Off the Kuff Rotating Header Image

jails

More reopening

It’s going great so far, right?

“Grandpa, what did you do during the COVID crisis?” “I got a haircut – for FREEDOM.”

Gov. Greg Abbott will allow hair salons in Texas to reopen Friday and gyms on May 18, moving more quickly than expected to further restart the Texas economy during the coronavirus pandemic.

The businesses will be required to follow certain rules, however, as the state continues to grapple with the novel coronavirus. For example, hair stylists will only be able to work with one customer at a time, while gyms can only reopen at 25% capacity, and their showers and locker rooms should remain closed for now.

Abbott announced the upcoming reopenings during a news conference Tuesday at the state Capitol in Austin, four days after he let stores, restaurants, movie theaters and malls reopen at 25% capacity. He had initially eyed May 18 as the next date to announce further reopenings, but in recent days he has faced growing pressure from some in his own party to move quicker.

Even as Abbott rolled out the additional reopenings, he braced Texans for “flare-ups in certain regions” and said the state has assembled “surge response teams” to dispatch to such problem areas.

After discussing barbershops and gyms, Abbott said state officials also want to reopen another type of business — bars — but are still figuring out how to do so safely. He said he wants feedback from bar owners, given that “not all bars are the same,” particularly when it comes to size.

The Friday reopenings, Abbott said, apply to “cosmetology salons, barbershops, hair salons, nail salons and tanning salons.” In addition to limiting stylists to one customer at a time, Abbott recommended salons use an appointment system only, and if they accept walk-ins, those customers should only wait inside if they can practice social distancing. Stylist stations should also be 6 feet apart, and Abbott said he “strongly” recommends stylists and customers wear masks.

When it comes to gyms, in addition to limiting capacity and keeping locker rooms closed, Abbott said all equipment must be disinfected after each use. Customers should wear gloves that cover their entire hands, including the fingers. Customers should maintain social distancing. And if customers bring their own equipment into the gym, such as a yoga mat, it must be disinfected before and after each use.

[…]

After the news conference, Democrats said Abbott was moving too quickly to further open up the economy, especially so soon after the initial reopenings.

“I thought we were waiting to see if the first round of re-opening caused COVID-19 spikes before making decisions on additional openings?” tweeted state Rep. Chris Turner of Grand Prairie, chairman of the House Democratic Caucus. “It’s been four days.”

Look, Steve Toth and Briscoe Cain’s hairs weren’t going to cut themselves. Desperate times call for desperate measures, you know.

Look, I need a haircut, too. I’m sure my beloved stylist (the girls and I go to Venus Hair in the Heights; Miss Venus has cut their hair since they were little) has been hurting and will be delighted to see me, and I feel reasonably sure she’ll do what she can to sanitize the place. I’m still not sure I’m quite ready for it, though. As for gyms, I don’t go to those but I have done a twice-weekly pilates class at a small home-based studio in the neighborhood, and I’m sure they will be eager to get up and running again, too. We already wiped down the equipment after use, now we’ll do it before as well and will be even more thorough about it. We’ll also be in a small space (a converted garage), and I don’t know how I feel about that. I hate that this is hurting small business owners like these folks. I also had pneumonia in 2007 and have no desire to put myself at risk for a nasty respiratory virus.

If we had a functional federal government that had used the lead time we had to get a scaled-up test and trace regimen in place, we wouldn’t be in this position now. If we didn’t have public officials and society page dilettantes and various armed lunatics out there denying reality and putting everyone’s health and safety at risk, maybe we could have a more honest conversation about balancing risk with people’s ability to earn a living. If we weren’t coming off the worst week for infections and deaths in the state, maybe we could feel a bit more secure. I mean, seriously:

The number of new reported COVID-19 cases and deaths last week was the largest since the pandemic began, suggesting that infections remain pervasive and much is still unknown about the size and scale of the Texas outbreak.

The state reported more than 7,000 new cases and 221 deaths, an increase of 24 percent and 33 percent over the previous week, respectively, a Hearst Newspapers analysis shows.

At the same time, as testing expands, the percentage of Texans who test positive for the disease has fallen to its lowest levels in over a month — a point that Republican Gov. Greg Abbott has turned to recently as a sign of progress.

The data tracks closely with national trends, and has some health experts worried as states including Texas move to reopen their economies.

“We’re opening against a backdrop of a lot of spread,” Scott Gottlieb, a former commissioner of the Food and Drug Administration under President Donald Trump, tweeted Monday. “Unless there’s a strong seasonal effect and summer slows transmission more than expected, we should expect cases to grow.”

You know who else expects cases to grow? Greg Abbott, that’s who. Please tell me again why we couldn’t have waited at least until we actually got the number of daily tests being administered up to the goal level he set before we did this? You can send a strike force to Amarillo if you want – you should also be prepared to send one to Palestine, too – but what exactly are they going to do to make this better?

I don’t know. I just don’t know.

How about that other coronavirus hot spot?

You know, prisons?

For more than fifty years, Palestine, Texas, has been known as a prison town. Most of the time, that hasn’t been a problem.

True, it was a bit controversial in the 1960s when the Texas corrections department bought up 21,000 acres in this part of East Texas and built the biggest men’s prison in the state. According to Ben Campbell, a local historian and self-described “old geezer,” locals fretted at the time about the danger of escaping prisoners. The state provided steady jobs with decent benefits, however, and over the years one prison expanded into five, which can hold nearly 14,000 men. Now, the Texas Department of Criminal Justice is the largest employer in Anderson County.

“People love it and they hate it—it’s jobs, but it’s low-paying jobs,” Campbell said. “They get decent benefits, so it’s a positive for the county.”

But when coronavirus hit, the county’s biggest employer became its biggest threat. More than 2,000 workers go in and out of the prisons—and have unwittingly been carrying coronavirus with them. More than 30 of them had tested positive for COVID-19 by Friday evening, according to the prison system, in a county with only 30 reported cases total (not all of the guards live there). There’s just one hospital in the county, the 150-bed Palestine Regional Medical Center.

“People are trying to be supportive and understanding of the guards needing to do their jobs,” said Matt Kuhl, the son of a retired corrections officer, who runs the “Happening Now in Anderson County, TX!” Facebook group. “But the general consensus is that it’s a threat to have so many cases nearby.”

[…]

By April 2,  the county already had its first confirmed COVID-19 case, and its chief executive issued a shelter-in-place order. The county also imposed an order limiting how many family members could enter big-box stores at one time because so many people had been congregating at the Walmart.

None of these restrictions could stave off the coronavirus explosion inside Anderson County prisons. The following week, the state corrections agency announced six men at the George Beto Unit had tested positive, and the maximum-security prison quickly became the biggest hotspot among the state’s 104 prisons.

“When it started spinning up out there at Beto, within a few days it was up to 30 cases and then 70,” said Peyton Williams, who has lived in Palestine for two years and works in banking. “It seemed to sneak up pretty quickly.”

Ten days after those first positives, Beto had more than 100 cases and, suddenly, a lot of people started worrying. Mayor Steve Presley sparred with prison administrators he accused of misrepresenting basic facts, like whether men were being moved from prison to prison, and thus possibly spreading the disease.

