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

1. 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

2. Overview Reminder of the Roots FDA Impact in Ten Years The Next Ten Years

3. 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 1775

4. 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 1787 1791

5. But Long Road to Apply Protections to All Citizens Fourteenth Amendment Ratified Gideon vs. Wainwright 1868 1963 1876 Right to Counsel in Texas state constitution Moore and Butcher, 2005 for Texas 1876 constitution reference

6. 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”.....you 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)

7. Long Road to Make Indigent Defense Meaningful Texas Fair Defense Act (FDA) Gideon vs. Wainwright 2001 1963 2011 10 Years of Implementation Struggle to translate at state level the “right to counsel” into a meaningful indigent defense system

8. 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

9. Overview Reminder of the Roots FDA Impact in Ten Years The Next Ten Years

10. 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

11. Fair Defense Act Put Structure in Place for Improving Indigent Defense in Texas State Funding Process Standards Oversight Timing of Appointment Funding Subsidy Transparency Method of Appointment Plans Grants for Improvements Compensation Data Qualifications Audits Improve Quality of Representation Meets Constitutional Standards Heighten “prima facie” legitimacy Improves “Justice Outcomes”

12. 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

13. 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

14. 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

15. 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:

16. Overview Reminder of the Roots FDA Impact in Ten Years The Next Ten Years

17. Agenda for the Next Ten Years State Funding Process Standards Accountability 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

18. Most Funding Continues to Be Local Total Indigent Defense Expenses by Local and State Local Cost State Cost % % $0 0% $91 million 100% 2001 14% 86% $28.0 million 2010 $167 million Total Attorney Fees per Case Local Cost State Cost $323 2003 $48 per case $294 per case 2010 $342

19. 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

20. Texas Indigent Defense Cases Should Also Increase Projected Cases Paid by 2021 Assuming Same Rate of Growth 640,917 +30% 484,438 372,752 % of Cases Paid out of Total Cases Filed 43% 2003 2010 54% TIDC Statistics

21. 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 2021 63% Percent Local 2010 86% Increase Present Level of Services by Increasing State Funding Alone for Reimbursement by $50 Per Case $305 Million +$110 Million in State Funds 2021 55% Percent Local 2010 86%

22. 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?

23. 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

24. 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

25. 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

26. Thank You www.justicecenter.csg.org tfabelo@csg.org