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Director Lisa Foster of the Office for Access to Justice Delivers Remarks at the Texas Fair Defense Act 15th Anniversary Symposium Celebration
Houston, TX
United States
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Friday, May 6, 2016

Good afternoon.

I am honored to be here today to celebrate the 15th Anniversary of the Texas Fair Defense Act.  To Judge Keller, the Chair of the Texas Indigent Defense Commission and to Jim Bethke the Commission’s talented and indefatigable Executive Director – congratulations. To Senator Ellis, who fought so long and so hard to bring justice to indigent defendants in Texas – and who continues to do so – thank you, sir.  And I suspect Senator Ellis would be the first to agree with me that although he led the fight for the Fair Defense Act, nothing happens in the Texas legislature – or any other legislature – without the work of many, many people and organizations. So to all of you gathered here today – let me quote President Obama who said: “Change will not come if we wait for some other person or some other time. . .  We are the change that we seek.”  You all changed the justice system in Texas when the Fair Defense Act was enacted.  You are champions of change.

Like everything about Texas, the Fair Defense Act was – and continues to be – a monumental achievement.  The Act required every Texas county to establish an indigent defense plan that must include procedures for the prompt and fair appointment of defense counsel, minimum qualifications for the appointment of counsel, fee schedules for defense counsel, compensation for experts and investigators, and procedures for determining eligibility for appointed counsel.  But in my view, the critical significance of the FDA is its premise.  The Act recognizes something that few states have yet been willing to acknowledge – that the Sixth Amendment’s guarantee of the right to counsel for indigent defendants is the responsibility of the states to uphold.  That responsibility can be delegated to counties, but it cannot be abdicated by the state.  At the end of the day, the state of Texas, and every other state in our great country, is responsible for ensuring that indigent criminal defendants who face the prospect of incarceration have the assistance of effective counsel.

And so the Fair Defense Act established what we now know as the Texas Indigent Defense Commission and tasked the Commission with providing 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 laws.  And the FDA provided for the first-ever state funding for indigent defense and tasked the commission with distributing those funds and monitoring the counties’ compliance with the conditions of those grants.

Statewide standards, state funding, transparency, accountability – those are the necessary prerequisites for an indigent defense system that lives up to Gideon’s promise of equal justice for all regardless of one’s economic station in life.

And in the 15 years since the passage of the Fair Defense Act, the progress has been impressive.  First, and most importantly, cases where counsel has been appointed increased from 324,000 in 2002 to over 460,000 in 2015.  Just ask any one of those over 135,000 additional men, women and children who had counsel to represent them what the Fair Defense Act really means.         

Not surprisingly, given that increase in representation, funding for indigent defense has increased as well, from 91.4 million dollars in 2001 – with zero state spending on indigent defense – to 238 million in 2015 – with 28.6 million dollars coming from the State.  And Texas now has statewide minimum standards for the appointment of counsel and uniform procedures for contracting with counsel among many other reforms.

Texas has not rested on its laurels.  You’ve done more.  In 2005, the legislature directed the Commission to create four innocence projects at local law schools and this year expanded the number to six – and increased funding commensurately.  In 2014, Texas mandated attorney caseload reporting and charged the commission with the collection of that critical information.  In today’s data-driven world, the importance of that single reform cannot be overstated.

And just last fall, the Texas Indigent Defense Commission and their colleagues at the Public Policy Research Institute at Texas A&M University were awarded a two-year $400,000 grant from the Department of Justice to build a Smart Defense Portal, an internet interface that will integrate local data into a statewide quality indicator system.

But to say that Texas has laid the foundation for a model statewide system of indigent defense, to applaud the serious and significant gains that have been made since the passage of the Fair Defense Act, is not to say that the job is done.   And so I want to talk with you today about the critical work that remains to make Gideon’s promise a reality in Texas, and how we, at the Department of Justice, hope to help.  I’m going to talk about counsel in misdemeanor cases, about workloads, about counsel at first appearance and bail, and about fines and fees.  It’s a long list.  Texas is a big state.

