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

1. 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

2. Overview Overview of Ten Year Record Recent Policy Review to Support Expansion of Public Defender Offices Issues for Review

3. Spotlight Increasing Regarding Need to Strengthen Indigent Defense

4. Fair Defense Act of 2001 by Senator Ellis and Rep. Hinojosa Set Indigent Defense Reform in Motion in Texas Post FDA 2001 – 2010 Pre-2001 Reform Defined minimum operating standards with oversight by Indigent Defense Task Force No well defined minimum operating standards State formula and discretionary grants No state funding Sixteen public defender offices serving 91 counties in some capacity and one private defender office Seven public defender offices serving seven counties* * Colorado, Dallas, El Paso, Wichita and Webb with Cameron and Travis specializing in juvenile cases

5. Indigent Defense Task Force Created Within Office of Court Administration to Oversee Reforms Task Force on Indigent Defense Membership Texas Judicial Council Task Force on Indigent Defense as a “standing committee” chaired by the Presiding Judge of the Court of Criminal Appeals 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 Office of Court Administration (OCA) Director of Task Force and staff work for OCA Indigent defense budget administration and request by OCA

6. Structure to Manage Indigent Defense in Texas is in Place and Represents Major Advancement from Pre-FDA Core Requirements of FDA Fiscal Accountability County plans have to be submitted addressing requirements Task Force oversees compliance with financial and reporting requirements • Baseline Expenses Documented • Expenses Properly Itemized • Attorney Appointment List with Qualified Persons • Proper Fee Vouchers • Indigent Defense Report Accurate • Grant Provisions Followed • Prompt Magistration • Indigence Determined According to Standard • Qualified Attorneys • Prompt Appointment • Fair, Neutral, and Non-discriminatory Appointments • Standard Payment Process

7. 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)

8. Timely Appointment Requirements a Critical Component of the Fair Defense Act 48 hours 24 hours 1 or 3 workdays 1 workday Arrest Magistration (Request for Counsel Taken) Request for Counsel Received by Appointing Authority Appointing Authority Determines Indigence and Notifies Counsel Appointed Counsel Contacts Clients at Jail

9. State Funding Has Increased to Subsidize Local Indigent Defense Costs and to Expand Programs State funds subsidize traditional local funding of indigent defense State funds also used to target special areas, like the expansion of public defender officers Texas traditionally have ranked in the bottom ten states in per capita expenditures for indigent defense

10. 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

11. Better System Outcomes Since Enactment of Fair Defense Act • 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

12. Overview Overview of Ten Year Record Recent Policy Review to Support Expansion of Public Defender Offices Issues for Review

13. 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 FDA Fair Defense Act of 2001 $32.8 million not covered by the state (53.2%) $28.8 million provided by the state in FY2009 (46.8%) Strategy to close gap Targeted areas shown by data analysis to be cost-effective

14. Task Force to Increase Allocation of Funding for Targeted Initiatives Like Public Defender Offices Distribution of Funding by Task Force Agreement by Task Force in March 2010 strategic planning session to increase percentage of funding for targeted initiatives 10% 90% 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

15. 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 Public Defenders Have Same Institutional Advantages as Prosecutors • New Public / Private Defenders Established by Task Force • 5 county public defender offices • 4 regional public defender offices • 1 appellate defender office • 1 private defender office • 3 new divisions in existing offices

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

17. Regional Public Defender Offices Can Also Improve Services in Rural Areas and Avoid Costs Regional public defender offices provide services to multiple counties in the region that select to participate • Justices noted the public defender offered consistently prompt and high quality briefs • Outlying counties pulled out of program when state funding ended Bexar County West Texas Capital Defender Overall death penalty cases have dropped Negative Impact of Not Participating • Wilbarger County had declined joining regional program and had a death penalty case filed potentially draining to the county’s budget

18. Harris County Proposal for Public Defender Office $4.4 million Grant Request Phase one (1st year): • Hire Chief Defender • Set-up Appellate Division • Set-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 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

19. Overview Overview of Ten Year Record Recent Policy Review to Support Expansion of Public Defender Offices Issues for Review

20. Key Areas to Strengthen an Indigent Defense System 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

21. Need to Review Independence of Task Force and Proposal Under Consideration Present One Proposal Under Consideration Task Force on Indigent Defense Membership Texas Indigent Defense Commission Independent of the Texas Judicial Council Eight “ex officio” members and five members appointed by the Governor Increase membership of the Commission by adding two new members appointed by the Governor that have to be criminal defense lawyers or public defenders Texas Judicial Council Task Force on Indigent Defense as a “standing committee” chair by the Presiding Judge of the Court of Criminal Appeals Office of Court Administration (OCA) Office of Court Administration (OCA) 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 Director of Task Force and staff work for OCA Indigent defense budget administration and request for appropriations by OCA

22. 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?

23. 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?

24. Challenges in Historical Perspective Fair Defense Act First 10 years Next 10 years Set – up infrastructure and address major “grievances” that led to creation Target improvements, strengthen delivery of services and compliance with standards

25. Thank You Dr. Tony FabeloDirector of Researchtfabelo@csg.org504 West 12th StreetAustin, TX 787 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.