“They told us at one point that they had stopped all transfers except medical—and they eventually did, but they kept transferring them for about a week, just back and forth between prisons,” Presley told me recently. “Did they think we couldn’t find out in a town this small? That people wouldn’t tell us?”

Usually, he said, the city and the state agency get along. Everyone in town has seen vans full of men in prison-white uniforms on their way to trim grass at the city cemetery.

Prisoners had already stopped work for the city in early April when Presley vented to the local newspaper, telling the Palestine Herald-Press that he was furious that the corrections agency was not prepared to handle an outbreak. A state worker then said prisoners would no longer work at the city’s cemetery and parks. The mayor initially suspected it was in retaliation, but the TDCJ later said it was a misunderstanding and the change was not permanent.

That was two weeks ago, but problems continue. Prisoners at two other nearby units have tested positive, and the outbreak at Beto is still growing. Last week it topped two hundred cases.

Meanwhile, more people in Palestine are getting sick. “Most of the cases are prison-related,” said Dr. Carolyn Salter, a local physician who was once the mayor. “I have a bad feeling about this.”

I know the mere mention of this subject will send some people fluttering to the fainting chairs, but discuss it we must. And hot tip, lots and lots of people go into and out of these prisons (and jails) every day. If those places are ginormous breeding grounds for coronavirus – and they are – what did you think was going to happen? And more to the point, what are we going to do about it?

The new coronavirus is fully entrenched in the Texas prison system, confirmed to have infected more than 1,600 inmates and employees at dozens of units. At least 25 infected prisoners and staff members have died. But, like in the rest of the state, the scope of the virus’ spread behind bars is still largely unknown because testing has been limited.

As of Saturday, TDCJ had tested about 1,700 symptomatic inmates for the virus — about 1% of the state’s prison population, according to TDCJ reports. More than 70% of them have tested positive for the coronavirus. That’s a staggeringly high rate compared with the state overall, where less than 10% of the relatively low number of Texans tested had positive results. (Prisoners are largely excluded from state case counts.)

Epidemiologists say more testing is needed in prisons because they are incubators for disease, which can endanger not only prisoners and staff, but surrounding communities as well.

“People tend to think of them as separated from the rest of society, but that is not the case,” said Dr. Chris Beyrer, an epidemiologist at Johns Hopkins Bloomberg School of Public Health. “Most [prison outbreaks] have begun with introductions from staff.”

[…]

And infectious disease experts and prisoner rights advocates say much more needs to be done, starting with mass testing of inmates and reducing the overall prisoner population.

“Until they start doing mass testing, I don’t think they’re going to get a hold of the problem there,” said Michele Deitch, a senior lecturer and prison conditions expert at the University of Texas law school. “There are going to continue to be deaths, and it’s going to continue spreading to the communities both through staff and people who are released and people who are sent to community hospitals.”

But Texas has one of the lowest testing rates in the country. State Rep. James White, who leads the Texas House Corrections Committee, said the prison system is doing the best it can with the resources it has.

“Whatever we’re challenged with in the so-called free society, we have those same challenges, if not exacerbated, in the incarcerated population,” the Hillister Republican said. “We’re having challenges with testing like in the state.”

Releasing some prisoners early — which could include elderly inmates eligible for parole, people close to finishing their sentences or those who have already been granted parole but are still behind bars — is a decision that falls to Abbott and the Texas Board of Pardons and Paroles, but neither has indicated any plans to do so.

After some law enforcement officials and conservatives argued that freeing more inmates could lead to a spike in crime when police are already stretched thin, Abbott came out against more releases from lockups.

“We want to prevent the spread of #COVID19 among prison staff & inmates. But, releasing dangerous criminals in the streets is not the solution,” Abbott said in a March tweet.

But Seth Prins, an assistant professor of epidemiology and sociomedical sciences at Columbia University, said it’s too late to rely solely on mitigation in the prisons.

“Really the only effective strategy is to get as many people out as possible,” he said. “I wish there was a middle-of-the-road answer, but there’s not.”

We could have done more aggressive testing early on, to at least try to isolate the sick from the not-yet-sick, and we could have been more aggressive about releasing low-risk inmates and speeding up the release of those who were going to be getting out soon anyway, but that ship has sailed. What we now get to live with, thanks to Greg Abbott and Donald Trump and their complete failure to provide for universal testing is this constant source of infection, which will mostly but not entirely fall on the people who live near, work in, or are incarcerated in these places. As with pretty much everything else about this virus, it didn’t have to be this way, but here we are.

Judges have to do their part

Some could be doing better.

Harris County’s largest association of criminal defense attorneys on Monday called on local judges to halt in-person court appearances to help prevent the spread of coronavirus.

As the virus has swept across the nation, it has shut down wide swaths of everyday life. But in Harris County — where judges last month halted jury trials and many other court functions — some criminal judges have continued to require in-person court hearings and in-person reporting to pre-trial services.

Harris County Criminal Lawyers Association President Neal A. Davis wrote that such policies present a “threat to public safety and the impartial administration of justice.”

In the four-page letter — which was sent to the county’s 22 state district judges and 16 misdemeanor judges, Davis noted that video appearances are “easy and routine now,” and that local prosecutors are expressly forbidden from appearing in courtrooms, except in “the rarest of occasions.”

“For a Harris County Judge to require one party to physically appear and risk exposure to a deadly pathogen, and allow the other party to appear remotely, violates a judge’s appearance of impartiality, at a minimum,” Davis wrote.

[…]

Local defense attorney Patrick McCann said that while many misdemeanor judges were taking measures to mitigate the spread of the coronavirus, some district judges “have not thought through the implications of everything they’ve been asking the defense bar to do.”

“I’m glad the HCCLA is finally standing up for the average solo (attorney) that’s trying to keep safe, keep their family safe and still do a good job for their clients,” he said.

This is one of those things that should have gone without saying, but clearly we need to say it. It’s clearly unfair to have different rules for each side, and when those different rules put some people’s lives at risk, there’s really no excuse. The story does not indicate which judges are the offenders here, but I’m sure the names are known. All I can say is that the next time these judges come up for election, I would very much like to know who was doing the right thing and who was not. I hope that the various endorsing organizations will take that into account, and more to the point be as transparent as they can about it. I know that most people who vote in judicial elections don’t know a whole lot about the candidates in question. That doesn’t mean the information that is relevant to us shouldn’t be available. Please make sure that it is.

Abbott’s stay-in-jail order blocked and then unblocked

This was Friday.

A state district judge in Travis County has temporarily blocked enforcement of Gov. Greg Abbott’s order to limit jail releases during the new coronavirus pandemic. She cited unconstitutional provisions and overreach of executive power in the gubernatorial order.

State District Judge Lora Livingston issued her ruling Friday night after a lawsuit this week challenged the governor’s order that prohibited judges from releasing some inmates without paying bail. Abbott’s order was prompted by some local officials moving to reduce the number of people locked up in disease-prone county jails. He said “releasing dangerous criminals in the streets is not the solution.”

Abbott’s order banned the release of jail inmates accused or previously convicted of a violent crime on no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas argued in their lawsuit filed Wednesday that Abbott’s order violates the constitutional separation of powers and keeps only poor defendants in jails. The plaintiffs, represented in part by the ACLU of Texas and the Texas Fair Defense Project, asked the court to declare Abbott’s order unconstitutional and an overreach of his power.

