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  • OK, I am going to stay on the topic of national developments, but shifting over to sentencing and corrections, further on in the criminal justice continuum. I think you are going to hear Jim and I stressing very similar themes, which are (1) national resources are telling us how to be cost-effective; (2) state resources are available to help you; and (3) we have to work collaboratively together to be cost-effective. Now some of you know that my background is in criminal justice, working for the legislature and the executive branch. I continue to keep up with those issues, in connection with the National Center for State Courts, and the ABA, so I see stuff like these two reports from the good folks at Pew. One in 31 is a follow-up to a report called 1 in 100, which is the overall statistic for incarceration in this country. One in 31 refers to what we call the control rate, the proportion of people under some form of correctional control including prison, jail, probation and parole. So this report is stating the issue from a human perspective, the “long reach of American corrections” as they call it. The other report, Arming the Courts with Research, is more prescriptive, I will get to that in a moment.
  • Of course Texas likes its correctional system to be robust, so instead of 1 in 31 we have 1 in 22 under correctional control, almost twice what our rate was back in the 80s before our modern era of criminal justice emerged. Texas is now spending $6 billion a biennium on TDCJ, anybody want to guess what that figure was in 1982-1983? ($150 million) Now that we employ guards instead of having the inmates handle security, of course prison is by far the most expensive weapon in the arsenal, and they give you a couple of ways to look at that. Pew’s idea here is to help states collect and analyze data on who is admitted to their prisons, how long they stay, who returns, and the implications of these practices for public safety and state budgets They want to help us understand how our existing sentencing, release, and community supervision policies, practices, and outcomes compare with those of other states, and to encourage us to use the best research available to advance reforms that will reduce crime and recidivism and deliver a solid return on taxpayers’ investments
  • And those themes are the thrust of that second 2009 report, Arming the Courts with Research. It has ten recommendations, but I will boil it down to three themes directed at three levels of inquiry. At the policy level we are urged to adopt recidivism reduction as a stated strategy and collaborate effectively across disciplines and levels of government. In terms of the offenders themselves, we are told to use the science. We have to assess them based on risk and needs, supervise them according to evidence-based practices, and respond immediately to violations, but employ a progression of sanctions instead of all-or-nothing, supervision or prison/jail. And we have to work on our judges too, offenders aren’t the only ones who need behavior modification. Judges have to be trained on how to work with data such as risk assessments at the micro level, and recidivism stats at the macro lever to look back at how they are doing. They have to know what programs are available, and who they are best suited to. And they have to be motivators for the offenders, providing visible procedural fairness as well as a firm but caring authority figure.
  • OK, that is what we wanted you to know on the national development, now I am going to shift gears into the second subject, then I will go into the third subject – cost effective strategies, before turning it back over to Jim.
  • The Fair Defense Act was enacted with about 18 million dollars to go to counties for that biennium, 2002-3. It has gone up pretty steadily, and now the biennial amount is close to 60 million, thanks in large part to the efforts of Senator Rodney Ellis. But we realize that the state is not coming close to covering your increased expenses on indigent defense, and we are deeply committed to getting more and more funding for this purpose.
  • The Task Force takes that $30 million in state funding and distributes it in a variety of ways into your coffers. But for simplicity, the three main strategies are formula grants, equalization grants, and discretionary grants. Formula grants in 2008 were $12 million or just over half the funding distributed, with equalization grants totaling another $6 million to the 88 counties with the lowest percentage of state reimbursements for overall increased indigent defense costs. Just over three million went to discretionary grants in 2008, with public defender organizations representing the major emphasis of those seed funds. With the new revenue from the state I anticipate we’ll see even more funding for such programs, including more regional approaches, with counties beginning to analyze the cost-effectiveness of that approach.
  • Which brings us to our third topic, around cost effective strategies. This is where Jim and I want to spend the most time today, and I will be brisk to give him time to wrap this up. Our collective challenge is to Develop a cost-effective criminal justice system… That meets the needs of the local community and… Satisfies the requirements of the Constitution and State law . I started off talking a bit about corrections and sentencing, and I want to return to that part of criminal justice for just a minute.
  • At the beginning of my comments I said we’d identify some national resources that are encouraging the quest for cost-effective strategies, and some state resources to help you in that quest. I’ve talked about indigent defense resources, and just want to touch on a couple more, and then mention some developments in data sharing and technology that should be further incentive or inspiration to you.
