Justice for all act

[The Straight Story]

JUSTICE FOR ALL ACT -- (Senate - December 08, 2004)

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Mr. CORNYN. Mr. President, almost 2 months ago, we passed H.R. 5107, the Justice for All Act. That bill was the product of months, even years, of hard work and dedication of many on both sides of the aisle. The final product includes a number of important provisions and badly needed funding for State criminal justice systems and, for that, I am happy to see it pass. However, in order to gain my support, as well as that of a number of my colleagues, a number of compromises were made with respect to certain aspects of the Innocence Protection Act section of the bill.

Specifically, the House majority leader, Mr. DELAY, and other members of the Texas delegation in the House inserted into the bill a provision designed to protect the capital representation system that is in place in Texas. Section 421(d)(1)(C) was added specifically to ensure that Texas or any State with a similarly structured system would qualify as an ``effective system'' under the statute.

My support of the bill depended entirely on that provision and on the generally agreed-upon understanding of what that provision accomplishes. As made clear in a colloquy given on this floor at the time of the bill's passage, on October 9, 2004, between myself, Senator SESSIONS and the chairman of the authorizing committee, Senator HATCH, who also happened to be the author and sponsor of the legislation, ``it is this system or any future version of it that specifically is intended to be protected by this language.'' Further, we agreed that ``Texas will not have to change a thing in order to receive grants under this bill--it is automatically pre-qualified.'' Mr. HATCH also noted that it was his understanding that ``at least half a dozen other States also will automatically pre-qualify for funding under this proviso.''

Typically, I would not take the floor to make this point so long after the date of passage.

But with regard to the Justice for All Act, I do feel compelled to respond to a statement the senior Senator from Vermont made on the floor on November 19, 2004--a full 41 days after the passage of H.R. 5107 on October 9, 2004, indicating a different view of the meaning of this provision and others.

The final bill was the product of careful negotiations that sought to protect many different States' interests. It does not represent the wish-list of the Senator from Vermont. Suffice to say that the bill likely would not even have been enacted had the interests of the different States, interests such as those protected by the revised section 421, been adequately protected. Indeed, I would further note that views of the senior Senator from Vermont are hardly authoritative with regard to this bill. It is the senior Senator from Utah that is the author and lead sponsor of the bill and the chairman of the committee that reported the bill. And as the senior Senator from Utah made clear at the time that the bill was enacted, actual legislative history, he and I understood the bill to carve out a State such as Texas that had preexisting capital appointment systems.

The senior Senator from Vermont also attempts to take some liberties with the meaning of other parts of the Justice for All Act's capital-counsel subtitle. He alleges that its grant provisions should be ``strictly interpreted by grant administrators''; that a $125-an-hour rate for defense attorneys is what is ``reasonable''; that defense attorneys' pay should be pegged to prosecutors' pay, and should include geographic cost-of-living adjustments; that the capital-counsel entity may not delegate some of its functions to individual trial judges; and that capital-improvement grants may not be used to higher prosecutors.

None of these ambitions for the Justice for All Act has support in the actual text of the law. Indeed, some of these assertions directly contradict the understanding of the law at the time that it was enacted. For example, as the senior Senator from Utah made clear to the Senator from Alabama at the time that the bill passed the Senate, and well before House passage of the accompanying enrolling resolution made Senate passage final, nothing in section 421 precludes a State from structuring the capital-counsel entity so that general rules and rosters are set by a larger group of qualified judges, and application of those rules in individual cases, selection of counsel from the roster and approval of fees and expenses, is made by a qualified trial judge presiding over the case.

Further, I would like to include the attached letter from the Texas Task Force on Indigent Defense regarding H.R. 5107, the Justice for All Act (P.L. 108-405), into the CONGRESSIONAL RECORD. This letter responds directly

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to the statement by Mr. LEAHY found on page S 11609 of the November 19, 2004 CONGRESSIONAL RECORD.