[…]

In a virtual hearing Friday, Livingston repeatedly questioned how the governor’s order affected public safety and whether he could make a widespread decision to take away judges’ authority to individually assess defendants.

“I’m just trying to understand how this order without regard to any particular specific information about a case can blanketly decide that a personal bond is not necessary or appropriate or required in a particular situation,” she said. “I’m troubled by the sort of blanket nature of that order in the same way that apparently the governor was concerned about a blanket order from judges that hasn’t yet happened but could theoretically be entered.”

[…]

“What confusion is solved by the governor taking action in this way when in my mind, and apparently in the mind of the Harris County district judges, there’s no confusion at all?” she asked Biggs. “I think the judges do what they do and that Harris County order seemed to bear that out: This is what judges do everyday and we will handle it, thank you very much.”

She later added that the county judge can’t tell local judges how to make decisions. “That’s not how separation of powers works; that’s not how reality works.”

See here for the previous update. Judge Livingston more or less addressed the question I had raised, which is that given how the judges in Harris County had already said they were going to operate, what was Abbott’s order even doing? This ruling was to in effect until April 24, at which time there will be another hearing. But then the Supreme Court stepped in:

The Texas Supreme Court has revived Gov. Greg Abbott’s order restricting the release of some jail inmates during the coronavirus pandemic.

On Saturday, the high court stayed a state district judge’s ruling from Friday night that blocked Abbott’s order. The district judge cited unconstitutional provisions and an overreach of executive power in her temporary order against Abbott. The Supreme Court’s order is also temporary, with responses due to the court Monday evening.

The legal battle stems from an Abbott order issued last month during the state disaster. The governor’s order prohibits judges from releasing jail inmates accused or previously convicted of a violent crime without paying bail — banning no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes and with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.

A copy of Judge Livingston’s ruling is here. I would refer you to the Grits for Breakfast analysis of why the plaintiffs should win on the merits, which now we have to hope that the Supreme Court is able to recognize as well. The Chron has more.

We still have no idea how many people have been infected

There’s just a real lack of testing being done.

Six times in three weeks, Marci Rosenberg and her ailing husband and teenage children tried to get tested for the new coronavirus — only to be turned away each time, either for not meeting narrow testing criteria or because there simply were not enough tests available.

All the while, the Bellaire family of four grew sicker as their fevers spiked and their coughs worsened. They said they fell one by one into an exhaustion unlike any they had felt before.

By March 18, Rosenberg was desperate and pleaded with her doctor for a test. Dr. Lisa Ehrlich, an internal medicine physician, told Rosenberg to pull into her office driveway. But Ehrlich warned Rosenberg, “I can only test one of you.” She swabbed her throat through an open car window. The result came back the next day: positive.

The rest of her family was presumed to be positive but untested – and thus excluded from any official tally of the disease.

As the number of confirmed cases of the potentially deadly virus continues to explode across the Houston region – tripling from 1,000 to more than 3,000 in just the past week – there is mounting evidence that the true scope of the disease here could be far worse than the numbers indicate.

A Houston Chronicle analysis of testing data collected through Wednesday shows that Texas has the second-worst rate of testing per capita in the nation, with only 332 tests conducted for every 100,000 people. Only Kansas ranks lower, at 327 per 100,000 people.

In cities across Texas — from Houston to Dallas, San Antonio to Nacogdoches — testing continues to be fraught with missteps, delays and shortages, resulting in what many predict will ultimately be a significant undercount. Not fully knowing who has or had the disease both skews public health data and also hampers treatment and prevention strategies, potentially leading to a higher death count, health care experts say.

[…]

As the pandemic’s march quickened, Texas was slow to ramp up testing.

The first confirmed case in Texas, outside those under federal quarantine from a cruise ship, was March 4, striking a Houston area man in his 70s who lived in Fort Bend county and had recently traveled abroad. By month’s end, the Houston area had more than 1,000 confirmed cases. A week later, the number had pushed past 3,000.

Yet it was not until March 30 that the rate of testing per 100,000 people in Texas topped 100. As of Wednesday, the state was testing 327 per 100,000, according to a Chronicle analysis of data from The COVID Tracking Project, which collects information nationwide on testing primarily from state health departments, and supplements with reliable news reports and live press conferences.

Twenty-six states in the U.S. are testing at least double the number of patients per capita as Texas, in some cases six times more. New York, for instance, is testing 1,877 per 100,000 people while neighboring Louisiana is testing 1,622 per 100,000. Even smaller states, such as New Mexico, are testing triple the rate of Texas.

Texas officials defended the state’s response.

“We’ve consistently seen about 10 percent of tests coming back positive, which indicates there is enough testing for public health surveillance,” said Chris Van Deusen, a spokesman for the Department of State Health Services, in an email, “If we saw 40 or 50 percent or more of test coming back positive, we’d be concerned that there could be a large number of cases out there going unreported, but that has not been the case.”

It is unclear if that is a reliable measure. Nearly 41 percent of New York tests were positive, the second-highest rate in the country. In Texas, about 9.4 percent of tests were positive — roughly the same as Washington state, where one of the largest outbreaks of coronavirus has occurred.

Not the first time we’ve talked about this, and it won’t be the last. This also means that the official number of deaths attributed to coronavirus is likely too low. This has been the case globally, especially in the hardest-hit places, where the difference between the normal daily mortality rate and the observed mortality rate during the crisis is a lot bigger than the official count of COVID-19 deaths. The good news is that as yet our hospitals have not been overwhelmed, but we can’t say with confidence that that will continue to be the case.

The number of people hospitalized with COVID-19 in the Houston area is continuing a steady climb, not close to crisis levels but unnerving enough that experts still aren’t sure when the area’s grand experiment in social distancing will start showing up in daily counts.

After a week in which COVID-19 hospitalization numbers more than doubled in Harris County, epidemiologists and infectious disease specialists said it likely will be another week to 10 days before they know if the stay-at-home orders and closures are reducing the rate at which the coronavirus is spreading and keeping health care facilities from being overwhelmed.

“Even though we’ve been social distancing for three weeks, it’s too early to know when we’ll be on the downward slope,” said Catherine Troisi, a professor of epidemiology at UTHealth School of Public Health. “The numbers we’re seeing now reflect people who were exposed to the virus up to four weeks ago.”

Peter Hotez, dean of the National School of Tropical Medicine at Baylor College of Medicine and Texas Children’s Hospital, said the social distancing has paid off in terms of keeping hospital volumes under control so far but added that the pay-off in terms of ending the pandemic is unclear. He said that “we need to continue stay-at-home orders until the end of the month, then reassess whether to extend them longer.”

Hotez and others said that aggressive social distancing is more important now than ever, given modelers are projecting that the number of COVID-19 cases in the Houston area should peak in the next few weeks. They said people venturing out during the peak period will put themselves at high risk of contracting the virus.

[…]

The study, released on March 24, originally said the virus’ spread in the Houston area would peak April 7 and burn out by mid-May if stay-at-home orders are continued until May 12. It was not clear Tuesday when the study projects the virus will burn out now.