While the number of lawyers appointed for indigent defendants has increased, the gains have not been even, and there are still many people who are forced to represent themselves – most notably, in misdemeanor cases.  While the percentage of misdemeanor defendants representing themselves has decreased steadily since the commission began tracking these cases in 2011, 23.8 percent of misdemeanor defendants still appear pro se.  More disturbingly, that number varies from a low of 11.3percent to a high of 61.7 percent.  To be sure, under current Sixth Amendment case law, not every misdemeanor defendant may be constitutionally entitled to counsel, but every misdemeanor defendant needs counsel.  First, even in cases where only a fine is imposed, jail can be a consequence of a violation of terms and conditions of probation or of the failure to pay fines and fees – a problem I assure you, I will return to momentarily.  Second, the collateral consequences of criminal convictions today – even for just fine-only misdemeanors – are significant.  In Texas alone, there are 1586 potential collateral consequences of a criminal conviction and – that does not include the additional almost 2000 federal collateral consequences, as well as the potential immigration consequences for non-citizens.  People need guidance before they make a decision to plead guilty or go to trial.  They need a lawyer.  And of course in many misdemeanor cases, the state is constitutionally obligated under the Sixth Amendment to provide counsel, and the failure to do so is simply unacceptable.

The second significant challenge relates to caseloads.  As you may know, from the outset of the Obama Administration, the Department of Justice has been actively involved in promoting indigent defense in the states.  In the past two years, my office, together with our Civil Rights Division, have filed 4 statements of interest or amicus briefs – in courts throughout the country in cases alleging the constructive denial of the right to counsel, that is, jurisdictions where defense counsel are so under-resourced and  overwhelmed that they are effectively counsel in name only.  And just last week, we filed a motion to file an amicus brief with the Idaho Supreme Court.  In all of those briefs, we talk about caseloads – and even more specifically about workloads because as we know, not all cases are created equally.  And so workloads are the more appropriate measure of whether defense counsel has enough time to effectively represent all of their clients.  Workloads are just one – but arguably the most significant measure for the constructive denial of the right to counsel.  If a lawyer has so many cases that he or she does not have the time to do adequately investigate the case, research the law, file and argue motions, and discuss options with their client, then she’s a lawyer in name only, and that can be a violation of the Sixth Amendment.  In many parts of Texas, workloads remain a challenge, and they need to be addressed.

The third issue facing the state is when a lawyer should be appointed.  In Rothgery v. Gillespie County, the U.S. Supreme Court held that “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger the attachment of the Sixth Amendment right to counsel.”  Now the Court in Rothgery did not say that counsel must be appointed at the moment the right to counsel attaches, instead the court said that counsel must be appointed within a reasonable time.  But let’s look at the reality of the situation.  A defendant at his or her first appearance before the court faces many critical issues – understanding the charges is obviously important and so of course is bail.  The question of whether someone is released or detained pretrial makes an enormous difference to that person and to the course of the case.  In the federal courts, which, with respect to indigent defense, the National Association of Criminal Defense Lawyers calls the “gold standard”, counsel is present at first appearance and they make arguments about bail.  Texas defendants deserve no less.

Which brings me to the fourth issue Texas must confront – bail.  In 1966, Congress enacted the federal Bail Reform Act.  When President Johnson signed the bill into law, he described the bail system as “archaic and cruel.”  “Because of the bail system,” he said, “the scales of justice have been weighted not with fact nor law nor mercy.  They have been weighted with money.  But now we can begin to insure the defendants are considered as individuals and not as dollar signs.”

Unfortunately, the Bail Reform Act was not the beginning of a movement to reform bail nationwide – it was, practically speaking, the end.  Until recently, very few states adopted statutes comparable to the Bail Reform Act.  As a result, today, roughly 60 percent of the jail population nationally are classified as pretrial defendants – up from 50 percent in 1996 and 40 percent in 1986.

The overwhelming majority of the people held in jail pretrial are there simply because they are poor.  In many circumstances, rather than receiving an individualized determination that takes into account a variety of factors, such as ties to the community, employment and the extent to which pre-trial release would endanger public safety, bail is imposed based on a fixed sum applicable to a particular offense.  And while these individuals are being held in jail, they often lose their jobs, may lose their housing, are forced to abandon their education, and likely are unable to make their child support payments.  They – and often their families – stay poor with no hope of ever climbing out of poverty and into the middle class.

The Justice Department has been actively advocating for bail reform in the states for many years.  The department convened the National Symposium on Pretrial Justice in 2011 and began to fund the Pretrial Justice Working Group.  In 2014, the department funded Smart Pretrial grants, the first pretrial demonstration project supported by DOJ in 30 years.  Former Attorney General Eric Holder and current Attorney General Loretta Lynch both have spoken out about the injustice of incarcerating the accused pretrial simply because they are poor.

Last year, the department filed a Statement of Interest in Varden v. The City of Clanton, advising the District Court that: “Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the 14th Amendment.”  I am happy to report that not only did the Varden case settle shortly after our statement of Interest was filed, but the brief has been cited by public defenders in individual cases and appended to cases challenging bail systems around the country.  

