In Search of Greater Justice With a Travis County Public Defender’s Office
Taking steps toward a much improved, more equitable local criminal justice system
By Michael King, Fri., May 24, 2019
"The answer to everything," said Meridian's mother, "is we live in America and we're not rich."
– Alice Walker, Meridian
On May 9, Travis County took its next step toward what may be a much improved, more equitable local criminal justice system. After much preparation, consultation, and institutional hemming and hawing, the Commissioners Court forwarded a grant application to the Texas Indigent Defense Commission for the creation of a Travis County public defender's office.
Austin is the largest city in the country without a public defender; Travis County instead relies on court-appointed private attorneys to represent its indigent criminal defendants in tens of thousands of cases each year. In a typical year, about 70% of felony charges and 50% of misdemeanors are defended by appointed counsel, according to TIDC statistics. This costs Travis County around $14 million annually, a number most agree is too low for the task.
The county's grant application also asks for additional support for the existing system, the "Managed Assigned Counsel" provided by the Capital Area Private Defender Service. If the application is approved – and the county receives the requested $27 million (over four years) in TIDC support – the PDO would eventually defend 30% of indigent felony and misdemeanor cases, and CAPDS would receive substantial additional resources to cover the remainder.
Even setting aside the years of preliminary attempts that have led to this point – including the 2014 creation of CAPDS to replace the "wheel" of court-assigned defense attorneys – the road to the latest PDO proposal has been a bumpy one. Until the May 7 Commissioners Court 4-1 vote of approval and the endorsement letter from the criminal court judges that followed two days later, the county's application appeared in doubt. While the three main stakeholder groups – justice advocates, the criminal defense bar, and the criminal judges – all publicly support the goal of a public defender's office, they have spent months at odds over the programmatic details, and some cross-sniping continues.
The state's approval of the grant (whether in full or in part) is not a certainty – a decision is expected in June – and the commissioners postponed any decision on the specific makeup of PDO oversight, as the stakeholders disagree on how the oversight committees should be constituted. Beyond these local issues lies the formidable burden of the property tax revenue caps being pursued by the current Legislature, which would undermine county budget planning more generally. Amidst all these obstacles and the time it takes to make institutional changes, it will be years before we can fully assess how well the new criminal defense structure is working.
The Bill of Particulars
For the moment, presuming the grant application sails to acceptance, the new system will include several aspects. Travis County will match state funding of the public defender's office and corollary support for CAPDS, beginning at roughly $4 million each in the first year and escalating to about $8 million each in year four. The total grant request has risen from about $20 million – initially proposed by the Commissioners Court's appointed indigent defense working group – to $27 million, in part because the judges insisted that the budget include substantial additional resources to CAPDS. If all goes as planned, by the fifth year (2024, after the grant expires), Travis County would be spending about $16 million annually on indigent defense. (That compares to the county's annual budget for prosecution of about $30 million, along with many millions more on law enforcement.)
The proposed new resources for CAPDS include added administrative support as well as "alternative disposition" of cases and improved immigrant and "holistic" representation. Perhaps the most important reform would be moving more quickly to an hourly payment system for the private attorneys; a universal criticism of the status quo is that the primarily "fixed-fee" payments provide no incentive for thorough representation (see "Chief Elements of the Indigent Defense Grant Proposal," below).
An interesting new wrinkle of the approved proposal is the additional responsibility for the PDO of 24/7 representation at initial "magistration" – that is, when people who have been arrested are presented on charges at the county jail. That proposed reform had previously been part of last year's failed effort to merge the district and county attorneys' offices. Presumably, prosecutors as well as defense attorneys would be on call for this duty, and District Attorney Margaret Moore said she's estimated that fiscal impact for the commissioners.
"I haven't been involved in the details of the public defender debate," Moore said. "It's not really my place, as a prosecutor. But we do think we could save some money on our side by combining some D.A. and county attorney administration." The lack of around-the-clock magistration has often been cited as one more burden on indigent defendants, who are less likely to be able to post bail promptly or who might avoid jail time through immediate magistration.
Attorney Chris Perri, a board member of the Austin Criminal Defense Lawyers Association but not directly involved in the public defender project, says he believes that 24/7 magistration could become crucial to improving outcomes for defendants. Perri cited one finding, concerning pretrial release, of a 2018 study of comparative outcomes that the indigent defense working group relied on in developing their proposal: "Persons released on bond [are] 9% less likely to be convicted than a person incarcerated prior to adjudication, controlling for all the factors in the data that can impact this outcome."
