New York Times, December 20, 2000
Texas Spends Little on Public Defenders, Report Says
By FOX BUTTERFIELD
Texas, the state with the largest prison system and the most executions this year in the history of the nation, spends only $4.65 per person for the defense of poor people charged with crimes, less than all but two other states, according to a report released yesterday by a foundation in Austin.
The report, by the Texas Appleseed Foundation, a nonpartisan group that works on issues of legal representation for the poor and minorities, found that only North Dakota and South Carolina spent less per capita on what is known as indigent defense.
It also found Texas to be one of four states that did not provide money to defend poor people charged with crimes, leaving this task to its 254 counties. In addition, Texas is the only populous state without a system of organized public defenders in its big cities.
"Over all, Texas is at or near the bottom of the barrel in all the important indicators of indigent defense," said Bill Beardall, the foundation's legal director.
The report, experts say, is important in helping understand why Texas has so many executions and why this year it passed California, with a much larger population, in prison inmate population, with 162,000. At root, they say, these issues are linked by the poor quality of courtroom defense for many defendants.
The report found, for example, that judges in Texas often seemed more concerned with keeping costs down and speeding up their court calendars than with the quality of justice for defendants who cannot afford lawyers. In several counties visited by experts contributing to the Appleseed Foundation's report, judges pay public defenders the same flat fee, $50 to $350, whether the defendants plead guilty or insist on going to trial.
In one case cited in the report, the judge refused to pay at all when the lawyer succeeded in getting his client's cases dismissed. In many others the judges would not pay defense lawyers for time they had spent visiting their clients in jail to prepare for trial or to hire expert witnesses.
"The flat-fee structure creates disincentives for lawyers to argue too hard, because they won't get any more money," Mr. Beardall said.
In 1999, Gov. George W. Bush vetoed a bill, passed unanimously by both houses of the Texas Legislature, that would have raised standards for public defenders and made state money available to pay them.
Under the current system, the report noted, judges have total power to assign lawyers for poor defendants and to set their fees. Texas judges are elected, and they get much of the money to finance their campaigns from lawyers — who return part of their fees to the judges who appointed them to various cases, said Jeff Pokorak, a professor of law at St. Mary's University in San Antonio and a co-author of the report.
Mike Jones, a Bush spokesman, said the governor had vetoed the bill creating a state public defender system because it would have taken the power to appoint defense lawyers for poor defendants away from experienced judges and "given it to inexperienced county commissioners, a fatal flaw." But Professor Pokorak and other lawyers and politicians in Texas said Mr. Bush's real reason for the veto was that the judges had urged him not to take away their main source of campaign financing.
The Legislature is scheduled to meet again in January, and new public defender bills are expected to be introduced, said Annette LoVoi, executive director of Texas Appleseed.
The report found that lawyers assigned to death penalty cases in Texas spent an average of only 400 to 600 hours on them, well below averages in the rest of the nation. In Indiana from 1990 to 1997, for instance, lawyers representing clients in death penalty cases in federal courts spent an average of 1,880 hours on them.
Even in death penalty cases, the report said, some judges in Texas pay lawyers only a flat fee, regardless of the hours they work. That practice is frowned upon by the American Bar Association because it creates a risk that in order to maximize their profit, the lawyers will not zealously defend their clients.
The report was prepared with help from the American Bar Association, the National Mental Health Association, the Southern Poverty Law Center, and the Center on Crime, Communities and Culture of the Open Society Institute, which is supported by the financier George Soros.
States that spend less than Texas on public defenders are North Dakota, which spends $2.69 per capita, and South Carolina, which spends $4.17.