Eric Boerwinkle, the lead researcher, could not be reached for comment Tuesday and UTHealth officials had no update on the study. Boerwinkle, who did not make the original modeling publicly available, has briefed top local government officials on the work.

Another modeling study, conducted by the University of Washington’s Institute for Health Metrics and Evaluation, now projects that the Texas peak use of hospital resources for COVID-19 will be April 19, some two weeks earlier than it previously projected. The study, reportedly relied on by the Trump administration, foresees no bed shortage in the state, including in intensive care.

“That’s why you shouldn’t place too much weight on any one model,” said Dr. James McDeavitt, Baylor’s dean of clinical affairs. “They depend on assumptions plugged in and can show everything from Houston being able to handle the surge to a New York City-like situation.”

McDeavitt noted the wild cards that go into modeling — the number of people admitted to a hospital, the percentage that need intensive care, how long it takes to get patients off ventilators, how long they need to recover in a regular bed once they move out of intensive care. Those are the assumptions that drive models, he noted.

McDeavitt said he doesn’t think the number of cases will come down in the Houston area until the end of the month.

That story was from earlier in the week, so all of the numbers are a bit out of date by now. But the bottom line remains that we don’t know where we are on the curve because we don’t really know how many people are or have been sick. Models all rely on data, and we’re also not good with the data.

The information Texans are working with is too damn thin.

Where to start? Not enough tests have been completed, or taken, to really know who has or doesn’t have the disease, where the Texas hotspots are, or whether people who have died of respiratory problems had COVID-19. The relatively small number of test results also means we don’t know which people had the disease and recovered (and how many people have recovered) and whether the projections being made with that skimpy data are accurate enough to guide our public health decisions.

It’s not enough to say that the testing is getting better, that we know more than we knew just a few days ago. What we still don’t know overshadows what we do know.

We’re like pilots flying in clouds without instruments. We know a little bit, but not enough to make really solid decisions or to figure out what’s next. We’re learning as we go. As of Thursday, Texas was reporting 10,230 cases and 199 deaths, 1,439 hospitalized COVID-19 patients and 106,134 tests conducted.

Given the level of testing right now, it’s hard to know how many cases Texas really has. Because the best way to get tested for the new coronavirus is to show symptoms that a medical professional finds troublesome, it’s probably safe to say we’re not testing many people who are carrying the virus but don’t have symptoms.

It’s easier — because it’s more obvious — to map the institutional cases. When someone in a nursing home or a state supported living center or a prison tests positive, testing everyone in that location is simple and smart. It’s simple to figure out that everyone in a given building or campus might have been exposed.

Even that data isn’t always available. The state of Texas initially wasn’t sharing details about the data it has collected from nursing homes where COVID-19 cases have been found. But a few days after The Texas Tribune’s Edgar Walters and Carla Astudillo wrote about it, the state revealed 13% of nursing homes have at least one confirmed case.

We’re doing a lot of flying blind. If we want to make good decisions about things like when and how to restart the economy, we need a much better understanding of where we are, and where that means we’re likely to be going.

Coronavirus and crime

It’s down around the country. Turns out having everyone stay inside has a salutary effect, for the most part.

Crime rates plunged in cities and counties across the U.S. over the second half of March as the coronavirus pandemic drove millions of residents to stay inside their homes.

Police logged dramatically fewer calls for service, crime incidents and arrests in the last two weeks of March than each of the previous six weeks, a USA TODAY analysis of crime data published by 53 law enforcement agencies in two dozen states found. The analysis is among the largest studies measuring the impact of the coronavirus on crime and policing.

Massive drops in traffic and person stops – as much as 92% in some jurisdictions – helped drive sharp declines in drug offenses and DUIs. Thefts and residential burglaries decreased with fewer stores open and homes unoccupied, and some agencies logged fewer assaults and robberies. Bookings into each of nearly two dozen county jails monitored by the news organization fell by at least a quarter since February.

At the same time, calls for domestic disturbances and violence surged by 10% to 30% among many police agencies that contributed data. Several also saw increases in public nuisance complaints such as loud noise from parties. The Baltimore Police Department, for example, received 362 loud-music complaints in the last two weeks of March, nearly matching its total for all of February.

The trends reflect both a purposeful reduction in police activity and officer-initiated stops and the effect of stay-at-home orders that have closed huge swaths of Main Street and pushed people into their homes and out of traditional crime hot spots, such as bars, clubs and social events.

The Marshall Project did a similar look at a smaller number of cities in late March, and this AP report is fresh off the presses, and both saw the same basic thing. DUI arrests are down for the obvious reason that fewer people are driving, but that same decline in driving means a decline in traffic stops, which in turn means a big drop in drug possession busts. Some cities have stopped arresting people for low-level offenses anyway, as a coronavirus risk mitigation. Burglaries are a more interesting case – home burglaries are on the decline since most people are now mostly at home, but more businesses are closed, which does increase the target surface. HPD Chief Art Acevedo claims burglaries of businesses in Houston are up 18.9% – this KTRK story, which is based on the tweet in which Acevedo made that claim, just says “burglaries” are up, which is a misrepresentation of the Chief’s words – but he didn’t provide numbers or a time frame for that. And as the Marshall Project story says, crime can fluctuate quite a bit over a short time span for any number of reasons, so all this should be seen as very preliminary and not necessarily predictive. Let’s see what we’re seeing after another month of staying at home.

One crime that is definitely on the rise, in Houston and around the country, is domestic abuse, including child abuse. A spike in gun sales is unlikely to help with that. Being at home is safe for most of us, but not all of us. For people trapped at home with an abuser, there is no safety and now no escape. I don’t know what to do about that now, but as with so many other things, we need to give it a lot of thought, and more resources, so we are better prepared for the next time.

One more thing:

Many police departments say they are intentionally arresting fewer people to avoid the potential spread of the coronavirus in jails. Police in Delray Beach, Florida, are reducing proactive policing, such as drug busts. In nearby Gainesville, Florida, officers are increasingly issuing summons instead of making arrests for minor offenses, Police chief inspector Jorge Campos said.

“It’s not that we’re not enforcing (the law),” Campos said. “It’s that we’re finding alternative ways of dealing with the issue rather than make physical arrests.”

Huh. What if – stay with me here – we kept on doing that even after the coronavirus pandemic is over? It’s so crazy it just might work.

Stockman seeks a pardon

Oh, my God, this may be the most 2020 story ever.

Best newspaper graphic ever

Former U.S. Rep. Steve Stockman, who is serving a 10-year federal prison stint for a complex campaign corruption scheme, is seeking a presidential pardon amid the growing coronavirus pandemic.

The 63-year-old Clear Lake Republican firebrand is serving his sentence at a low-security facility in Beaumont where the Bureau of Prisons has yet to report any cases. His wife, Patti Stockman, however, states in a video made April 1 that her husband said the first case had been diagnosed at an adjoining federal prison in Beaumont.

His wife made a plea this week, along with several former cabinet members, ex-congressmembers and other evangelical and conservative officials, for compassionate release, saying he is among the nonviolent “sitting ducks” who are especially vulnerable and should be pardoned. They add that Stockman could die if exposed due to diabetes and lung scarring as a result of asthma. He is also overweight and has high blood pressure, his wife said.

