Council of State Governments, Justice Center Report to Texas Senate Criminal Justice Committee, Senator Whitmire, Chair Indigent Defense Reform in Texas:

Council of State Governments, Justice Center

Report to Texas Senate Criminal Justice Committee, Senator Whitmire, Chair

Indigent Defense Reform in Texas: The Record of the Last Ten Years and

Emerging Challenges

Dr. Tony FabeloDirector of Research

1


Overview

2

Overview of Ten Year Record

Recent Policy Review to Support Expansion of Public Defender Offices

Issues for Review

Council of State Governments, Justice Center 3

Spotlight Increasing Regarding Need to Strengthen Indigent Defense


Fair Defense Act of 2001 by Senator Ellis and Rep. Hinojosa Set Indigent Defense Reform in Motion in Texas

Post FDA 2001 – 2010Pre-2001 Reform

No well defined minimum operating standards

No state funding

Seven public defender offices serving seven counties*

Defined minimum operating standards with oversight by Indigent

Defense Task Force

State formula and discretionary grants

Sixteen public defender offices serving 91 counties in some

capacity and one private defender office

* Colorado, Dallas, El Paso, Wichita and Webb with Cameron and Travis specializing in juvenile cases


Indigent Defense Task Force Created Within Office of Court Administration to Oversee Reforms

5

Office of Court Administration (OCA)

Texas Judicial Council

Task Force on Indigent Defense as a “standing committee” chaired by the

Presiding Judge of the Court of Criminal Appeals

Director of Task Force and staff work for OCA

Indigent defense budget administration and request by OCA

Task Force on Indigent Defense Membership

Eight “ex officio” members and five members appointed by the Governor

Presiding Judge Sharon Keller, Chair

Judge Olen Underwood, Vice-Chair

Chief Justice Wallace B. Jefferson

Justice Sherry Radack

Jon Burrows, County Judge

Glen Whitley, County Judge

John Whitmire, Senator

Jeff Wentworth, Senator

Roberto Alonzo, Representative

Pete Gallego, Representative

Knox Fitzpatrick, Defense Attorney

Tony Odiorne, Public Defender

Alfonso Charles, District Judge


Structure to Manage Indigent Defense in Texas is in Place and Represents Major Advancement from Pre-FDA

Core Requirements of FDA

Prompt Magistration

Indigence Determined According to Standard

Qualified Attorneys

Prompt Appointment

Fair, Neutral, and Non-discriminatory Appointments

Standard Payment Process

Fiscal Accountability

Baseline Expenses Documented

Expenses Properly Itemized

Attorney Appointment List with Qualified Persons

Proper Fee Vouchers

Indigent Defense Report Accurate

Grant Provisions Followed

County plans have to be submitted addressing

requirements

6

Task Force oversees compliance with financial and reporting

requirements


Types of Attorney Appointment Systems

• Assigned Counsel: Private Attorneys individually appointed by judge to represent an indigent

defendant accused of a crime Courts maintain list of qualified attorneys and rotation system is default

method for appointing attorneys from list (Art. 26.04(a), Code of Criminal Procedure)

• Public Defenders: Governmental Entity (i.e. County Department) or Non-Profit Corporation

with full-time attorneys and other staff to represent indigent defendants Authorized by Art. 26.044, Code of Criminal Procedure

• Contract Defender: Private Attorneys engaged to provide representation to group of

unspecified defendants before a court or group of courts Task Force rules establish minimum standards (Title 1 Texas Administrative

Code, Chapter 174, Subchapter B)

7


Timely Appointment Requirements a Critical Component of the Fair Defense Act

Arrest Magistration(Request for

Counsel Taken)

Request forCounsel

Received byAppointingAuthority

AppointingAuthority

DeterminesIndigence and

NotifiesCounsel

AppointedCounselContactsClients at

Jail

48 hours 1 or 3 workdays24 hours 1 workday

8


State Funding Has Increased to Subsidize Local Indigent Defense Costs and to Expand Programs