  • When I talked about the cost of prisons in Texas, I figured you were thinking about your own jail costs, which I don’t have numbers for. What I can tell you is from a 2006 report by the Jail Standards Commission, that doesn’t give us the county costs, but does tell us the population categories in your jails. I’ve rolled up the three major categories to show you, in particular, that the pretrial population is a huge proportion in jails overall. That is a population that you can work on, with your judges and DAs, probation and pretrial departments. And to help make the point, Can anyone tell me what Art. 104.002 CCP stands for? That’s right, it says everybody in jail is entitled to your care and feeding. It embodies the constitutional obligation you have to support all those people your criminal justice system is detaining, the 40 dollars a day or whatever it is in your county.
  • In 2007 my office helped Midland County with the kind of work I am suggesting to you, making an impact on the jail populations you can affect. We went in and analyzed the criminal justice process, the flow of information or lack of it, and the junctures where tweaks could lower the bed count. We made findings that might fit in your system too, or there might be similar issues with slightly different solutions. First and foremost, we found siloed information and a lack of coordination in moving the criminal justice process, from law enforcement to prosecution to the courts to probation and corrections. I suspect that some version of this issue persists in virtually every system in the state. We can sometimes help with that kind of analysis, on a limited opportunity basis, but one another way that we can help is by sending our court services specialist for technical assistance, to help your judges with their case management. I’ve put the webpage for that service on this slide.
  • Integrated Justice is just another way to say what we were saying to Midland County – you need to work on sharing data from actor to actor in the criminal justice system, to improve efficiency, costs, and even public safety. I wanted you all to know that this theme is a big one for me, and I’ve been working with sister state agencies like DPS and TDCJ, as well as local criminal justice folks through the collaborative effort, Texas Integrated Justice Information Systems. We have developed documentation for automated information exchanges between counties and the prison system when an offender is sent to prison. We want to expand that effort further upstream in criminal justice, to help courts, prosecution, and law enforcement with streamlined data exchanges. For the time being, courts in Texas have been focusing on eFiling in the civil justice context. What I am saying is we need to expand our data and technology efforts into the criminal justice realm.
  • And that brings me to my last point, which is that the Legislature is pushing us all in the direction of criminal e-Filing. SB 1259, a bill that I confess I worked closely on, requires clerks to provide a reciprocal eFiling capability in criminal cases. In other words, if a clerk accepts eFiling from the state in criminal cases, the clerk has to develop the capability to accept eFiling from the variety of defense counsel in their jurisdiction. This change in the law went into immediate effect and is a serious spur to action. I am working with the JCIT, the Supreme Court and the Court of Criminal Appeals to develop further guidance on this issue, but you need to know about it now and begin your local thought process as soon as possible. That concludes my portion of this presentation, I’ll turn it back over to Jim and look forward to any questions you have at the end. Thanks for your attention.
  • Jim
  • Jim
  • Dottie

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  • Indigent Defense: National Developments, State Funding, and Cost-Effective Strategies TAC Annual Conference August 25, 2009 Carl Reynolds, Administrative Director, Office of Court Administration [email_address] Jim Bethke, Director, Task Force on Indigent Defense [email_address] www.courts.state.tx.us & www.courts.state.tx.us/tfid
  • Agenda
    • National Developments and Reports
    • State Funding for Indigent Defense
    • Implementing Cost-Effective Strategies
      • Process and Technology in Criminal Justice
      • Financial Screening
      • Local Costs and Appointment Trends
  • Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel Report of the National Right to Counsel Committee
  • Background
    • Created in 2004 to examine the ability of the American justice system to provide adequate counsel to individuals in criminal and juvenile delinquency cases who cannot afford lawyers
    • Decades after the Supreme Court’s Gideon decision, there was disturbing evidence that states and localities were not providing competent counsel, despite the constitutional requirement that they do so
    • The Committee’s charge was to assess the extent of the problem, the various ways that states and localities provide legal representation to those who cannot hire their own lawyers, and to formulate recommendations about how to improve systems of indigent defense to ensure fairness for all Americans
  • Committee’s Charge
    • Examine the various ways that states and localities provide legal representation to those who cannot hire their own lawyers, assess the extent of the problem, and to formulate recommendations about how to improve systems of indigent defense to ensure fairness for all Americans
  • Why “Justice Denied”?
