You have the right to a lawyer. If you cannot afford a lawyer, a lawyer will be appointed for you.
It’s been a constitutional guarantee in the United States for nearly 60 years – and it’s repeated every night on prime-time crime shows.
Yet a new report from the Deason Criminal Justice Reform Center says the safeguard isn’t rock solid in Texas.
The report documents a wide range of how a defendant’s ability to afford an attorney is determined from county to county. Courts may use outdated measures of poverty or make decisions based on an incomplete picture of an individual’s financial situation. And they may overlook the high cost of criminal defense attorneys.
The net result is that many Texans charged with petty crimes — people presumed innocent at the time — either have to pay for an attorney they can’t afford or go to court without one, according to the report.
“No one should have to choose, ‘Am I going to feed my family or am I going to have to fight for my freedom,'” said Pamela Metzger, who runs the center, based at the Dedman School of Law in New York. Southern Methodist University. .
“No one should have to choose, ‘Am I going to sell the only car we have…or am I going to go to court without a law degree – maybe without a college degree, maybe without a high school diploma – and get up there and try to defend myself?
The right to counsel was established in the landmark U.S. Supreme Court decision Gideon v. Wainwright ruling in 1963. He said state courts must appoint attorneys for defendants facing potential jail time who could not afford to hire their own.
But the Supreme Court justices did not say how courts should determine who can afford a lawyer. In Texas, it’s up to the counties to determine, and there are 181 different standards for determining indigence in the state’s 254 counties.
The report found that a Texan earning a modest salary could get an appointed attorney in one county, but could be denied free representation if arrested in the neighboring county.
The researchers also found counties in Texas that reported no misdemeanor defendants were appointed free attorneys in 2019.
“The standards are diverse, they’re often contradictory, the laws in many counties are very complex,” Metzger said. “At the end of the day, whatever those standards are, it’s often an individual judge’s individual assessment of whether hiring a lawyer would be a hardship for someone.”
The process of determining who can afford to hire a lawyer often requires defendants to provide a complex financial picture of their income, expenses, assets, debts, and other household financial information. Metzger said that’s a lot of information at a time when people are facing grave distress — they’ve been arrested, jailed and charged with a crime.
According to the report, one county’s request asks defendants to collect a dozen subpoenas from private attorneys to prove they cannot afford legal aid on their own. Another county is threatening defendants with jail if they don’t quickly show documentation of the finances they describe.
However, other counties assume people are eligible for public counsel if they can’t afford to post a modest bail and are jailed, or if they get means-tested benefits like food stamps or Medicaid. .
Metzger said lower-middle-class people are most at risk of being considered ineligible for free legal aid, while being unable to realistically afford to hire a lawyer without making a financially precarious sacrifice like sell the car they use to get to work.
“We tell the working poor that we know you’re doing fine, but … you’re going to have to pick up everything you have and sell it to get a lawyer,” Metzger said. “I don’t think that’s right and I don’t think most Texans think that’s right.”
In many cases, she said, a prosecutor can end up dropping the charges months after the arrest and after the individual has already made devastating sacrifices to hire an attorney.
The report focuses on Class A and Class B misdemeanors, which carry the possibility of jail time but are less serious offenses than felonies under Texas law. Even though they are considered lesser costs, the consequences can be serious.
In Texas, misdemeanors can result in:
- Up to one year in prison;
- Probation up to two years;
- Fines and costs up to $4,000
And there are other consequences. Persons found guilty of an offence:
- Cannot own a firearm in Texas for five years,
- risk of losing custody of their children, and
- May face deportation, even for non-nationals with legal residence
According to the Deason Center report, more than 6,700 people were jailed in Texas in 2019 for crimes, including those in jail before trial. State court records show that more than 135,000 Texans were on misdemeanor probation.
Metzger said people arrested for misdemeanors — especially if they’re jailed because they can’t afford bail — often plead guilty in hopes of a lesser sentence and a quick end to the situation. And without access to a lawyer, the pressure to plead is even greater.
The consequences of this decision can stay with them for years.
The report calls for a statewide standard for assessing whether a defendant can afford an attorney.
The Texas standard should also be based on a more realistic and up-to-date measure of poverty than the federal poverty line, the report concludes. Most counties in Texas use it as one of the parameters for determining whether defendants can afford an attorney.
The federal poverty level is based solely on the cost of an “economic diet” established in 1955 and consisting primarily of beans, potatoes, and grains. For someone without children, the federal poverty level is $13,590. To assess the cost of living more accurately, courts should rely on a measure that takes into account the cost of food, child care, health insurance, housing, transportation and other basic necessities, says the report.
Assets are another consideration that needs to be updated and made more consistent, according to the report. Depending on where a person is facing criminal charges, assets like a car, pension, or home equity can make them ineligible for a court-appointed attorney.
While many counties exempt these basic assets, Metzger says it varies widely from county to county and is often insufficient.
“We are more protective of people [in bankruptcy court] who have spent all their money and owe their creditors only us presumed innocent people” while facing criminal charges, Metzger said.
In order to determine whether someone can afford a lawyer on their own, the report recommends that the courts consider the true cost of mounting a legal defence.
Lawyers are expensive. This is especially true if the case is complicated, going to trial or requiring forensic analysis, or in some rural areas where criminal defense attorneys are in short supply, Metzger said.
It is difficult for a court to determine if you can afford an attorney when the cost of an attorney is not part of that calculation. But in much of the state, that’s what judges are expected to do every day.
Do you have any advice? Christopher Connelly is KERA’s One Crisis Away reporter, exploring life on the edge of finance. Email Christopher at [email protected] .You can follow Christopher on Twitter @hithisischris.
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