A petition by 50 conservative leaders calls Stockman “a perfect example of a prisoner who fits criteria of who should be removed from prison.” The letter notes his “intense Christian faith,” and “the extreme length of the judge’s sentence,” and says he is not eligible for release under the First Step Act.

[…]

Jeffrey Crouch, an American University professor who wrote a book on presidential pardons, said the appeal is not falling on deaf ears.

“Former Rep. Stockman is a high-profile Republican and a convicted white-collar offender who enjoys support for presidential mercy from a list of leading conservatives,” Crouch said. “If President Trump decided to pardon him, the decision would fit in well with others Trump has made regarding who should receive clemency.”

Crouch noted, “What is unusual here is the presence of the COVID-19 pandemic: Trump might now have political cover to use clemency as an act of mercy to assist Stockman and perhaps others in a similar position.”

There’s an embed of a video made by Mrs. Stockman to Trump in the story that I didn’t have the stomach to click on. What one can’t achieve by legal means, try to get by appealing to the vanity of the nation’s leading grifter, from one of his loyal acolytes. Meanwhile, there are thousands of people around the country in jails who haven’t been convicted of anything and whose release as a way of mitigating the risk of further spread of COVID-19 is being zealously opposed by “conservative leaders” like these. Yep, this is 2020 boiled down to a concentrated essence. If it doesn’t work for Stockman it will only be because Trump was too distracted by other, shinier objects.

Another lawsuit filed over Abbott’s stay-in-jail order

There’s no slowdown in the litigation business, that’s for sure.

Gov. Greg Abbott’s order restricting the release of some jail inmates during the new coronavirus pandemic is facing a second court challenge arguing his order violates the constitutional separation of powers and discriminates against poor criminal defendants.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas sued Abbott and Texas Attorney General Ken Paxton Wednesday in Travis County district court. The plaintiffs are represented in part by the ACLU of Texas and the Texas Fair Defense Project.

Last month, Abbott issued an executive order that suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes without paying bail. The order largely banned judges across the state from releasing such defendants on no-cost, personal bonds, which can include conditions like drug testing and regular check-ins. The attorney general’s office has said no-cost release could be considered for individuals based on health or safety reasons after a chance for a hearing is given, which some attorneys said takes weeks.

But, under Abbott’s order, people accused of the same crimes with the same criminal history could still quickly be released from jail if they had access to cash. The lawsuit argues Abbott’s order ignores constitutionally-mandated separation of powers by taking away judges’ discretion. It also states the system put in place under the order creates an unconstitutional wealth-based system, similar to those that federal courts have slammed in Texas counties.

“The harms of this order are not abstract: poor people are being detained pretrial with no way to escape a possible jail outbreak,” said Amanda Woog, executive director of the Texas Fair Defense Project, in a statement announcing the lawsuit. “The governor has overstepped his legal authority, and this is causing significant harm on the ground.”

See here, here, and here for the background. A copy of the lawsuit is here and the full statement from the ACLU is here. I get that this lawsuit is over the authority Abbott has to suspend various criminal laws, but it’s a little unclear to me what the actual stakes are. The misdemeanor court judges, who are plaintiffs in this suit, have already said they will continue to abide by the bail lawsuit agreement, while the felony court judges are doing their own thing. I guess we’ll find out when we start having hearings. If you’re a lawyer and want to help clarify this for me, please do. Grits has more.

Another obstacle to releasing inmates

One step forward, one step back.

As fear and COVID-19 crept though the Harris County Jail, felony judges halted the release of low-risk inmates on Friday, blocking the county chief executive’s order to free them to await trial.

Sheriff Ed Gonzalez discontinued the releases Friday after District Judge Herb Ritchie voided the order to free inmates to mitigate the spread of COVID-19. People had begun to be released from the jail Thursday night and Friday morning under Judge Lina Hidalgo’s decision from earlier in the week, but only a handful walked free before Ritchie put the hammer down.

Public health experts have warned that the cramped conditions at the jail mean any significant outbreak could spread “like wildfire” among the jail population, spreading to staff and the wider community. Five people who work at the jail and three inmates have tested positive for the coronavirus, with 800 more inmates quarantined. The sheriff has been calling for releases for weeks to avert a contagion that could ravage the jail and overload the region’s health care system.

[…]

Hidalgo earlier this week ordered Gonzalez to prepare a list of inmates accused of certain nonviolent offenses and who did not have previous convictions for violent crimes. That list was being reviewed and pared down by other county departments.

On Friday afternoon Ritchie, who supervises the felony judges, issued an “Order to Disregard Directive by Harris County Judge.” He ordered the sheriff to “ignore and wholly disregard” Hidalgo’s directive to arrange for the release of inmates. Ritchie’s order said that each violation “may result in criminal contempt of court penalties, which may include up to six months’ confinement in jail, as well as a possible fine not to exceed $500.00.”

Hidalgo said, “We are reviewing the order and hoping for a swift resolution because the health of every Harris County resident is at stake.”

Michael Fleming, former Harris County Attorney, said Ritchie has a very strong argument on constitutional grounds. “It’s not a frivolous thing that he did,” Fleming said. “A district judge under the Texas Constitution has supervisory control.”

It’s a thorny legal issue, according to Brandon Rottinghaus, a political science professor at University of Houston. “The judiciary almost always has precedence in matters involving release from incarceration,” he said, but noted: “In times of crisis, discretionary powers to protect public safety have a way of finding priority, so a higher court may agree that the county judge has jurisdiction in an emergency.”

The effort to secure inmate releases has crawled along for weeks, impeded by squabbling among the county departments involved, disagreements about who should qualify for release, threats from the state Attorney General and social media potshots from Houston Police Chief Art Acevedo and others warning of dire consequences should people be freed from jail. For all the effort that went into Hidalgo’s order, it appeared Friday that only a handful would end up being released under its terms.

The sheriff sought to prioritize 125 people whose health would be especially compromised if they were exposed to the virus. The district attorney objected to all but 14 of those people, who had all been released as of late Friday morning. According to an estimate by the sheriff’s lawyer, only 150 to 200 on the list of 1,470 people would have gone free.

The Hidalgo order excluded anyone with three or more drunk-driving convictions, a conviction for burglary of a habitation or temporary restraining orders. The inmates released on Thursday night and Friday include people charged with drug possession, unauthorized use of a vehicle, evading arrest, interfering with the duties of a public servant, theft, fraud, and tampering with a government record. But the vast majority on the sheriff’s list were being stricken.

See here and here for the background. Boy, you really have to watch out for those document-tamperers. They will straight-up kill you if you look at them funny. Kidding aside, I sure don’t know if Judge Ritchie is correct that county judges don’t have the authority to order the release of inmates who have been held on bond. There’s likely little to no precedent, and there are good arguments to be made either way. (Former CCA Justice Elsa Alcala has some interesting discussion of this on her Twitter feed.) Individual judges can certainly change bond conditions as they see fit, and eventually we will get this sorted out either through the courts or subsequent legislation. The point, though, is that this is an emergency situation, and every day increases the risk and the infection rate, which is exactly what Judge Hidalgo was trying to mitigate. This is just another way in which we as a society were totally unprepared for this kind of problem. We damn well better learn from it for the next time.

