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Criminal Justice Magazine
Fall 2001
Volume 16, Issue 3

Indigent Defense

Terry Brooks and Shubhangi Deoras

Texas Enacts Landmark Reforms

Recently, Texas has been the focus of criticism highlighting inadequate representation and unfair treatment of indigent defendants within the state criminal justice system. For the past few years, a number of groups have been working with legislators and the state bar association to improve the system. As a result, on June 14, 2001, Texas Governor Rick Perry signed into law the Texas Fair Defense Act of 2001. This landmark legislation provides, for the first time ever, state oversight and funding for the delivery of indigent defense services in Texas.

History of reform

The Texas Fair Defense Act is the product of nearly two years of collaborative effort among political, community, bar, and advocacy groups to reform the procedures used in Texas to provide criminal defense services for the poor. In 1999, Texas Senator Rodney Ellis sponsored a bill to reform indigent defense procedures. The bill was eventually vetoed by then-Governor George W. Bush after trial judges from around the state voiced concern over provisions that would have limited their powers to appoint lawyers to represent indigent defendants.

In September 2000, the State Bar of Texas received a report from its Committee on Legal Services to the Poor in Criminal Matters entitled "Muting Gideon’s Trumpet: The Crisis in Indigent Criminal Defense in Texas," which drew on information from surveys of defense lawyers, judges, and prosecutors throughout the state. The report concluded that "(t)he system of representing indigents charged in criminal matters in Texas is in need of serious reform."

In December 2000, the Fair Defense Project released its "Fair Defense Report: Analysis of Indigent Defense Practices in Texas" with findings and recommendations based upon its comprehensive one-year study of indigent defense practices in a representative sample of 23 counties across the state, which contain 61 percent of the state’s population. The Fair Defense Project was organized by Texas Appleseed, a non-profit, non-partisan public interest law center, and involved a broad coalition of civil rights groups, criminal justice reform groups, religious groups, good government organizations, and women’s organizations.

According to Bill Beardall, who spearheaded the Fair Defense Project as legal director of Texas Appleseed, the goal of the project was to examine various indigent defense systems across the state to identify specific failures of the systems and changes to remedy the failures. With substantial assistance from the American Bar Association’s State Commissions Project (using The Spangenberg Group as consultant) and other organizations, the Fair Defense Project spent a year collecting information relating to indigent defense representation in four distinct but related categories of criminal cases. The categories include (1) non-capital felony and Class A and Class B misdemeanor; (2) capital felony; (3) cases involving mentally ill defendants; and (4) juvenile delinquency. Among the many findings within the Fair Defense Report was the complete absence of uniformity in standards and quality of representation among the indigent defense systems in the 23 counties studied. Specifically, the report found that the quality of representation varies radically from one courtroom to the next, resulting in a patchwork of inconsistent systems in each of the 800-plus criminal courts within the state. Additionally, the report found that the state ranked number 48 out of 50 states in terms of indigent defense funding with the cost per capita for indigent defense in Texas for fiscal year 1999 at approximately $4.65.

The Fair Defense Report made 48 recommendations on how to address the systemic failures. At the same time that the report was released in early December 2000, the State Bar of Texas convened a statewide conference of judges, lawyers, and criminal justice policymakers to discuss the state’s indigent defense systems and possibilities for reform. According to Beardall, the fortuitous timing of the Fair Defense Report, the State Bar of Texas conference, national and local attention, and advocacy work by other groups and individuals helped place the issue of indigent defense reform high on the legislative agenda at the start of the January 2001 session. From that point on, leaders of the Fair Defense Project worked closely with staff from the office of Senator Rodney Ellis to draft a comprehensive bill that, after many revisions, would eventually become the Texas Fair Defense Act of 2001.

Key provisions

The Texas Fair Defense Act, which takes effect January 1, 2002, creates a new statewide task force charged with developing uniform standards and guidelines for indigent defense systems in all 254 counties in Texas. The statute also provides state funding for indigent defense, a first in Texas, through a self-perpetuating "Fair Defense Fund" that would provide $19 million for the next biennium and generate $12 million every year thereafter. The new state funding will supplement existing county funding and will be granted by the statewide task force to counties that comply with the minimum standards contained in the statute and any additional standards promulgated by the task force in the future. The statute also establishes mandatory timelines for the appointment of counsel throughout the state.

Members of the task force will include individuals appointed by the governor as well as ex officio members from the legislature and judicial council. In addition to establishing standards and administering grants to counties complying with the standards, the task force will have the authority to publish evaluations of counties demonstrating their level of compliance with the Act and to periodically review the list of attorneys in the state eligible to take death penalty cases.

According to Bill Beardall, "The enactment of this legislation ranks among the largest steps forward any state has ever taken to improve indigent defense. Even though the Act does not have all reforms we had hoped to get when it was first drafted, it is a landmark piece of legislation and much more far-reaching than we would have thought could be possible." According to Robert L. Spangenberg, a nationally renowned indigent defense expert, "I can only describe [the enactment of the Texas Fair Defense Act] as historic."

Implementation and future reforms

In June 2001, Texas Appleseed formed a new nonprofit advocacy group called the Equal Justice Center that will continue the advocacy work begun by the Fair Defense Project, assist with the implementation of the Texas Fair Defense Act, and advocate for a second round of reforms. According to Beardall, recently hired as its new executive director, the Equal Justice Center will provide critical resources, advice, and contacts to assist county officials and lawyers in choosing the type of system or mix of systems that will work best in their counties while complying with the requirements of the Texas Fair Defense Act. In addition, a top priority for a second round of legislative reforms will be to increase the amount of the state’s appropriation for indigent defense. Finally, during this next phase of advocacy, the Equal Justice Center will work toward ensuring that knowledgeable and committed people are appointed to the statewide task force on indigent defense and that the task force functions effectively as a forum for educating the legislature and discussing future reforms.

 

Terry Brook s is staff counsel for the ABA Standing Committee on Legal Aid and Indigent Defense. Shubhangi Deoras is assistant committee counsel. They are both contributing editors to Criminal Justice magazine.



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