In Texas, county judges are in charge of the machinery of public defender cases. Texas Republicans will tell you that it's the most efficient way to handle people who can't afford their own lawyers and the Supreme Court's ruling that one has to be appointed for them. Judicial reform activists will tell you that the inherent conflict of interest means poor Texans are getting railroaded into prison so judges can get reelected for being tough on crime. And yes, the man behind this mess was Texas's governor at the time George W. Bush.
Indigent defense in the U.S. is in crisis. More than twenty lawsuits filed in the past decade on behalf of poor plaintiffs—in California, Louisiana, Georgia, and other states—point to this predicament, which has been acknowledged at the highest levels: in 2013, in a speech marking the fiftieth anniversary of Gideon v. Wainwright,then–U.S. attorney general Eric Holder bemoaned the number of unjust convictions and sentences borne by the poor. “This is unacceptable,” he declared, “and unworthy of a legal system that stands as an example to all the world.”
The main reason for this crisis is funding. Because the Supreme Court did not, in its 1963 ruling, specify how states should pay for counsel, local policymakers facing other costs—for schools, roads, law enforcement—consistently shortchange indigent defense. This is why public defender’s offices are chronically understaffed. It’s also why court-appointed private lawyers are overloaded: the fees they’re paid are often so low that they are forced to take on a multitude of cases just to make a living. Some overburdened lawyers, in turn, contribute to so-called plea mills, in which, critics say, they encourage defendants to plead guilty because they are either too swamped to investigate claims or incentivized not to (in Travis County, for instance, court-appointed lawyers are paid $600 for a felony case whether they secure a plea deal or get the charge dismissed).
The problem of funding is especially acute in Texas. Since 2001, when the state legislature passed the Fair Defense Act—a law that aimed to overhaul and standardize how the state’s poor received counsel—total spending on indigent defense has increased significantly, from some $91 million in 2001 to roughly $273 million in 2018. But Texas ranks among the states that spend the least per capita: its counties, which shoulder most of the costs, are some of the fastest growing in the country, and what little the Legislature chips in to help—some $30 million last year—does not match demand. This creates a woeful game of numbers on the ground. In 2017, for example, the average court-appointed lawyer in Texas made only $247 per misdemeanor case and $598 per felony.
However, the problem goes beyond money. In Texas, the crisis is exacerbated by a key structural flaw: indigent defense is largely overseen by judges. Contrary to the American Bar Association’s principles of public defense, which call for defense lawyers to be independent of the judiciary, judges in most Texas counties decide which lawyers get cases, how much they are paid, and whether their motions—say, to reduce bail or test DNA—have merit. (Counties do have fee schedules for lawyers, but judges set the schedules and retain discretion over payment.)
Given that judges are elected based, in part, on the efficiency of their courts, this is an inherent conflict of interest. “Whatever the judge wants to do, it’s probably not acquit your client,” said Charlie Gerstein, a lawyer for Civil Rights Corps, a Washington, D.C., nonprofit that has spent the past several years challenging criminal justice abuses around the country. “The judge wants to move the docket. The judge wants to get reelected.” (Civil Rights Corps filed the class-action lawsuitagainst the bail system of Harris County in 2016.) Lawyers trying to work a case properly—by devoting more time or requesting an investigator—face a quandary: Why make the effort if a judge can retaliate by appointing them to fewer cases or cutting their pay?
In 1999 Houston Democrat and then–state senator Rodney Ellis introduced a bill that would, among other things, transfer oversight of indigent defense attorneys from judges to county officials. The Lege approved the measure, but judges, lawyers, and prosecutors resisted, writing more than three hundred letters to then-governor George W. Bush. (“The bill inappropriately takes appointment authority away from judges, who are better able to assess the quality of legal representation,” said Bush in his veto proclamation.) Two years later, Ellis helped muscle through the Fair Defense Act, which provided, for the first time, some funding and oversight by the state, in the form of an agency now known as the Texas Indigent Defense Commission. The TIDC was tasked with administering funds, enforcing standards, and responding to violations. But the law was also clear: “Only the judges . . . or the judges’ designee” was allowed “to appoint counsel for indigent defendants in the county.”
For a long time, the combined effect of this judicial control and lack of funding—heavy caseloads, underserved defendants—was hard to quantify. But a surprisingly trailblazing move by the Legislature in 2013 gave Texas something almost no other state that relies on private attorneys has: comprehensive data. That year, lawmakers ordered every county to start reporting to the TIDC the number of indigent cases, and fees, given to lawyers in every court. They also instructed the TIDC to conduct a study on appropriate caseloads, the first of its kind mandated by a state government.
In 2015 the study’s results were released: in any given year, researchers found, a Texas lawyer could reasonably handle 128 felonies or 226 misdemeanors, or a weighted combination of the two. This set a benchmark against which to understand the growing database, which showed lawyers juggling two, three, or even four times that load. Even the director of the TIDC at the time, Jim Bethke, said he hadn’t known “the magnitude of people who were getting run through the system on a super mass conveyor belt.”
Today, the TIDC database is staggering in its reach. With just a few clicks, anyone can look up lawyers by name and see how many indigent cases they took, and in what court, and for how much. Finding the highest-earning attorney, or the most overloaded, takes minutes. Consider just a few names: In Harris County, in fiscal 2017, James Barr earned more than $131,000 for work on 433 indigent felony cases, which all came from the court of Judge Jim Wallace. In the Panhandle, Artie Aguilar won a contract in fiscal 2018 to handle all indigent felony cases in Dawson, Gaines, Garza, and Lynn counties—a total of 322 cases, for a payment of $75,000. T. D. Hammons, who takes cases around Amarillo, was paid $99,450 in fiscal 2017 for work on 129 felonies and dozens of misdemeanors. He reported that these took up less than 60 percent of his time, meaning that the rest of his time was devoted to additional clients.
Astonishingly, few judges—or lawyers or lawmakers—seem to be aware of these figures. Those who are will sometimes argue that caseload limits are unrealistic; it’s too arbitrary, they say, to impose a number when situations vary from county to county, or when judges are faced with too many defendants and too few defense lawyers. But as Texas grows and funding continues to lag, these figures offer a place to start—and one thing they show is that judicial oversight of an indigent defendant’s right to a lawyer is becoming untenable.
The system is broken because it's designed that way. Nobody wants to grow up and be a public defender in Texas with four times the caseload, working for chump change, when the system rewards speed and not accuracy. And with Texas, we can see exactly how broken criminal justice in America is.
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