Hire A Lawyer, Escape the Death Penalty?
By Scott Phillips
February 2010

The American Constitution Society takes no position on particular legal or policy initiatives. All
expressions of opinion are those of the author or authors. ACS encourages its members to express their
views and make their voices heard in order to further a rigorous discussion of important issues.

The American Constitution Society takes no position on particular legal or policy initiatives. All expressions of opinion are
those of the author or authors. ACS encourages its members to express their views and make their voices heard in order
to further a rigorous discussion of important issues.

American Conshtution Society 11333 H Street. NW, 11th Floor I Washington. DC 20005

Hire A Lawyer, Escape the Death Penalty?
Scott Phillips*
I.

Introduction

Death penalty opponents have claimed that wealthy defendants who hire legal counsel are
exempt from capital punishment. U.S. Supreme Court Justice William O. Douglas, for example,
noted that “[o]ne searches our chronicles in vain for the execution of any member of the affluent
strata of this society.”1 Noted abolitionist Sister Helen Prejean argued succinctly that “rich
people never go to death row.”2 Death penalty opponents also charge that indigent defendants
who receive court appointed counsel are frequently condemned to death. Sister Prejean
continued, “capital punishment means them without the capital get the punishment.”3 Law
professor David Dow summarized the issue by saying that “race matters in the death penalty
system, but socioeconomic status matters even more. Wealth matters because in many cases trial
outcomes depend less on what really happened than on an advocate’s skill.”4
In this Issue Brief, I evaluate two central claims made by death penalty opponents:
(1) defendants who can hire counsel are less likely to be sentenced to death; and (2) only the
wealthy can afford to hire counsel.
Empirically, I focus on Harris County, Texas. Harris County – home to Houston and
surrounding areas – is an interesting place to conduct the research. To begin, Harris County is
the largest jurisdiction in the nation that provides indigent defense using the appointment
method, where a judge appoints a private defense attorney to the case, rather than a public
defender, where cases are assigned to a salaried staff of government attorneys.5 Harris County is
also the capital of capital punishment. With 112 executions since the reinstatement of the death
penalty in 1976,6 Harris County has often captured the national and international spotlight in the
death penalty debate.7 To put the number of executions in perspective, if Harris County were a
state, it would rank second in executions after Texas. In fact, Harris County has executed about
the same number of offenders as all of the other major urban counties in Texas combined.8
*

Scott Phillips is an associate professor in the Department of Sociology and Criminology at the University of
Denver. This Issue Brief is based on an article entitled Legal Disparities in the Capital of Capital Punishment, 99 J.
CRIM. L. & CRIMINOLOGY 717 (2009). The findings described here are confirmed in the multivariate statistical
models presented in the full paper. The author may be contacted by mail at Scott Phillips; Department of Sociology
and Criminology; University of Denver; 2000 E. Asbury Avenue; Denver, CO 80208-2948; or by email at
Scott.Phillips@du.edu.
1
Furman v. Georgia, 408 U.S. 238, 251–52 (1972).
2
HELEN PREJEAN, THE DEATH OF INNOCENTS: AN EYEWITNESS ACCOUNT OF WRONGFUL EXECUTIONS 190 (2005).
3
Id.
4
DAVID R. DOW, EXECUTED ON A TECHNICALITY: LETHAL INJUSTICE ON AMERICA’S DEATH ROW 7 (2005).
5
Carol J. DeFrances & Marika F. X. Litras, Indigent Defense Services in Large Counties, 1999, BUREAU OF JUSTICE
STATISTICS BULLETIN, November 2000, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/idslc99.pdf.
6
See Gregg v. Georgia, 428 U.S. 153, 207 (1976).
7
See, e.g., AMNESTY INTERNATIONAL, ONE COUNTY, 100 EXECUTIONS: HARRIS COUNTY AND TEXAS – A LETHAL
COMBINATION (2007), http://www.amnesty.org/en/library/info/AMR51/125/2007.
8
Data regarding the number of executions in each state can be found at:
http://www.deathpenaltyinfo.org/executions-united-states. Data regarding the number of executions for Texas