The state of inmate releases

Harris County judges are going to follow the federal bail lawsuit settlement agreement and not Greg Abbott.

Texas Gov. Greg Abbott has moved to restrict the release of people in jail during the coronavirus pandemic — but Harris County’s misdemeanor judges aren’t abiding by his executive order. Instead, they’re following a federal court’s orders for their bail decisions.

And those tied to the court have again raised skepticism that Abbott’s order is even constitutional.

Instead of following Abbott’s recent executive order, a lawyer for the 16 criminal court judges that preside over low-level offenses in Texas’ largest county said in a Tuesday letter obtained by The Texas Tribune that the judges will continue to comply with practices solidified in a federal court agreement. That will allow for the automatic release of most misdemeanor defendants without collecting bail payment.

[…]

Abbott’s order, issued Sunday, suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes from being released on these personal bonds. But Abbott’s order only prohibits personal bonds, so those inmates could still walk free if they have access to cash.

In an interview with The Texas Tribune on Tuesday, Abbott said his order had nothing to do with bail reform efforts, which prompted Harris County’s lawsuit.

“Bail reform efforts, among other things, are focused on making sure that you’re not going to imprison someone just because they don’t have any money, and you’re not going to have a bifurcated system where the rich are gonna get to bail out and the poor are not,” he said. “So this doesn’t focus on how deep somebody’s pocketbook is. It has to do with how serious the crime they committed.”

A law professor overseeing the Harris County decree advised county officials this week that the federal court order supersedes the governor’s. And he also doubted the constitutionality of Abbott’s order.

“The Order is likely unconstitutional under state and federal law. But regardless of whether it is ultimately challenged and/or implemented, [it] does not affect any terms of the pre-existing … consent decree,” said Brandon Garrett of Duke University School of Law.

See here for the background. It’s still not clear to me what Abbott intended with this order and what if anything he’ll do in response to the courts’ actions. We do know what the plaintiffs in that bail lawsuit are doing, however.

Gov. Greg Abbott’s order restricting the release of some Texas jail inmates during the coronavirus pandemic is being challenged in federal court. Civil rights attorneys filed a court motion Wednesday arguing the order unconstitutionally discriminates against poor defendants and also takes away judges’ power to make individual release decisions.

[…]

On Wednesday, in an ongoing federal lawsuit over Harris County’s felony court bail practices, attorneys representing inmates filed a motion for a temporary restraining order against Abbott’s order. The motion asks U.S. District Judge Lee Rosenthal to order Harris County judges to ignore Abbott’s order until a full hearing can be held.

“The text of the Order purports to block release of presumptively innocent individuals even if state judges conclude that there is no individualized basis for their pretrial detention — but only for those who cannot pay,” the motion said.

Abbott said Tuesday that his legal team and the attorney general’s office worked for days on the order to ensure it met “constitutional muster.” His order “doesn’t focus on how deep somebody’s pocketbook is. It has to do with how serious the crime they committed,” he said. A spokesperson for the governor did not immediately respond to questions about the court challenge Wednesday.

My guess is that Judge Rosenthal will not be impressed by Abbott’s order, but I expect we’ll know soon enough.

And then there’s this.

Judge Lina Hidalgo

Judge Lina Hidalgo issued an order Wednesday directing the Harris County Jail to release some low-risk inmates to mitigate the spread of coronavirus.

It could take up to 32 hours for the relevant agencies to weigh in and allow eligible people to leave the downtown campus of the third largest jail in the country.

The order by Hidalgo — more than two weeks in the making — calls on Sheriff Ed Gonzalez to assemble a list of people accused of nonviolent offenses with no violent prior convictions. Murray Fogler, a lawyer for Gonzalez, estimated this initial list could include 1,000 to 1,200 people who fit the criteria.

The order cites the grave risk the disease poses to both the jail population and the whole Houston area.

“Without significant reductions in the current population, the lack of physical space, supplies, and staff to control an infectious outbreak in the Harris County Jail system is likely to spread to the greater Harris County region,” the order says. “These detainees spend significant time in communal spaces, including dormitories, eating areas, recreation rooms, bathrooms, and cells or holding areas, and are unable to choose to do otherwise. Further, detainees live in spaces with open toilets within a few feet from their beds, and unable to access a closed toilet that would not aerosolize bodily fluids into their living spaces.”

The order excludes anyone with three or more drunk-driving convictions, a conviction for burglary of a habitation or any pending temporary restraining orders.

See here and here for the background. The order, which is embedded in the Chron story, also takes into account inmates who have tested positive for COVID-19. The jail is going to be a huge vector for the virus, and the only thing we can do about it is to minimize the number of people who could be affected by it. Again, I wonder what if any resistance we’re going to get from the state.

More on Abbott’s stay-in-jail order

Here’s that more detailed Chron story I referenced yesterday. I’m just going to quote the newer information about Greg Abbott’s executive order that attempts to basically stop most releases of inmates from the jail regardless of the coronavirus situation.

The newly appointed monitor over Harris County’s misdemeanor bail protocol, Duke law professor Brandon Garrett, said the decree violated “many state and federal constitutional provisions.”

Alec Karakatsanis, a civil rights attorney who represents thousands of indigent defendants awaiting trial at the lockup on felony charges, called the governor’s stance illegal and perilous.

“The edict is dangerous, unprecedented, chaotic, and a flagrantly unconstitutional attempt to infringe fundamental constitutional rights,” he said. “If enforced it would have catastrophic public health consequences.”

[…]

The governor’s order suspends portions of the Texas Code of Criminal Procedure and statues related to personal bonds, barring any personal bonds for anyone with a prior violent conviction or a conviction involving the threat of violence. He also outlawed releasing inmates with prior violent convictions on electronic monitoring.

In a barely veiled reference to the preparations taking place by Harris County Judge Lina Hidalgo, the governor suspended portions of the Texas Government Code permitting a county judge, mayor or emergency management director from releasing people outlawed under his new order. He said criminal court judges who handle misdemeanor and felony cases may still consider such releases on an individualized basis for health or medical reasons proper notice to prosecutors.

Among prison inmates, Abbott suspended portions of the state criminal code related to commuting sentences for anyone convicted of violence or threats.

Multiple plans for lowering the jail population have evolved in the past two weeks, including an executive order by Hidalgo that never came to fruition and a request by the lawyers who sued the county over its bail practices. District Attorney Kim Ogg also entered the discussion, telling the sheriff and presiding district judge that she wanted to weigh in and expedite releases of low-risk inmates in the “high likelihood” of a federal court order dictating either substantive bail hearings or outright release on personal bonds.

“As the legal representatives of the State of Texas, we also have the duty to be advocates for victims and the community in a full and fair bail hearing related to the proposed release of individuals who do pose a substantial risk to public safety,” Ogg wrote, in the letter obtained by the Houston Chronicle.

Hours before Abbott’s announcement, Chief U.S. District Judge Lee H. Rosenthal convened an emergency hearing by phone to address incomplete plans by plaintiffs in a federal civil rights case to craft the a release order for people accused of some nonviolent offenses, along with lawyers for the sheriff and the county judge.

An official from Attorney General Ken Paxton’s office told the federal judge that Paxton was poised to appeal any order by Rosenthal that called for blanket releases of inmates.

