At Reinvesting
in Justice, Wesley Shackleford, deputy director of the Texas Indigent Defense Commission, talks about indigent defense, procedural
justice, and improving access to legal services for those who cannot afford it.

AVNI
MAJITHIA-SEJPAL: Hi. This is Avni Majithia-Sejpal and you’re listening to the New Thinking Podcast. I’m
at the Dallas City Hall with Wesley Shackelford, Deputy Director of the Texas Indigent Defense Commission in Austin.
We’re both here at Reinvesting in Justice, a conference that brings together a wide range of criminal justice
practitioners to discuss challenges and highlight innovative work being done in the field of Criminal Justice today.
Wesley is speaking on a panel about procedural justice a little bit later today, specifically as procedural justice
intersects with thinking about racial disparity within the justice system. Wesley, welcome to the New Thinking Podcast.

WESLEY SHACKELFORD: Thanks, Avni.

MAJITHIA-SEJPAL: Today’s big topic is Reinvesting
in Justice. How do you interpret that?

SHACKELFORD: Coming at it from the indigent defense world,
we’re looking to find new innovative ways to provide required indigent defense services in working with partners
in county government who are interested in trying new approaches.

MAJITHIA-SEJPAL: For the benefit
of our listeners, can you summarize what your panel is going to be about and also what you specifically will be talking
about?

SHACKELFORD: Sure. It’s a diverse panel, the Chief of Police for Dallas and he’s
going to be talking I think about community relations with the police department especially with communities of color
in Dallas. We also have panelists from my parent organization, the Office of Court Administration also based in Austin
and he’s going to be talking about procedural justice in the court system directly. I’ll be addressing
indigent defense systems and innovative programs that my agency’s been involved in creating.

MAJITHIA-SEJPAL:
Can you tell us a little bit about that?

SHACKELFORD: My organization provides grant funding to
counties to help support the provision of legal services to poor people charged with crimes. I’m going to be
talking in particular about our discretionary grant programs where we’re partnering with counties who are interested
in advancing their own systems through partnerships. Really moving in new directions from what I’ll call the
legacy system of court-appointed counsel systems, which is still the by far predominant form of provision of indigent
defense services in Texas. Some of the programs that we’ve been working on are what we call managed assigned
counsel programs. This is in communities where the courts who by statute are the ones in charge in Texas of determining
who is going to be appointed to represent indigent defendants. They make the assignments on individual cases to specific
attorneys.

They in some places have decided that that’s not something they want to do. We’ve
been supporting them in developing this new system. It really started back in 2009 in Lubbock County. The judges
there took the initiative to essentially spin off the management of the appointment list and the assignment of counsel
to a non-profit Bar-led organization. They started it with a subset of cases, mental health defendants and with some
case workers to support the attorneys in that work. After a couple of years in learning the new system and what the
issues were, they expanded it to the entire criminal court system. At this point in Lubbock all of the appointments
are managed by this Bar-led organization. The courts have nothing to do with the selection of counsel. The Bar panels
with the Chief Defender reviews all requests for support services like investigators, expert witnesses. They also
review and approve all the fee vouchers which is another of the powers that is given to the judges in this state.

That was such a success that Travis County in Austin has also now launched the same system. As of this year
the criminal court appointment system is managed by a non-profit Bar Association with Chief Defender, two Deputy
Defenders, an investigator and so forth. This has been a big sea change and we see it as an opportunity for counties
around the state who may not be ready to take over the entire system through the creation of, say, a public defender’s
office where you have staff attorneys managing the provision of counsel. These are still private attorneys but it
provides a lot of independence from the courts and it also provides an opportunity for more direct oversight and
quality control which are things that judges aren’t really in a position to do.

Chief Defenders
who manage the system are. They help staff cases if need be. They provide mentoring services and then they annually
review performance and provide pointers and training opportunities for all of the private assigned counsel attorneys
in the jurisdiction.

MAJITHIA-SEJPAL: That’s really interesting. You talked about the success
of the reform initiatives in Lubbock County. Can you elaborate on that? What kinds of results are you really seeing?

SHACKELFORD: I think it is the same attorneys but I would say the quality is better. They’ve created
mentoring programs both in Lubbock and now in Travis County which I think has the effect of enhancing the quality
of representation, bringing up the new generation. I think Lubbock, one of the challenges they faced was an aging
criminal defense attorney population retiring. It wasn’t really a process without a public defender’s office
to mentor and train young attorneys who wanted to go into the defense world. The old model of starting in a prosecutor’s
office, it wasn’t really attractive to a lot of young attorneys so they’ve been able to establish a full-scale
mentoring program under the auspices of the Managed Assigned Counsel program. I think that’s probably one of
the biggest enhancements.