Harris County officials have rejected death penalty opponents’ arguments. Texas District
Judge Doug Shaver, in an interview with the Texas Lawyer, noted that appointed counsel might
be superior to hired counsel: “From where I sit, the appointed attorneys may even be better than
the paid attorneys.”9 Texas District Judge Michael McSpadden went a step further in an
interview with the Houston Chronicle, suggesting that appointed attorneys are definitely superior
to hired attorneys: “If you are charged with a criminal offense in Harris County, you would be
much better off in our court, and many of the other courts, with a court-appointed rather than a
retained attorney.”10 Offering a different response, John Holmes, the Harris County District
Attorney from 1980 to 2000, contended in an interview with the Houston Chronicle that
appointed and hired counsel are equally ineffective in capital cases: “I don’t think it makes a hill
of beans what kind of lawyer you are on these cases. These crimes are so horrible Clarence
Darrow’s not going to help these guys.”11
My findings both support and refute death penalty opponents’ claims. Defendants who
hired counsel for the entire case were never sentenced to death. Even defendants who hired
counsel for a portion of the case were substantially less likely to be sentenced to death than
defendants with appointed counsel. Yet hiring counsel does not appear to be the province of the
wealthy because virtually all capital defendants seem to be poor. Presumably, poor defendants
can occasionally hire legal counsel because friends and relatives pool resources in the hour of
need.
The data also reveal that defendants who hired counsel for the entire case were much
more likely to be acquitted. Because the number of acquittals is small, the relationship between
acquittals and hired counsel must be considered tentative. Nonetheless, the strength of the
relationship, coupled with the potential implications for wrongful conviction and wrongful
acquittal, suggest that the relationship demands attention.
To be clear, the findings are not an indictment of appointed attorneys, but rather an
indictment of the structural deficiencies inherent in the appointment method of indigent defense.
The system is flawed, not the individuals who work within the system.
In the next section of this Issue Brief, I describe the appointment method of indigent
capital defense in Texas, including a historical overview and review of existing critiques. I then
turn to my data and findings. Finally, I argue for the creation of a public defender office with a
specialized capital defense unit in Houston.

counties can be found at: http://tdcj.state.tx.us/stat/deathrow.htm. The other major urban counties in Texas – Dallas
County (Dallas), Bexar County (San Antonio), Travis County (Austin), and Tarrant County (Fort Worth) – have
executed a combined total of 114 offenders as of January 24, 2010.
9
Mark Ballard, Gideon’s Broken Promise, TEXAS LAWYER, Aug. 28, 1995, at 19.
10
Bob Sablatura, Study Confirms Money Counts in County’s Courts: Those Using Appointed Lawyers are Twice as
Likely to Serve Time, HOUSTON CHRONICLE, Oct. 17, 1999, at A1.
11
Mary Flood, What Price Justice? Gray Graham Case Fuels Debate Over Appointed Attorneys, HOUSTON
CHRONICLE, Jul. 1, 2000, at A1.

2

II.

Indigent Defense in Texas
A.

Description of the Appointment Method

The State of Texas does not fund or administer indigent defense. Instead, each county is
responsible for developing a method to provide counsel to the poor. In the arena of capital
punishment, two methods have evolved: appointed counsel and public defender offices. Of the
254 Texas counties, 252 use the appointment method.12
The standards for being appointed to a capital case have changed over the years.13 Prior
to 1991, state law was silent regarding standards – Texas judges could appoint any member of
the bar to represent an indigent capital defendant. Most judges appointed members of the bar
who were experts in criminal defense. But others were more cavalier, appointing friends who
had no experience in the area such as real-estate specialists or local state legislators.
In 1991, Judge Jay W. Burnett spearheaded a capital certification program in Harris
County designed to strengthen appointment standards. To be eligible for the program, a defense
attorney had to: (1) be licensed in Texas for a minimum of five years; (2) devote at least 50% of
his or her practice to criminal law; and (3) have tried to verdict either five or more first degree
felonies or one or more capital cases. Those who met the eligibility requirements and were
interested in being appointed to capital cases had to enroll in a class on capital litigation that
culminated in a 100 question multiple-choice exam. Defense attorneys who failed the exam
could re-enroll in the class and re-take the exam two more times. In addition to passing the
exam, defense attorneys were required to complete 20 hours of continuing legal education on
capital litigation each year. To enforce the capital certification program, Judge Burnett had the
Texas Supreme Court pass an order stating that the Harris County Auditor could not pay a
defense attorney in a capital case unless he or she had completed the program. The
implementation of the capital certification program gave Harris County the most rigorous
standards for appointment to a capital case in the State of Texas during the 1990s.
The Harris County approach to strengthening appointment standards soon spread.
Initially, Judge Burnett was asked to expand the capital certification program to the remaining
counties in Texas’s 2nd Judicial Region. Later, the Texas legislature passed the 2001 Fair
Defense Act (FDA), which was modeled after the reforms made in the 2nd Judicial Region. The
FDA set minimum standards for appointment to a capital case; all judicial regions and
constituent counties were required to develop a plan to meet the promulgated standards.