See here for the previous post. The Trib adds on.

Abbott’s order applies to inmates who have been accused or convicted of “a crime that involves physical violence or the threat of physical violence,” which defense attorneys called a vague and subjective standard. Abbott’s directive also appears to apply to inmates with any history of violent offenses — meaning a person arrested on a nonviolent drug charge last week could be held if he had a decades-old conviction of a violent offense.

Though the order bans release of inmates on no-cost, personal bonds, it does not set a standard for how high a bail amount must be. Presumably, judges could still release inmates on bonds of $1, defense attorneys said.

Legal experts questioned the order’s validity, and it drew immediate rebukes from Democrats and bail reform advocates, who argued the order discriminates against poor people. Several Texas counties, including Harris and Dallas, have in recent years had their bail practices deemed unconstitutional for discriminating against poor defendants.

“It is a dangerous, unprecedented, chaotic and flagrantly unconstitutional edict that if enforced would expose many people around the state of Texas to a public health catastrophe,” said Alec Karakatsanis, executive director of the Civil Rights Corp, which has been at the helm of Harris County’s federal bail lawsuits.

El Paso Democrat Joe Moody, a state representative and former prosecutor and defense attorney, said “if followed, this order will see jails bursting at the seams [with] minor drug offenders, homeless people whose most recent ‘crime’ was something like simple trespass & everyday citizens picked up on the flimsiest of allegations.”

According to Abbott’s order, a judge may consider a defendant’s release for health or medical reasons, after the district attorney is notified and there is an opportunity for a hearing.

You can see the executive order here, and a brief analysis of why it doesn’t pass constitutional muster here. Rep. Gene Wu was on a call with Abbott and reports that the Governor is either misinformed or not telling the truth about his own order. The ACLU of Texas has responded to Abbott’s order, and I presume we’ll have some action in the federal court today. I should note that Ken Paxton jumped out in front of this parade ahead of Abbott’s order, which prompted a couple of folks to observe that Ken Paxton is himself under a felony indictment and out free on bail. Hey, irony went into hospice care sometime back in 2002, so just keep swimming. The Texas Observer has more.

The rest of the H-GAC region

As long as we’ve been talking about Waller County and Montgomery County, I thought I’d check in on the other members of the Houston-Galveston Area Council region. Harris County and six of its seven neighbors – Brazoria, Chambers, Fort Bend, Galveston, Liberty, and Montgomery, but not Waller – have issued stay-at-home orders. What about the other five counties in the region?

Austin County says the following on its website:

UPDATE 02.24.2020

We have been advised by authorities of one confirmed Covid-19 case in Sealy. The family is self-quarantining and is complying with guidelines. Any potential exposure is being investigated. Our recommendations have not changed. Continue to practice good hygiene and social distancing. Stay home if you are sick. If you have symptoms, even if they are your usual allergies, flu, etc., call your doctor first. Only go to the doctor’s office or hospital if directed by the doctor. We need to isolate the virus. Stay home as much as possible. Limit your exposure. Tell this to your kids if they are running around on their extended spring break. Stay calm and be safe. As the governor says, we can defeat Covid 19 in Texas.

Here’s a news story from Brenham that basically recapitulates this information. One thing you find when you go looking for news about these smaller counties is that there ain’t much out there. For now, this is what we know.

Colorado County has a disaster declaration by its County Judge and the Mayors of three towns (Columbus, Eagle Lake, and Weimar) that “shall be read to comply” with the initial executive order from Greg Abbott, which closed bars and gyms and schools, limited public gatherings to a maximum of ten people, and limited restaurants to take-out only. The Colorado County order says it continues till March 27, but I presume there has been an extension since then; the Abbott order was through April 3, anyway. As of March 25, there were no confirmed cases in Colorado County.

Matagorda County has been under a disaster declaration since March 16, and has closed county parks, community centers, fairgrounds, and county beach access, in addition to restricting access to county government buildings. They reported eleven positive cases as of Saturday morning.

Walker County has a COVID-19 information page, where I learned that they have a midnight to five AM curfew as of March 23, and they report two confirmed cases as of Friday. Walker County is the home of Huntsville, and thus the Huntsville Correctional Unit, and I sure would like to know what their plan is for when the first inmate tests positive.

Finally, there’s Wharton County, which has this press release stating that there have been five positive COVID-19 tests for county residents (out of 50 total, with eight still pending as of Friday), and little else.

Far as I can tell, none of these counties has a stay-at-home order similar to what the big counties have been doing. These five counties combine to have nineteen confirmed positive cases, though given that test results are taking up to ten days to return, who knows what the actual number is. It’s surely higher now than when I drafted this post on Saturday. I have no idea what is informing Greg Abbott’s decision-making process, but at least now you know.

UPDATE: From the Trib, a note on the larger picture: “As of Friday, the Texas Department of State Health Services said 105 of the state’s 254 counties had reported cases. A week earlier, there were only 34.”

Still trying to do something about the coronavirus risk in the jail

Time is extremely limited for this.

A federal judge Friday asked lawyers to hammer out a plan for releasing about 1,000 indigent inmates detained on bonds of $10,000 or less amid fear of a COVID-19 outbreak at the third largest jail in the country. The judge indicated she would take up the fate of another 3,400 people in the Harris County Jail awaiting trial on higher bonds next week.

The instructions by Chief U.S. District Judge Lee H. Rosenthal came in response to an emergency request Friday by the team of lawyers who challenged the county’s bail policies. They argued that thousands of poor defendants trapped in the jail simply because they couldn’t afford bail should be granted immediate bail hearings or be released.

The pleading laid a grave situation at the hands of a judge who has made many tough decisions in the criminal justice realm.

“A public health catastrophe of historic proportion looms in the Harris County Jail. Only this Court can avert it,” the motion says. “With every passing hour, the risk of disaster increases. All eyes turn to this Court in this dire moment.”

The bail lawsuit motion for a temporary restraining order and preliminary injunction seeks release of about half the jail’s population of nearly 8,000 if they cannot be afforded immediate bail hearings. This would mean thousands of people charged with nonviolent offenses would be allowed to await trial on bond outside the facility, as they would otherwise be able to do if they could post cash bond.

Other local officials, including the sheriff, state district judges and top county official have been tackling the potential public health threat from different angles over the past two weeks, seeking compassionate releases of medically vulnerable inmates, bonds for those accused of nonviolent offenses, or some cross-section of the two groups.

But early Friday lawyers from Civil Rights Corps, the Texas Civil Rights Project and pro bono counsel from Susman Godfrey, stepped in with a constitutional approach to the jail problem that could allow much more drastic cuts in the population than the compassionate release plans outlined by the sheriff and the county judge.

Rosenthal asked the lawyers for indigent defendants and attorneys for the sheriff and the county to assemble by Monday a list of thousands of people who might qualify for release based on their bond amounts, charges, criminal histories and risk factors. In addition, the judge indicated she would move swiftly on a subset of the indigent defendants who can’t pay their bond. She asked for confirmation that 1,000 or so people being held on bonds of up to $10,000 were not subject to other holds or detainers.

The sheriff and county officials told the judge that they had no objection to this first group being released if they fit the judge’s criteria. According to a lawyer for the plaintiffs, the only agency that opposed the release of those facing $10,000 bonds was the Texas Attorney General’s Office.