MAJITHIA-SEJPAL: Why is procedural justice important according to you,
and how can it really speak to addressing issues that minorities face within the criminal justice system?

SHACKELFORD: For the criminal justice system to have credibility in the community or at large, there has
to be justice perceived. It’s both the appearance and the actuality of fairness in the proceedings. Really that’s
what the initiatives that we’ve been undertaking are trying to enhance. The court-appointed counsel system can
at least lead to the appearance that the defendant’s attorney may not have their interests aligned with the
defendant. You speak to defense attorneys and they’ll talk about the difficulties in establishing a good relationship
with their client when they may feel like the attorney was foisted on them and works for the judge. Even the prosecutor
when in fact, the prosecutor doesn’t have anything to do with it but there’s still that perception. The
procedure, if you will, of having the court assign it can lead to that and that undermines really the whole justice
system and really is at the root of the second initiative that I wanted to speak about.

That’s
a client choice initiative that’s underway in Comal County which is New Braunsfels. It’s a small to mid-size
community between San Antonio and Austin. They are for the first time in the United States have implemented a system
whereby the clients, the defendants who’ve been charged with a crime, get to select the attorney who will represent
them. This is the system that’s in place in common law countries across the world, England, Scotland, Australia.
It has been for many, many years but has never really been tried here. We got the idea from a Cato Institute report,
Free Market Principles from 2010 and Norman Lefstein which is one of the thought leaders in Indigent Offense nationally
from the Indiana University School of Law, has partnered with us to create the program.

There
was a very large stakeholder committee with a national oversight board to develop the model and it began operation
just at the beginning of this year. There’s going to be a full evaluation of course, but the main concept behind
it is that the interests of the clients are going to be aligned with their defense attorney rather than the defense
attorney’s interests are aligned with the client. The only way they’re going to get appointments in the
system is if a client chooses to have them represent them. It piggybacks on the court appointed system. These are
attorneys who have already been qualified and screened by the judges, which is the system we have, as being qualified,
have the requisite training and experience to provide representation. From that pool, that relatively large list,
basically all the criminal defense attorneys in the community, the clients can choose.

We found
so far that about three-quarters of them do elect to choose their own attorney. If they don’t maybe they don’t
have any knowledge, they will be assigned an attorney off the wheel as they always have been. It turns out that attorneys
do have reputations in the community and defendants can get information to make an informed decision. It’s really
no different than anyone else who need to buy a service be it hiring a plumber or an accountant or anything else.
You gather the information and you make a choice about who you think is going to provide you the best service.

The attorneys at least initially, have already reported that it’s much easier to establish a trusting
relationship with their client because they feel vested in the choice. This was the attorney they in fact chose to
represent them. It’s going to be really interesting to see what the results are. Does it improve the quality?
What are the perceptions of the clients in the community? What do the defense attorneys report? There’s a robust
evaluation by the Justice Management Institute that’s going to take a look at this and we’ll have a full
report in 2016.

MAJITHIA-SEJPAL: What are some of the challenges facing indigent defense today,
particularly as it intersects with procedural justice and issues of disparity?

SHACKELFORD: The
overarching issue and it may always be issue is inadequate resources. In public defender programs and assigned counsel
systems, if there isn’t enough funding to provide meaningful representation, then it’s very hard to have
procedural justice. You can have a system of attorneys who are there in name only who stand up with the defendant
while they plead guilty to the crime they’ve been charged with and accept the offer that the prosecutor makes.
We do have a system that’s based largely on guilty pleas. The challenge is when the defense attorneys don’t
have adequate time and resources to properly investigate the cases that you can undermine the belief that the system
is fair. If you’re in the defense community, if your attorney doesn’t have time to actually track down
the witness that may be able to attest to your defense, then you’re not going to have any trust in the system.
I think that’s probably the overarching consideration.

MAJITHIA-SEJPAL: Thanks for talking
to me today.

SHACKELFORD: Thanks for having me.

MAJITHIA-SEJPAL: I’m Avni
Majithia-Sejpal and I’ve been talking to Wesley Shackelford at Reinvesting in Justice. To listen to more New
Thinking Podcasts or to learn more about our work, you can visit our website at www.courtinnovation.org. Thanks for
listening.

