in Travis County had everything handed to them through CAPDS- experts, investigators, social workers, 100 hours of free CLE, an increase in the flat fee-even the payment schedule for bonding was changed to hourly. Yet their performance hasn't improved, and now they are blaming it on not being paid hourly across the board.

The poor person assigned to a lawyer who just cares about vouchers doesn't get another chance, and CAPDS has shown to be a failure. How long is the county going to continue to throw good money after bad? It's time to stop the train wreck, and to make real plans to open a Public Defenders Office. Travis County can afford it- what the County can't afford is sitting by and watching poor people railroaded by selfish lawyers.

Anonymous said...

Ira Davis, his flunkies, the entire CAPDS Review Board, and every judge who voted for this nonsense should all be tarred, feathered, and treated to the dreaded bastinado, in the Turkish fashion.

BarkGrowlBite said...

Call it what you like, but the Travis County system is still a court appointed system. And court appointed attorneys are almost always not worth a shit in defending indigents.

Indigents deserve a proper defense. A public defender system is the only system that will come close to achieving that. The public defender's office must be well funded and staffed, similar to the district attorney's office. In addition to attorneys, it must have investigators on its staff and it must have funding to pay expert witnesses when called for.

The proper funding problem is one of two impediments against a public defender's office. The other impediment comes from the private attorneys who will be deprived of making some easy bucks.

I am a solid law and order guy, but I believe even those who commit heinous crimes deserve a proper defense. If California and the feds can have successful public defender programs, there is no reason why Texas can't do the same.

Oprah, not her said...

Bravo BGB! (not sarcasm)

This is a solid opinion backed by rational thought. Even though it is slanted liberal opinion (of which I happen to agree), it is not the usual hard-right conservative cop "us versus them" commentary that you typically write. You might bark, growl, and bite at the trolls on here, but once in a while you give us more of a complete picture of your values.

It's nice to know that even though you are a "solid law and order guy" (not a bad trait), the concept of due process is still a high priority for you. Both are necessary. I like it.

Anonymous said...

Given the previous problem, with a small coterie of attorneys getting a disproportionate number of appointments, it beggars belief that this situation was allowed to arise. Couldn't someone have created a simple computer database logging all appointments, and raising automatic red flags when any attorney was getting an undue number of cases?