Indigent Defense Presented to the 2018 Annual Treasurer’s Conference March 17, 2018 San Marcos, Texas Debra Stewart, dstewart@tidc.texas.gov
Presen esentation tion Ov Over erview view 1. TIDC and the Fair Defense Act Mission, requirements, funding opportunities 2. Indigent Defense Funding In Context Sources, trends and cost drivers 3. Indigent Defense Expenditure Reporting Common errors, accurate reporting, examples
The mission of the Texas Indigent Defense Commission is to provide financial and technical support to counties to develop and maintain quality, cost‐effective indigent defense systems that meet the needs of local communities and the requirements of the Constitution and state law.
Wh What at is is In Indigent De Defense? nse? The right to a lawyer for persons accused of crimes and who cannot afford to hire a lawyer Constitutional Right ‐ 6 th Amendment Necessary to ensure fairness and protection of rights in our adversarial system of justice
Gi Gideon deon vs vs. Wa Wainwright In our adversarial system of criminal justice…. With government “quite properly” spending “vast sums of money to establish machinery to try defendants accused of crime”.....you need ….. “procedural and substantive safeguard designed to assure fair trials before impartial tribunals in which defendants stands equal before the law” “This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” Gideon v. Wainwright, 373 US 335 (1963)
The Fair Defense Act of 2001 • Basic Legal Requirements: • Timeframes for appointment of counsel • Minimum attorney qualifications • Fair, neutral, and non ‐ discriminatory attorney appointments • Develop a standard of indigence and process to determine eligibility • Standard attorney fee schedule and payment process • Local Reporting Requirements: • Indigent Defense Plan (judiciary) • Indigent Defense Expenditures (auditor/treasurer) • Created Mechanism for (partial) state funding through grants
Wh Why di did we we need need the the FD FDA? No uniformity in local indigent defense appointment practices Judges’ discretion to select counsel, pay fees and determine who is indigent fueled appearance of cronyism No consistent standards regarding training and experience No state funding or oversight No reliable data on appointments, spending or caseloads
TIDC TIDC Gr Gran ant Ty Types • Formula Grants • Formula based on 50% population & 50% expenditures • Discretionary Grants • Competitive ‐ Based Discretionary Grants • Extraordinary Disbursement Grants • Technical Support Grants • Targeted Specific Grants
Gr Gran ant In Inform rmatio ion In 2017 the Commission disbursed: • $31.7 million in formula grants to 254 counties • $6.6 million in discretionary grants • 15 counties • Four grants were for regional programs covering 180 counties.
Fo Formula Gr Gran ant Eligib Eligibility ility Commissioners Court Resolution Indigent Defense Plan Compliance Indigent Defense Expenditure Report Address any findings from monitoring Court Activity Reports to OCA
Di Discretionar onary Gr Gran ants: ts: Tw Two ‐ Tier Tier Pr Process Tier ‐ One (The ISA) • Complete online Intent to Submit Secure letter of support from at least one judge • • Tier Two ‐ Complete Application • On ‐ line Application • Commissioners Court Resolution • Support from Stakeholders and Judges • Data Collection Cooperation Agreement
Discretionary Grant Timeline Request for Application (RFA) released January 2018 ( webinar on February 2) Intent to Submit Application due March 2018 Full Applications due May 2018 Start Date for Funded Programs 10/1/2018
Di Discr scretionar onary Gr Gran ant Pr Program Ex Exam amples ples Public Defender Programs (local and regional) Managed Assigned Counsel Programs Indigent Defense Coordinators Programs for Defendants with Mental Illness
In Indigent De Defense nse Fundi Funding ng in in Con Context State Funding Sources Current State Appropriation State/County Funding Proportions Indigent Defense Cost Drivers
TIDC Revenue TIDC is funded through a combination of appropriations from the GR ‐ Dedicated Fair General Revenue 10% Defense Account (Fund 5073) and General Revenue. Funds accrue to the Fair Defense Juror Pay Fee Account from the following 16% sources: Consolodated Consolidated Court Court Costs 62% Surety Bond Fee Costs 6% State Bar Fee 6% Juror Pay Court Costs State Bar Fees Surety Bond Fees
GR ‐ Dedicated Fair Defense Account Revenue $37,000,000 $36,631,856 $36,000,000 $35,000,000 $34,636,353 $34,355,449 $34,000,000 $33,000,000 $32,459,944 $32,000,000 $31,836,701 $31,000,000 $30,000,000 $29,000,000 FY 2012 FY2013 FY2014 FY2015 FY2016
