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Taking Gideon's Pulse: Impacts of the Texas Fair Defense Act 10 years later By Tony Fabelo, Ph.D. Director of Research, Justice Center Austin, Texas Office October 27, 2011 Indigent Defense Symposium, Austin, Texas Council of State Governments Justice Center. Overview .

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Taking Gideon's Pulse: Impacts of the Texas Fair Defense Act 10 years later

By Tony Fabelo, Ph.D.

Director of Research, Justice Center

Austin, Texas Office

October 27, 2011Indigent Defense Symposium, Austin, Texas

Council of State Governments Justice Center


Reminder of the Roots

FDA Impact in Ten Years

The Next Ten Years

grievances against the king
Grievances Against the King

Among the Grievances:

“He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers”

“He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries”

“For depriving us in many cases, of the benefits of Trial by Jury”

“For transporting us beyond Seas to be tried for pretended offences”

American Declaration of Independence


founding fathers designed protections
Founding Fathers Designed Protections

Five of ten amendments to protect against arbitrary “judicial” powers:

Fourth Amendment – Protection from unreasonable search and seizure

Fifth Amendment – Due process, double jeopardy, self-incrimination, eminent domain

Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel

Seventh Amendment – Civil trial by jury

Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.

US Constitution is Ratified

Bill of Rightsis Ratified



but long road to apply protections to all citizens
But Long Road to Apply Protections to All Citizens

Fourteenth Amendment Ratified

Gideon vs. Wainwright




Right to Counsel in Texas state constitution

Moore and Butcher, 2005 for Texas 1876 constitution reference

gideon vs wainwright
Gideon vs. Wainwright

In our adversary system of criminal justice….

With government “quite properly” spending “vast sums of money to establish machinery to try defendants accused of crime” need

….. “procedural and substantive safeguard designed to assure fair trials before impartial tribunals in which defendants stands equal before the law”

“This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

Gideon v. Wainwright, 373 US 335 (1963)

long road to make indigent defense meaningful
Long Road to Make Indigent Defense Meaningful

Texas Fair Defense Act


Gideon vs. Wainwright




10 Years of Implementation

Struggle to translate at state level the “right to counsel” into a meaningful indigent defense system

long road indeed
Long Road Indeed

From Magna Carta to Grievances in Declaration of Independence

560 Years

From Declaration to the Bill of Rights

16 Years

From Bill of Rights to Gideon

172 Years

From Gideon to FDA

38 Years

From Adoption of Sixth Amendment Right to Counsel to Symposium Today

220 Years

796 Years from the Magna Carta


Reminder of the Roots

FDA Impact in Ten Years

The Next Ten Years

fair defense act in 2001 adopted to address major grievances with texas indigent defense
Fair Defense Act in 2001 Adopted to Address Major Grievances with Texas Indigent Defense

No uniformity in local indigent defense appointment practices

Texas Indigent Defense Commission (formerly Texas Task Force on Indigent Defense)

Judges discretion to select counsel, pay fees and determine who is indigent fueled appearance of cronyism

No consistent standards regarding training and experience

No state funding or oversight

Set infrastructure to address grievances and implement FDA in 2001

Few Public Defender’s Offices

Appearance of inconsistencies in qualifications for death penalty cases

No reporting on budget/performance

fair defense act put structure in place for improving indigent defense in texas
Fair Defense Act Put Structure in Place for Improving Indigent Defense in Texas

State Funding

Process Standards


Timing of Appointment

Funding Subsidy


Method of Appointment


Grants for Improvements





Improve Quality of Representation

Meets Constitutional Standards

Heighten “prima facie” legitimacy

Improves “Justice Outcomes”

highlights of accomplishments
Highlights of Accomplishments

State Funding Limited but Increasing

Key Process Standards Implemented

Oversight in Place

Local plans with agreed method of appointment, fee schedules and qualifications in place

State “formula” funding to “subsidize” local costs limited but in place

Prompt appointments

“Fair, neutral and non-discriminatory” appointment process

State “discretionary” funding “targeted” for best “bang-for –the-buck”

Reporting to the state routine

Prompt payment process and standard for fee schedules

Compliance audits routinely conducted

PD expansion

Qualification process

Legislative initiatives develop with commission direction

Appellate/Regional PD

Capital Writs Office

Innocent Project

legislative initiatives
Legislative Initiatives

Movement towards more independence

Texas Indigent Defense Commission

Budget request directly from Commission to legislature

Director works for Commission

For contracted services, continuing education hours and establishment of “managed assigned counsel”

