Solutions: Improve Funding for Effective Indigent Defense Delivery Models
Other criticisms of rotational and contract methods of assigning counsel include problems with inconsistent quality in representation, unfair denial of appointed counsel, and gaps in providing services which leave some (even innocent) defendants waiting extended periods in jail before being charged or released.[ii] As county leaders consider solutions to meet the demand for improved indigent defense systems, they should look to public defender offices, which experts have found to provide independence and quality in indigent defense services, bridge gaps in oversight and administration of services, and save valuable county resources – representing a cost-effective solution for the state despite initial start-up expenses.[iii]
Note: A county interested in establishing a public defender office may apply for a state grant through the Task Force on Indigent Defense. A county that is awarded one of these grants is eligible to receive for 80% of a county’s public defender costs in the first year of establishment.[iv] To cover the entire costs of public defender start-up, the State should increase its investment in indigent defense delivery systems.
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Public defender offices improve the overall quality of representation to indigent defendants. Effective public defender offices provide organizational structure for training and shared institutional knowledge, proper oversight and accountability mechanisms, and necessary resources for investigation, case management, and administrative support.[v] The National Legal Aid and Defender Association warns that an over-burdened court system and excessive number of cases diminishes quality of representation,[vi] an issue that public defender offices are able to effectively monitor and address. Furthermore, public defender offices serve as a valuable resource to the local criminal defense bar – they operate in cooperation with private defense attorneys to provide continuing legal education and legal assistance, ensure a share of cases which might otherwise pose a conflict of interest or excessive caseload, and function as an institutional “voice” for indigent defense issues.[vii]
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Public defender offices increase public trust and confidence in our criminal justice system. Public defenders must be afforded the resources necessary to combat the risk of wrongful convictions or unjust sentences, and thus to increase fairness and accuracy in the administration of justice in Texas. Those providing indigent defense are often an innocent defendant’s last hope for fairness and justice. Public defender offices can bring increased independence and opportunity for a cohesive and zealous defense, essential to a balanced system of justice. They better ensure early assignment of appointed counsel, in turn increasing the availability of information for both defendants and the court at initial stages in the process. Public defender offices also bring institutional structure, which ensures adherence to the American Bar Association’s Ten Principles of a Public Defense Delivery system (specifically, the first principle in which the ABA urges independence from the judiciary[viii]).
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Public defender offices are a cost-effective means of ensuring that high-population counties comply with Texas’ Fair Defense Act. Public defender offices provide budget predictability and overall cost savings through lower per-case expenses.[ix] Public defenders also streamline the appointment process and increase consistent case management, thereby decreasing court administrative costs.[x]
Likewise, pre-trial jail expenses for defendants waiting for appointment, bond, or trial are decreased.[xi] Right now, many individuals who have been arrested but not convicted are forced to remain in jail – which not only places an economic burden on them, but also contributes to jail overcrowding and costs taxpayers more money. A strengthened public defender system will assist in the release of low-risk defendants, in turn reducing the unnecessary and harmful collateral consequences of job and/or housing loss, promoting family stability, facilitating diversion into treatment programs as appropriate, and reducing overcrowding and jail costs for counties. For instance, an increase in defense lawyer appointments in misdemeanor cases in Kaufman County enabled the county to reduce its jail expenses as defense attorneys assisted incarcerated defendants in leaving jail more quickly. Bottom line: Savings from increased efficiency in defender appointment and processing may lead to substantial savings in jail costs ($50 per person, per day) in high-population counties already struggling with jail overcrowding.[xii]
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Special attention must be paid to the need for juvenile-focused and mental health public defender offices.
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Juvenile Public Defender Offices. As with adults, youth (ages 10 through 16) held in detention, whose parents or guardians are found to be indigent by the court, have a right to appointed counsel during detention hearings and throughout adjudication.[xiii]
Also like the adult system, juvenile indigent defense in Texas is largely funded by individual counties, each maintaining their own juvenile public defense delivery system. Essentially, each county Juvenile Board sets its own guidelines and procedures for determining whether a youth’s parents are indigent (through an examination of income and assets), as well as the method of assigned counsel to be utilized. Typically, appointment of counsel must be made within five working days of the child’s release from custody, or immediately after a detention hearing if the child is not released from custody. However, problems with this system have arisen: in many cases, a child may appear before the court for a detention hearing – a crucial stage in which a child may be held in the State’s custody – without ever speaking to an attorney prior to the hearing.[xiv]
Juvenile public defender offices would be better positioned to handle these specialized caseloads in already overburdened county systems. Early intervention by defense attorneys and trained case managers would also increase youth access to community-based treatment programs, in turn strengthening families and helping non-violent youth by diverting them from the Texas Youth Commission (TYC). Too often, non-violent youth with mental health issues and/or substance problems end up in high-security TYC facilities. Frequently, treatment programs at TYC are inadequate or unavailable to the youth that need them; while awaiting treatment, non-violent youth in TYC are at risk of abuse, sexual assault, and exposure to more hardened youth. Because of these problems, most young people coming out of TYC end up back in the system. Local public defender offices would give non-violent youth a real chance to get their lives back on track by working with them to meet their needs and keep them out of abusive, violent, and ineffective TYC facilities.