12

TEXAS APPLESEED FAIR DEFENSE PROJECT, FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES
IN TEXAS (2000), http://www.texasappleseed.net/pdf/projects_fairDefense_fairref.pdf, at 48 [hereinafter FAIR
DEFENSE REPORT].
13

The following information comes from personal correspondence with Judge Burnett: the description of indigent
defense prior to 1991; the development of the capital certification program; and the relationship of the capital
certification program to the subsequent 2001 Fair Defense Act. This correspondence is on file with the author.

3

The objective criteria for appointment to a capital case in Harris County after the passage
of the FDA were:






General Criteria:
o Receive approval from a peer-review committee;
o Pass the capital certification exam; and
o Participate in CLE courses on capital litigation;
Specific Criteria for Lead Counsel:
o Eight years of experience in criminal law;
o Tried a minimum of 15 felony jury trials to verdict as Lead Counsel;
o Tried a minimum of two capital cases to verdict as Lead Counsel or Second Chair
(must be defense counsel in one of the two cases unless five years of experience
in criminal defense); and
o No judgment of ineffective counsel in a prior capital case;
Specific Criteria for Second Chair:
o Five years of experience in criminal law; and
o Tried a minimum of 10 felony jury trials to verdict as Lead Counsel.14

The fact that Harris County had the most rigorous standards for appointment to a capital
case in Texas during the 1990s suggests that the current research is a conservative assessment of
the state of indigent defense in other counties in Texas. If anything, the disparities that existed in
Houston during the 1990s might be an accurate estimate or an underestimate of disparities across
the rest of the state during the same time period, but are almost certainly not an overestimate.
Moreover, the passage of the FDA in 2001 probably did not solve the disparities in Houston for
two reasons: (1) the central elements of the FDA had already been established in Harris County
during the 1990s; and (2) the FDA did not address critics’ main concerns regarding the
appointment method.
B.

Critiques of the Appointment Method

Despite attempts at reform, some have argued that the appointment method of delivering
indigent defense is broken. Two major reports have critiqued the appointment method: Muting
Gideon’s Trumpet (MGT)15 and The Fair Defense Report (FDR).16 The putative problems
surrounding the appointment method described in MGT and FDR can be divided into five
categories: (1) flat fee compensation; (2) the potential for insufficient support services; (3) a
potential conflict of interest for the appointed defense attorney; (4) a potential conflict of interest
for the judge; and (5) questionable appointment practices. Each is considered in turn.
Under flat fee compensation, appointed defense attorneys receive a standard fee for a
capital case disposed at trial regardless of the number of hours worked. The judge has the
discretion to reduce the fee if a plea bargain is reached. The American Bar Association
discourages flat fee compensation because of the potential for abuse – a rational actor could go to
trial, but limit the number of hours worked, to maximize profit. Although few, if any, defense
14

The complete standards can be found at: http://www.justex.net/JustexDocuments/0/FDAMS/standards.pdf.
Allan K. Butcher & Michael K. Moore, Muting Gideon’s Trumpet: the Crisis in Indigent Criminal Defense in
Texas (2000), at 18, available at http://www.uta.edu/pols/moore/indigent/whitepaper.htm.
16
FAIR DEFENSE REPORT, supra note 12.
15