9

State funds subsidize

traditional local funding of indigent

defense

State funds also used to target

special areas, like the expansion of public defender

officers

2002 2003 2004 2005 2006 2007 2008 2009

State Funding (Millions) $7.3 $11.6 $11.8 $14.3 $14.3 $17.5 $21.5 $28.0

$0.0

$5.0

$10.0

$15.0

$20.0

$25.0

$30.0

Funds generated from fees: court costs, percentage of

surety bonds and attorney fee

Texas traditionally have ranked in the bottom ten states

in per capita expenditures for indigent defense


Methods of Funding Indigent Defense Systems in the States

• Full funding by the state 25 states

• Over 50% funding by the state with balance by counties 6 states

• Less than 50% funding by the state with most of the funding provided by the counties 18 states Texas

• No state funding for indigent defense with counties providing all the funding 2 states

10


Better System Outcomes Since Enactment of Fair Defense Act

11

More persons receiving appointed counsel from 324,412 persons in FY2002 to 470,625 persons in FY2009, a 45 percent increase

Increased statewide misdemeanor appointment rate (cases paid / cases added) from 26% in FY2002 to 35% in FY2009

Increased statewide felony appointment rate (cases paid / cases added) from 54% in FY2002 to 68% in FY2009

More timely appointment of counsel potentially impacting a decrease in jail costs

Monitoring samples indicate that appointment of counsel is at least 90% timely in over half of jurisdictions examined

More attention paid to indigent defense system and areas in need of improvements

Local officials have to submit plans for improvements in the system and state funds have increase public defender

offices, increase the use of technology and provide technical assistance to help localities resolve deficiencies


Overview

12



Issues for Review


State Funding Covering Less Than Fifty Percent of Increased Cost and Task Force Targeting Funding for Improvements

$61.6 million Increased costs due to FDA

2001 to 2009

$28.8 millionprovided by the

state in FY2009 (46.8%)

$32.8 million not covered by

the state (53.2%)

Strategy to close gap

FDA Fair Defense Act of 2001

Targeted areas shown by data analysis to be cost-effective

13


Task Force to Increase Allocation of Funding for Targeted Initiatives Like Public Defender Offices

90%

10%

Agreement by Task Force in March 2010 strategic planning session to increase percentage of funding for

targeted initiatives

Target improvement in services

Target regional approach to allow for better defense services in rural areas

Direct accountability to Task Force for effective utilization of funds

Distribution of Funding by Task Force


Public Defender Offices Can Avoid Costs and Improve Services

• In-house investigators• In-house training• Performance is measured• Caseloads are monitored• Courthouse insiders • Criminal defense specialists• Extensive trial experience• No economic incentives to plead

• 5 county public defender offices

• 4 regional public defender offices

• 1 appellate defender office

• 1 private defender office

• 3 new divisions in existing offices

Public Defenders Have Same Institutional Advantages as

Prosecutors

New Public / Private Defenders Established by Task Force


Evaluations Find That Public Defender Offices Can Avoid Costs and Improve Services

16

Economies of scale•Function more efficiently as an organized agency

than as independent practitioners

Controls over Case Quality• Performance standards (including caseload limits);• Ongoing professional development• Greater access to case supports such as

investigators and expert witnesses• Close oversight of the quality of legal work provided• Potential mechanisms to attract and retain the most

competent legal advocates

Budget Predictability• Can improve the dependability and efficiency of

indigent defense budgeting• Judges and commissioners can focus once annually

on the public defender budget

Reduced Jail Populations• Often able to make significant impacts on pretrial jail

populations• Can identify persons needing bond reduction or with

no cases filed

Evidence for the Feasibility of Public Defender Offices

in Texas

Public Policy Research Institute at Texas A&M University

November 9, 2006


Regional Public Defender Offices Can Also Improve Services in Rural Areas and Avoid Costs

Wilbarger County had declined joining regional program and had a death penalty case filed potentially draining to the county’s budget

Regional public defender offices provide services to multiple counties in the region that select to participate

West Texas Capital Defender

Bexar County

Overall death penalty cases have dropped

• Justices noted the public defender offered consistently prompt and high quality briefs