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At Reinvesting
in Justice, Aubree Cote, smart pretrial site coordinator for Denver, talks about the city’s
reform efforts and what different states and jurisdictions can learn from each other regarding pretrial justice.

AVNI
MAJITHIA-SEJPAL: Hello and welcome to the New Thinking Podcast. This is Avni Majithia-Sejpal, and I am here in Dallas
today talking to Aubree Cote at the Reinvesting In Justice conference. Aubree is the Denver site coordinator for
the Bureau of Justice Assistance Smart Pretrial Demonstration Initiative. Welcome, Aubree.

AUBREE
COTE: Hi, thank you.

MAJITHIA-SEJPAL: You just participated in a panel that was very interesting.
For the benefit of our listeners at home, can you tell us what that panel was about and what you specifically were
talking about there?

COTE: Sure. The panel was around pretrial practices, and I was able to talk
about the Smart Pretrial, which is a demonstration initiative that Denver is participating in as one of three sites.
The other two sites are the state of Delaware and Yakima County, which is in Washington State. The Smart Pretrial
is a program that is allowing all three of those jurisdictions to look at front end processes within their criminal
justice systems. The work is divided in three different phases. Phase one of the grant is around planning, which
has really been about system analysis and looking at system processes, system mapping, gaps within our pretrial system,
and evaluating that so that we can, in phase two, implement some opportunities we may have to make improvements in
that system. The third phase, which would be the third year of the program, is sustainability. That’s where
hopefully the successful practices we put in place in phase two, we can sustain as well as working as a site for
other jurisdictions who may be looking at pretrial reform.

MAJITHIA-SEJPAL: Speaking of Denver
and pretrial practices, what is the Smart Pretrial grant attempting to address?

COTE: Denver is
very fortunate in that we have a pretrial services program that has been around for a very long time. We started
doing some pretty significant pretrial reform work about 7 years ago in Denver. Some of that was around the implementation
of risk assessment. Colorado uses a risk assessment specific to a Colorado population. Denver implemented that in
2012. Additionally, in 2013, the bail statute in Colorado was essentially rewritten, which really changed how bail
was set. Smart Pretrial has really helped us to focus in on some of the changes that we’ve already made, and,
as a system, really look at what other opportunities that we have now that we know more about some of the changes
that were made a few years ago.

MAJITHIA-SEJPAL: Can we break down what pretrial practices are?

COTE: Pretrial… The system itself is really the time where a defendant, between the time of arrest all
the way until disposition in a case. What we’ve found is that many defendants are in custody during that period,
and oftentimes are in custody held on a financial bail. If they’re not able to post that, they remain in custody
until disposition. Pretrial reform really looks at using risk assessment to determine whether those defendants should
be released or detained. Generally, most defendants are low-risk and can be released. Supervision practices can be
used for moderate risk-level defendants who, with some case management, specifically around appearance and not committing
new crimes, can be successful during that pretrial period.

MAJITHIA-SEJPAL: Why is pretrial reform
so urgent today?

COTE: I think it’s interesting that there has been a concentration on looking
at the front end of the system that, 10 years ago, you didn’t hear much about. Most of nationally, jail populations,
or around 60% of the jail populations, are pretrial defendants. Obviously, that’s having a huge impact on those
that are in custody and haven’t even been found guilty and are not serving a sentence. A second piece to that
is that, historically, bail has been around financial means. I think in looking at jail, we’re seeing that,
oftentimes, defendants are buying their way out of custody, leaving poorer defendants to remain in custody.

MAJITHIA-SEJPAL: Can you talk about some specific pretrial practices that help to reduce incarceration?

COTE: Yes. I would definitely go back to risk assessment. I think that has been very important in Denver,
and nationally also. I think changing the culture where judges and court personnel are making decisions based on
either detention or release, instead of a financial amount that they think may or may not ensure that the defendant
returns. Risk assessment has really helped us change how we look at a defendant that is arrested, and also the need
to be arrested. Is it necessary for a defendant to go into the jail, or can we somehow look at risk on the front
end and determine that they don’t even need to take up a jail bed day. We know the research is telling us that
defendants who are in custody even for 2 or 3 days can be very negatively impacted by that.

MAJITHIA-SEJPAL:
In Denver, what are some of the key causes of incarceration?

