Locked Up for Being Poor

The city of Austin could consider new language to combat the issue of Austinites serving jail time over unpaid fines at the Municipal Court as early as next week, City Council Member Ann Kitchen has said. At present, council members are reviewing a nine-page report published by the Office of the City Auditor on alternatives to incarceration for indigent defendants at the Downtown court.

Kitchen requested the report after defense attorneys indicated that indigent defendants get jailed more often than they should. It's unconstitutional to jail people who cannot pay Class C misdemeanor fines. Federal and state law both advise that courts must require incarceration alternatives for indigent defendants, whether through payment plans, community service, or fee waivers. The U.S. Department of Justice reiterated this directive in a "Dear Colleague" letter issued March 14.

Yet these jailings happen often. Indigent defendants incur petty fines, which grow as they're unable to pay or make scheduled court appearances. They also face additional fines for new violations. According to the Texas Office of Court Admin­istra­tion, during a 365-day stretch from Sept. 2014 to Aug. 2015, 19,591 Austinites satisfied their case requirements by accumulating jail credit – often at $50 a day – out of 90,708 total issued warrants. A Municipal Court representative noted that an indeterminate number of those 19,591 specifically chose to satisfy their credits through time served in jail.

With help from attorney Rebecca Bernhardt and the Texas Fair Defense Project, Valerie Gonzales and Maria Salazar filed a class action lawsuit against the city last October, claiming their jailings were unconstitutional. Both were indigent and, because they were poor, couldn't pay the accumulating fines – many of which were the products of their own poverty. A third woman, Karian Harris, joined the suit in December. The case was dismissed in March for failing to provide sufficient evidence of a claim. Bernhardt's focus has since centered on the magistrate process, and whether defendants are being provided with ample opportunity to explain that they're too poor to pay their fines.

Bernhardt has tried to obtain access to magistrate hearings and the questions magistrate judges ask of indigent defendants. She cites open court laws, and language in Code of Criminal Procedure stipulating that magistrate hearings have to be recorded. She said the Travis County Sheriff's Office has prevented access to the hearings on account of security issues. "In our view, that's an important moment," said Bern­hardt, executive director of the Texas Fair Defense Project. "Your liberties have been taken away, but the judge is making a decision of whether to jail you further or not."

City legal acknowledges the requirement for recorded hearings, but said the city believes recordings can be written, electronic, or "in another form of documentation." City legal also stressed that the court provides a number of opportunities for defendants to discuss their case with a judge, such as open walk-in mitigation dockets and staffers who work with defendants to complete financial assessment evaluations: "Defendants can also request extensions on community service or payment plans, request that jail credit be applied to their cases, hand in late paperwork, show hardship or other inability to complete community service, and bring other issues before the court" at will. In addition, judges may release defendants facing possible incarceration commitments if they can show that hardship prevented them from completing community service assignments.

How that interpretation jibes with Council should play out gradually as members get back to work. Kitchen said "there's no intention" for the city to incarcerate defendants because they cannot pay. "It's not something that will [take] a long time," she said. "We've got this information [from the OCA] now, and we've got the stakeholders. We're very actively thinking about what would be an appropriate step moving forward."