Op-Ed; Innovation in Indigent Defense Makes for Smart Justice


Op-Ed; Innovation in Indigent Defense Makes for Smart Justice


By the Honorable Sharon Keller, Commission Chair and Presiding Judge, Court of Criminal Appeals and Jim Bethke for the San Antonio Express News

SAN ANTONIO — Since the landmark Gideon Supreme Court case 50 years ago, it has been the law of the land that poor people accused of serious crimes have access to defense representation.

In Texas, our commitment to protecting the legal rights of the indigent goes back even further. At the time that appointment of counsel first became required by Texas statute four years before the Gideon decision, it was already common practice in Texas to appoint counsel to poor people charged with serious crimes.

In 2001, Texas passed the Fair Defense Act to better ensure that constitutional rights are protected consistently across the state, to help elevate the quality of representation, and to ensure prompt access to court-appointed counsel.

Protecting the rights of the accused is not the only reason prompt appointment of counsel is important. When appointment of counsel is not prompt, cases take longer to adjudicate and nonviolent defendants who might otherwise qualify for release remain in jail, which leads to rising costs that are shouldered entirely by county taxpayers.

While our indigent defense system is still county-based, the Texas Indigent Defense Commission now provides financial and technical support to counties to develop and maintain quality, cost-effective indigent defense systems.

With a state as big and diverse as Texas, from Harris County (population 4,279,430) to Loving County (population 82), we know that we are more likely to make improvements by recognizing this diversity and providing different options and strategies for counties. 

For some counties, operating a public defender office is the most effective way to provide defense representation. For others, the assigned counsel system, in which courts appoint private attorneys to represent poor defendants, is the chosen path. Bexar County has one of the fastest-growing populations in the country, and its elected officials have recognized the need to increase the effectiveness of the county's criminal justice system. Working with the Council of State Governments Justice Center, they modernized the operations of the probation department in 2010 and, most recently, engaged in a top-to-bottom review of pretrial operations and of the assessment of mentally ill defendants entering the criminal justice system.

During this process, staff with the Indigent Defense Commission met with local officials and others to review the structure of the county's indigent defense system. The CSG Justice Center found that, of the five major counties in Texas, Bexar has the lowest percentage of pretrial defendants in its jail. It also determined that comprehensive pre-trial assessments of arrested individuals could lead to more appropriate release conditions that would better ensure defendants' appearance in court and, at the same time, reduce the likelihood that defendants would commit new crimes while awaiting trial.

Although Bexar County relies primarily on the assigned counsel system, it does have two public defender offices — one for appeals and one for representation of mentally ill defendants. These two offices, which together have three attorneys, reside in different county departments.

The benefits that a public defender office can provide — budget predictability, economies of scale, and a single voice for the defense— are diminished by this separation. Realizing these shortcomings, Bexar County has recently adopted a plan to combine the offices, have one chief defender, and reorganize the Public Defender Oversight Board. The costs of these changes will be minimal, and the benefits to the criminal justice system as a whole will be substantial.