COTE: Denver is an interesting jurisdiction
because we are a city and a county. There are multiple layers within our system. We have municipal cases, which are
very low level ordinance nuisance type crimes, and then we have misdemeanors and we have felonies. Because of that,
we have a jail that has a variety of populations. What we’ve found is that, when we apply risk, it doesn’t
always correlate to charge type. In the past, felonies obviously would have higher financial bonds. We can’t
now assume that, just because they have a felony, that they’re higher or lower risk. That risk assessment has
really allowed us to look through a different lens to see who should be in our jail. Ideally, we would have a jail
that is high-risk defendants, and all of our low-risk, which would be most of them, are released, and the medium-risk
population is released with some type of pretrial supervision.

MAJITHIA-SEJPAL: Are there any
strategies that you can share with us regarding implementing successful alternatives to pretrial detention without
compromising public safety?

COTE: I think that making decisions around supervision based on risk.
One of the things that we’re looking at in Denver is our pretrial supervision. We have several levels of pretrial
supervision. Our outcomes are very positive for defendants who are on that supervision. One of the things that we’d
really like to look more deeply into is specifically what type of supervision works well for different risk levels
of defendants. Right now, the research in the field doesn’t get very specific about what we know works with
certain levels of defendants. One of the things that we want to look at in Denver is really specifically what part
of our supervision is working well and for which defendants.

MAJITHIA-SEJPAL: I wanted to return
to your panel for a moment. Given a variety of stakeholders involved coming from different parts of the country,
I imagine it generated some interesting conversations and insights.

COTE: One of the benefits
of forums like this, where different jurisdictions are able to sit down and talk, is it’s always so interesting
that we all work in very different systems. However, there was definitely a conversation within that panel that there
is a large pretrial jail population, and what different jurisdictions can do. It’s interesting. The judge on
our panel from New York statutorily has different limitations than we may have in Colorado. Yet, they are instituting
a program around pretrial release. That’s very similar to what we’re doing in Colorado and is being done
in other states. I think that part is always very beneficial.

MAJITHIA-SEJPAL: Thanks so much
for talking to me. That was an instructive conversation. I’m Avni Majithia-Sejpal, and I have been talking to
Aubree Cote at Reinvesting In Justice. To listen to more New Thinking Podcasts, or to learn more about our work,
you can visit our website at www.courtinnovation.org. Thanks so much for listening.

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At Reinvesting
in Justice, David Slayton, executive director of the Texas Office of Court Administration, talks
about using data to implement procedural justice and address racial disparities in the justice system.

The following is
a transcript

AVNI MAJITHIA-SEJPAL: Hello, this is
Avni Majithia-Sejpal, and you’re listening to the New Thinking Podcast. Today I’m at the Dallas City Hall
with David Slayton, who is the administrative director of the Texas Office of Court Administration in Austin. We’re
both here at Reinvesting in Justice, a conference that brings together a wide range of criminal justice practitioners
to discuss challenges and highlight innovative work being done in the field of criminal justice across the state
of Texas and elsewhere. David is speaking on a panel about procedural justice in a little while here. Specifically,
how procedural justice intersects with thinking about racial disparity in the justice system. David, welcome to the
New Thinking Podcast.

DAVID SLAYTON: It’s great to be here.

MAJITHIA-SEJPAL: Today’s big subject is “Reinvesting in Justice.” From
where you sit, what does reinvesting in justice even look like, and why is it so important right now.

SLAYTON: Right now, we face really challenging times, and making sure that the dollars and
the efforts that we put into criminal justice are being effective at what we want them to do. The outcomes are important.
It’s not just about inputs and outputs anymore, whereas maybe in the past that was a huge focus, how many cases can
we get done, or how many are we having filed. Focusing on, are we actually making an impact with the efforts that
we’re putting in? I think that’s an exciting thing to be able to focus on as we do our work.

MAJITHIA-SEJPAL: For the benefit of those who are not here today, can you summarize
what your panel is going to be about, and what you specifically will be talking about?

SLAYTON:
We have the Dallas City Police Chief on the panel, which will be really interesting to hear his perspective on law
enforcement’s interaction with the public. We’re going to have the deputy director of the Texas Indigent
Defense Commission, whose focus is upon court-appointed counsel, and of course, making sure that there’s a feeling
of fairness in that system. I’m particularly focusing on procedural fairness, and the work that we’re doing
in the state to try to make sure that people, not only are being treated fairly, but that they feel that they’re
being treated fairly in the court system. Obviously, that feeling is as important as the reality.

MAJITHIA-SEJPAL: Can you talk about procedural fairness?

