The number of men, women, and teenagers who flow through Tarrant County’s criminal justice system is staggering. In 2019, 48,945 criminal cases — roughly the combined populations of Benbrook, Crowley, and White Settlement — were filed in Tarrant County, according to the local district attorney’s office. The realities of drug possession laws and other factors create thousands of defendants who cannot afford a lawyer.
The Sixth Amendment establishes a defendant’s right to legal counsel, but making that right a reality for defendants of all socioeconomic backgrounds is a patchwork system of court-appointed lawyers and public defender’s offices: government-funded groups that provide legal representation to defendants who could not otherwise afford a lawyer. Tarrant County relies on court-appointed attorneys for indigent defendants.
“When I found out that we don’t have [a public defender’s office], it shocked me,” Pamela Young said. The lead organizer for United Fort Worth Criminal Justice Action Team recently joined Jen Sarduy (director at reproductive rights group Re+Birth Equity Alliance) and Lizzie Maldonado (director at the drug overdose prevention nonprofit O.D. Aid) to push Tarrant County officials to create a local defender’s office.
“I see all these ways that we criminalize poverty,” Sarduy said. “This is one of the most egregious misuses of public funds. Our groups organize [around different criminal justice reform focuses]. One way that our focuses intersect is on the lack of structural support for those who need legal support.”
The community organizers drafted a letter of support that has 120 signatures and represents six groups, Maldonado said. The signed letters are addressed to the Tarrant County Commissioners Court, the governing body that would need to approve a planning study on the feasibility of a Tarrant County public defender’s office.
“Tarrant County is likely the largest county in the United States without a public defender’s office at this point,” said Geoffrey Burkhart, executive director of the Texas Indigent Defense Commission (TIDC). Burkhart’s governmental group is tasked with providing support and funding for state municipalities that offer indigent defense programs. Increasingly, he said, those efforts have focused on establishing public defender’s offices.
“The reason the offices work,” he said, “is common sense. If you look at other parts of the criminal justice system, we don’t treat [judges and prosecutors like contract defense lawyers]. You can’t imagine 100 county prosecutors who are all private attorneys with their own overhead and picking cases on a case-by-case basis. You can’t imagine doing that with judges or jailers either, but we do that with indigent defense. We don’t provide [indigent] defense attorneys with what they need to properly do their job, like investigators, and we don’t pay them much.”
Greg Westfall sees Tarrant County’s current court-appointed system as far preferable to the government-controlled alternative. The Fort Worth trial and criminal defense lawyer, who has more than 25 years of criminal defense experience, has spent much of his career defending indigent men and women in Tarrant County.
“You’re not going to get rich doing court-appointed work,” he said. “There are a lot of folks who are in the system who shouldn’t be. The defendants are often overcharged, over-arrested, and overlooked. Doing court-appointed work is one of the best ways to get good results for these people.”
Westfall has concerns about potential problems that a public defender’s office would bring to Tarrant County. While both options are imperfect, he said, the current system of appointing contract lawyers on a case-by-case basis is less vulnerable to budget cuts.
Public defender’s offices are often pitched as cost-saving measures, he said. “When you go into it with that attitude, the quality of representation goes down. We have seen public defenders with caseloads in the hundreds. In a perfect world, [public defender’s offices] would have the same resources as district attorney offices [that prosecute cases], but the world is never perfect when it comes to indigent defense. Politically, it is safer to give money to the DA office than a public defender’s office.”
If Tarrant County does gain a public defender’s office, Sarduy said it would need to be protected through participatory budgeting that involves input from Tarrant County residents.
According to TIDC data, 37 Texas counties now have a public defender’s office — up from seven offices 20 years ago. Tarrant County spent $21,602,871 to provide defense counsel for 15,644 indigent felony cases and 15,333 indigent misdemeanor cases in 2019. The approved 2020 budget for the Tarrant County District Attorney’s office is $28,411,757, according to the DA’s office. Young would like to see spending parity between indigent defense and the DA’s office where top assistant district attorneys can garner six-figure salaries.
While a public defender can earn $50 to $125 per hour for indigent defense services rendered in Tarrant County, public defenders are paid an average annual salary of $58,300, according to ABA Journal, the publication of the American Bar Association. The salary for public defenders pales in comparison to private law firms, but federal loan forgiveness programs can erase law school debt for public defenders after 10 years.
Both systems for providing indigent defense are understaffed and underfunded in Texas, according to reporting by The Texas Tribune. Nationally, the county average for indigence defense spending is $17 per capita compared to the Lone Star State’s average of $10. According to the TIDC, Tarrant County’s per capita spending on indigent defense ($10.86) ranks below Dallas ($14.16), Harris ($11.73), and Travis counties ($11.54). Overall annual state spending on indigent defendants has increased — largely due to county spending and with little state help — from $91 million in 2001 to roughly $300 million today.
Another barrier to equitable defense spending is the fact that Texas’ counties overwhelmingly rely on judges to appoint indigent defense and approve legal expenses for defendants, such as DNA testing, The Texas Tribune found. In one recent case, a Galveston judge was sued by Civil Rights Corps, a nonprofit that fights systemic injustice, because the criminal court judge “refused to allow [a criminal defense lawyer] to continue to represent poor people” because the lawyer “vigorously” advocated for his clients, according to a public statement by Civil Rights Corps. The case, which was settled in 2019, highlights systemic problems that remain in Texas’ indigence defense programs, TIDC’s Burkhart said. The Galveston lawsuit and others like it are forcing counties to reexamine what rights and resources are afforded impoverished defendants, he added.
Westfall said Tarrant County judges have a reputation for readily approving the resources indigent defense lawyers need to vigorously defend their clients. If reform-minded groups are really concerned about improving outcomes for indigent defendants in Tarrant County, those groups should push for policy changes (such as decriminalizing possession of small amounts of marijuana) with the Fort Worth police department and the Tarrant County District Attorney’s office, he added.
“We need to have social programs,” he said. “We don’t need to be doing drug treatment through the criminal justice system. We don’t need mental health programs and parenting classes through the criminal justice system. It’s a horrible allocation of resources [that we currently have]. If things were changed, [indigent dependents] would never need lawyers.”
United Fort Worth’s Young sees a public defender’s office as one solution on the back end of Tarrant County’s legal system that could eventually redefine front-end policing practices. Once defendants who are charged with low-level crimes like marijuana possession are properly defended and exonerated, police will become reticent to arrest individuals for actions that are nonviolent and perfectly legal in many states, she said. Westfall, throughout his 25 years defending Fort Worth’s poor, has seen how nonviolent individuals are swallowed up by Tarrant County courts.
“The Tarrant County Jail is now an asylum,” he said. “It has become the Tarrant County Asylum.”
When asked for comment on this story, Gary Medlin, Tarrant County Bar Association president, said his group “does not have a position on whether Tarrant County would benefit from a public defender’s office.”
Burkhart said public defender offices are not a panacea, but they generally solve the “nobody” problem, he said, referring to a term that describes when a defendant has “nobody” to represent them.
“If folks in Tarrant County reach out to us and are interested in letting us conduct a planning stage for a public defender office, we could certainly do that,” he said.