I know that my friend, the House Majority Leader, included in the House record this same letter, but I want to ensure that the record is clear. As he pointed out on the House floor, the mission of the Texas Task Force on Indigent Defense is to promote justice and fairness to all indigent persons accused of criminal conduct. The Task Force was created by State law, the Fair Defense Act of 2001, and took effect on January 1, 2002. Since its implementation, the Task Force has awarded over $28 million to 250 counties in Texas in furtherance of its mission to improve legal representation for indigent persons accused of crimes.

I believe this letter responds in full and shows exactly the kind of system that H.R. 5107 envisions as effective, and I ask unanimous consent that it be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

TEXAS TASK FORCE

ON INDIGENT DEFENSE,
Re H.R. 5107, the ``Justice For All Act''--Congressional Record page S11613.

Austin, TX, December 1, 2004.
Hon. TOM DELAY,
House Majority Leader,
The Capitol, Washington, DC.
Hon. LAMAR SMITH,
Rayburn House Office Building,
Washington, DC.
Hon. JOHN CARTER,
Cannon House Office Building,
Washington, DC.

DEAR REPRESENTATIVES DELAY, SMITH, AND CARTER: In response to an inquiry last week regarding the statements made by Mr. Leahy in his statement on November 19, 2004, I am offering the following for clarification of what I believe is the current state of indigent defense in Texas.

I commend the goals of this bill and the willingness of Congress to provide States much needed money in the criminal justice arena. Since the reforms to Texas indigent defense laws known as the Texas Fair Defense Act were originally enacted in 2001, the Task Force on Indigent Defense, the Texas judiciary, and local government have worked diligently to meet and exceed the mandates of this reform. This reform was haled by Robert Spangenberg, a leading national expert on indigent defense as, ``the most significant piece of indigent defense legislation passed by any state in the last twenty years.''

Nevertheless, the key to meaningful reform lies in implementation. In that regard, Mr. Bill Beardall, Director of the Equal Justice Center, and leading advocate of indigent reform in Texas recently said that, ``ignificant indigent defense improvements were implemented both at the state level and in most of Texas's 254 counties in response to the new law.''

Worth noting is that Mr. Spangenberg served as the primary author of the Fair Defense Report, which influenced the passage of the Fair Defense Act. In response to the progress made by Texas, he states: ``In three short years, the Task Force has used the limited funding provided to mandate that each county has an indigent defense plan on file. Moreover, these plans are posted electronically and viewable by anyone. This in itself is significant in that what was formerly a closed process is now open to public scrutiny. Also significant is the fact that these are county-wide plans, thus providing greater uniformity than before when practices varied from judge to judge. From what I've seen, the Task Force has successfully built bridges with county government and leading advocate and public interest groups for meaningful collaboration and significant reform.''

The following are some of the highlights of what Texas's courts, counties, and Task Force have accomplished.

More Indigent Defendants Receiving Court Appointed Counsel--In 2002, 278,479 persons received court appointed counsel. In 2004, 371,167 persons received court appointed counsel. This represents a 33% increase while all criminal case filings are up only 8%. Courts and local government are taking their responsibilities seriously.

Public Access--Every indigent defense plan (adult and juvenile) and every county's indigent defense expenditures are posted electronically and available to anyone with access to the Internet. In addition, all model forms, procedures, and rules promulgated by the Task Force are available online at www.courts. state.tx.us/tfid.

In response to Task Force recommendations, judges across the state have submitted amendments to bring indigent defense plans into compliance with the law. Also, every indigent defense plan has been reviewed by the Task Force and is in accordance with the law.

Accountability--Because of centralized oversight of plan submission, the judiciary is accountable to the Task Force. County officials are accountable to the Task Force through expenditure reporting and because of receipt of state grants. Prior to this act each county and court in Texas was left to its own means on how to provide these services.

Training and Outreach--Each year since 2001, the Task Force and staff have provided presentations across the state to 1,200 or more judges, county commissioners, defense attorneys, county employees, and other criminal justice stakeholders on their responsibilities and on the responsibilities of the State regarding effective indigent defense representation. One program of particular interest was designed specifically for State district trial judges who hear capital offenses. This program was sponsored by the Center for American and International Law in Plano, Texas on August 19-20, 2004.