SLAYTON:
Sure. One of the key things with procedural fairness is we want to make sure that when people enter the court system,
that they know what to do and that they understand what’s going on. The court system has been around for centuries
and it’s built for attorneys who are very learned in the system and understand exactly how it works, it’s built for
judges. Sometimes the language that’s used and the procedures that’s used in the courts are not as easily
understandable to the public and sometimes that leads to confusion, leads to a feeling of unfairness. So, making
sure that people not only are treated fairly, but that they understand what’s going on, that they are able to
understand those procedures and the forms and the languages that’s going on is really important. Then, obviously,
at the end of the day, making sure that people are, indeed, treated fairly based upon the situation in their case,
and that outcomes are similar for all different groups, no matter what their background is.

MAJITHIA-SEJPAL:
There is a lot of discussion across the spectrum about racial disparities in the criminal justice system, and outside
of it. Can you talk about how maybe procedural fairness actually addresses that, or can possibly address that?

SLAYTON: Yeah. I think one of the real key things that’s important … I’m
going to be talking about this on my panel today … is the need for us to really take hard look at that with data.
There are different communities that are involved in our criminal justice system who are over-represented. We know
that for a fact, we see it. Oftentimes, I’m not sure that we have, in the past, been willing to take a hard
look at the data to see–what are those degrees of over-representation?

What
I see happening today, at least in the judiciary in Texas, is, really, a willingness to really peel back the layers
and see: what does the data show, as far as the effect on different groups, and the disparities that are there? And
what can we do about it? Whether it be in the child protective system, child welfare system, we’ve been looking
at that, the truancy system, the children involved in the juvenile justice system, all the way up to the criminal
justice system. I think it’s really important for us to take a look at that. And making sure that people are being
treated from the beginning of their involvement in this system, all the way to the end is important. I think procedural
fairness plays a big part in that.

MAJITHIA-SEJPAL: What is the data telling
us?

SLAYTON: I think the data is revealing what we know, which we know anecdotally,
there is indeed over-representation of certain groups. I look, in particular, to a study that was done a few years
ago, that has had tremendous impact in our state, which was a report called “Breaking Schools Rules.” It
was done by the Council of State Governments Justice Center and the Public Policy Research Institute from Texas A&M.
It looked at about a million kids in our school system in the state, and what their involvement was in the school
ticketing for minor offences.

What the report found is that, number one, there
was over-representation of minorities, but even disparity in the treatment of those minorities for similar offences.
With all other factors equalized, the educational background of the parents, to the income, to school district, to
even school campus level; if we equalized all those things, the factor that still showed as a differentiation in
the way they were treated was race. Besides race, we also saw an issue with individuals who had disabilities being
overrepresented and the treatment being different. What that led to was really a real focus, and a real effort to
try to reform and put in place reforms that would address that. It’s a really excting thing to be able to see the
data show that, and then to take action based upon that.

MAJITHIA-SEJPAL:
Are there specific practices of procedural fairness that can actually address some of these disparities that we are
talking about?

SLAYTON: You know, one of the things that’s really important
is the training that we have been in … I want to talk about this today too … is the training that we have been
doing with judges on implicit bias. We know it exists. We know, as humans, we have our biases. I think it’s sort
of like the step one of AA, admitting we have a problem is sometimes the number one. I think, a lot of times, just
for judges and court staff and prosecutors and defense attorneys to realize that they have implicit bias is an important
factor. Then, controlling that with tools, to make sure they can overcome those natural biases that exist. I think
that’s number one, the training behind that is really important.

Then
number two, really trying to overcome that by making sure that we have things like community courts and drug courts.
Making sure that the people who are on the bench and in the courtroom look and act like we do, that speak the same
language as we do. All those types of things, I think, are really important to making sure that people really do
feel that the system is fair and that they are not going against someone who is very different than them, speaks
a different language from them, and therefore, they don’t feel they are getting treated as fairly as they should.

MAJITHIA-SEJPAL: Are there any interesting initiatives in the state of Texas that you
can talk about?

SLAYTON: One of the things that I am going to talk about today,
when I was court administrator in Lubbock County, which is a medium-sized county in west Texas … The judges there
really felt like it was important to ask the people who were coming before them, how they felt about the job the
judges were doing. In fact they labeled it “Judge the Judges.” So, everyone who went before the judges
was asked to answer a survey about their interactions with the judges that day.