County Expenditures State Investment Gross Total Grants Grants as % Net Expenditures Annual Year Expenditures Disbursed of County (millions) Increase (millions) (millions) Expenditures 2001 $91.4 $91.4 ‐ $0.0 0% 2002 $114.0 $114.0 25% $7.2 6% 2003 $129.3 $129.3 13% $11.5 9% 2004 $138.3 $138.3 7% $11.6 8% 2005 $140.3 $140.3 1% $13.6 10% 2006 $149.0 $149.0 6% $13.8 9% 2007 $161.1 $161.1 8% $16.9 10% 2008 $174.2 $174.1 8% $21.0 12% 2009 $186.9 $186.4 7% $27.6 15% 2010 $195.1 $194.6 4% $27.5 14% 2011 $198.4 $197.7 2% $33.7 17% 2012 $207.5 $206.3 4% $28.2 14% 2013 $217.1 $215.4 4% $27.4 13% 2014 $229.9 $228.1 6% $44.8 20% 2015 $238.0 $235.6 3% $30.0 13% 2016 $247.7 $245.6 4% $32.2 13% 2017 $265.1 $263.3 7% $38.3 15% [1] After county ‐ to ‐ county reimbursements for regional programs.
Wh What at is is dri driving ing co cost st incr increases? eases? 1. More people served 2. Investments to improve quality of representation 3. Inflation Prior to the passage of the FDA Texas was operating under a “6 th Amendment deficit.” The effort to address the shortcomings in our system prior to the FDA has required more money to be spent. 18
Wh What at is is dri driving ing co cost st incr increases? eases? First , the total number of indigent persons being provided constitutionally guaranteed assistance of counsel in Texas has increased from 324,000 in FY02 to more than 471,000 in FY17, a 46 percent increase. Prior to the FDA many defendants who could not afford to hire a lawyer were either not provided with counsel at all or were provided with counsel under systems that encouraged perfunctory representation with minimal effort. 19
Wh What at is is dri driving ing co cost st incr increases? eases? Second , more is being spent per indigent defense case, which has been necessary to raise the quality of defense up to professional standards. Prior to the passage of the FDA and the standards created by the Commission, some jurisdictions provided indigent defense under models that encouraged the processing of high volumes of cases with minimal effort from the defense, effectively undermining the 6 th Amendment rights of many defendants. Since the FDA counties and the Commission are monitoring indigent defense more carefully and more counties have put in place systems that manage caseloads and include better oversight and accountability. 20
St State Funds Funds fo for In Indigent De Defense nse • In each of the last two legislative sessions the Commission requested large increases in funding. • Objective: to share indigent defense funding more equally with counties.
St State Funds Funds fo for In Indigent De Defense nse • Larger percentage of funds now go to the Fair Defense Account: SB 2053. • Spending cap for biennium 2018 ‐ 19: $33.7M for 2018 ‐ $32.6M for 2019. • Legislature required portion of TIDC grants go to “cost containment” measures.
Indigent Defense Expenditure Reporting IDER http://tidc.texas.gov Due November 1, 2018
In Indigent De Defense nse Expenditur Expenditure Re Report • What: Eligible indigent defense expenditures, number of cases paid/disposed and attorney information, reported for each court. • Who: County Auditors (or Treasurers) • When: Annually, on November 1
ID IDER ER – D – Due Nov November mber 1, 1, 2018 2018 Government Code Section 79.036. Indigent Defense Information . • e) In each county, the county auditor, or the person designated by the commissioners court if the county does not have a county auditor, shall prepare and send to the commission. . . . with respect to legal services provided in the county to indigent defendants during each fiscal year, information showing the total amount expended by the county to provide indigent defense services and an analysis of the amount expended by the county. • Report Attorney Fees, Investigation Expenses, Expert Witness Expenses, or Other Litigation Expenses • IDER Manual at http://www.tidc.texas.gov/grants ‐ reporting/ider.aspx
Pay Payment Re Records ar are Basi Basis of of the the ID IDER ER • The statute (Texas Code of Criminal Procedure Article 26.05 (c)) states that “no payment shall be made under this article until the form for itemizing the services performed is submitted to the judge presiding over the proceedings ….....” • Invoice must include sufficient detail to allow auditor to prepare the report (type of expense, court, case type, etc.)
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