    • Inadequate funding
    • Large caseloads
    • Lack of independence
    • Deficient access to supporting resources
    • Lack of performance standards
    • Inconsistent advice of the right to counsel
  • Three Major Challenges to Reform
    • Budget shortfalls and difficult economic times
    • Crippling Caseloads
    • Lack of enforceable standards to ensure adequate defense
  • Characteristics of Effective Indigent Defense Systems
    • Sufficient funding
    • Reasonable caseloads
    • Independence in selection, appointment, and payment of counsel
    • Performance standards and oversight
    • Access to vital resources
        • Technology, expert witnesses, etc.
  • Recommendations
    • One of the most important recommendations is that indigent defense should be :
    • 1) independent, nonpartisan, organized at the state level ,
    • 2) adequately funded by the state from general revenues , and 3) overseen by a board or commission .
    • Of equal significance is the recommendation that the 4) federal government assist the states in the delivery of indigent defense services.
        • The right to counsel is a federal guarantee based on the Sixth Amendment to the U.S. Constitution, and it is entirely fitting that the federal government assist in its implementation.
  •  
  • U.S. Department of Justice
    • 2010 National Symposium on Indigent Defense
    • February 18-19, 2010
    • Washington, D.C.   
  •  
    • Pew Center on the States 2009 Reports
    • “ One in 31: The Long Reach of American Corrections”
    • “ Arming the Courts with Research: 10 Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs”
    • 1 in 22 adults is under correctional control
      • in 1982, the figure was 1 in 42 adults
    • $2.96 billion spent on corrections yearly
    • $1.00 prisons for every 18 cents on probation and parole ; 1 day of prison ($42.54) = 12 days of parole or 17 days of probation
    1 in 31: The Long Reach of American Corrections . . . Texas
  • Arming the Courts with Research
    • Policy: Recidivism Reduction Strategy and Effective Collaboration
    • Offenders: Sentence based on Risk/Needs; Supervise based on EBP, Swift & certain responses to violations
    • Judges: Data-enabled, trained and informed, motivators for pro-social behavior
    • State Funding and Costs for Indigent Defense
  • State Appropriations Indigent Defense
  • Texas County Indigent Defense Expenses * 2009 and 2010 county expenses have not yet been reported
  • FY09 Funding Strategies $30 Million Revenue Formula Grant & Direct Disbursement Equalization Technical Support
    • Discretionary Grant
    • New & Innovative Programs
    • Replicable Programs
    • Targeted Specific
    Extraordinary
  • Implementing Cost-Effective Strategies – the State and Local Challenge
  • Making the Most of Limited Resources
    • Systemic Assessments Midland Jail Study as a prototype Case Management TA
    • Integrated Justice
    • SB 1259
    • West Texas Regional Capital Public Defender Office
    • Determining Indigence Study
    • Direct Electronic Filing Study
    • All Pretrial . . . . . 48.5%
    • All Convicted . . . 22.0%
    • Federal . . . . . . . . 12.0%
    • And See: Art. 104.002, Texas Code of Criminal Procedure
    Texas County Jail Populations 2006 (latest TCJS Report online)
  • Systemic Assessments
    • Midland Study : Make an impact on the populations you can affect
    • -Integrate Information and Sustain Collaboration to attack delays
    • -Increase magistrations and arraignments
    • -More resources for pretrial services
    • Case Management Technical Assistance from OCA
    • moving cases from filing to closure
    • http:// www.courts.state.tx.us/oca/csp/csphome.asp
  • Integrated Justice
    • Sharing information/data across computer platforms
    • Current effort focused on pen packets, DPS and TDCJ data
    • Courts focusing on e-Filing and need to expand to data exchanges
  • SB 1259 Article 2.21, Code of Criminal Procedure
      • Requires reciprocal e-Filing capability in criminal cases, i.e.,
      • If a clerk of the district or county court to accepts electronic documents and exhibits from the state, the clerk must accept the same received from the defendant.
      • Allows the Court of Criminal Appeals to accept e-Filed documents of all types from all users.
  • West Texas Regional Capital Public Defender Office NACO Award
  • The Costs and Benefits of Indigent Screening and Verification . . .
  • Task Force Studies and Papers: The Costs and Benefits of an Indigent Defendant Verification (July 2007) Supplement to the Verification Study (Nov. 2007)
  • Your financial affidavits are only as good as your screening process
  • Screening processes require tangible amounts of time and money
  • A point person must be responsible for taking the time to assist with screening
  • Verification is most feasible if there is a bright line standard of indigence
  • Eligible for Justice: Guidelines for Appointing Defense Counsel
    • Screen
    • Apply Screening Criteria Uniformly
    • Screener Should be Conflict Free
    • Appoint Counsel to Eligible Persons
    • Streamline Screening Process
    • Ensure Required Procedural Protections in Place
    • Brennan Center For Justice (2008)
  • Direct Electronic Filing in Criminal Cases: Closing the Paper Trap Published: July 2006
  • Direct Electronic Filing
    • Civil Courts:
    • Transfer of case documents from attorneys to clerk of courts.
