But glosses over numerous accomplishments already made to reduce the number of people incarcerated for lack of funds
The normally cozy relationship between Travis County Commissioners and Austin City Council members took an icy turn Thursday when County Judge Sarah Eckhardt transmitted a three-page memo to the Council criticizing a draft resolution by Mayor Pro Tem Delia Garza.
At issue are bail hearings conducted by municipal judges on behalf of the county at the jail in central Austin under an interlocal agreement between the two government agencies.
Garza, who is locked in a runoff election for County Attorney, crafted a resolution that praised bail reforms undertaken by the county while also suggesting that these had not gone far enough. It directed the City Manager to negotiate changes to the interlocal agreement to ensure that arrestees have legal counsel at bail hearings.
Garza’s resolution passed 10-0, including two friendly amendments by Council Member Leslie Pool, who abstained from voting.
The resolution drew fire in advance from Roger Jefferies, the Travis County Executive of Justice Planning. He wrote a memo to County Commissioners criticizing Garza’s resolution as “incomplete” and, in effect, misleading. According to Jefferies, Garza’s resolution ignores or glosses over a long list of reforms to reduce the jail population already implemented or in the planning stages, including a “robust personal bond program and diversion initiatives.”
“It is unfortunate that various County stakeholders were not consulted before this proposed resolution was developed. There is information in the resolution that is incomplete,” Jefferies said.
“Unfortunately, the spirit and letter of the resolution currently does not reflect…reality.”
Eckhardt sent the memo to the Council along with a note saying that several commissioners “requested that it be shared with the full City Council as it contains useful background and policy information to aid you in your deliberation of this resolution.”
Failure to weigh costs
Currently, arrestees are not entitled to appointed defense council at bail hearings, though a case is pending before the U.S. 5th Circuit Court of Appeals over whether the constitution does afford them this right.
Garza’s resolution pushes for arrestees to have a court-appointed attorney at these hearings. But Jefferies’ memo noted that the “resolution does not address the cost to the city,” which he estimated to be at least $2.1 million for the defense counsel alone. “When factoring in the cost of prosecutors to the 24/7 proposal, the total cost will exceed $4.1 million based on current estimates.”
County officials may push Austin to cover the bulk of those costs. Jefferies, citing County Attorney David Escamilla, wrote that “the major portion of such costs should be borne by the City of Austin since the majority of bookings are the result of APD arrests.”
Garza acknowledged that her resolution could result in new costs but suggested these could be offset by savings from jailing fewer people.
A third possibility is that the state could cover the costs. The County Commissioners Court has created a “Who’s in Jail and Why Workgroup” that is applying for funds from the Texas Indigent Defense Commission for a pilot to provide defense attorneys 24X7 at magistration hearings. An amendment by Leslie Pool requires the City to engage with this group.
A second amendment by Pool requires the City Manager to give the Council a financial analysis before presenting an updated Interlocal Agreement to the Council for approval. The Mayor Pro Tem didn’t object to Pool’s amendments, but she pointed out that any significant cost implications would have been brought to the Council anyway.
Who’s reforming who?
Perhaps more sensitive than the question of cost is the matter of leadership over ongoing justice reform efforts and who gets to take credit for them.
Speaking yesterday to her fellow Council members, Garza said that city leaders and local justice advocates should get some of the credit for ongoing county initiatives. She said that Jefferies’ letter “felt like a very defensive response,” and noted that she would have appreciated a more “ready to go” attitude from county partners in response to her resolution.
The language of Garza’s resolution hit a sore spot, however, by implying that Travis County is unnecessarily detaining large numbers of nonviolent misdemeanor offenders who can’t make bail—what she calls “wealth-based detention.”
For example, the resolution cites 2018 statistics on county jail bookings without noting that thousands were released on no-cost personal recognizance bond. The County’s Justice Planning Executive wrote that resolution “fails to mention that 71 percent of those 20,678 booked on a local criminal charge only, were released on a personal recognizance bond.”
That proportion is still too low for bail reform advocates, who point to Harris County as having achieved higher rates of personal bond release. “Unnecessary pretrial detention causes profound harm to families and communities, with consequences like loss of employment, loss of housing, and exposure to disease and other physical health risks,” said Mary Mergler, director of Texas Appleseed’s Criminal Justice Project. “Mayor Pro Tem Garza’s resolution would alleviate these harms by ensuring pretrial detention is limited to only those situations where public safety requires it.”
If limiting detention to those who pose a threat is really the issue, however, then Garza’s resolution isn’t really needed at the moment. That’s because owing to the COVID-19 outbreak, Travis County deputies and Austin police are already under orders not to jail people unless they pose a threat to public safety.
In recent weeks, county and district judges issued standing orders to grant automatic personal bond for any misdemeanor, with outlined exceptions, and for certain non-violent felonies. Given those orders and fears of a coronavirus outbreak within the jail, since March 16, the county’s jail population has plunged from 2,164 to 1,603, according to Kristen Dark, senior public information officer for the Travis County Sheriff’s Office.
Those circumstances make the timing of Garza’s resolution somewhat questionable. With so many pressing issues facing the Council, including the public health crisis, why pass a resolution now that basically has no actual impact, at least in the near term?
Garza acknowledged in remarks to fellow Council members that “much of the language (of the resolution) is aspirational and goals.” But she said it was important for policy-makers to make “value statements” to guide talks with the County on the interlocal agreement for magistration services.
But that agreement isn’t due for renewal until October 1, 2020. So the timing of the resolution may be related to Garza’s runoff for Travis County Attorney against Laurie Eiserloh, a veteran assistant county attorney. Initially scheduled for May 26, the vote has been postponed until July 14.
In the primary election on Super Tuesday, Eiserloh bested Garza by 6,082 votes. Since then, candidate Mike Denton, who placed third in the county attorney primary, endorsed Eiserloh, while Dominic Selvera, the fourth-place candidate, endorsed Garza.
This story was updated at 8:40pm April 10, 2020, to delete reference to Kathy Mitchell.
Links to related documents:
Related Bulldog coverage:
Denton endorses Eiserloh for county attorney, March 9, 2020
County attorney candidate a law breaker? February 10, 2020
Garza’s office expenditures questioned, January 29, 2020
Garza for county attorney draws flak, December 9, 2019
An economically diverse city council, June 14, 2015
Two women win without runoffs, November 5, 2014
Daniel Van Oudenaren is a journalist with more than 10 years experience in local, state, and international reporting. This is his first article for The Austin Bulldog.