You have the right to an attorney. If you cannot afford at attorney, one will be appointed to you.
That’s been a constitutional guarantee in the United States for nearly 60 years — and it’s echoed on primetime cop shows every night.
Yet a new report from the Deason Criminal Justice Reform Center says that guarantee isn’t rock solid in Texas.
The report documents a massive range in how a criminal 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 Courts may use outdated measures of poverty or make decisions based on an incomplete picture of an individual’s financial situation.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 fail to account for the high cost of criminal defense attorneys.
The net result is a lot of Texans charged with misdemeanor crimes — people who are presumed innocent at that point — either have to pay for a lawyer 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 leads the center, which is based at Southern Methodist University’s Dedman School of Law.
“No one should have to choose, ‘Am I going to sell the only car that we have …or am I going to go into court without a law degree — maybe without a college degree, maybe without a high school diploma – and stand up there and try to defend myself?'”
The right to an attorney was established in the U.S. Supreme Court’s landmark Gideon v. Wainwright decision in 1963. It said state courts had to appoint attorneys for defendants facing potential jail time who couldn’t afford to hire their own.
But the Supreme Court justices didn’t say how courts should determine who could afford an attorney. In Texas, that’s left up to the counties to determine, and there are 181 different standards for determining indigency across the state’s 254 counties.
The report found that a Texan making a modest wage could get an appointed attorney in one county, but could be denied free representation if he were arrested in the county next door.
The researchers also found counties across Texas that reported not a single misdemeanor defendant was appointed a free lawyer in 2019.
“The standards are diverse, they are often contradictory, the laws in many counties are very complex,” Metzger said. “At the end of the day, no matter what those standards are, often it comes down to an individual judge’s individual assessment of whether hiring a lawyer would be a hardship for somebody.”
The process for 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 severe distress — they’ve been arrested, jailed and charged with a crime.
One county’s application asks defendants to gather a dozen quotes from private attorneys to prove they can’t afford legal help on their own, according to the report. Another county threatens defendants with jail time if they don’t promptly show documentation of the finances they describe.
However, other counties presume people are eligible for a public attorney if they can’t afford to pay a modest bail and are stuck in jail, or if they get means-tested benefits like food stamps or Medicaid.
Metzger said lower middle-class people are most at risk for being deemed ineligible for free legal help, while also being unable to realistically afford to hire a lawyer without making a financially precarious sacrifice like selling the car they use to drive to work.
“We’re telling the working poor that we know you’re just getting by, but … you’re going to have to scrape up everything you’ve got 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 plenty of cases, she said, a prosecutor may end up dropping the charges months after the arrest, and after the individual has already made devastating sacrifices to hire a lawyer.
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’re considered lesser charges, the consequences can be severe.
In Texas, misdemeanors can result in:
- Up to a year in jail;
- Probation for up to two years;
- Fines and fees up to $4,000
And there are other consequences. People who are convicted of a misdemeanor:
- Can’t own a firearm in Texas for up to five years,
- Risks losing custody of their children, and
- Can face deportation, even for non-citizens with legal residency
According to the Deason Center report, more than 6,700 people were jailed in Texas in 2019 for misdemeanor offenses, including those in jail before trial. State court records show more than 135,000 Texans were on probation for misdemeanor offenses.
Metzger said people arrested on misdemeanor charges — especially if they’re stuck in jail because they can’t afford bail — often plead guilty in hopes of a lesser sentence and a quick end to situation. And without access to a lawyer, the pressure to plead is even stronger.
The consequences of that decision can stay with them for years.
The report calls for a statewide standard to assess whether a criminal defendant can afford a lawyer.
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 Texas counties use it as one of the metrics for determining whether criminal defendants can afford an attorney.
The federal poverty line is based solely on the cost of an “economy diet” set in 1955 and made up of primarily beans, potatoes and grains. For an individual with no children, the federal poverty line is $13,590. To assess the cost of living more accurately, the courts should rely on a measure that takes into account the cost of food, childcare, health insurance, housing, transportation, and other basic necessities, the report says.
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, a pension, or equity in their home may make them ineligible for a court-appointed lawyer.
While many counties do exempt these basic assets, Metzger says that varies widely from county to county and often is insufficient.
“We are more protective of people [in bankruptcy court] who have spent all their money and owe their creditors than we are of people who are presumed innocent” while facing criminal charges, Metzger said.
In order to determine whether someone can afford an attorney on their own, the report recommends that the courts should take into account the actual cost of mounting a legal defense.
Lawyers are expensive. That’s especially true if the case is complicated, if it goes to trial or requires forensic analysis, or in some rural areas where criminal defense attorneys are scarce, Metzger said.
It’s hard for a court to determine if you can afford an attorney when the cost of an attorney isn’t part of that calculus. But in much of the state, that’s what judges are expected to do every day.