Opinion: Paralysis and Inadequate Analysis as Austin Delays Implementation of CFAA: Failure of City and County to Change Arrest and Charging Procedures Wastes Resources and Makes Austin Less Safe – Columns

Local politicians know that one of our government’s most important initiatives, Counsel at First Appearance (CAFA) — a joint city-county program that provides arrestees with lawyers when they first appear in court — has been implemented in fits and starts. According to a presentation by Travis County’s interim executive director of criminal justice planning, city and county officials met twice a week for more than a year and conducted “test shifts” for four months before submitting a funding request to the commissioners for partial implementation. The timeline for providing lawyers to every arrestee is still ongoing, and defense attorneys noted at the Aug. 29 City Council meeting that city staff had been slow to get started.

These delays are troubling for a number of reasons. The most obvious is that a magistrate cannot accurately assess the allegations without hearing from the defense. For example, we have a client in our office who allegedly threatened his roommate with a knife while carrying a laundry basket to move out of his home. However, the only knife found at the scene was a folding pocket knife that could not be opened with one hand. There was no way to swing it and still hold the laundry. The alleged victim also claimed that she struck our client in fear of her life while he was being held at knifepoint, but our client’s injuries—which required a trip to the emergency room before the motion could be filed—were to the back of his head, in an area that could not have been reached had the parties been face to face. Defense counsel was able to emphasize these key facts during his opening argument that make the state’s claim impossible. But our client did not have a lawyer, and local taxpayers paid hundreds, if not thousands, of dollars in court time and pretrial supervision to keep his case open for several months until he finally hired an attorney.

The delays are also concerning because the CFAA is just one of a wide range of procedures that urgently need to be overhauled, and those procedures have public safety implications that impact everyone in our community.

Too many people have fallen victim to our government’s reluctance to implement best practices for providing defense attorneys to arrested people when they first appear in court.

Empirical studies show that holding people arrested for minor offenses for longer periods of time often increases crime. One study found that people with no or minimal criminal histories who are held for just two to three days are 40 percent more likely to be arrested for another crime while their case is pending than similar people who are released within 24 hours of their arrest. These results are counterintuitive, but they make sense when you consider how a prison stay can affect someone’s life. A person held for two to three days is likely to miss work, and thus lose employment and possibly housing. Being released within 24 hours increases the likelihood that they will be detained.

However, city and county procedures extend the time a person spends behind bars. Most importantly, the sheriff’s office books arrestees into the jail, meaning they are booked into a holding cell where their clothing and personal belongings are confiscated in exchange for a jail uniform, and staff assigns them to a cell. Most, if not all, large counties wait until the initial hearing to book people into the jail, because many people are immediately released after that process. The county has the opposite process and wastes time, staff and resources — while also setting prerequisites for the crime.

These policies have far-reaching implications that affect not only the individuals involved, but also their friends and loved ones. Too many have fallen victim to our government’s reluctance to implement best practices. The time to act is now.

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