City declares broad equity goals for pretrial services

In the middle of a pandemic that has led to a sharp decrease in the Travis County Jail population, Austin City Council plans to leverage its influence to keep the jail population low by reserving use of pretrial detention for cases where it is necessary to ensure public safety.

The city has a limited role in criminal justice policy under its interlocal agreement with Travis County. According to Mayor Pro Tem Delia Garza, that role includes making sure that Austin Municipal Court judges who conduct magistrate hearings following an arrest are providing “basic constitutional rights” when acting in that capacity.

Garza’s resolution aims to minimize the “collateral consequences that come from getting entwined with our criminal justice system” by getting individuals charged with many low-level nonviolent misdemeanors and felonies back into their lives as soon as possible without being held up by lengthy pretrial services interviews, risk assessments or magistration, which can occur up to 48 hours after arrest.

Following release, a magistrate hearing would occur at a later date in a place where the public would be able to attend and when arrestees would have equitable access to legal counsel, a component Roger Jefferies of the county’s Justice Planning Department said could cost over $4 million to provide. Additionally, the resolution aims to ensure that a magistrate judge would be required to provide on-record written findings if an individual is not released on personal bond.

City Council approved the resolution in a 10-0-1 vote Thursday, with an abstention from Council Member Leslie Pool, but the county may not be so unified in its response. Although resolution co-sponsor Council Member Greg Casar said County Judge Sarah Eckhardt assured him of her personal support for each recommendation, Jefferies sent the Commissioners Court a letter Wednesday saying the “spirit and letter of the resolution” is out of step with the nature of the long-standing city-county partnership.

“It is unfortunate that various county stakeholders were not consulted before this proposed resolution was developed,” Jefferies said. “There is information in the resolution that is incomplete.”

Of particular note, Jefferies lamented that the resolution does not include any financial analysis or a commitment from the city to cover the cost of providing round-the-clock defense counsel at magistration or any of the associated costs such as space, clerk needs and prosecutors. That could add more than $4.1 million to the county’s annual criminal justice expenses at a time when it has recently committed to spend $14.8 million per year to create a public defender’s office.

Jefferies also noted that, under Texas law, the county is not legally required to take in arrests from Austin Police Department until magistration has occurred, meaning much of the financial burden of the proposed services could ultimately fall on the city’s shoulders since over 60 percent of all jail bookings come from the city.

With that in mind, Pool offered two amendments asking for a financial analysis from the city before making specific recommendations to amend the interlocal agreement and to collaborate with the county in the amendment process in order to “continue to have a productive relationship with the county.”

“We all would like to see additional defense counsel be available to arrestees, but we need to know where the cost is and who would be bearing the cost before we can actually implement any of these good and necessary changes,” Pool said.

Both amendments were included without objection, but Garza resisted the idea that a cost estimate would be necessary to determine whether or not to provide the service should the city be charged with doing so.

“If in fact the county’s numbers are correct and it’s going to cost $4 million to provide representation for people at magistration, if a court decides it is someone’s constitutional right to have representation at their magistration, it is incumbent on the city to cover that cost if we are covering the cost to allow someone to have a constitutional right.”

Besides creating a public defender’s office, Jefferies said the resolution fails to account for a number of county efforts to reduce incarceration. Mary Mergler with Texas Appleseed, however, said those initiatives “in no way eliminate the need for this action.”

“Even with the county’s changes that they’ve made, the system continues to extract money, primarily from communities of color and low-income communities that can least afford to pay it, in the form of personal bond fees, pretrial supervision fees, non-refundable bail bond fees.”

Additionally, Kathy Mitchell of Austin Justice Coalition and Just Liberty said Jefferies’ suggestion that the 30 percent reduction in jail population from 2,123 on April 8, 2019, to 1,626 on the same day this year is misleading. On March 1, prior to the pandemic, Mitchell said jail population was actually up to 2,218, higher than average. She credited the rapid decrease of nearly 600 inmates to the response to Covid-19.

“Thanks to Covid-19, county officials have worked to quickly identify 600 people who could be released, and told us at our virtual town hall last week that they are working to release still more,” Mitchell said. “It should not have taken an international pandemic to figure out that we could safely reduce incarceration. Now we’re able to see that making these people safer and giving them better access to their constitutional rights did not make the rest of us less safe.”

“We want to make this the new normal and this resolution gives us a process to do that in conjunction with the county,” Mitchell added.

Travis County judges have recently issued two standing orders to expand use of personal bonds in charges for low-level nonviolent misdemeanors and felonies, but Emily Gerrick with Texas Fair Defense Project said the orders allow for too many exceptions to automatic release on personal bonds. She said the resolution “fills a lot of those gaps.”

“It is so important right now, more than it ever has been, to minimize pretrial detention given all the associated harms that come with it, especially now with the risk of Covid-19 in the county jail.”

Despite near-unanimous approval by Council, Garza expressed disappointment at the county’s response.

“I would hope our partners at the county … instead of, frankly, what felt like a very defensive response for the work that we are trying to continue, would have said: ‘We’re ready to go. Thank you for these efforts, we’re ready to continue to work.’”

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