    • Criminal Courts:
    • Case management strategy;
    • Automates case screening and filing;
    • Shares information among multiple users (law enforcement, prosecutors, and courts).
    • Goal:
    • Provide practical evidence-based guidance for jurisdictions to follow in implementing criminal justice processes that are fair, accurate, timely, efficient, and effective.
    • Caveat:
    • There should never be a rush to judgment. Processes should ensure that defense counsel and prosecutors alike have amble opportunity to develop their cases.
    Benefits Of Direct Electronic Filing
  • Overview of the Study Sites
  • Elements of a Model Criminal Direct Electronic Filing System Technological Features Work Practices
    • OUTCOME: Enhanced Defendant Rights
    • Fewer defendants are detained on charges that cannot be successfully prosecuted.
        • No costs of arrest
        • No attorney fees
        • No bond fees
        • No lost wages
        • No family disruption
        • No loss of freedom
    • Defendants that are successfully prosecuted can meet their legal obligations and resume their lives without delay.
    Benefits Of Direct Electronic Filing
  • Benefits Of Direct Electronic Filing
    • OUTCOME: Improved Quality of Legal Defense
    • When offense reports are submitted timely and reviewed promptly:
    • Defense counsel can have a more meaningful dialog with client and prosecuting attorney.
    • Charges can be resolved expeditiously.
  • Benefits Of Direct Electronic Filing
    • OUTCOME: Improved Case Quality for the State
    • Prosecutors can identify missing information while witnesses are still present at the scene of the offense.
    • Automated templates and improve speed, accuracy, and consistency of prosecutors’ charges.
    • Furthers the interests of the public, including victims and witnesses, in the fair, accurate, and timely resolution of criminal cases.
  • OUTCOME: Cost Savings to the Public
    • Cases lacking evidence to prosecute are screened out at arrest.
        • No defendant transportation
        • No jail book-in
        • No housing costs
        • No court appointed counsel costs
        • No prosecution expenses
    • Officers spend more time in the field.
    • With an offense report and a filing occur quickly, 15 to 25 percent of cases are disposed quickly.
        • Clears jail cells
        • Reduces court dockets
    Benefits Of Direct Electronic Filing
  • Key Observations
    • Direct electronic filing does NOT
      • Increase eligibility for court-appointed counsel;
      • Or, Ensure prompt appointment.
    • Direct electronic filing DOES
      • increase system-wide efficiency;
      • improve communication;
      • free resources needed to strengthen indigent defense services.
  • Appointment Rates (2008 Cases Paid / Cases Added) 34% 62% State Average: 14% 61% Counties Under 50,000: 25% 62% Counties 50,000 – 249,999: 42% 63% Counties Over 250,000 : Misd. Felony  
  • Felony Appointment Trends
  • Misdemeanor Appointment Trends
  • Cost of Indigent Defense (2008)
    • Felony Fees  $85 mil
      • Avg Cost per Case $555
    • Misdemeanor Fees  $ 31 mil
      • Avg Cost per Case $180
    • Other  $58 mil
    • Total $174 mil
  • Indigent Defense Spending $3 mil $13 mil Small Counties $8 mil $19 mil Mid-Size Counties $20 mil $54 mil Large Counties Misdemeanor Felony  
  • Felony Appt. Rate at 62 percent
    • 15 Counties Over 250,000 ( 2000 census )
    • 113,217 cases paid / 179,370 cases added
    • 39 Counties Between 50,000 and 250,000
    • 35,712 cases paid / 57,936 cases added
    • $555 X 450 = $250,000
    • 200 Counties Under 50,000
    • 26,030 cases paid / 42,957 cases added
    • $555 X 810 = $450,000
  • Misd. Appt. Rate / 34% Statewide Avg.
    • 15 Counties Over 250,000 (2000 census)
    • 150,624 cases paid / 355,338 cases added
    • 39 Counties Between 50,000 and 250,000
    • 35,028 cases paid / 142,566 cases added
    • 12,760 more cases need to paid to be at state avg
    • Cost $2.3 million
    • 200 Counties Under 50,000
    • 13,376 cases paid / 95,848 cases added
    • 18,750 more cases need to paid to be at state avg
    • Cost $ 3.4 million