Opinion: Paralysis and Inadequate Analysis as Austin Drags Its Feet to Implement CAFA

Local politicos will know that one of our government’s most important initiatives, Counsel at First Appearance (CAFA) – a joint city and county program that will provide arrested people with defense lawyers when they first appear before a court – has been rolled out in fits and starts. According to a presentation by Travis County’s interim executive of justice planning, city and county officials met twice a week for over a year and ran “test shifts” for four months before submitting an appropriation request to commissioners for partial implementation. A timeline for providing counsel to every person who is arrested is still pending and advocates noted at a City Council meeting on Aug. 29 that the city’s staff have dragged their feet with the endeavor.

These delays are troubling for a variety of reasons. Most obviously, a magistrate judge cannot accurately evaluate charges without hearing the defense’s side. For instance, our office has a client who allegedly threatened a roommate with a knife as he carried a laundry basket to move out of the home. Yet, the only knife found on the scene was a folding pocketknife that cannot be opened with one hand. There was no way to brandish it and hold the laundry out at the same time. The purported victim also claimed that he struck our client in fear for his life while being held at knifepoint, but our client’s injury – which required a trip to the emergency room before booking – was on the very back of his head, a place that could not have been reached if the parties were standing face to face. A defense lawyer at his initial appearance could have highlighted these key facts that make the state’s claims impossible. But our client didn’t have a lawyer, and local taxpayers have paid hundreds, if not thousands, of dollars in court time and pretrial supervision to keep his case open for several months until he finally retained counsel.

The holdups are also concerning because CAFA is just one of a broad set of procedures that desperately need retooling, and these procedures have public safety implications that affect everyone in our community.

Empirical research shows that holding people who are arrested for minor offenses for extended periods often increases crime. One study found that people with no or minimal criminal histories who are held for just 2-3 days are 40% more likely to be arrested for another offense while their case is pending than similar folks who are released within 24 hours of arrest. These results are counterintuitive, but they make sense when you consider how jail time can affect someone’s life. A person held for two to three days will likely miss work and thus lose their employment and possibly their housing. A release within 24 hours raises the likelihood that they will keep them.

Yet, the city and county’s procedures extend a person’s time behind bars. Most notably, the sheriff’s office books arrestees into the jail, meaning they are put in lockup, where their clothes and belongings are confiscated in exchange for jail uniforms, and staff members assign them to a cell. Most, if not all, large counties wait until after the first appearance to book individuals into the jail because many people are immediately released after this proceeding. The county has the process backward and wastes time, staffing, and resources – while setting preconditions for crime.

These policies have far-reaching effects that extend not just to the individuals involved, but their friends and loved ones as well. Too many people have been the victim of our government’s reticence to implement best practices. The time for action is now.

Amanda Marzullo is senior counsel at the Austin Community Law Center. Previously, she was executive director of the Texas Defender Service and interim director of Harris County’s Office of Justice and Safety. She holds law and criminology degrees from the University of Pennsylvania and the University of Cambridge where she was a Gates Scholar.