Spending Up Almost 50% Since 2001--The State and counties have significantly increased expenditures for indigent defense services statewide to improve the quality of counsel appointed to represent the poor.

In 2001, counties expended approximately $92 million on indigent defense services without any state assistance. In 2002, county and state spending together reached approximately $107 million--$15 million more than was spent in 2001. In 2003, county and state spending together amounted to approximately $130--$38 million more than was spent in 2001. And, the most recent reports for FY04 reveal county and state spending together totaled approximately $137 million--$45 million more than 2001. All in all since the Fair Defense Act passed the State and counties are expending almost 50% more than they did prior to the Fair Defense Act. Neither the State nor the counties are abdicating their responsibilities--to the contrary, the State and counties are providing their best efforts to secure additional revenue sources as well as implementing process changes to ensure tax payers receive the most value possible for their tax dollars.

Nine Administrative Judicial Regions Working Collaboratively with Task Force--The Nine Administrative Judicial Regions are responsible for the development of qualifications and standards for counsel in death penalty cases. Notwithstanding the Texas Defender Service report referenced by Mr. Leahy in his testimony, the nine administrative presiding judges take very seriously their responsibilities under Texas law. Through officially published standards and qualifications and a thorough screening process, they ensure that only the most capable and competent attorneys are appointed in death penalty cases.

The report that Mr. Leahy relies on was criticized by many criminal justice stakeholders in Texas. I was disappointed with the secretive and surprise tactics utilized by the authors in its preparation. No Task Force members or staff were consulted prior to the report's publication. More significantly, the nine administrative judges were not consulted regarding its preparation or its findings prior to its release. For a Dallas Morning News article regarding this report, I noted the report's lack of methodology and stated that the report's conclusions ``may be a matter more of form over substance.'' John Dahill, general counsel for the Texas Conference of Urban Counties and a former Dallas County prosecutor, was more blunt. ``It just riles me to no end that the Texas Defender Service and the Equal Justice Center didn't bother to inquire of people with knowledge in each of these counties,'' he said. Counties generally follow the regional plan for appointment of counsel in capital cases, he said, and Dallas County follows the plan of the first administrative judicial region. That region covers 34 counties in northeast Texas.

Judge John Ovard of Dallas, who presides over the 1st administrative region, said he had not had a chance to read the report but said the county's failing grade surprised him. ``We're in compliance with the task force ..... which is the primary state agency we report to,'' he said. ``I certainly am interested in looking at it and see why they came to those conclusions.''

Task Force staff meets quarterly with the 9 Administrative Presiding judges. The Task Force provides administrative assistance to the 9 Administrative Judicial Regions in posting the lists of standards and attorneys qualified for appointments in electronic format readily available to anyone in Texas. This collaborative effort is not mandated by State law but is being done at the request of the 9 Administrative Presiding judges to ensure that this process is open to the public and administered consistently across the State.

Summary--For the first time in Texas history the State is providing oversight, fiscal assistance, and technical support to local government and courts to improve the delivery of indigent defense services. All 254 counties in Texas are in compliance with the state reporting requirements. Each indigent defense plan in Texas has been reviewed by the Task Force to ensure it provides for prompt appointment of qualified counsel and reasonable compensation for appointed counsel. Since the passage of the Fair Defense Act, staff has provided presentations across the state to more than 4000 judges, county commissioners, defense attorneys, county employees, and other criminal justice stakeholders on their responsibilities and the responsibilities of State regarding effective indigent defense representation. The key criminal justice stakeholders in Texas are being trained and the Texas system has improved dramatically since the passage of this law. Furthermore, in what may be its greatest achievement, the Task Force has created an efficient and collaborative infrastructure for continuing implementation of the Fair

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Defense Act and for future improvements to indigent defense procedures statewide.

Thank you for considering my views. If you need any further information, feel free to contact me or any member of the Task Force. We are at your disposal to build on the successes all Texans have experienced since the passage of the Fair Defense Act.

Sincerely,

James D. Bethke,
Director, Task Force on Indigent Defense.