Attorney Sidney Williams (who serves on the boards of both CAPDS and ACDLA) also endorsed the potential of 24/7 magistration. "If it comes to pass," said Williams, "it would be awesome. It could help create a system where minor charges lead not to arrest, and jail, and a permanent record, but [to] either treatment and dismissal or evaluation and education, without incarceration. That wouldn't just help the defendants, it would save the county a whole lot of money."
Another aspect of the plan – to include both the PDO and CAPDS – is to complement strictly legal representation with "holistic defense." As envisioned by justice advocates, that would involve ancillary or parallel services beyond the legal system: dealing with school suspensions, licensing and job issues, and immigration matters (beginning with translation services). How much additional support can be provided for such contingencies will obviously depend on how much funding becomes available.
Cases Still Pending
The discussions that led to this point began last fall with the appointment of 14 members to the working group, among them activists, criminal defense attorneys, and county staff members with relevant expertise. Although the intent was to encompass the widest possible range of stakeholders, the numbers (even without perfect attendance) were unwieldy, and the discussions were sometimes heated, particularly between the activists (several from Grassroots Leadership) and the criminal defense attorneys, at least some of whom came to feel they were being unfairly blamed for problems not of their making.
Matters came to a head in February, when the ACDLA decided to withdraw from participation in the group, citing what they considered unrealistic proposals, a lack of support from the criminal court judges, and more pointedly, disrespect for the legal professionals from many of the group members. "Instead our members were disregarded, discounted, and vilified by non-legal activists lacking the technical expertise and experience necessary to build a legal services organization," read the Feb. 4 letter from the ACDLA board, "and who prefer reckless stunts that jeopardize the community they are fighting to protect over civil discourse."
Members of the working group have responded that the criminal defense attorneys have been unwilling to acknowledge that their colleagues have at times provided inadequate defense for indigent clients. More generally, they cite that 2018 study (prepared for the D.A. by Tony Fabelo and Jessy Tyler, under the auspices of the Justice Center of the Council of State Governments) as confirming that, statistically, defendants who were able to hire their own attorneys had better outcomes than those assigned counsel: "A person with an appointed attorney [is] 16% more likely to be convicted than a person with a retained counsel."
As Perri and others have argued, the problem with that unadorned statistic is that it neglects other intrinsic factors in the cases of indigent defendants. "The fact that someone is poor is always captured by the 'appointed counsel' variable," says Perri, "and it's far more likely that being poor is driving the bad outcomes, as opposed to appointed counsel's performance." He notes that in addition to having an income sufficient to afford bail, non-indigent defendants are more likely to have the resources for counseling, restitution, or other evidence that demonstrates "rehabilitation" to the court.
Perri's argument is echoed in another study, Travis County's own 2018 evaluation of CAPDS (by Meg Ledyard, who also served on the working group). Ledyard's report notes the same outcome discrepancy, but continues: "While it is tempting to attribute the entirety of this outcome gap to the quality of lawyering done by retained vs. indigent defense counsel, this would be a mistake. The type of counsel is a de facto proxy for socioeconomic status, and it is likely that unobservable characteristics (such as access to treatment, family support, ability to obtain pretrial release) that are correlated with socioeconomic status also lead to more favorable outcomes."
While that disagreement is likely to persist under the proposed system – evaluations of both the PDO and CAPDS are built into the grant proposal – the criminal court judges effectively voted in favor of CAPDS when they successfully insisted that additional resources for the existing service be commensurate with the funding allocated to the new PDO. Having submitted their own February letter to the commissioners rejecting the initial working group proposal as "vague" and "inadequate" – indirectly leading to an extension of TIDC's original March application deadline to May 10 – the judges eventually submitted their own proposal, including both more CAPDS funding and 24/7 magistration.
The hybrid proposal, presented by County Judge Sarah Eckhardt and approved by the Commissioners Court on May 7, essentially adopted the funding schedule proposed by the judges. However, Eckhardt ended up "punting" another vexed question – who would sit on oversight committees that would hire the public defender and monitor the PDO going forward? – to an unspecified later date ("Public Defender Proposal Submitted to the State," Daily News, May 13).
Subsequent Motions
For the moment, at least, the local debate is paused while the TIDC decides the fate of the proposal: approval, rejection, or something in between. If the proposal is approved under reduced funding, the county will be faced with another set of questions over its spending priorities for criminal justice. On the dais and elsewhere, Eckhardt has made spirited declarations of the county's primary constitutional obligations to a fair defense system. Her colleagues on the dais have mostly seconded that sentiment, while repeatedly raising nervous questions about future budgets.