In Varden, the Justice Department sought to make the legal claim that fixed sum bail systems are unconstitutional and to advance policy arguments for why cash bail defeats the very policy objectives of ensuring the appearance of the defendant and protecting public safety it purports to advance.  But Varden is not only about fixed bail schedules.  The same constitutional violations arise in other systems, including those in which judges set cash bail amounts in one case after another without due consideration of a person’s ability to pay.  However the system is designed or administered, if the end result is that poor people are held in jail where similarly situated wealthy people would be able to pay for their release, that system is unconstitutional.

Let me turn finally to the last issue I believe Texas must reform, and that is the issue of fines and fees.  As most of you know, in the aftermath of the uprising in Ferguson, DOJ launched an investigation into the Ferguson Police Department.  The report, issued by my colleagues in the Civil Rights Division, included a disturbing section on the Ferguson municipal court and its practice of incarcerating defendants simply because they could not afford to pay excessive fines and fees.

As journalists, advocates and others had already uncovered, the problem is not confined to Ferguson or to Missouri.  Virtually every week, the media reports another horror story.  And some are here in Texas, where you have almost two thousand municipal and justice of the peace courts and where the pressure on the courts to collect the fines and fees imposed is enormous. Legislators in Texas – both state and local – have imposed fees and assessments as a way of financing the courts and other government services rather than to protect public safety.  And too often those fines and fees are assessed without any inquiry into a defendant’s ability to pay.  When defendants fail to pay, they can be incarcerated or their drivers’ licenses are suspended. Just like someone incarcerated pretrial, someone in jail for unpaid fines and fees can lose their job, their home, or their children.  They are caught in a cycle of poverty.  As Attorney General Lynch said at a White House Convening on Incarceration and Poverty: “a debt must be capable of being paid, if it is not instead a lifetime yolk of servitude.”

In December of last year, the department and the White House convened a two-day meeting of advocates, judges – including several chief justices – legislators, court administrators and federal officials to address the problem of, and air potential solutions to, fines and fees.  Our goal was to help state and local courts address these complex issues.  In March of this year, the department made good on its promise.  We announced $2.5 million in competitive grants that will go to four jurisdictions who want to test strategies to restructure the assessment and enforcement of fines and fee.  We created a resource guide for fines and fees, which includes articles, reports and ideas for reform – and posted it on line.  We announced that we would be participating in and contributing funding for the National Taskforce on Fines, Fees and Bail Practices, which was created jointly by the Conference of Chief Justices and the Conference of State Court Administrators.  Texas Chief Justice [Nathan] Hecht sits on the Task Force, as do I as an ex officio member.  Finally, the department sent a “Dear Colleague Letter” to every Chief Justice in the country.  The letter addresses some of the most common enforcement practices that run afoul of the U.S. Constitution and/or other federal laws, such as incarcerating individuals for nonpayment without determining their ability to pay.  The letter also discusses the importance of due process protections such as notice and, in appropriate cases, the right to counsel; the need to avoid unconstitutional bail practices; and due process concerns raised by certain private probation arrangements and by driver’s license suspensions.  Now I know that Chief Justice Hecht read our letter, as did College Station Municipal Court Judge and president of the Texas Municipal courts Association Ed Spillane. Judge Spillane wrote a moving Op-ed that was published in the Washington Post under the headline, “Why I refuse to send people to jail for failure to pay fines.”  Chief Justice Hecht has already taken important steps to help resolve some of these problems in Texas, meeting with municipal judges and justices of the peace and working to change court rules, but he can’t do this alone.  Much of the work of reforming the imposition and enforcement of fines and fees will need to take place in the legislature.  And that means all of you will need to work to make it happen.

Which brings me back to where I began – with the state’s responsibility to provide a robust defense to all indigent defendants – and with our – yours and the Department of Justice’s commitment to help make that promise – Gideon’s promise – a reality.  Recently Attorney General Lynch observed: “Americans from a range of backgrounds and beliefs have come to agree that our criminal justice system can and must be made more efficient, more effective and more fair.  And thanks in no small part to the efforts of people like you,” she said, “we have arrived at a critical moment of consensus around the urgency of ensuring that each component of our justice system – from bail to fines and fees; from policing to indigent defense; and from sentencing guidelines to incarceration – is more closely aligned with our fundamental belief in opportunity and justice for all.”   To all of you here today, thank you for all of the hard work you’ve done, and for the even harder work I know you will do, to secure opportunity and justice for all Texans.

Updated October 4, 2016