4

attorneys would engage in such a cold economic calculus, the flat fee arrangement creates an
inevitable conflict: a defense attorney in private practice who spends a substantial amount of
time on a capital appointment not only reduces her or his rate of compensation, but also has less
time for paying clients.17 If one accepts the proposition that humans are rational actors who
respond to financial incentives, then such an arrangement is bound to influence performance in a
capital case.
The appointment method also suffers from the potential for insufficient support services.
Appointed counsel must request approval from the judge to hire support services, such as
investigators or expert witnesses. Judges do not rubber stamp defense requests. In fact, criminal
defense attorneys report that 32% of requests for support services are denied.18 Judges can also
approve requests but limit funding. Judges in Harris County, for example, tend to provide only
enough money to hire experts from the Houston area. This practice forces the defense team to
use local experts who might not be the most qualified and simultaneously allows prosecutors to
“build a book” on experts who testify in numerous cases.19 Judges in Harris County have even
refused to compensate experts, or paid only a portion of the total bill, putting the defense team in
the untenable position of covering the balance or alienating an expert who might be needed in the
future.20 Although charges of insufficient support services from the mouths of appointed counsel
might be dismissed as self-serving, MGT reports that 27% of Texas judges agree that appointed
counsel do not receive sufficient support services.21
The appointment method also has the potential to create a conflict of interest for the
appointed defense attorney. The defense attorney must balance the adversarial mandate to
provide the most rigorous defense possible with the need for continued personal income.
Defense attorneys who fight too hard risk losing future appointments. One defense attorney
summarized the conflict as follows: “An attorney who files a lot of motions and asks a lot of
questions creates a problem for the judge. You tick off the judge and don’t get any more
appointments.”22 Another defense attorney noted: “Everything in this system is tempered by the
symbiotic relationship between attorney and judge, where you have to weigh whether I’m going
to defend the client or continue to get appointments.”23 Yet another defense attorney explained
in an interview with the Houston Chronicle that mounting the most rigorous defense possible
might be career suicide for an appointed attorney: “As a hired attorney, I work in the best
interest of my client and that often puts me at odds with the judge. But if an appointed attorney
gets at odds with the judge, he doesn’t get any more court appointments.”24 The problem is
simple: the appointed defense attorney’s personal income depends on remaining in the good
graces of the judge, which is a situation that might not be in the best interest of the client.
The appointment method also has the potential to create a dual conflict of interest for the
judge who must decide whether to approve support services. The judge must balance the
17

See Id. at 99–101.
Butcher & Moore, supra note 15, at 18.
19
FAIR DEFENSE REPORT, supra note 12, at 119.
20
Id. at 120–121.
21
Butcher & Moore, supra note 15, at 18.
22
FAIR DEFENSE REPORT, supra note 12, at 22.
23
Id.
24
Sablatura, supra note 10, at A1.
18

5

mandate to fund indigent defense with the need to placate county commissioners and the
personal desire to get reelected. Among judges who responded to the MGT questionnaire, 50%
reported that other judges in their jurisdiction had been asked by a county commissioner to
control expenses related to indigent defense.25 Moreover, judges running for reelection do not
want to be perceived as writing a blank check for indigent defense and thus “soft on crime.”26
Finally, some judges appear to engage in questionable appointment practices. The MGT
questionnaire asked judges whether certain factors influence other judges’ appointment
decisions. The judges agreed that legal considerations are pivotal: more than 95% of judges
reported that peers consider the difficulty of the case and the potential appointee’s knowledge
and experience.27 But a substantial number of judges also noted that irrelevant factors play a
role: 52% reported that peers consider whether the potential appointee needs income; 40%
reported that peers consider whether the potential appointee is a friend; 35% reported that peers
consider whether the potential appointee is a political supporter; and 30% reported that peers
consider whether the potential appointee contributed to the judge’s election campaign.28 A
criminal defense attorney from Harris County confirmed the charge of political partisanship: “I
have been refused appointments because I cannot afford to give money to the judge’s reelection
campaign . . . those attorneys who contribute the most money receive the most work.”29 In fact,
budget records indicate that funds spent on appointed counsel increase during election years,
raising the possibility, although clearly not proving, that judges become more generous with the
expectation of a quid pro quo.30
III.

