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Indigent Defense: National Developments, State Funding, and Cost-Effective Strategies TAC Annual Conference August 25, 2009 Carl Reynolds, Administrative Director, Office of Court Administration [email protected] Jim Bethke, Director, Task Force on Indigent Defense [email protected] www.courts.state.tx.us & www.courts.state.tx.us/tfid

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Indigent Defense:National Developments, State Funding,

and Cost-Effective Strategies

TAC Annual ConferenceAugust 25, 2009

Carl Reynolds, Administrative Director, Office of Court Administration

[email protected]

Jim Bethke, Director, Task Force on Indigent Defense

[email protected]

www.courts.state.tx.us & www.courts.state.tx.us/tfid

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Agenda

National Developments and Reports

State Funding for Indigent Defense

Implementing Cost-Effective Strategies– Process and Technology in Criminal

Justice– Financial Screening– Local Costs and Appointment Trends

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Justice Denied: America’s Continuing Neglect of Our

Constitutional Right to Counsel

Report of the National Right to

Counsel Committee

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Background

Created in 2004 to examine the ability of the American justice system to provide adequate counsel to individuals in criminal and juvenile delinquency cases who cannot afford lawyers

Decades after the Supreme Court’s Gideon decision, there was disturbing evidence that states and localities were not providing competent counsel, despite the constitutional requirement that they do so

The Committee’s charge was to assess the extent of the problem, the various ways that states and localities provide legal representation to those who cannot hire their own lawyers, and to formulate recommendations about how to improve systems of indigent defense to ensure fairness for all Americans

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Committee’s Charge

Examine the various ways that states and localities provide legal representation to those who cannot hire their own lawyers, assess the extent of the problem, and to formulate recommendations about how to improve systems of indigent defense to ensure fairness for all Americans

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Why “Justice Denied”?

Inadequate funding

Large caseloads

Lack of independence

Deficient access to supporting resources

Lack of performance standards

Inconsistent advice of the right to counsel

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Three Major Challenges to Reform

Budget shortfalls and difficult economic times

Crippling Caseloads

Lack of enforceable standards to ensure adequate defense

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Characteristics of Effective Indigent Defense Systems

Sufficient funding Reasonable caseloads Independence in selection, appointment, and

payment of counsel Performance standards and oversight Access to vital resources

Technology, expert witnesses, etc.

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Recommendations

One of the most important recommendations is that indigent defense should be :

1) independent, nonpartisan, organized at the state level, 2) adequately funded by the state from general revenues, and

3)overseen by a board or commission.

Of equal significance is the recommendation that the 4) federal government assist the states in the delivery of indigent defense services.

The right to counsel is a federal guarantee based on the Sixth Amendment to the U.S. Constitution, and it is entirely fitting that the federal government assist in its implementation.

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U.S. Department of Justice

2010 National Symposium on Indigent Defense

February 18-19, 2010

Washington, D.C.  

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Pew Center on the States 2009 ReportsPew Center on the States 2009 Reports ““One in 31: The Long Reach of American Corrections”One in 31: The Long Reach of American Corrections”

““Arming the Courts with Research: 10 Evidence-Based Sentencing Arming the Courts with Research: 10 Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs”Initiatives to Control Crime and Reduce Costs”

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1 in 22 adults is under correctional control1 in 22 adults is under correctional control– in 1982, the figure was 1 in 42 adultsin 1982, the figure was 1 in 42 adults

$2.96 billion spent on corrections yearly$2.96 billion spent on corrections yearly

$1.00 prisons for every 18 cents on $1.00 prisons for every 18 cents on probation and parole ; 1 day of prison probation and parole ; 1 day of prison ($42.54) = 12 days of parole or 17 days of ($42.54) = 12 days of parole or 17 days of probationprobation

1 in 31: The Long Reach of American 1 in 31: The Long Reach of American Corrections . . . TexasCorrections . . . Texas

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Arming the Courts with Research