Currently, eight counties have established public defender offices to provide juvenile indigent defense services.[xv] These specialized offices increase efficiency through the same mechanisms as the adult system: organizational structure, which ensures proper training, oversight, and accountability; as well as access to shared resources. Furthermore, juvenile public defender offices are best situated to provide the added benefit of specialized case management to work with the court and the families to ensure public safety while increasing opportunities to improve the lives of the youth they serve.[xvi]
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Mental Health Public Defender Offices. All too frequently, those suffering from mental illness become entangled in the criminal justice system for non-violent behaviors that are often manifestations of symptoms of their illness and circumstances.[xvii] Due to a lack of community-based treatment alternatives, jails have become de facto warehouses for the mentally ill, and they are often poorly equipped to address the issues at the root of individuals’ illness or addiction.[xviii]
Mental health public defender offices help bridge the gap between the criminal justice and mental health systems, ensuring that individuals suffering from mental illness are given appropriate assistance throughout the criminal justice process, while larger public safety interests are met. These specialized defenders incorporate the expertise of social workers and case managers to provide mental health assessment, treatment referral, service integration, and follow up as an alternative to incarceration for indigent defendants charged with low-level crimes.
As such, mental health public defender offices operate as a unique early-system resource to courts by serving dual purposes: (a) providing specialized indigent defense representation and case management to address many interrelated issues, such as homelessness, disability, and access to medication and/or treatment programs; and (b) advocacy for alternatives that will divert individuals into treatment, assist clients in their efforts to stabilize, and ensure compliance with court requirements.[xix]
However, only six Texas counties have established mental health public defender offices.[xx] Many counties lack the resources, coordination, and knowledge about such models to implement them locally. Travis County’s Mental Health Public Defender Office serves as an example for these counties to follow,[xxi] providing quality legal representation and taking a holistic approach that better ensures mental health treatment and continuity of services to assist mentally ill defendants in stabilizing and avoiding re-offending behaviors.
[i] “Financing the Judiciary in Texas Legislative Primer,” Second Edition, Texas Legislative Budget Board, January 2009, 21, 28. These figures represent appropriations over a two-year period. www.lbb.state.tx.us/Other_Pubs/Judiciary_Leg_Primer_0109.pdf
[ii] Several local news articles highlight specific problems with rotation and contract systems of appointment: Lisa Falkenberg, “An Idea Whose Time has Come?” Houston Chronicle, Commentary, March 12, 2008. Falkenberg notes criticism of biased appointments, a lack of performance standards, and problems funding investigations in Harris County. Rick Casey, “Supremes May Slap Texas Again,” Houston Chronicle, Commentary, March 13, 2008. Casey covers the Rothgery case currently being considered by the Supreme Court. Rothgery was jailed for five days on erroneous charges, depleted his savings for bond, and filed several requests for an appointed attorney – who, once appointed six months later, quickly cleared Rothgery’s name. Jim Getz, “New Public Defender Works to Prevent Mix-ups.” Dallas Morning News, January 21, 2007. Getz notes a problem in Kaufman County, prior to the establishment of a public defender office, in which one man placed on probation sat in jail for a year because his court appointed attorney had no obligation to follow up.
[iii] “Blueprint for Creating a Public Defender Office in Texas,” Second Edition, Texas Task Force on Indigent Defense and The Spangenberg Group, June 2008, www.courts.state.tx.us/tfid/pdf/ 2008revisedblueprintfinal.pdf. See also: State Sen. Rodney Ellis and Barry Scheck, “Create a Harris County Public Defender,” Houston Chronicle, Op-ed., March 15, 2008.
[iv] “Blueprint.” TFID continues to provide funding at 60%, 40%, and 20% respectively through the 4th year of establishing a public defender office.
[v] “Evidence,” Furthermore, the report notes the added benefit of relieving the court’s administrative burden in assigning attorneys and processing vouchers, typical in a rotational system of providing indigent defense.