Data and Findings
A.

Legal Counsel and Death

Existing research has identified procedural problems in the appointment method of
indigent defense. But existing research has ignored the most important questions: Do
procedural problems produce differences in case outcomes? Is the district attorney (DA) more
likely to seek the death penalty against defendants who have appointed counsel? Is the jury more
likely to render a death sentence against defendants who have appointed counsel? Put
differently, is the appointment method merely procedurally flawed or truly a matter of life and
death?
To answer such questions, I focused on the 504 adult defendants indicted for capital
murder in Harris County from 1992 to 1999. The DA sought the death penalty at trial in 129
cases, securing 98 death sentences. Forty-one defendants have been executed to date. The DA
pursued life imprisonment at trial in 218 cases and reached a plea bargain in the remaining 157
cases.31
25

Butcher & Moore, supra note 15, at 20–21.
Id.
27
Id. at 13.
28
Id.
29
Id.
30
Ballard, supra note 9, at A1.
31
Texas did not pass a true life without parole (LWOP) statute until 2005. Thus, the inmates sentenced to “life
imprisonment” are eligible for parole. Defendants convicted in 1992 must serve 35 years before becoming eligible
26

6

The defendant’s form of legal counsel can be divided into three categories: appointed
counsel for the entire case (appointed = 369 cases); hired counsel for the entire case (hired = 31
cases); and mixed counsel (mixed = 104 cases). Defendants with mixed counsel conform to one
of the following scenarios: the defendant is appointed counsel but later secures the funds to hire
counsel, or the defendant hires counsel but exhausts all funds and must be appointed counsel.
Unfortunately, the data do not distinguish between these scenarios. But conversations with an
official from the DA’s office suggest that the former is much more common than the latter.
The findings suggest that the type of legal counsel for the defendant is pivotal. Consider
the DA’s decision to seek death: the DA sought the death penalty against 3% of defendants with
hired counsel, compared to 26% of defendants with mixed counsel and 27% of defendants with
appointed counsel. Focusing exclusively on cases in which the DA sought death, the jury
imposed a death sentence against none of the defendants with hired counsel, 56% of defendants
with mixed counsel, and 82% of defendants with appointed counsel. Combining the two stages
of the process produces the following outcomes for all 504 cases: no defendant with hired
counsel was sentenced to death, 14% of defendants with mixed counsel were sentenced to death,
and 23% of defendants with appointed counsel were sentenced to death. Such patterns are
stunning: hiring counsel for the entire case eliminates the chance of a death sentence, and hiring
counsel for a mere portion of the case substantially reduces the chances of a death sentence.32
The data suggest that defendants who can hire counsel for some or all of the case are
advantaged. But perhaps legal counsel is not the driving force. Perhaps defendants with hired
counsel and mixed counsel committed murders that were less worthy of the death penalty. To
consider the alternative explanation, I examined the relationship between counsel and the central
legal dimensions of a case. The findings both support and refute the alternative explanation. It
is true that defendants with hired or mixed counsel were less likely than defendants with
appointed counsel to have a prior violent conviction – a critical consideration, because Texas
juries must conclude that the defendant is a future danger to render a death sentence. But
defendants with hired or mixed counsel were just as likely to have acted alone. Most
importantly, defendants with hired or mixed counsel were just as likely to have committed the
for parole; defendants convicted between 1993 and the passage of LWOP must serve 40 years before becoming
eligible for parole.
32
Some might argue that it is inappropriate to draw conclusions about the role of hired counsel based on just 31
cases. This is a valid concern. But three responses should ease the concern. First, the data represent a population of
cases, not a random sample. Thus, the question of statistical significance becomes irrelevant – the findings are real
for the time period in question. Second, it is extremely unlikely that the pattern has changed over time. Consider
the following hypothetical example. Given that the period from 1992 to 1999 included 31 defendants who hired
counsel, it is reasonable to assume, for the purposes of argument, that the period from 2000 to 2007 also included 31
defendants who hired counsel. For the death sentence rate among defendants with hired counsel and mixed counsel
to reach parity, the DA would have had to secure a death sentence against 9 of the next 31 defendants with hired
counsel (9/62 = 14%). For the death sentence rate among defendants with hired counsel and appointed counsel to
reach parity, the DA would have had to secure a death sentence against an extraordinary 14 of the next 31
defendants with hired counsel (14/62 = 23%). Could the DA go from securing a death sentence against none of the
defendants with hired counsel to 29% (9/31) or even 45% (14/31) of defendants with hired counsel? Parity is
technically possible but extremely improbable. Parity is even more improbable in light of the DA’s past record of
allowing defendants with hired counsel to plea bargain (68% of defendants with hired counsel reached a plea
bargain, compared to 29% of all other defendants). Third, and finally, the data include 104 defendants with mixed
counsel: the fact that hiring counsel for a mere portion of a case is enough to reduce the chance of a death sentence
confirms the advantage of hiring counsel based on a larger set of cases.

