Once again on bail and jail overcrowding

Grits returns to a familiar topic.

Harris County has successfully reduced its jail population in the last couple of years to the point where they no longer must ship inmates to jails in Louisiana and other Texas counties due to overcrowding. And despite Chicken-Little pronouncements from the police union and tuff-on-crime zealots, the sky didn’t fall and in fact crime continued to decline in Houston. As of August 1, the jail was at 86% capacity, with zero inmates housed in other counties, and there’s little question that those numbers could decline even more through relatively minor policy tweaks. But that would require the cooperation of judges and the district attorney’s office, and there are few signs at  the moment that those public officials will act in the taxpayers’ interest to further reduce jail costs.

The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney’s office: The cessation of charging people caught with drug paraphernalia with felonies based on trace amounts, and the creation of the DIVERT program for DWI defendants, which reduced the long-time trend of offenders choosing jail over probation for low-level DWI offenses. Unfortunately, the incoming District Attorney has pledged to reverse both those policies, meaning we can expect the Harris jail population to climb upwards beginning next year. Soon thereafter, the inevitable calls to build more jail space will resume in earnest, with more Chicken Littles telling us the sky will fall if more people aren’t locked up for longer periods.

It doesn’t have to be that way, and besides the DA, local judges are primarily responsible for excessive incarceration in H-Town. Last weekend, the Houston Chronicle ran an important story implicating jail populations (“Judges leery of no-cost personal bonds,” Sept. 9) that merits Grits readers’ attention. The story focused on a familiar theme to long-time Grits readers: the failure of Harris County judges to utilize personal bonds, requiring bail in most cases regardless of risk assessments from the county’s Pretrial Services division.

Mark Hochglaube, the trial chief for the new Harris County public defenders office told the Chronicle that “bond practices in Harris County force some innocent defendants to plead guilty because they’d rather accept a plea deal and a short sentence than spend months in jail waiting for a trial. In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received.”

It’s not just felony cases, though. According to the Pretrial Services division’s annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail last year. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn’t make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed. (That happens more quickly in Harris than some other jurisdictions because of the DA’s direct filing system, but as defense attorney Paul Kennedy noted, it still results in a system designed to maximize pressure on defendants to accept a plea deal.)

These numbers demonstrate why, as corrections expert Tony Fabelo has noted, expanded pretrial detention has been the main driver of increased jail populations since the turn of the century. By his calculations, while statewide jail populations increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. In that sense, Harris County’s situation isn’t unique except for its massive scope and outsized costs.

I asked Mike Anderson about this when I interviewed him back in February. He made it sound like it would be no big deal to reverse the two policies Grits cites, but that remains to be seen. As for the judges, I’m curious about something. As we know, until the 2008 election the judiciary in Harris County was entirely Republican. In the 2008 Democratic wave, Democratic candidates won eight of the nine criminal district court benches that were up for election that year. The other 13, as well as all 15 of the criminal courts at law, were on the ballot in 2010 and were all retained by Republicans in their wave year. Is there any way to know if bail policies differ in any significant fashion between the Rs and the Ds? Whatever the share of the problem was the judiciary’s fault, it all landed entirely on the Rs prior to 2009, but now Ds make up a bit more than 20% of that group (they’re down to 7 criminal district court judges now, since Kevin Fine resigned), so there ought to be a way to compare. Are Democratic judges responsible for fewer pretrial detainees on a per-capita basis than their Republican colleagues, or is there no clear partisan pattern and it just varies by individual judge? I’d like to know.

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2 Responses to Once again on bail and jail overcrowding

  1. Bill Shirley says:

    Money has everything to do with how you are treated by the court system.

    “In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received.”

    This should be illegal. Also, they should sue the city/state for unlawful incarceration for at least lost wages.

  2. Pingback: No increase in jail population as yet – Off the Kuff

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