Some
of the questions that they asked were, first of all, “Was finding the courthouse easy? Did I have forms that
I needed? Did I feel safe? Was I able to do my business in a reasonable amount of time?” and “Were the
hours that the court was open, did that make it easy to conduct my business?” Because oftentimes that can be
an issue. Then it went a step further, and for those individuals who actually appeared before a judge, it asked them
the following questions. They were asked to grade on these statements:  “The judge listened to my side
of the story before the decision was made”; “The judge had information necessary to make a good decision”; “I was
treated as everyone else”: and “As I leave I know what to do next.”

 What
we did was, we asked everyone who was leaving the courthouse that had been before the judge, “How do you feel
about this?” And we got some really great feedback. We asked information on the survey about demographics, and
what type of case it was, and which court level they went before. We really started to get some information that
allowed to drill down into the feelings of different individuals who were coming before the courts. It gave the judges
valuable feedback as to how they could address the issues that might be a concern for the public. So, that’s
one example. We’ve seen some other courts in the state also replicate that survey. I think that it’s really
just helping us to use that information to make positive changes within the court system.

MAJITHIA-SEJPAL: When it comes to procedural fairness there are sometimes skeptics who
suggest that perceptions of fairness have very little to do with actually adjudicating, and also take up a lot of
time that judges and others don’t necessarily have. Are there ways you address the skepticism?

SLAYTON: You know, I am going to say this today, and I think, in this day and age, it’s really
true that the public sees the court system through the lens of the entire criminal justice system. So, if you have
police brutality, or you have a wrongful conviction, or you have an issue in the defense side or the prosecution
side, it’s all the court system, in people’s eyes. So, I think you have to think about this with our partners and
the criminal justice system, as a system-wide issue that we have to address. And if we don’t do that I’m
not sure we really make a real difference. I think that’s the key, is really looking at that from the system-wide
perspective and then making changes based upon that.

MAJITHIA-SEJPAL: What
are some of the most urgent challenges facing procedural justice, particularly as it pertains to dealing with some
of the racial disparities that we are seeing across various platforms and institutions in the country right now?

SLAYTON: I’m gonna talk about this today. One of the real issues that I see is
the whole issue of community engagement. I’ve been talking at the state level with the chief justice and others
about the need for us to really do a better job of engaging with the community. In the past when we looked at judges
doing community engagement, it’s been going to the Rotary or going to the bar assar association and speaking. I’m
not sure that’s exactly that type of community engagement that is most beneficial, and we need to figure out
a way to get into different communities across our state and our local communities and have discussions about, how
do you feel about the court system? What do you think the challenges are? How can we better connect? I think that
is one of the biggest things.

The second thing, in my mind, that we can do
better is to be more transparent. We are doing our best to be transparent, but there is even more we can do. For
instance, we have limitations in our data. If someone asks me for racial disparity data, I have limitations in what
I can say. So, we are doing some work at the state level to try to get more data, that is more granular that we can
begin to really take a look and study these issues a little bit better.

Then,
the last thing I would say, is really opening up our records from a perspective so that anybody can see what is going
on. You mentioned earlier, “Is this a real issue, is this a perception issue.” It doesn’t really matter
at the end of the day. Perception is reality. So, I think making sure that people can actually validate or not, their
assumption, is really important, and so, that transparency, I think, is really key.

MAJITHIA-SEJPAL:
Great. David, thanks so much!

SLAYTON: Thank you for having me today.

MAJITHIA-SEJPAL: I’m Avni Majithia-Sejpal and I’ve been talking to David Slayton
at Reinvesting in Justice about racial disparity and the need for procedural fairness. To listen to more New Thinking
podcasts, or to learn more about our work, you can visit our website atwww.courtinnovation.org.
Thanks so much for listening.

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At Reinvesting
in Justice, Michael Young, chief public defender of Bexar County in Texas, talks about innovative
programs to assist defendants with mental health challenges.

The
following is a transcript

AVNI MAJITHIA-SEJPAL: Hello
and welcome to the New Thinking podcast. This is Avni Majithia-Sejpal and I’m here in Dallas talking to Michael
Young at the Reinvesting in Justice conference. Michael is the Chief Public Defender for Bexar County in Texas. Welcome
Michael.

MICHAEL YOUNG: Good afternoon
Avni.

MAJITHIA-SEJPAL: Can you talk about your
panel today which just concluded and particularly your own contribution to it?

