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 Fabelo Director of Research 1

Council of State Governments, Justice Center 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

Council of State Governments, Justice Center 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 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

Council of State Governments, Justice Center 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

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 6 Task Force oversees compliance with financial and reporting requirements

Council of State Governments, Justice Center 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 (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 , 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

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 8

Council of State Governments, Justice Center 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 Texas traditionally have ranked in the bottom ten states in per capita expenditures for indigent defense

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 10

Council of State Governments, Justice Center 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

Council of State Governments, Justice Center Overview 12 Overview of Ten Year Record Recent Policy Review to Support Expansion of Public Defender Offices Issues for Review

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 13

Council of State Governments, Justice Center 14 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

Council of State Governments, Justice Center 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 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

Council of State Governments, Justice Center 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

Council of State Governments, Justice Center 17 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

Council of State Governments, Justice Center Harris County Proposal for Public Defender Office $4.4 million Grant Request Phase one (1 st year): Hire Chief Defender Set-up Appellate Division Set-up Mental Health Division Phase two (2 nd 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, 2010Review 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

Council of State Governments, Justice Center Overview 19 Overview of Ten Year Record Recent Policy Review to Support Expansion of Public Defender Offices Issues for Review

Council of State Governments, Justice Center 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

Council of State Governments, Justice Center Need to Review Independence of Task Force and Proposal Under Consideration 21 Office of Court Administration (OCA) 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 PresentOne 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 Office of Court Administration (OCA)

Council of State Governments, Justice Center 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

Council of State Governments, Justice Center 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

Council of State Governments, Justice Center 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

Council of State Governments, Justice Center 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 Fabelo Director of Research 504 West 12 th Street Austin, TX