MINIMUM STANDARDS FOR PUBLIC DEFENDER SYSTEMS IN TEXAS
TEXAS CRIMINAL DEFENSE LAWYER’S ASSOCIATION
OCTOBER, 2009
INTRODUCTION
The criminal justice system is sustained by three legs: law enforcement and prosecution; the courts; and the defense. Balance is crucial to the stability, efficiency and manageability of the system. Defense systems must be independent, well-staffed, well-managed, and well-funded. Parity with Prosecution systems is essential.
Therefore, the Texas Criminal Defense Lawyers Association (TCDLA), recommends the following minimum standards for a county’s indigent defense system. An indigent defense system that falls below these minimums will fail to provide constitutionally mandated effective assistance of counsel to indigent accused. The recommended Standards set out below are loosely based on the American Bar Association’s Ten Principles Of a Public Defense Delivery System.
By promulgating these standards the Texas Criminal Defense Lawyers Association is expressing no preference for a particular type of indigent defense system. The standards are for the use of counties in Texas that may be considering a particular type of indigent defense system that includes a public defender component.
ONE: The Chief Public Defender must be independent of the judiciary and any political influence.
This standard is best achieved by the appointment of a non-partisan, non-political board to oversee the public defender system. This board should choose the chief defender based on merit alone. The chief defender chooses the attorneys and support staff. The oversight board shall determine the budget for the public defender’s office consistent with these standards and secure the necessary funding from either the county or state or combination of the two. The board may require staff assistance to perform its functions depending on the population of the county and the complexity of the system.
Members of the Board should not include Judges who handle criminal cases, nor private attorneys who routinely accept court-appointed criminal cases.
TWO: Eligibility for Assignment of an accused to the Public Defender should be determined at the earliest feasible time after arrest.
Counsel must be assigned to an accused upon request after arrest. Procedures should be set up so that indigency screening occurs at the first feasible moment after arrest. Usually the time between arrest and assignment should not exceed 24 hours.
THREE: Public Defender Caseloads should not be excessive. The oversight board recommended in Standard One should establish reasonable caseload guidelines based on Prosecution caseload figures. The board should consider that Public Defenders cannot handle the number of cases of a comparable prosecutor since the Defender does not have an investigative arm similar to a police department or sheriff’s department to assist. Such guidelines must take into account the extraordinary workload occasioned by assignment to a death penalty case. National average figures indicate that such a case requires 1,900 hours of lawyer time or 1,200 if the case results in a plea. The caseload should never prevent counsel from rendering constitutional effective representation. Once caseload maximums are exceeded resort should be had to an assigned counsel system to absorb the excess caseload.
Caseload standards promulgated by the National Advisory Commission in 1973 are still considered the national standard, and have been adopted in Texas by the Task Force on Indigent Defense:
· 150 Felonies per attorney per year (excluding capital cases), or
· 400 Misdemeanor cases (excluding traffic) per attorney per year, or
· 200 Juvenile cases per attorney per year, or
· 200 Civil Commitment Cases per attorney per year, or
· 25 Appeals per attorney per year.
(These numbers refer to total new cases per year, not to a lawyer’s active caseload at any given time.)
FOUR: Assignment of staff to particular cases is to be done by the Chief Public Defender taking into account the complexity of the case and the training and experience of attorney staff.
The Judiciary should play no role in these assignments so as to preserve the independence of the both the Judiciary and the Public Defender.
To the extent possible the attorney initially assigned to the case should remain with the case to conclusion.
FIVE: There shall be parity of resources between the Defense and Prosecution.
Public Defender salaries should be based on comparable Prosecutor salaries, including benefits, in the specific county. All support services should be equal, e.g. technology, facilities, legal research, support staff, paralegals, investigators, and access to forensic services and experts.
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