YOUNG: This
afternoon we participated in a panel for dealing with persons in the criminal justice system who have a co-occurring
disorder. A co-occurring disorder means you’re charged with a crime, but at the same time you’re going
through the criminal justice system, you’re suffering from a mental illness or an addiction or some other condition
attendant to that criminal justice situation. Basically, the gist of the panel was myself, also Stephen Bush from
Shelby, Tennessee, Shelby County, Tennessee, and Judge Marcia Hirsch out of New York. Each of them deal with the
mentally ill in the criminal justice system through different programs.

MAJITHIA-SEJPAL: What
are some of the various challenges facing practitioners who are working with defendants who have co-occurring conditions?

YOUNG: There are a lot of different considerations
you have to think about. Obviously, if you’re dealing with someone who has a mental illness as a criminal defense
attorney, one of your first considerations is: is this person competent to proceed? Do they understand the proceedings
against them? Sometimes that’s a fine line when you have someone who’s suffering from a mental illness.
Now, obviously, if you do have a mental illness, that doesn’t mean per se that you’re incompetent, but
it’s certainly one thing that you have to be looking at. Another thing is I think you need to be prepared for
a great deal of client contact because a lot of representing those who are mentally ill is developing trust. You
will probably spend 10, 15 times the amount of time dealing with a client who has a mental illness over one who doesn’t
because there are so many issues of trust, of explaining the process to them. It’s very time intensive.

MAJITHIA-SEJPAL: I understand that you work specifically
with indigent defendants dealing with mental illness. Is that correct?

YOUNG: Yes. We have a mental illness defense team. They’re
attorneys who represent persons who have a mental illness but are also charged with an offense. We’re also working
at the jail during the initial booking process to represent those persons who have come into the criminal justice
system but have a mental illness.

MAJITHIA-SEJPAL:
Can you tell us more about the program itself?

YOUNG:
It’s the first of its kind in the state of Texas. Right now, you are entitled to an attorney if you’re
indigent, if you cannot afford to pay for one. The difference is: when do you get to see that attorney? It may be
several days after your arrest before you actually are able to visit with your attorney. The program that we’ve
initiated, we actually have public defenders at the jail, so immediately when you walk in the jail, if you’re
identified as a person with mental illness, that public defender is your attorney from that moment forward. We determine
if you have a mental illness through several different mechanisms. Law enforcement will talk to them and ask them
questions about their mental health background. There’s also an ability to do what’s called a CCQ which
is a Continuity of Care Query. There’s a database for people who’ve ever had a mental illness that’s
maintained, and if we find that they have already a diagnosis for mental illness, we’ll begin representing them
right then.

That’s especially critical because these people are already
in crisis. They’ve just been arrested. They’re going to see a judge. We want to make sure they don’t
say anything that’s going to damage their case, and the primary focus of what we’re trying to do is find
some type of community based treatment to send them to in lieu of them being booked into jail. It could be a homeless
shelter if that’s their primary problem. It could be drug treatment if that’s a problem. It could be counseling.
Basically, we try to connect that person with treatment in the community, and then we present it to the judge that,
“Judge, if you give this person a bond, they are not going to go to jail, but they’re
going to comply with this treatment that we’ve setup for them.”

MAJITHIA-SEJPAL:
You mentioned it’s the first such program in Texas. How long has it been up?

YOUNG:
The program was actually supported by the Texas Indigent Defense Commission. That’s the entity in Texas that
was created as part of the Fair Defense Act which oversees indigent defense. They fund indigent defense through either
discretionary spending or through grants if we have an innovative program, so we presented this as a grant proposal.
It was funded effective October 1, so we’re very new into the program.

MAJITHIA-SEJPAL:
Wow. Was there a history there? Were you finding that in Bexar County there was a need specifically to work with
defendants who are dealing with mental health issues?

YOUNG:
That’s a great question Avni. The Council of State Governments is really a national organization that’s
focused on criminal justice reform. They did a study for Bexar County from April 2014 through February 2015. During
that time period, there were 55,000 people who were booked into Bexar County Jail. They were able to determine that
approximately 11,656 of those persons had a mental disorder attendant to their arrest, so that’s a large population
that was not being diverted from the jail even though the county had setup programs, and there were a lot of community
based programs available. During the time period of the study, only 125 of the approximately 11,000 were diverted
from the jail. The goal of the program, obviously, is to increase the number of people we divert from the jail to
these community based treatment.

MAJITHIA-SEJPAL:
Right. I know it’s early, but have you been seeing any preliminary results?

