How much is a competent defense attorney worth? If you’re the defendant, very much indeed. But how much is it worth if you’re not on trial—and you’re the one footing the bill?
That’s the question underlying a new study of the Harris County Public Defender program. Harris County was the last major urban county in the U.S. to get a public-defender program, which in 2011 started handling a small fraction of the county’s 70,000 indigent defense cases a year. The rest are still dealt with the old way: assigned to a rotating cast of Houston attorneys who are paid little per case, and whose average caseload far exceeds recommended maximums for effective counsel.
Comparing results between the public defender and traditionally appointed counsel doesn’t just make the former look good—it makes the latter look terrible.
The study found that felony public defender clients were acquitted three times as often as those with assigned counsel. Misdemeanor public defender clients with mental illness saw their cases dismissed five times as often, and both felony and misdemeanor defendants represented by public defenders were more likely to have their cases taken to trial than end in a plea deal.
These results aren’t mysterious. The study’s authors at the Council of State Governments Justice Center, a national nonprofit with an office in Austin, chalk them up to time and money. The Harris County Public Defender program is staffed by experienced lawyers who are paid a salary and prevented from taking cases in excess of national standards. Assigned lawyers in Harris County are paid per docket, and significantly less than in other urban counties in Texas. Nothing prevents them from taking on more clients than they can effectively defend.
For example, in 2012, almost half the indigent felony defendants in Harris County were represented by lawyers carrying more than the nationally recommended standard of 150 felony cases per year. And while the standard for misdemeanors is 400 cases a year, the top 10 percent of assigned attorneys in Harris County took on an average of 632 cases each. That may be because the county pays an average of $84 per misdemeanor case—little more than half of what Travis and Dallas counties pay.
The additional time Harris County public defender lawyers spend on each case gets better results, but it requires more money. For misdemeanor cases, the public defenders cost the county almost eight times as much as assigned counsel; in juvenile cases, they cost nine times as much. Felony public defender cases averaged about 1.7 times the cost of assigned counsel, in part because of issues of scale. (Public defenders took on more than half the county’s appellate cases in 2012, and did so, on average, more cheaply than assigned counsel.) But the public defender program is handling only 4 to 8 percent of the county’s misdemeanor, juvenile and felony cases. And while expanding the program will bring per-case costs down, the public defender program may never be as cheap as the assigned counsel system.
Harris County received grants to start its public-defender program, but those will end in October 2014. The county then will have to choose whether to pay rock-bottom prices, or pay for better results for people who’ve hit rock bottom.