[vi] James R. Neuhard, “The Ten Commandments of Public Defense Delivery Systems,” National Legal Aid and Defender Association.
[vii] “Blueprint.,” 10.
[viii] “The Ten Principles of a Public Defense Delivery System,” American Bar Association, Resolution adopted February 5, 2002.
[ix] “Blueprint.” The Blueprint notes a significant cost savings to counties results from decreased pretrial incarceration.
[x] “Blueprint.”
[xi] “Blueprint.”
[xii] Bill Murphy, “Harris County Jail Filled Beyond Capacity,” Houston Chronicle, News, April 1, 2008. This year, the Harris County Jail held about 10,400 inmates, already overcrowded by 1,000 inmates, at an anticipated cost of $192 million.
[xiii] The right to an attorney for juveniles was established by the U.S. Supreme Court in In re Gault (1967) and is codified in the Texas Family Code, Chapter 51 which sets the standards for the appointment process for youth whose families meet criteria for indigence.
[xiv] “Indigent Defense in the Texas Juvenile Justice System,” Task Force on Indigent Defense and Texas Juvenile Probation Commission, June 2007, 1, www.courts.state.tx.us/tfid/pdf/Indigent%20Defense
%20Booklet%20Final.pdf , Many county juvenile plans do not stipulate that an indigent youth receive access to counsel prior to the initial hearing to detain them.
[xv] “Blueprint,” 2. Counties include: Bowie (regional), Cameron, Colorado, Dallas, El Paso, Travis, Val Verde (regional), and Willacy.
[xvi] “Ten Core Principles for Providing Quality Delinquency Representation Through Public Defense Delivery Systems,” Second Edition, National Juvenile Defender Center and National Legal Aid & Defender Association, July 2008, www.njdc.info/pdf/10_Core_Principles_2008.pdf. The Ten Core Principles note current brain science which affirms that “children and young adults do not posess the same cognitive, emotional, decision-making or behavioral capacities as adults” and urges a special system that ensures supervision of ongoing training, manageable caseload, resource parity and defense advocacy for treatment alternatives. These goals are achievable through an established juvenile public defender office.
[xvii] “Criminal Justice/Mental Health Consensus Project,” Council of State Governments, June 2002, p. 87, 110, http://consensusproject.org/downloads/Entire_report.pdf. The report identifies barriers to treatment for individuals with co-occurring substance abuse and mental health disorders and the tendency for instability of the mentally ill who lack affordable housing and access to treatment. See also “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness,” Human Rights Watch, 2003, p. 5 www.hrw.org/reports/2003/usa1003/usa1003.pdf. The report cites poverty, homelessness, and untreated addiction as factors which increase the likelihood that individuals with mental illness enter the criminal justice system.
[xviii] “Criminal Justice,” p. 102. The report notes, “the stress of incarceration can significantly raise the risk of decompensation” of mentally ill offenders. See also “Ill-Equipped,” p. 3. The report describes incarceration as “an incubator for worse illness and psychiatric breakdowns,” and defines decompensation as “the aggravation of symptoms of mental illness leading to a marked deterioration . . .”. Both reports similarly note the lack of specialized facilities and personnel training to handle the mentally ill. Under these circumstances the mentally ill cycle through the system without long-term stabilization, becoming worse through repeated arrest, decompensation, and mounting collateral consequences i.e. loss of social services, housing, and jobs.
[xix] Dee Wilson, Director of TCOOMMI, testimony to the Joint Hearing of the Subcommittee on Substance Abuse and Mental Illness and Appropriations Subcommittee on Criminal Justice, May 29, 2008. Wilson stated TCOOMMI-funded treatment programs have a “phenomenal” 3-year recidivism rate of 12% statewide, but notes some shortcomings in front-end processing of mentally ill defendants to divert the mentally ill into treatment.
[xx] “Blueprint,” 1. Bexar (regional), Dallas, El Paso, Travis, Val Verde (regional), and Willacy. Travis county is the first stand alone MHPDO in the nation accepting misdemeanor cases where the client is indigent and has at least one major priority population diagnosis (i.e. schizophrenia, bi-polar disorder, schizoaffective disorder, or major depression).
[xxi] Travis County MHPD processes up to 500 misdemeanor cases annually and serves as a crucial link between the mental health and criminal justice systems. The MHPD active participates in state and local mental health working groups and organizes opportunities for continuing legal education and local seminars to increase awareness of mental health issues and to promote communication among service providers, law enforcement, and court actors.