The County Commissioners Court and the District Attorney’s Office want to change the way indigent defendants are represented in Travis County. See, Travis County Weighs a Defender’s Office, Austin American Statesman, October 17, 2018. This new approach is based on a Report entitled Review of Drug Possession Case Dispositions 2016-2017 and Recidivism Analysis 2014-2015. One finding from the Report is that the conviction rate for clients with court-appointed lawyers is higher than clients with retained counsel. This is not news but Travis County Commissioners are now proposing that a public defenders office replace the current court-appointed system of assigning lawyers to represent indigent defendants. I believe that would be a mistake. Court-appointed lawyers are assigned the toughest felony cases — those where defendants remain in jail awaiting trial and are not released on bond. Without expressly stating it, the Report fails to mention that the real reason conviction rates vary is that defendants with court-appointed lawyers remain in jail while defendants who are released on bond generally retain counsel. Assigning fault to the court-appointed lawyer is misguided.
The vast majority of criminal defendants that retain counsel are out on bond. Travis County Pretrial Services preselects these defendants for release because these defendants lack criminal history and their offenses are relatively less serious. Once they are released from jail, these defendants often have access to a wide range of counseling and education classes. They are able to maintain connections with family and derive financial support. They are able to perform Community Service Restitution. They keep their jobs. Clients on bond receive better outcomes on their cases in part because they are pre-screened for success and can access opportunities that are not available to defendants that remain in jail. While some defendants on bond receive court-appointed counsel, many go on to hire their own lawyers.
The Report examined State Jail Felony Drug Possession cases. With hired counsel, the Report found that 48 percent of defendants with Drug Possession charges were found guilty. With appointed counsel, 80 percent of defendants were found guilty. Where defendants had no prior criminal history, 82 percent were convicted when they had court-appointed counsel. That rate went down to 46 percent with hired counsel. These percentages, however, do not tell the whole story. The fact that more defendants are convicted with court-appointed counsel is a symptom and not the cause of the higher conviction rate.
Some defendants who remain in jail may indeed be denied bond because of longer criminal histories – they will probably have court-appointed counsel. They may also be denied bond because they have more serious charges. They may also be unemployed, homeless, or previously failed to show up for court. They often lack education or suffer from mental illness. These are the clients who are eligible for court-appointed counsel – those who have the most serious cases and the least amount of opportunities. It is not a surprise that their conviction rates are higher. That same population would face tougher challenges in court whether their lawyers were appointed or retained. It seems that the County Commissioners are ignoring this important distinction that accounts for the wide disparity in conviction rates between clients with retained counsel and court-appointed counsel. Abolishing the court-appointed system and replacing it with a public defenders office will not lower the conviction rate for defendants in jail, in fact, the rate will probably go up. As with most Public Defender’s Offices around the country, dedicated lawyers are stretched thin with poor resources and caseloads they cannot handle. The current court-appointed system may not be perfect but it provides better service to criminal defendants than would a Public Defender’s Office.
David B.Frank is an experienced Austin Criminal Defense Lawyer in Austin, Texas.