YOUNG:
Everything in criminal justice right now is being driven by evidence based methods. In other words, data collection
is critical to whatever we’re doing, so we are collecting data to prove the viability of this program. Obviously,
anecdotally we have a lot of stories.

MAJITHIA-SEJPAL:
I’d love to hear some.

YOUNG: We have one
young lady who came in, and when the judge evaluates someone for bond, generally, they only look at the criminal
history and the current charge. The judge basically told us before we presented the case, “This person’s
not a candidate. I’m not going to give them a PR bond” even though she was suffering from a major depressive
disorder. Upon evaluation, we found out that the reason she had this depressive disorder is because she had been
diagnosed with terminal cancer, only four months to live. After verifying that with her oncologist, presenting that
to the judge, obviously, the judge changed their mind, and I think that was a great victory. This lady only had four
months to live, and she was probably going to spend several months of those in jail if we hadn’t of gotten her
out.

Also, people actually come to court. That’s what we’ve been
noticing. Before, if people got out on a commercial bond with no treatment, we had a big problem with them failing
to appear. At least in the last 30 days, we’re seeing people show up. We’re seeing them complying with
coming to court, and I think that has a lot to do with the arrestee feeling like they have an advocate. They have
somebody who’s working for them, somebody that’s believing in them. Because a lot of the times what has
happened, people at this point in their life have strained most of their relationships, and nobody really believes
that they’re going to do what they say anymore. Our public defenders work hard to build a relationship with
them there at the jail and say, “Now come on. You’re going to come to court. You’re going to go do
this treatment.” I just think that connection really impacts them actually, ultimately showing up for court.

MAJITHIA-SEJPAL: Speaking of community, do you find that
linking defendants with community services has an impact on recidivism rates?

YOUNG:
We are going to be looking at that. We believe that if we treat the co-occurring disorder, if we get them into some
kind of community based treatment facility, that it is going to have a great impact on recidivism. Again, anecdotally
it’s easy to see. We’ve had a young man who is a serial criminal trespasser. He routinely trespasses at
a bus stop, and every time he gets picked up, he spends 20 days in jail, and then he’s released credit for time
served. He spend 20 days in jail, and the reason he’s doing this is he’s homeless, so the last time he
got arrested, we were able to connect him with Haven for Hope which is a local homeless shelter. The idea being he’s
not going to be coming back through the system because we’ve addressed the base cause of his repeated criminal
trespassing.

MAJITHIA-SEJPAL: Right. Based on
your panel and the other conversations happening here today, it sounds like there are a lot of new and fairly innovative
programs dealing with mental health in the state of Texas or just nationally.

YOUNG:
Certainly in Texas, we’re not unique. We being Bexar County in that we are trying to use provisions of the Code
of Criminal Procedures, specifically 17.032, to get these mental health bonds. What’s unique about our program
is when we’re doing it. We’re doing it when they first walk in the jail, but Collin County in McKinney,
Texas very near here in Dallas, they have a similar program where they’re trying to connect the defender with
the arrestee as quickly as possible to get them out into treatment. I think there’s a lot of different counties
in Texas that are looking at it. Houston, Harris County is doing something similar, but nationally, Stephen Bush,
talking about the Jericho Project, a great project out of Tennessee where they’ve been working with getting
people into treatment instead of a conviction or keeping them in a criminal justice system.

MAJITHIA-SEJPAL:
What do you think are the most urgent needs for supporting defendants with co-occurring conditions?

YOUNG: That’s an excellent question. A lot of our problem
right now is, again, the misperception of the public that these are inherently violent people because they have a
mental illness. Obviously, that is not the case, but we need to ensure that the public understands that what we are
doing is actually going to maximize their protections. For example, if someone commits a crime and they’re given
a commercial bond, if they can somehow pull together $200 or $500, they’re going to get out, and they’re
not going to be seen by the system for several months until they actually come to court. Under what we’re proposing,
the person who’s going to get out, it’s not going to cost them anything, but they’re going to be required
to go to weekly treatment, report to pretrial officer once a week, and if they step out of line, either don’t
go to treatment or don’t report, that’s going to immediately be reported back to the judge. It’s actually
a program that’s going to maximize public safety.

MAJITHIA-SEJPAL:
Thank you so much for talking to me. It was a really instructive conversation. I’m Avni Majithia-Sejpal and
I have been talking to Michael Young at Reinvesting in Justice. To listen to more New Thinking podcasts or to learn
more about our work, you can visit our website at www.courtinnovation.org. Thanks so much for listening.

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