• Outlying counties pulled out of program when state funding ended

Negative Impact of Not Participating


Harris County Proposal for Public Defender Office

$4.4 million Grant Request

Phase one (1st year):Hire Chief DefenderSet-up Appellate DivisionSet-up Mental Health Division

Phase two (2nd year)Add Juvenile Trial Division Add Felony Trial Division

At full implementation (third year) the office will be approximately 68 staff

Cost over four years: 50% state/50% county

18

Proposal submitted on April 29, 2010 Review in Process

• Proposal being scored by independent review team

• Subcommittee of Task Force meets May 24, 2010 to consider proposals and make preliminary recommendations• Subcommittee may require

clarification and modifications

• Task Force meets June 9, 2010

• New programs begin operation October 1, 2010


Overview

19



Issues for Review


Key Areas to Strengthen an Indigent Defense System

20

Independence of overseeing body and appointment of counsel system

Qualification, performance and supervision of indigent defense counsel

Compensation of indigent defense counsel

Eligibility and prompt assignment of indigent defense counsel

Support and investigative resources

Data and accountability for quality/results


Need to Review Independence of Task Force and Proposal Under Consideration

21


Texas Judicial Council

Task Force on Indigent Defense as a “standing committee” chair by the Presiding Judge of the

Court of Criminal Appeals

Director of Task Force and staff work for OCA

Indigent defense budget administration and request for appropriations by OCA

Task Force on Indigent Defense Membership

Eight “ex officio” members and five members appointed by the Governor

Present One Proposal Under Consideration

Texas Indigent Defense Commission

Independent of the Texas Judicial Council

OCA provides administrative support but:

Director of Commission works for the Commission

Commission submits a budget for Commission and indigent defense system independently of

OCA

Increase membership of the Commission by adding two new members appointed by the Governor that have to be criminal defense

lawyers or public defenders



Other Critical Areas to Consider

• Independence of appointment of counsel Should state test models that remove direct appointment of indigent defense

counsel from judges?• Qualification, performance and supervision of indigent defense counsel

Is there movement to discuss minimum performance standards and how to measure them for indigent defense counsel?

Are there specific performance issues dealing with death penalty representation that need to be examined?

Is it possible to set caseload standards for assigned counsel or a tracking mechanism to determine the present caseload for indigent cases for assigned counsel?

• Compensation Is there a need to review the level of compensation and hourly rates for assigned

counsel? Is there a need to determine why some localities pay more for a guilty pleas than

dismissals?

22


Other Critical Areas to Consider (continued)

• Adequate support and resources Are support services (investigations, testing, expert witnesses) provided at an

adequate level to support indigent defense counsel? What are the capacity issues impacting rural areas and is there a strategy to

address these issues? Should there be a more specific state legislative mandate to encourage the

expansion of public defender offices?• Eligibility and prompt appointment of counsel

Are waiver of counsel for misdemeanants and/or low appointment rates an indicator of dysfunctions?

Is there uniformity of warnings about right to counsel for misdemeanor defendants? What are the implications of Rothgery decision and has the Task Force addressed

this issue?• Data and accountability

Are the mechanisms that are in place to measure how localities are meeting the minimum requirements of the FDA strong enough to promote and maintain compliance and quality?

23


Challenges in Historical Perspective

24

Set – up infrastructure and address major “grievances” that led to creation

First 10 years

Target improvements, strengthen delivery of services and compliance with standards

Fair Defense Act

Next 10 years


Thank You

This material was prepared for the Texas Senate Criminal Justice. The presentation was developed by members of the Council of State Governments Justice Center staff. Because presentations are not subject to the same rigorous review process as other printed materials, the statements made reflect the views of the authors, and should not be considered the official position of the Justice Center, the members of the Council of State Governments, or the funding agency supporting the work.

Dr. Tony FabeloDirector of Research

[email protected] West 12th Street

Austin, TX 787

25

mailto:[email protected]

Documents

Council of State Governments, Justice Center Report to Texas Senate Criminal Justice Committee, Senator Whitmire, Chair Indigent Defense Reform in Texas: