[Congressional Record Volume 150, Number 139 (Wednesday, December 8, 2004)]
[Senate]
[Pages S12038-S12040]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUSTICE FOR ALL ACT

  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 [in Texas] 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

[[Page S12039]]

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, ``[S]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

[[Page S12040]]

     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.

                          ____________________