Pleading the Sixth: Two new independent reports out of Texas conclude that the public defender model provides better, more cost-efficient representation than the assigned counsel model. In a companion piece, a 2011 U.S. Department of Justice report makes the same argument. The Sixth Amendment Center read all three reports and reached a very different conclusion.
On October 16, 2012, the Public Policy Research Institute at Texas A&M University released a report, Wichita County Public Defender Office: An Evaluation of Case Processing, Client Outcomes, and Costs, which concludes that public defender attorneys are “more efficient,” “provide more services,” “meet with their clients more promptly,” “spend 21% more time on each misdemeanor and 42% more time on each felony,” “engage in more assertive use of pretrial motions” and are more “cost-effective” than assigned counsel attorneys.
Three days later, the Council of State Governments’ Justice Center reached similar conclusions in their report on Harris County (Houston). Harris County Public Defender: Preliminary Report on Operations and Outcomesstates that establishing a public defender office in Houston was an “appropriate decision” given that the Harris County assigned counsel system was designed around a “low cost-per-case” approach, with “more prevalent” plea bargaining and “sentence outcomes more costly because they are more tilted toward confinement.”
The Sixth Amendment Center read both reports and was impressed with the quality of the research, the clarity of the reporting, and wealth of data collected. Our criticisms are not about the findings – which we believe – but rather with the conclusions drawn from those findings. That is, the benefits to clients, the greater criminal justice system, and Texas taxpayers uncovered in each report are not really the difference between forms of delivery service models. Rather, the difference is between having a “system” versus a “non-system,” as detailed below.
What the reports say
- “Public defender clients are contacted by their attorney one to three days earlier than individuals represented by assigned private counsel;”
- “Indigent defendants can expect at least 40% more attorney time devoted to their case if they are represented by a public defender;”
- “Public defenders use pretrial motions and hearings more frequently than private assigned attorneys;” and,
- “Indigent defendants assigned to the public defender are much more likely to have access to pretrial investigation services and experts;”
But are these findings indicative of a better method of providing right to counsel services (public defender versus assigned counsel)? The Sixth Amendment Center knows of many assigned counsel systems that are every bit as good as the best public defender offices in the country – for example, the Massachusetts Committee for Public Counsel Services or the San Mateo County (California) Bar Association’s Private Defender Program. It just does not make sense that the “model” was the only factor – or the most contributing factor – in the differences noted in Wichita County.
To highlight just one example, the Texas A&M team notes that public defender clients are “much more likely to have access to pretrial investigation services and experts.” As evidence, they note that having “licensed professional investigators in the public defender office confers a significant advantage to clients” with 80% of all felony cases and 56% of all misdemeanor cases receiving pre-trial investigations by licensed professionals. Comparatively, only 54% of felony cases and 28% of misdemeanor cases assigned to the private bar receive pre-trial investigative services – and even then individuals without a professional license conduct the investigations.
But, from our perspective, the fact that the assigned counsel attorneys do not use investigators as much as public defenders has much more to do with a lack of independence than with the assigned counsel model itself. Unlike their public defender counterparts in Wichita, the assigned counsel attorneys must ask a judge for approval for the funding to hire an investigator. Having judges approve indigent defense funding for investigators and experts is a direct violation of the American Bar Association, Ten Principles of a Public Defense Delivery System (Principle 1) requiring the “funding” of indigent defense services to be “independent” of the judiciary. Because judges hold the power over the appointed attorneys’ requests for investigators and experts – and rarely approve such services – the report notes that “[m]ost often, private attorneys do their own investigative work,” and are “not typically able to provide the breadth of investigation across all cases, or the depth of effort into individual cases that is evidenced in cases represented by the public defender office.”
In a July 6, 2012 blog post, the Sixth Amendment Center postulated that only those service delivery models that are coordinated should be called “systems.” Because all public defender offices generally have staff work collaboratively while operating under a single administration, and often out of a single office, all public defender offices are classified as “systems” even though there is a great disparity when measuring the effectiveness of public defender offices throughout our nation (e.g., some offices abide by stringent workload standards while others operate under excessive caseloads). Assigned counsel programs on the other hand can be either “coordinated” or “non-coordinated.” The most prevalent assigned counsel model in this country is of the “non-coordinated” variety: it is one that has private attorneys handling unlimited numbers of cases, while financially beholden to a judge or county administrator. These non-coordinated assigned counsel models fail to meet the Ten Principles,and should be classified as “non-systems.” The assigned counsel method used in Wichita is a non-system because of the continuing undue interference from the judiciary (and lack of supervision, etc.). Therefore, the Wichita report is really measuring outcomes between a “system” (in this example, the Wichita public defender office) and a “non-system” (the assigned counsel program).
What has not been answered is whether a coordinated public defender office produces more benefits than a coordinated assigned counsel program. For instance, it is hard to imagine a public defender system struggling with excessive caseload would provide better investigative services than the San Mateo Private Defender Program (the San Mateo assigned counsel system). The San Mateo Private Defender Program (PDP) has staff and panel investigators who undergo rigorous qualification and training. For example, the 2011 PDP Annual Report notes that PDP provided 25 different educational and training opportunities to its investigators resulting in “more than 982 hours of training – an average of 29 hours of training for each investigator.” Whereas the PDP is a coordinated assigned counsel program, meets all of the ABA Ten Principles and grants allrequests for an investigator, one can make the clear determination that the PDP is a “system” that most assuredly provides the same, if not better, outcomes for clients along the lines of those noted in the Wichita report.
The distinction between “systems” and “non-systems” is made even more apparent in the Harris County report. Not only is the Harris County Public Defender Office (HCPDO) coordinated, but it also more readily meets the ABA Ten Principles. As detailed throughout the report, the HCPDO was found either in compliance, or significantly in compliance, with the national standards – independence, training, supervision, workload, etc. – while the non-coordinated assigned counsel failed them all. It should not be surprising, therefore, that the HCPDO has been able to provide better services than appointed counsel in the area of, for example, mental health services where the HCPDO has a chief, four attorneys, three social workers and an investigator working just on mental health issues.
Though it is difficult to quickly improve indigent defense services in a state as populous and geographically expansive as Texas where indigent defense services are decentralized among 254 counties, it is clear that since the enactment of the Fair Defense Act in 2001, Texas has at least been on an upward trajectory toward meeting the promise of equal justice envisioned in the case of Gideon v. Wainwright. Understanding that such a trajectory is no comfort to those defendants currently caught up in the mechanisms of the Texas justice system in counties with non-coordinated indigent defense “non-systems”, the Texas Indigent Defense Commission (TIDC) still should be acknowledged for using their limited state money effectively to improve services. Though TIDC concentrated on expanding a public defender model – the state now has 19 public defender offices providing services in all or part of 140 counties (55% of counties) – the fact that TIDC required adherence to standards consistent with the ABA Ten Principles when expanding the public defender model is the real reason for the noted improved services.