Policy: Recidivism Reduction Strategy and Effective CollaborationOffenders: Sentence based on Risk/Needs; Supervise based on EBP, Swift & certain responses to violations Judges: Data-enabled, trained and informed, motivators for pro-social behavior

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State Funding and Costs for Indigent Defense

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State Appropriations Indigent Defense

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Texas County Indigent Defense Expenses

* 2009 and 2010 county expenses have not yet been reported

91.5

107

117.5

127

126.5

135

144

153

30

29.5

21.5

14

14.5

11.5

0

7

11.5

17

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

StateReimbursements($ million)

CountyUnreimbursedExpenses

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FY09 Funding Strategies

$30 Million Revenue

Formula Grant& Direct Disbursement

Equalization

Technical Support

Discretionary Grant•New & Innovative Programs•Replicable Programs•Targeted Specific

1919

Extraordinary

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Implementing Cost-Effective Strategies – the State and Local

Challenge

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Making the Most of Limited Resources

Systemic AssessmentsMidland Jail Study as a prototypeCase Management TA

Integrated Justice

SB 1259

West Texas Regional Capital Public Defender Office

Determining Indigence Study

Direct Electronic Filing Study

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All Pretrial . . . . . 48.5%All Pretrial . . . . . 48.5%

All Convicted . . . 22.0%All Convicted . . . 22.0%

Federal . . . . . . . . 12.0%Federal . . . . . . . . 12.0%

And See: Art. 104.002, Texas Code of And See: Art. 104.002, Texas Code of Criminal ProcedureCriminal Procedure

Texas County Jail Populations 2006 Texas County Jail Populations 2006 (latest TCJS Report online)(latest TCJS Report online)

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Systemic Assessments

Midland StudyMidland Study: Make an impact on the populations you : Make an impact on the populations you can affectcan affect

-Integrate Information and Sustain Collaboration to -Integrate Information and Sustain Collaboration to attack delaysattack delays

-Increase magistrations and arraignments-Increase magistrations and arraignments

-More resources for pretrial services-More resources for pretrial services

Case Management Case Management Technical Assistance from OCATechnical Assistance from OCA-moving cases from filing to closuremoving cases from filing to closure-http://www.courts.state.tx.us/oca/csp/csphome.asp

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Integrated Justice

Sharing information/data across computer platforms

Current effort focused on pen packets, DPS and TDCJ data

Courts focusing on e-Filing and need to expand to data exchanges

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SB 1259 Article 2.21, Code of Criminal Procedure

Requires reciprocal e-Filing capability in criminal cases, i.e.,

If a clerk of the district or county court to accepts electronic documents and exhibits from the state, the clerk must accept the same received from the defendant.

Allows the Court of Criminal Appeals to accept e-Filed documents of all types from all users.

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West Texas

Regional Capital Public

Defender OfficeNACOAward

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The Costs and Benefits of Indigent Screening and Verification . . .

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Task Force Studies and Papers:

The Costs and Benefits of an Indigent Defendant Verification (July 2007)

Supplement to the Verification Study (Nov. 2007)

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Your financial affidavits are only as good as your screening

process

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Screening processes require tangible amounts of time and

money

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A point person must be responsible for taking the time

to assist with screening

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Verification is most feasible if there is a bright line standard

of indigence

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Eligible for Justice: Guidelines for Appointing Defense Counsel

1) Screen2) Apply Screening Criteria Uniformly3) Screener Should be Conflict Free4) Appoint Counsel to Eligible Persons5) Streamline Screening Process6) Ensure Required Procedural Protections in

Place

Brennan Center For Justice (2008)

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Direct Electronic Filing in Criminal Cases: Closing the Paper Trap

Published: July 2006

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Direct Electronic Filing

Civil Courts:Transfer of case documents from attorneys to clerk of courts.

Criminal Courts:Case management strategy;

Automates case screening and filing;

Shares information among multiple users (law enforcement, prosecutors, and courts).

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Benefits Of Direct Electronic Filing

Goal: Provide practical evidence-based guidance for jurisdictions to follow in implementing criminal justice processes that are fair, accurate, timely, efficient, and effective.

