On Tuesday, April 7, our Hays County Commission has a special opportunity to approve a grant application for the creation of a Public Defender’s office, ensuring adequate legal representation for low-income residents.
As a pastor in the Evangelical Lutheran Church of America, I first studied the criminal justice system in 2013 while a voting member for our churchwide, national assembly.
There, we officially approved a social statement, a key statement of which reads “Drawing from biblical witness to God’s rich forms of love and justice for all people, the ELCA is compelled by a holy yearning to address the need for changing public attitudes and postures, and to call for dramatic reforms in policies and practices in the criminal justice system.”
With numerous challenges and deficiencies in our criminal legal system, the greatest harm falls on the least advantaged among us: the poor, the disabled, the migrant, the young. I grew up with privilege and have never experienced poverty. In my youth, no one in my family or immediate circle had significant contact with the criminal justice system. I certainly did not understand the intersections of poverty and becoming trapped in the criminal justice system until I began to study the issue as an adult in preparation for our church discussing them.
Take local author and poet Faylita Hicks, arrested a few years ago for a $25 bounced check for groceries. Faylita spent 45 days in jail without an attorney -- detained pre-trial due to her inability to afford bond. Over $25 she was held at a cost of thousands of dollars, as well as losing her vehicle, delaying her education, and the trauma of being incarcerated.
Pre-trial detention is too costly for both the community and the individual when no public safety issue is at stake. A bounced check falls into that category. The system can fault Faylita for not taking care of her responsibility. She fully admits she was . But there is no rational thought that concludes her bounced check represented a threat to public safety. Nowhere did the system stop to ask if incarcerating her was rational or beneficial to anyone involved. Her poverty had led to the situation in many ways, including not having the support network to post bail, having not had a steady address so she could receive the notices of failure to pay, and many other factors those of us who have not experienced poverty would not realize are a barrier to many in our midst. But even if you are mad at people like Faylita, you cannot honestly say you are afraid of them.
And jail needs to be for people we are afraid of — and not for people we are mad at.
Incarceration is costly, in direct economic terms (jails are expensive) as well as the disruption to work, school, home and social circles. But most important are the moral costs to us as a community when we incarcerate people who pose no danger to us. We need to be very sure there is an absolute community safety need before we deprive someone of their freedom.
The criminal system imposes a particular burden on those who are poor. Yet, in Hays county, we spend only half as much as the state average on legal defense for the poor. Often, the first time low-income defendants in Hays see their court-appointed lawyer is at sentencing. That is far too late to make for justice.
People with means who face misdemeanor charges can retain counsel, which will make them far more likely to get a reasonable bail they can afford, enabling their release before trial. They can continue to work and take care of family responsibilities. But those experiencing poverty do not have these advantages. They often do not make bail and are left behind in jail, instead. Persons detained prior to trial are far less likely to have a favorable outcome. It is clear that at some level, justice is for sale, and often obtained only if you have the means to pay.
This wealth-based detention is definitively an immoral injustice.
Establishing a public defender’s office is an initial step we can take to better prioritize our resources while making our system more fair and focused on protecting our community’s welfare. This means ensuring competent representation, early in the process, for all those accused of a crime. No one should be in jail for any period of time without access to an attorney.
In Hays, due to our out-of-control incarceration rate, we’ve been spending over $60,000 per week on housing prisoners out of county. That runs to $3,000,000 per year. How many stories like Faylita’s are sitting in there, adding to that cost? How could we better spend our criminal justice resources and have a more fair and equitable system that still focuses on public safety and good order in the community?
Clearly something is wrong.
However, if we enact a common-sense Public Defender’s office — which can greatly reduce our needlessly overfilled jail population — the Texas Indigent Defense Commission has offered to cover half the costs over four years, beginning with 80% of costs in our first year.
By investing in a Public Defender’s office, we can better allocate resources both to make the system work more efficiently and to cultivate more just outcomes for all.
Pastor Tim Bauerkemper
