Counsel at first appearance is constitutional right. Travis County should honor it. | Opinion
The guard calls your name and says the judge will see you. You sit before a screen; you can see the judge through the monitor, but she cannot see you. You cannot hear everything through the computer, but you think you get the gist — you’re under arrest for misdemeanor criminal trespass, you may have a bond set, your rights read.
The judge asks, “do you understand?” You don’t. She spoke quickly.
“No response, your honor,” the guard answers for you. The judge asks if you want a court-appointed attorney. “Yes, ma’am,” you answer.
“Thank you,” the judge says as if you’re done.
“Did I get bail?”
“No.”
“Where’s my attorney?”
“They haven’t been appointed yet,” she says dryly.
You choke back tears as you explain that you will lose the job you just got. “I can’t hear you,” the judge says. You try to explain again. “Stop interrupting me. You’ve kinda already said some things against your self-interest that may be used against you [in court].”
The conversation is over. You're taken back to your cell, where you sit and wait for your attorney.
This is a composite of stories to maintain anonymity, but all of these are real stories from people who were magistrated in Travis County this year.
Magistration is the first time someone appears in court after arrest. At magistration, a judge makes several high-stakes decisions: whether you’re free to go or must stay in jail, whether there was probable cause to arrest you in the first place, whether you’ll be appointed an attorney.
Tens of thousands are magistrated in Travis County each year, but most do not have an attorney by their side. ACLU Texas reported this month that Travis County magistrates required most people (66%) to pay cash bail. It also found that one in ten people experienced communication or technical issues during magistration and nearly one-third of people made statements that could impact their case and be used against them later.
Travis County’s failure to provide an attorney at magistration violates the Constitution. Last week, ACLU Texas filed a class action lawsuit on behalf of people jailed without lawyers in Travis County to affirm the constitutional right to counsel at first appearance (CAFA).
CAFA is not only constitutionally required, it’s also the smart thing to do. A study by Texas A&M’s Public Policy Research Institute concluded that CAFA lowers bond amounts, increases the likelihood of a personal recognizance (no-money) bond, and promotes earlier pretrial release. And it does all of this without jeopardizing public safety.
Harris and Bexar Counties have had counsel at first appearance for years, and for good reasons: in addition to safeguarding freedom and ensuring public safety, CAFA saves counties money. For example, Potter County—less than one-tenth of Travis County’s size—was projected to save over $1 million by lowering the number of jail days by 5.6 days per person on average.
Travis County attempted to pilot CAFA a couple of years ago, yet we are still without. Until now. In March, 37 organizations sent a letter to Travis County officials calling for immediate action to be taken to provide the constitutional right of counsel at first appearance. Now, there are two eight-hour counsel at first appearance test shifts scheduled this month; the second and last shift is scheduled Thursday, April 25. However, these two shifts are a drop in the bucket: 0.18% of the 1,095 shifts needed for 24/7/365 CAFA in Travis County. The test shifts are not enough: the pilot doesn’t allow for the collection of enough data for meaningful analysis and there is no plan for full implementation.
If Travis County cannot implement a program that saves money, treats residents with respect, and meets constitutional muster, what can we agree on? Contact the Travis County commissioners today to demand an actual good-faith plan for 24/7/365 CAFA.
Jennings, an attorney, is policy director of Texas Fair Defense Project. Smith, also an attorney, is vice president of Justice & Advocacy of the Austin Area Urban League.