As for the various advocates, the reaction has been mixed. In a joint statement issued immediately after the vote, ICE Out of Austin, Grassroots Leadership, and Texas Advocates for Justice complained that the revised proposal had been designed "behind closed doors" without sufficient public input. "While this is an important step towards fair and just representation for those who cannot afford it," they wrote ambivalently, "advocates are not calling this a victory for the community." With a similar skepticism, attorney Steve Brand – who had represented the ACDLA on the working group until the organization withdrew its involvement – said he now supports the county's proposal "as long as it's clear they're working off the judges' equitable funding proposal. ... They need to properly fund it, at the beginning and [in the] long term."
Sidney Williams shared Brand's sentiments, noting resignedly that "Travis County suffers from inadequate funding of its indigent defense, whatever the system. No one wants to spend money on indigent defense – that is the bottom line." He said the current proposal acknowledges that all elements of indigent defense – CAPDS as well as the projected PDO – need additional support. "This is the truth: It's really about all the clients. We need to ensure that everyone has access to equal resources, and the judges have in effect said to the commissioners, 'You guys need to spend more money on everyone.'"
Whatever happens at the TIDC, there is certainly plenty more to be done to improve the Travis County provision of indigent defense and to somewhat level the field between law enforcement, prosecution, and defendants. D.A. Moore noted that while the Fabelo study reflects minimal racial disparities in final outcomes – "Controlling for [other variables]," reads the report, "race was not a significant predictor of conviction" – it does show significant racial disparities "upstream of booking," particularly in disproportionate arrests of African Americans. "We're beginning to look at that aspect," said Moore, "and asking law enforcement: What are our public safety objectives? Is there another way we can achieve those objectives, without disproportionate arrests?"
Chris Perri pointed to prosecutorial initiatives elsewhere, specifically in Dallas, where District Attorney John Creuzot has moved to decriminalize many minor offenses – minor drug possession; some minor, victimless trespasses; and other offenses he describes as "criminalizing poverty" – along with greatly reducing the use of cash bail. Perri says that Creuzot's changes "make Travis County's reforms look minor and incremental by comparison."
Perri argues that whatever happens with the TIDC grant and subsequent reorganization (and better funding) of indigent defense, "I'm concerned that the PD's office will be incorrectly perceived as the 'fix' to the systemic problems in our justice system, when we should be tackling the problem of oversized sheriff's, prosecutors', and police offices." (That discussion, should it occur, would also respond substantively to the commissioners' persistent budget concerns.) If establishing a Travis County public defender's office eventually helps address these much broader and deeper questions concerning local law enforcement, prosecution, and justice, it will be serving an important public purpose.
Key Takeaways (From the Fabelo Study)
In 2018, the Travis County District Attorney commissioned a statistical study of "disposition patterns for defendants charged with State Jail Felony ... drug possession cases" in 2016 and 2017, with an emphasis on reviewing for "unwarranted racial effects" (the "Fabelo Study," prepared by Tony Fabelo and Jessy Tyler of the Council of State Governments Justice Center). The chart below lists the study's "Key Takeaways" – showing that "race was not predictive" of conviction rates. (However, the study did show that arrests of African Americans are strongly disproportionate to their Travis County population – roughly three times higher). The study was cited by the indigent defense working group for its showing of a 16% discrepancy in conviction rates for defendants represented by "retained" vs. "assigned" attorneys. Other analysts argue that "assigned counsel" generally reflects indigence and a consequent lack of resources to demonstrate restitution, rehabilitation, or other mitigating factors for the court.
Chief Elements of the Indigent Defense Grant Proposal
Public Defender's Office
• PDO to provide "holistic defense" in 30% (phased-in) of felony and misdemeanor cases
• PDO to provide 24/7 representation during initial magistration
• Advocacy and policymaking functions
• Training and legal education for criminal defense attorneys
Managed Assigned Counsel (Capital Area Private Defender Service)
• Continues to defend in 70% of felony and misdemeanor cases
• Expand alternative disposition programs
• Improve representation of undocumented clients
• Begin transition from fixed-fee to hourly billing for attorneys
Other Aspects: Collaboration in "collateral proceedings" (school suspensions, licensing, immigration); potential merger with specialty public defenders (mental health, child protection); annual evaluation of PDO and MAC
Projected Cost: $8.2 million (year 1); total, $54.3 million (4-year grant term), divided equally between TIDC grant funding and Travis County match.
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