April, 2017

Texas Pilot Program Allows Indigent Defendants to Choose Counsel

A Client Choice Program was implemented in 2015 by the Comal County, Texas, criminal courts and the Texas Indigent Defense Commission (TIDC); the program was evaluated by The Judicial Management Institute (JMI), which published a report on the program in March 2017.  The program – the first of its kind in the U.S. – allows an indigent defendant to choose her or his attorney from a court-approved list of private lawyers, or to let the court assign a lawyer through conventional means.  Seventy-two percent of the defendants opted to choose the lawyer.

JMI noted that the United States Supreme Court has held that indigent defendants are constitutionally guaranteed counsel in felony cases [Gideon v. Wainwright, 372 U.S. 335 (1963)]; juvenile delinquency proceedings [In re Gault, 387 U.S. 1 (1967)]; and misdemeanors involving a loss of the defendant’s liberty [Argersinger v. Hamlin, 407 U.S. 25 (1972)].

Also, a defendant has a constitutional right to retain the counsel of her or his choice [United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)].  However, the Supreme Court has not specified how counsel should be assigned for indigent defendants, so the mechanism for assigning counsel varies in the states.  The mechanisms vary from the most common, i.e., judges appointing counsel through a rotation system or on an ad hoc basis, to the assignment done by an agency independent from the judiciary.

Arguments supporting client choice include the idea that the quality of representation will increase where the client is treated as a “customer,” and “defense lawyers will invest more in each case and develop their skills in order to attract business from more clients.”  Also, it is argued, there would be greater trust and confidence between the client and the lawyer.

Arguments against client choice programs include that “’less deserving’ defendants, such as habitual offenders,” will have an unfair advantage in choosing a lawyer.  Also, it is argued that many defendants do not have the knowledge of the law or legal representation to make an effective choice.  “Allowing uninformed defendants to choose their lawyers would presumably not increase quality of representation, but quite possibly result in worse outcomes.”  Other concerns relate to possible slowdowns in the system (resulting from an over-burdening of the most-popular lawyers), diminished idealism in public defenders, and market-place considerations becoming more highlighted over the idea of public service in the representation of the indigent.

JMI focused on these four primary questions:

“Does a Client Choice model impact the quality of representation for indigent defendants?”  JMI found, in answer to this first question, that those participating in the Choice Program met with their lawyer sooner than those who did not choose their own lawyer; also, “chosen-lawyers” were found to be more receptive to client’s requests for meetings. 

“Does a Client Choice model produce greater levels of satisfaction and feelings of procedural justice than a traditional court-appointed model?”  The evaluators found a more positive “sense of procedural justice” among the clients participating in the program, and the participants felt a greater sense of “fairness and impartiality.”

“Does allowing defendants to select their lawyer impact case outcomes?”  Participating clients were 2.96 times more likely to plead guilty to a lesser offense, or to go to trial, than were the non-participating defendants.  The evaluators suggested that the chosen-lawyers were more successful advocates in negotiating a lesser charge and more zealous in taking a case to trial, rather than just settling for a plea deal.

“What is the impact of a Client Choice model on the criminal justice system in terms of costs and efficiencies?”  Overall, there was no marked increase in system costs or decrease in efficiencies, and the cases of defendants participating in the program were actually resolved in slightly less time than were the cases of non-participating defendants.

Comal County, Texas, was described as a mid-sized county with 129,048 residents.  Six judges, four for felony cases and two for misdemeanor cases, preside over the criminal dockets.  Indigent defense costs for the Fiscal Year 2015 totaled $800,026.  In that year, 594 felony cases were added to the dockets, 501 were disposed of, and 737 were pending; 2,065 misdemeanor cases were added, 1,957 were disposed of, and 3,002 were pending.  Before the introduction of the Client Choice Program, judges assigned counsel from a rotating list of private lawyers; the lawyers were paid on a per-case basis pursuant to an established fee schedule.

For the period in the study, there were 1,104 defendants processed in the criminal courts; 485 were involved in felony cases and 610 in misdemeanor cases.  Most of the defendants [72%] elected to choose their lawyer.  Of the defendants interviewed for the evaluation, about three-fourths were male, 56% were white, 10% black, and 31% Hispanic; almost one-half had high school degrees or GED equivalents and about 72% previously had counsel assigned to them.

Participants in the Choice program were more than twice as likely to say they were treated with respect by their lawyer than were those defendants not participating in the program; however, the majority of all defendants, participants and non-participants, disagreed with the statement that they were treated with respect.  Similarly, a slight majority of all defendants thought the lawyers were not concerned with the defendant, and a slight majority thought the lawyer was not concerned about the client’s best interests.  Client Choice participants were less likely [51%] to say that their lawyer took the time to listen to the client, than were non-Client Choice participants [57%], but were 55% more likely to say that their lawyer was honest with them about the case.

Sources:  Tim Lynch, “To Reform Indigent Defense, Bring the Market In,” nationalreview.com, April 19, 2017:
M. Elaine Borakove, Franklin Cruz, and Norman Lefstein, “The Power of Choice: The Implications of a System Where Indigent Defendants Choose Their Own Counsel,” The Justice Management Institute, March, 2017:

by Neil Leithauser
Associate Editor