Added standards

Assignment of counsel method for motions to revoke probation and appeals

Expansion of FDA

harris public defender s office taking off
Harris Public Defender’s Office Taking-Off

HCPD’s Office

Mental Health Division

Felony Division

Juvenile Division

Appellate Division

350 appeals

1,400 misdemeanor cases

1,700 felonies

2,000 juveniles

$14.3 million in state grant funds over four years with a county match of $15.2 million and up to 68 staff

CSG Justice Center “Learning Site” to document practices, evaluate cost-effectiveness and quality

fda shortening the long road to improvements
FDA Shortening the Long Road to Improvements

From Bill of Rights to Gideon

172 Years

From Gideon to FDA

38 Years

From FDA to Today

10 Years

In Last 10 Years

  • Standards for quality indigent defense
  • Funding subsidies
  • Oversight and compliance
  • Defense improvements in capital cases and appeals
  • Expansion of public defender offices and other management initiatives

Texas Set:


Reminder of the Roots

FDA Impact in Ten Years

The Next Ten Years

agenda for the next ten years
Agenda for the Next Ten Years

State Funding

Process Standards


Increase the state subsidy to counties for indigent defense costs

Local “tracking” report of indigent cases “active” with assigned counsels

Develop caseload standards

Develop managed assigned counsel standards

Increase state funding for standards-driven programs

Formula to encourage continuation of successful initiatives started with state “seed” funding

Improve Quality of Representation

Examination of “return on investment” beyond “prima facie” improvements

most funding continues to be local
Most Funding Continues to Be Local

Total Indigent Defense Expenses by Local and State

Local Cost

State Cost





$91 million





$28.0 million


$167 million

Total Attorney Fees per Case

Local Cost

State Cost



$48 per case

$294 per case



texas population projected to continue to increase
Texas Population Projected to Continue to Increase

18% of individual in poverty9th Highest in the USA

Texas State Data Center. 2008 Population Projections.. Texas: Demographic Characteristics and Trends. SIIS 2011 Annual Conference, September 9, 201, Dallas, TX

texas indigent defense cases should also increase
Texas Indigent Defense Cases Should Also Increase

Projected Cases Paid by 2021 Assuming Same Rate of Growth





% of Cases Paid out of Total Cases Filed





TIDC Statistics

future funding challenges
Future Funding Challenges

Total System Cost 2010$195 Million

Goal by 2021

$262 Million

Maintain Present Level of Services by Increasing State Funding Alone

+$68 Million in State Funds



Percent Local



Increase Present Level of Services by Increasing State Funding Alone for Reimbursement by $50 Per Case

$305 Million

+$110 Million in State Funds



Percent Local



future political challenges
Future Political Challenges

Request for Extra Funding

Key Policy Question

Can we show how “justice” outcomes will improve with the additional expenditures?

For Increasing Subsidy?

For Initiatives targeting services for juveniles, vets, mentally ill, regional programs, and local standards-driven programs?

how does extra funding improves justice
How Does Extra Funding Improves “Justice”?

“Lawyers will certainly fight over these metrics (they are, after all, trained in argument and have an enormous stake in the benchmarks that are chosen). Determining what qualifies as a good outcome (independent of a verdict) will be difficult, as will devising formulas that allow for meaningful comparisons across communities.

How will we do this? Well, it’s hard to think of another profession that doesn’t tackle this challenge.”

Page 265, Ordinary Injustice, Amy Bach

overview of the day
Overview of the Day

Senator Ellis, author of the FDA

Next Keynote

Tim Murray

Thinking about Funding

John Gross

Jeff Blackburn, Andrea Marsh, & Chief Justice Brian Quinn

Judge Jezek & Brad Sibley

Thinking about Standards and Performance

Dean Norm Lefstein

Buck Files

Alex Bunin and Jessica Tyler

Thinking about Culture and Justice Outcomes

Amy Bach

Jonathan Rapping

congratulations on the past and good luck on the future
Congratulations on the Past and Good Luck on the Future!

From FDA to Today

Infrastructure in place that “at face value” significantly addressed main grievances regarding Texas indigent defense policies

10 Years

From Today to 2021

Enhance share state of funding

Next Ten Years

Set some minimum system standards to measure local program success and test in pilot sites

Document improvements in delivery of services and “justice” outcomes through the use of standards-driven programs / Improve accountability


Thank You