Public Defense Innovation in Texas

Implementing Gideon’s Promise:The Right To Counsel In The Nation and Indiana

April 7, 2017

Jim Bethke, Executive Director Texas Indigent Defense Commission

1

The Sounding of Gideon’s Trumpet

2

Who We Are What We DoOur Mission

Our Grant Program

Our Fiscal and Policy Monitoring Program

Our Innocence Program

Is to provide financial and technical support to counties todevelop and maintain quality, cost-effective indigent defensesystems that meet the needs of local communities and therequirements of the Constitution and state law.

In FY 2016 $31.5 million was disbursed toTexas counties.Formula grant awards totaled $25.1 million to all 254counties. Discretionary grants totaled just over $6.4 million.

The Commission monitors each county that receives a grantto ensure state money is being properly spent andaccounted for and to enforce compliance by the county withthe conditions of the grant, as well as with state and localrules and regulations.

Since 2005, the Commission has provided up to $100,000annually to University of Texas School of Law, the Texas TechUniversity School of Law, the Thurgood Marshall School ofLaw at Texas Southern University, and the University ofHouston Law Center to operate innocence clinics. Thisfunding has contributed towards 11 exonerations. In 2015the 84th Legislature expanded funding to include $100,000per year for two new public law schools at the University ofNorth Texas Dallas College of Law and the Texas A&MUniversity School of Law in Fort Worth.

Thirteen-member governing board administratively attached to the Office of CourtAdministration. Jim Bethke is the Executive Director. The Commission has elevenfull-time staff.

Chair:Honorable Sharon Keller Chair – Presiding Judge, Court of Criminal Appeals

Ex Officio Members:Honorable Sharon Keller Austin, Presiding Judge, Court of Criminal AppealsHonorable Nathan L. Hecht Austin, Chief Justice, Supreme Court of TexasHonorable John Whitmire Houston, State Senator Honorable Brandon Creighton Conroe, State SenatorHonorable Joseph “Joe” Moody El Paso, State Representative JunctionHonorable Andrew Murr Junction, State RepresentativeHonorable Sherry Radack Houston, Chief Justice, First Court of Appeals Honorable Linda Rodriguez Hays County

Members Appointed by the Governor:Mr. Alex Bunin Houston, Chief Public Defender, Harris County

Public Defender OfficeHonorable Jon Burrows Temple, Bell County JudgeHonorable Richard Evans Bandera County Judge Mr. Don Hase Arlington, Attorney, Ball & Hase Honorable Missy Medary Corpus Christi, Presiding Judge, 5th Administrative Judicial

Region of Texas

3

Historical Context

Historical Context

4

Gideon vs. Wainwright Texas Fair Defense Act

1963 2002

2017

15 Years of Implementation

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

The Long Road to Make Indigent Defense Meaningful

5

Putting in Perspective the Size of Texas

6

Prior to 2002 Present

No state funding or oversight

No reporting requirements on spending or caseloads

No uniformity in local indigent defense appointment practices

No consistent standards regarding attorney training and experience

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

cronyism

Inconsistent quality of death penalty representation

Key process standards implemented

State provides some funding to support indigent defense

Commission created to provide oversight

Counties now report indigent defense plan and expense information to Commission

Attorney caseload and practice-time reporting pursuant to HB 1318 (83rd Legislature)

Attorney training and qualification standards adopted

Death penalty appellate attorney qualifications established

Pre-Fair Defense Act through Present

7

-

7.3

11.6

11.8

14.3

14.3

17.5

21.5

28.4

28.0

33.7

28.3

27.4

44.8

29.8

31.6

91.4

106.7

117.7

126.5

126.0

134.7

143.6

152.7

158.5

167.1

164.7

179.2

189.7

185.1

208.2

216.1

91.4

114.0

129.3

138.3

140.3

149.0

161.1

174.2

186.9

195.1

198.4

207.5

217.1

229.9

238.0

247.7

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Texas Indigent Defense Expenditures (in millions) by Fiscal Year

Total Expenditures

County Expenditures

State Expenditures

Expenditures (in millions) by Fiscal Year

State & County Criminal Indigent Defense Expenditures (in millions) by Fiscal Year