7

most egregious murders. Indeed, defendants with hired or mixed counsel were slightly more
likely to have killed multiple victims. Such counterbalancing forces suggest that the central legal
dimensions of a case cannot account for the observed disparities.33
B.

Legal Counsel and Acquittals

Does hiring counsel also influence the chance of being acquitted? Because just eight
defendants were acquitted, the following findings must be considered tentative. Nonetheless, the
strength of the pattern demands attention: 30% of defendants who hired counsel and advanced to
a life trial or death trial were acquitted (3 of 10), compared to none of the defendants with mixed
counsel (0 of 79) and 2% of defendants with appointed counsel (5 of 258). Thus, defendants
who hired counsel for the entire case were about 20 times more likely to be acquitted at trial than
all other defendants (3 of 10 versus 5 of 337). Remarkably, if the acquittal rate for defendants
who hired counsel and proceeded to trial were achieved for the entire pool of defendants who
went to trial, then the total number of acquittals would have catapulted from 8 to 104 (30% of
347 = 104). The relationship between hired counsel and acquittals is troubling – it does not seem
plausible to conclude that defendants who hired counsel were 20 times more likely to be
factually innocent.
C.

Legal Counsel and Socioeconomic Status

The findings are unequivocal: hiring counsel alters the legal landscape. Does that mean
the rich are getting away with murder? After all, death penalty opponents claim that defendants
who can afford to hire counsel are wealthy and defendants who must accept court appointed
counsel are poor. Such a statement seems true by definition. But the reality turns out to be more
complicated. To investigate the relationship between legal counsel and socioeconomic status,
defendants were matched to residential neighborhoods. Data from the U.S. Census Bureau were
used to estimate median household income in the defendant’s neighborhood during the year the
case occurred.
The results provide a surprising twist: legal counsel and socioeconomic status are
unrelated. Defendants with appointed counsel lived in neighborhoods with an average household
income of $25,493, compared to defendants with mixed counsel and hired counsel who lived in
neighborhoods with average household incomes of $27,310 and $29,707, respectively. Although
defendants with mixed and hired counsel lived in neighborhoods with slightly higher incomes,
the difference is trivial. With few exceptions, capital murder defendants appear to be uniformly
poor – meaning disparities based on legal counsel do not equate to disparities based on
socioeconomic status. The fact that some defendants from such poor neighborhoods can hire
counsel suggests that others, perhaps relatives and friends, have pooled resources in the hour of
need. This assumption needs to be tested in future research.

33

The percentage distributions are as follows: 14% of defendants with hired or mixed counsel had a prior violent
conviction, compared to 21% of defendants with appointed counsel; 53% of defendants with hired or mixed counsel
acted alone, compared to 50% of defendants with appointed counsel; 22% of defendants with hired or mixed counsel
and 22% of defendants with appointed counsel committed murders coded as the highest level of heinousness; 20%
of defendants with hired or mixed counsel killed multiple victims, compared to 16% of defendants with appointed
counsel.

8

IV.

