1. Council of State Governments, Justice Center Report to Texas House Criminal Jurisprudence Committee, Rep. Pete Gallego, Chair Indigent Defense Reform in Texas and Public Defender Offices: The Big Picture Dr. Tony Fabelo Director of Research 1

2. Council of State Governments, Justice Center 2 Your Work is Critical as Spotlight Increasing Regarding Need to Strengthen Indigent Defense

3. Council of State Governments, Justice Center 3 Fair Defense Act of 2001 by Senator Ellis and Rep. Hinojosa Set Indigent Defense Reform in Motion Texas Post FDA 2001 – 2010 Pre-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

4. Council of State Governments, Justice Center 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 4 Task Force oversees compliance with financial and reporting requirements

5. Council of State Governments, Justice Center Types of Attorney Appointment Systems 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 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) 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) 5

6. Council of State Governments, Justice Center Timely Appointment Requirements a Critical Component of the Fair Defense Act 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 48 hours1 or 3 workdays24 hours1 workday 6

7. Council of State Governments, Justice Center State Funding Has Increased to Subsidize Local Indigent Defense Costs and to Expand Programs 7 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 has traditionally ranked in the bottom ten states in per capita expenditures for indigent defense

8. Council of State Governments, Justice Center 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 8

9. Council of State Governments, Justice Center 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 million provided 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 9

10. Council of State Governments, Justice Center 10 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

11. Council of State Governments, Justice Center 11 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

12. Council of State Governments, Justice Center Evaluations Find That Public Defender Offices Can Avoid Costs and Improve Services 12 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

13. Council of State Governments, Justice Center Examples of Three Evaluations of Public Defender Offices in Bexar and Hidalgo Counties 13

14. Council of State Governments, Justice Center Results from Evaluations of Bexar and Hidalgo 14 Bexar County Appellate office sped up the appellate process while providing high quality defense Timing of appeals for the APDO is far shorter than the timing of appeals for assigned counsel Briefs are filed sooner and the public defender cases reach final disposition sooner Hidalgo County Hidalgo PD has been able to shorten the time from arrest to pre-disposition release This has helped save money by reducing jail overcrowding In-custody misdemeanor defendants in Hidalgo County spend less time in jail pretrial. After nearly three years of operations both public defender offices have made significant improvements to their respective indigent defense systems

15. Council of State Governments, Justice Center Recent Research Shows the Potential Beneficial Outcomes of a Task Force Funded Public Defender Office MH PD for Felons and Violent Misdemeanants Statistically controlled groups Blue = defendants with assigned counsel Red = defendants with MHPD representation Blue and Red look the same based on study variables Source: Texas A&M Public Policy Institute, State Justice Institute, Texas Task Force on Indigent Defense and CSG Justice Center: Representing the Mentally Ill Offender: An Evaluation of Advocacy Alternatives, April 2010 Final 15 Defendants in MH PD less likely to have a guilty plea of no probation

16. Council of State Governments, Justice Center Potential Benefits of a Task Force Funded Public Defender Office (continued) MH PD for Felons and Violent Misdemeanants Statistically controlled groups Blue = defendants with assigned counsel Red = defendants with MHPD representation Blue and Red look the same based on study variables Source: Texas A&M Public Policy Institute, State Justice Institute, Texas Task Force on Indigent Defense and CSG Justice Center: Representing the Mentally Ill Offender: An Evaluation of Advocacy Alternatives, April 2010 Final 16 Defendants in MH PD more likely to receive probation

17. Council of State Governments, Justice Center Potential Benefits of a Task Force Funded Public Defender Office (continued) MH PD for Felons and Violent Misdemeanants Statistically controlled groups Blue = defendants with assigned counsel Red = defendants with MHPD representation Blue and Red look the same based on study variables Source: Texas A&M Public Policy Institute, State Justice Institute, Texas Task Force on Indigent Defense and CSG Justice Center: Representing the Mentally Ill Offender: An Evaluation of Advocacy Alternatives, April 2010 Final 17 Defendants in MH PD more likely to have lower 18 months re- arrest rates

18. Council of State Governments, Justice Center 18 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 countys 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

19. Council of State Governments, Justice Center 19 Areas that You Need to Review to Improve Support for Public Defender Policy Funding Allocation of additional state funding for regional programs and low performing jurisdictions Provide permanent state funding for established and new PD programs that meet Task Force standards Statutory clarifications Clarify statutes to ease regionalization and inter-local agreements Authority of counties to decide public or non-profit before issuing an RFP Examine related areas and need for legislation Examine independence issues of public defender (Court and Commissioners Court) Examine workload /caseload standards for private bar versus public defenders

20. Council of State Governments, Justice Center Thank You This material was prepared for the Texas House of Criminal Jurisprudence Committee. 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 Fabelo Director of Research tfabelo@csg.org 504 West 12 th Street Austin, TX 787 tfabelo@csg.org 20