Caveat: There should never be a rush to judgment. Processes should ensure that defense counsel and prosecutors alike have amble opportunity to develop their cases.

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Overview of the Study Sites

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Elements of a Model Criminal Direct Electronic Filing System

Electronic transmission of case-related information from law enforcement to the prosecutor for an early filing determination

Early electronic

confirmation of defendants’ identity

Electronically facilitated

filing Integration of

information technology systems across departments involved in justice processing

Expanded public

access to defendant information

Cross-agency

commitment to long-term collaboration

Ongoing commitment to

case processing improvements

Repeated opportunities

for cross-agency education

Flexible and adaptive

work practices

Technological Features

Work Practices

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Benefits Of Direct Electronic Filing

OUTCOME: Enhanced Defendant Rights

Fewer defendants are detained on charges that cannot be successfully prosecuted.

No costs of arrestNo attorney feesNo bond feesNo lost wagesNo family disruptionNo loss of freedom

Defendants that are successfully prosecuted can meet their legal obligations and resume their lives without delay.

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Benefits Of Direct Electronic Filing

OUTCOME: Improved Quality of Legal Defense

When offense reports are submitted timely and reviewed promptly:

Defense counsel can have a more meaningful dialog with client and prosecuting attorney.

Charges can be resolved expeditiously.

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Benefits Of Direct Electronic Filing

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OUTCOME: Cost Savings to the Public Cases lacking evidence to prosecute are screened out at arrest.

No defendant transportationNo jail book-inNo housing costsNo court appointed counsel costsNo prosecution expenses

Officers spend more time in the field.

With an offense report and a filing occur quickly, 15 to 25 percent of cases are disposed quickly.

Clears jail cellsReduces court dockets

Benefits Of Direct Electronic Filing

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Key ObservationsDirect electronic filing does NOT– Increase eligibility for court-appointed counsel;– Or, Ensure prompt appointment.

Direct electronic filing DOES– increase system-wide efficiency;– improve communication;– free resources needed to strengthen indigent

defense services.

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Appointment Rates (2008 Cases Paid / Cases Added)

  Felony Misd.

Counties Over 250,000 : 63% 42%

Counties 50,000 – 249,999: 62% 25%

Counties Under 50,000: 61% 14%

State Average: 62% 34%

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Felony Appointment Trends

45%

50%

55%

60%

65%

70%

2004 2005 2006 2007 2008

Fiscal Year

Large CountyAppointmentRate

Mid-SizedAppointmentRate

Small CountyAppointmentRate

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Misdemeanor Appointment Trends

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

2004 2005 2006 2007 2008

Fiscal Year

Large CountyAppointment Rate

Mid-SizedAppointment Rate

Small CountyApponitment Rate

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Cost of Indigent Defense (2008)

Felony Fees $85 mil– Avg Cost per Case $555

Misdemeanor Fees $31 mil– Avg Cost per Case $180

Other $58 mil

Total $174 mil

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Indigent Defense Spending

  Felony Misdemeanor

Large Counties $54 mil $20 mil

Mid-Size Counties $19 mil $8 mil

Small Counties $13 mil $3 mil

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Felony Appt. Rate at 62 percent

15 Counties Over 250,000 (2000 census)113,217 cases paid / 179,370 cases added

39 Counties Between 50,000 and 250,00035,712 cases paid / 57,936 cases added

$555 X 450 = $250,000

200 Counties Under 50,00026,030 cases paid / 42,957 cases added

$555 X 810 = $450,000

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Misd. Appt. Rate / 34% Statewide Avg.

15 Counties Over 250,000 (2000 census)150,624 cases paid / 355,338 cases added

39 Counties Between 50,000 and 250,00035,028 cases paid / 142,566 cases added 12,760 more cases need to paid to be at state avg

Cost $2.3 million

200 Counties Under 50,00013,376 cases paid / 95,848 cases added18,750 more cases need to paid to be at state avg

Cost $ 3.4 million