Creating a Public Defender Office in Houston

The appointment method of indigent capital defense in Houston is not merely
procedurally flawed – it has life and death consequences. To bolster the point, consider one last
finding: the research does not focus on executions because the process remains ongoing, but it is
instructive to note that 38 of the 41 defendants executed to date had appointed counsel.
What should be done? One possibility is to reform the appointment method – more
resources, higher standards, better oversight. Another possibility is to create a public defender
office with a specialized capital defense unit. I argue for the creation of a public defender in
Houston with a budget proportionate to the DA’s budget. I support the public defender option
for four reasons:






Reforms have failed. Differential treatment occurred despite Judge Burnett’s noble
efforts to reform the appointment method in Houston.
Reforms cannot eliminate the structural deficiencies inherent in the appointment
method.34
The creation of a public defender office would reduce disparities. Existing research
demonstrates that public defenders have a better performance record in capital cases than
appointed attorneys. David Dow’s research indicates that the prosecution’s rate of
securing death sentences ranges from zero to 50% in jurisdictions with a public defender,
compared to 50 to 100% in jurisdictions that use the appointment method.35 Dow argues
that public defenders are more aggressive advocates due to a stronger ideological
commitment to indigent defense, and public defender positions are highly competitive so
an office can be selective in hiring top talent.
The creation of a public defender would eliminate the structural deficiencies inherent in
the appointment method:
o Flat-fee compensation: public defenders would receive an annual salary.
o The potential for insufficient support services: the public defender would have a
budget proportionate to the DA’s budget, a change that would provide adequate
resources and remove judges from decisions about the allocation of defense
resources.
o A potential conflict of interest for the defense attorney: public defenders would
not be beholden to judges in a system of patronage.
o A potential conflict of interest for the judge: judges would no longer be torn
between competing requests from defense attorneys, county commissioners, and
the electorate.
o Questionable appointment practices: appointments would end.

34

Perhaps flat-fee compensation could be solved through hourly rates. But even here, the judge would presumably
have the power to conclude that the defense attorney was requesting an unreasonable amount of compensation.
Recall that some Houston judges have reached the same conclusion regarding experts, choosing to compensate only
a portion of the bill.
35
David R. Dow, Teague and Death: The Impact of Current Retroactivity Doctrine on Capital Defendants, 19
HASTINGS CONST. L.Q. 23, 72 (1991).

9

V.

Conclusion

Death penalty opponents charge that socioeconomic status shapes capital punishment –
wealthy defendants who can hire counsel are exempt from death, but poor defendants who must
accept appointed counsel are condemned. My findings both support and refute opponents’
claims:




Hiring counsel for the entire case not only eliminates the chance of death, but also
dramatically increases the chance of an acquittal.
Hiring counsel for a portion of the case substantially reduces the chance of death.
Hiring counsel is not related to wealth – almost all capital defendants are poor.

It might be tempting to dismiss these findings. Some might argue that the problem is
restricted to Houston. But 252 of the 254 counties in Texas use the appointment method, and
Houston led the movement to reform indigent defense, suggesting that disparities in Houston are
better understood as a conservative estimate of what is happening in other counties than an
isolated problem. Others might argue that the 2001 Fair Defense Act solved the problem. But
the major elements of the FDA had been implemented in Houston at the time the cases in the
data were adjudicated. Moreover, the FDA did not eliminate the structural deficiencies inherent
in the appointment method. Differential treatment is almost certainly a widespread and
continuing problem in Texas.
I believe that the solution is to create a public defender office with resources
proportionate to the DA’s office.36 Such a proposal is not meant to suggest that a public
defender office would be a panacea. But a public defender would reduce differential treatment
and eliminate the structural deficiencies inherent in the appointment method. Houston’s
distinction as the capital of capital punishment creates a special obligation to provide the most
rigorous system of indigent defense possible. The appointment method does not – and arguably
cannot – meet such a standard.

36

See generally Rebecca Copeland, Getting it Right from the Beginning: A Critical Examination of Current
Criminal Defense in Texas and Proposal for a Statewide Public Defender System, 32 ST. MARY’S L.J. 493 (2001).

10