8

Full State FundingState Funding ≥ 50%State Funding < 50%No state funding

State Variation in Funding Indigent Defense

9

Historical Context

Open & Transparent Government

10

TIDC Website and Local Indigent Defense Data

11

TIDC Website and Local Indigent Defense Data

12

TIDC Website and Local Indigent Defense Data

13

Guidelines for Indigent Defense Caseloads

14

Historical Context

Texas Innovations

15

Regional Public Defender for Capital Cases

Mental Health Defender Offices

Managed Assigned Counsel Programs

Texas Tech Law School Externship Program

16

Regional Public Defender For Capital

Cases(RPDO)

17

Impact:• Office serves 178 counties• Eight regional offices• 50/50 cost sharing • Ensures effective representation

in the most serious and complexcriminal cases

LUBBOCK REGIONAL PUBLIC DEFENDER FOR CAPITAL CASES

State / County Collaboration

18

Research-Based Decision Making

19

Managed Assigned Counsel Programs

20

The Inspiration to Bring to Texas

21

.2001S.B. 7

Modeled after Travis County

Mandates all criminal courts in Texas to adopt

formal procedures for providing

appointed lawyers to indigent defendants.

1963Gideon Decision

“Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”

1980’sTravis Leads

Utilizes attorney appointment “wheels” to ensure fairness in appointments and quality representation

2011New Option:

CCP Art. 26.047(a)

ManagedAssigned

Counsel Program

The History of Travis County Indigent Defense

22

1. Judges review attorney applications and approve for appropriate list.

2. Judges appoint attorneys from a public appointment list using a system of rotation. (~50% of cases not assigned by rotation)

3. Judges set the attorney fee schedule and approve all payment vouchers.

4. Judges conduct annual review of attorneys and require annual verification of CLE.

2011 Taking Stock of Current System

23

Struggles to meet requirements of public defense system:•Principle 1: The public defense function, including the selection, funding, and payment of defense counsel, is independent.• None of these functions were independent of the judiciary

•Principle 10: Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards. • Difficult for a judge to perform this function without engaging in

advocacy in individual cases• Limited judicial resources

Why Change?

24

“The best way to keep what we liked andimprove what must change was themanaged assigned counsel programestablished through a non-profit.”

The Agreement

25

Lubbock and San Mateo Fully privatized all services including

payment and individual appointment

Entire indigent defense budget paid directly to organization

Lubbock 10,000 cases / 6 staff / 80 attorneys

San Mateo 15,000 cases / 16 staff / 110 attorneys

Travis County Hybrid model leaving some of the

administrative functions in Court Administration

Reduces complexity of implementation and costs

Travis 25,000 cases / 8 staff / 210 attorneys

Fully Private vs. Hybrid Model

26

Mental Health Defender Programs

27

Public Defender (PD)In each model, specialized counsel coordinate with social and case workers to represent defendantswith mental illness. Programs link defendants with treatment and resources to help stabilize themand address the behaviors that lead defendants into the criminal justice system.

Managed Assigned Counsel (MAC)

Unmet Mental Health Needs are a Major Cost Driver in the Criminal Justice System

“Approximately 14,000 persons are “super-utilizers” who are deeply involved in the criminal justice system, resulting in $650 million in local jail costs each year due to mental illness and substance abuse.” (Andy Keller, Texas Judicial Council Mental Health Committee Briefing: Texas Mental Health Needs, Systems, and Legislative Issues, July 1, 2016)

Mental Health Specialized Defender Models

Mental Health Defender Programs

28

BexarCollinDallasEl Paso

Fort BendHarris

KaufmanLubbockTravis

Wichita

TIDC estimates that approximately 95,000 persons annually have mental health issuesand need appointed counsel in Texas. Programs currently meet only 9% of the needfor specialized counsel.

Mental Health Defender Programs Developed Through TIDC’s Discretionary Grant Program

29

Research-Based Decision Making

30

Texas Tech Law School Externship Program

31

Texas Tech Law School Externship Program490 Hours of Work Experience Austin, Dallas/Fort Worth, San Antonio, Houston12 Credit Hours Support CourseAttorney PanelsMock Interviews30-Year Resume

Networking and Mentor Requirement

32

In Closing

33