Reports by TCJE and Restoring Justice lead to indigent defense improvements and transparency in Harris County
Over half of the people accused of crimes in Harris County’s criminal courts are indigent, meaning they cannot afford to hire a lawyer and require a court-appointed attorney to represent them. Texas courts have claimed that defendants do not have the right to choose who their court-appointed attorney is, despite Supreme Court caselaw suggesting otherwise. This means the court’s process of choosing appointed attorneys is of utmost importance.
In Harris County, a majority of indigent defendants receive appointed counsel from the private bar (criminal defense attorneys engaged in private practice) notwithstanding the formation of the Harris County Public Defenders’ Office (HCPDO), which began accepting cases in 2012. Most of the private attorneys appointed to represent indigent defendants rely on appointments such as these for their income, with many of these private attorneys also donating to the reelection campaigns of the judges who appoint them to cases. The relationship between the appointing judge and the appointed attorney creates questions about an attorney’s loyalty to their client, and campaign donations further create a conflict of interest. Nonetheless, continued overutilization of the private bar for indigent defense has become the norm for Harris County, even after the formation of the HCPDO.
As part of our judicial accountability work, the Texas Center for Justice and Equity (TCJE) has previously looked at the role that campaign contributions play in the appointment of counsel to indigent defendants in Harris County, finding that attorneys from the private bar may be influencing a judge’s discretion to appoint attorneys through campaign donations. This practice has consequences for the quality of defense available to indigent defendants; we found that defendants who are appointed attorneys from the HCPDO get better results than those who are appointed private counsel selected by the judge. Yet from January 2018 through May 2020, Harris County District Court judges appointed public defenders to an average of 6.5% of cases where the defendant was unable to afford their own attorney, meaning the county was not making full use of its public defenders’ office.
In June 2020, HCPDO expanded its capacity, with Commissioner’s Court increasing their budget to allow HCPDO to accept up to 20% of cases with indigent defendants. Despite the budget increase, the proportion of public defenders appointed by District Court judges actually fell slightly to 6.4% of cases, which seemed unthinkable in the face of the dramatic budget increase for the PDO. The rate remained low in part because the decision on which attorney is appointed to represent an indigent defendant still rests with the judge on a case-by-case basis.
We had to do something. Our goal was to try to increase the percentage of cases assigned to the HCPDO rather than to private attorneys.
So, in September 2020, TCJE and Restoring Justice, a Houston nonprofit organization dedicated to ending mass incarceration by providing legal and social services to people accused of crimes who have otherwise been neglected by the system, started tracking how frequently each of Harris County’s District Court judges appointed public defenders to indigent defendants. For over two years, we’ve reported those numbers to the public every month, with the help of new data platforms from the Harris County Office of Justice and Safety. The inaugural September 2020 report showed that District Court judges appointed public defenders to less than 8% of eligible cases. Additionally, there were five District Court judges who appointed HCPDO attorneys in less than 1% of cases, including four judges who did not appoint a public defender in a single case. During Texas’ 2019 legislative session, lawmakers passed SB 583, requiring judges to give a public defender office priority when appointing cases. However, Harris County judges and their staff are still able to avoid this requirement with their appointment process, making tracking their appointment rates a vital transparent accountability tool. We’ve continued tracking and publicizing the results every month.
We’re happy to share that in the two years since Restoring Justice and TCJE have been releasing these monthly reports, judicial practices with respect to appointments seem to have moved in a positive direction, with public defenders appointed to at least 10% of eligible cases overall every month since August 2021, and almost 15% of cases in December 2022. The progress on this front is laudable, but there remains a great deal of work to do. In the meantime, TCJE and Restoring Justice will continue to make these numbers available to the public with our reports in hopes of pushing towards 100% utilization of the public defender’s office.
Ideally, our county would handle appointments like the federal system – with all cases assigned to the Public Defender Office and with Managed Assigned Counsel (MAC) supervised private attorneys only receiving appointments when a conflict of interest prevents the Public Defender’s Office from doing so. This PDO-MAC system is the goal we will keep working toward.
The MAC is a new county office created to support private appointed attorneys and ensure they are providing high-quality and holistic representation. Defense attorneys have five basic tasks on any criminal case: 1) communicate with their client; 2) investigate the facts; 3) research relevant law; 4) file motions; and 5) attend court. The constitution requires defense attorneys to complete adequate investigation, provide legal advocacy, negotiate outcomes, and collect and report mitigation evidence before any guilty plea. The sad reality is that due to being overloaded, lack of training, or lack of desire, the majority of court-appointed attorneys do not complete these basic and required tasks for their indigent clients. Through Restoring Justice’s innovative client-centered and holistic representation, the organization has found that, on average, a felony indigent defendant saves at least 5 years of incarceration when their attorney is not overloaded and has support services like those the MAC can provide. Applied across Harris County, those years of incarceration saved would prevent economic waste of over $45 billion per year. We all suffer when our principles of justice are forgotten like this. The PDO-MAC system is intentionally built to prevent the culture of indigent defense we have currently in Harris County, and we are thankful that steps towards that system are being made.
So far, the MAC only functions in misdemeanor courts, and the judges with this program have reported a clear increase in quality of representation and holistic services being provided to people appearing before them in their courtrooms. In July 2021, a required two-thirds supermajority of felony judges approved the MAC’s implementation at the felony level. Unfortunately, the juvenile judges have not approved this program. While approval for the office for felony (district) courts was a success, implementation has not yet begun – over a year and a half later. We are eagerly awaiting the MAC’s implementation in the courts where people face possible prison sentences – where the stakes are the highest and the representation must be the best possible quality. Without the PDO-MAC system, our government and its people have no way of ensuring integrity and quality from court-appointed attorneys. These are the only government contracts without oversight.
TCJE and Restoring Justice have been asking for the implementation of the MAC program for years, and we will keep working with and urging our government policymakers until it happens. Reports like these will help us continue to push for improvements for the most vulnerable members of our community, leading to the only avenue for increased true safety for our communities.
Harris County still has over 13,000 people per year who are appointed overloaded, inadequate representation. We are grateful to contribute for improvements to this system, and we have a long way to go! Thank you to everyone committed to equity, justice built in wholeness for all, and efforts to end mass incarceration.
View every entry in TCJE and Restoring Justice’s Indigent Appointments Reports Series here.
ABOUT THE AUTHORS:
ELAINE HENNIG, JAY JENKINS, DREW WILLEY
Elaine Hennig is the Harris County Project Associate at the Texas Center for Justice and Equity. Read Elaine’s full bio here.
Jay Jenkins is the Harris County Project Attorney at the Texas Center for Justice and Equity. Read Jay’s full bio here.
Drew Willey is the CEO, Co-Founder, and Board Member of Restoring Justice. Read Drew’s full bio here.
*This blog is cross-posted with TCJE here.