around the bar
February 9, 2013

Texas Experts Review Public Defender Systems as Gideon Anniversary Approaches

As the nation marks the 50th anniversary of the U.S. Supreme Court’s landmark Gideon v. Wainwright decision, which recognized the right to government-funded counsel for criminal defendants too poor to hire a lawyer, criminal justice experts from Texas and elsewhere debated at the ABA Midyear Meeting in Dallas Feb. 8 whether the criminal right to counsel in the United States has been realized in practice or falls short.

“We’ve come a long way since Gideon,” said district attorney Henry Garza of Bell County, Texas, who said that the notion of publicly funded criminal defense counsel didn’t widely exist before 1963, and the standards for defender competence and other benchmarks have improved over the years.

But the prosecutor’s perspective contended with that of other panelists for the ABA Criminal Justice Section program, who noted the many shortfalls of indigent defense nationwide.

Funding for defender services is “shockingly inadequate” and many defenders face overwhelming caseloads, said moderator Ellen Yaroshefsky, a professor at Cardozo Law School in New York. An analysis cited by Robert Boruchowitz, a professor at Seattle University School of Law, observed that some overworked defenders are forced to spend as little as 30 minutes per case.

“You just know you can’t be providing adequate counsel if you’re providing one half-hour per client,” Boruchowitz said.

One question is whether Gideon guaranteed a “Cadillac defense” or a “Chevy Nova defense,” said Richard Anderson, the federal public defender in Dallas. According to Anderson, the lack of indigent defense resources is primarily a phenomenon in the states, where the volume of cases dwarfs that of the federal system. Anderson said the investigatory and other resources of his federal public defender office are comparable to what he had available as a corporate defense lawyer.

Case volume is a major factor among reformers who believe that too many matters are in the criminal justice system, diverting defenders’ attention from more series cases. Panelists including Vikrant Reddy, policy analyst of the Texas Public Policy Foundation, pointed to crimes of small possessions of marijuana, along with Texas’s crime of public intoxication, as examples of “overcriminalization” that clog the system.

Boruchowitz estimates that 10 million misdemeanor cases are filed nationally each year, and it costs the government $1,000 total per misdemeanor case.

He and other panelists argued that reclassifying such crimes to those that are civil offenses or don’t result in prison time could save billions of dollars a year.

“If we can get cases out of the criminal justice system, that’s the best thing we can do,” said Alex Bunin, public defender in Harris County, Texas, based in Houston.

Garza, however, cautioned that economics shouldn’t necessarily be the determining factor in whether to make changes in criminal justice. He said deterrence of crime is important to consider, as is protection of victims, particularly in making decisions on bail.

Panelists offered other strategies to resolve problems with indigent defense. Judge Barbara Hervey of the Texas Court of Criminal Appeals called on reformers to educate legislators on indigent defense issues to give changes a chance of being enacted.

Jim Bethke, executive director of the Texas Indigent Defense Commission, called for the collection and analysis of data on criminal defense as crucial to identifying the need for reform.

“If we’re going to move forward on Gideon, we’re going to have to use data more effectively as a defense community,” Bethke said.