Sheriff Gonzalez had been working on this for the past week, trying to get individual judges to allow some inmates to be released, but the process was slow. County Judge Lina Hidalgo had been working on an executive order that would have released a larger number of inmates, but she shelved it after objections from the Attorney General’s office; you can read that story for the details. And I know, we’re all going to be murdered in our sleep by a rampaging horde of pot smokers and check kiters, but let’s do pause for a moment and consider what the alternative might be:

In another effort to address the issue, Harris Health System leaders on Friday sent a letter asking for the release of defendants with nonviolent offenses.

The county medical system’s president and CEO stressed that an outbreak in the Harris County Jail is not a matter of if, but when.

“The Harris County Jail and other large correctional facilities pose a real and immediate danger to the health of the community,” Esmaeil Porsa said. “An even limited outbreak of COVID-19 in the Harris County Jail has the potential to overwhelm our already overburdened hospital system. If this happened — and the likelihood is high — it could leave many vulnerable people in our community without access to care.”

Porsa urged the county to consider prioritizing inmates over 60 with pre-existing conditions such as cancer, diabetes, asthma and chronic pulmonary disease, heart disease and HIV. Jails are known to have higher concentrations of people in the high-risk group, he said.

He added that social distancing is nearly impossible, with dorm settings holding between 20 and 60 people in a close space. And quarantine is also unfeasible when inmates are booked in and out of the jail on a daily basis.

We could just let them all die, I suppose. I’m sure Dan Patrick would approve. I would rather not do that.

UPDATE: And now Greg Abbott is involved, and I’m confused.

As the first Harris County inmate tested positive for COVID-19 Sunday, Gov. Greg Abbott issued an executive order blocking any release of inmates from jails and prisons accused or convicted of violent crime.

“Releasing dangerous criminals from jails into the streets is not the right solution and doing so is now prohibited by law by this declaration,” Abbott said at an afternoon briefing.

The news comes as federal, state and local government officials continued to squabble over details of what a jail release would look like as they attempted to prevent a catastrophic outbreak among the approximately 8,000 people incarcerated at the downtown facility.

The governor was referencing Attorney General Ken Paxton’s motion to prevent Harris County from releasing 4,000 people awaiting trial on felonies, saying such a move would “allow dangerous criminals to roam freely and commit more crimes during the ongoing COVID-19 pandemic.”

“Protecting Texans is one of my highest priorities. It is vital that we maintain the integrity of our criminal justice system and continue to enforce state law during this pandemic,” Paxton said. “My office will not stand for any action that threatens the health and safety of law-abiding citizens.”

Hours earlier a federal judge convened an emergency hearing to address plans that plaintiffs in a federal civil rights case had hammered out over the weekend with lawyers for the sheriff and the county judge to release inmates accused of some nonviolent offense.

An official from Paxton’s office appeared telephonically at that hearing and said the AG planned to appeal an order by the federal judge to the 5th U.S. Circuit if it called for any blanket releases.

The judge set a hearing for Tuesday to address a possible appeal.

There wasn’t anything in the previous story about people accused or convicted of violent crimes, hence my confusion. I assume there are still plenty of people in the Harris County jail for misdemeanor charges, so it’s not at all clear to me what the extent of the dispute is. Maybe later versions of the story will make that more clear.

UPDATE: There’s now a more detailed version of the Chron story and also a Trib story, but this post is too long already. I’ll be back with more tomorrow.

Another review of Judge Hidalgo’s first year

Though, oddly enough in a story about Harris County Judge Lina Hidalgo’s first year in office, most of the text is about outgoing Commissioner Steve Radack and the two-year-long temper tantrum he’s been throwing.

Judge Lina Hidalgo

For many years, the Harris County Commissioners’ Court, which oversees the third most populous county in the country and one of its most diverse, had been a place of easy consensus. At the time of Radack’s outburst, four of the five members of the commissioners’ court were white Republican men. They included county judge Ed Emmett, a popular moderate in a party running out of them. Most sessions passed by with the placidity of a koi pond. By cheering activists who sued the county and asserting that commissioners were supporting a racist policy while simultaneously trying to join their ranks, [Commissioner Rodney] Ellis was cannonballing into the water.

Three years later, in July of 2019, Radack looked considerably more chastened when the newly elected Ellis and the rest of the commissioners’ court met to vote on a settlement to the lawsuit—a sweeping $100 million overhaul that largely abolished the practice of jailing misdemeanor defendants who can’t afford cash bail. Reformers across the country hailed it as a major step toward making the criminal justice system fundamentally more equitable. The settlement was possible only because, just eight months before, Harris County voters had handed control of the commissioners’ court to Democrats for the first time since 1990. Radack and Jack Cagle were now the only two Republicans left on the court. Most astonishingly, voters had seen fit to replace Emmett, the beating heart of the county’s political establishment for more than a decade, with Lina Hidalgo, a 27-year-old Latina who had moved back to Houston to run against the 69-year-old Emmett. She was the first woman and Latino to lead Harris County.

Now Hidalgo and the other two Democrats—Ellis and former Harris County sheriff Adrian Garcia—ran things. For years, meetings had rarely lasted an hour. Under the new management they felt like committee hearings in the state legislature, often going for more than five hours and sometimes as long as nine, as the new majority pushed to enact its agenda—criminal justice reform, bringing transparency to county government, and improving flood planning—while members of the public came to support, oppose, and debate.

At the July meeting, Hidalgo beamed as she introduced the bail-reform settlement to the court. “This is a proud beginning,” she said, in the fight to build a criminal justice system in which “fairness and justice are preeminent.” She quoted from Martin Luther King Jr.’s 1963 address on the National Mall. She exuded, as members of her generation would say, good vibes only.

Ellis, a political operator who served 27 years in the Texas Senate, spoke glowingly too, calling the settlement, somewhat hyperbolically, “just as big as” Brown v. Board of Education. But the most dramatic moment came when he moved closer to his mic and stared at the side of the room where Radack and Cagle sat. “A very oppressive system has existed for decades,” he said. “And I don’t point an accusative finger at anyone, but it did, I think, indicate a certain blind indifference to what was going on. I think it’s incumbent on us to admit that,” he said, slowing for emphasis.

When it was his turn to speak, Radack turned to address the packed chamber, where during the period of public comments, most had spoken in support of the settlement. He understood that there were racial injustices in the system, he said.

But then he began pounding his palms on the wood in front of him. “This is a public table,” he said, his voice rising to a shout. Issues such as bail reform were supposed to be discussed in public, “not [by] a few people from the commissioners’ offices and whomever, behind closed doors . . . sitting there and discussing what they’re going to do for all of us.” He stood up, getting angrier and flipping through the lengthy settlement for the audience. “Every single page says ‘Draft,’ ‘Confidential,’ ” he said. “I think that sucks!”

Hidalgo politely noted that the text of the settlement had been made available to the commissioners three days earlier. “And let’s be careful with the public table,” she said. Radack was learning something Ellis knew very well: It’s not fun to be in the minority in a lawmaking body. “There are consequences to elections,” Ellis added calmly. At the end of the year, Radack announced he was retiring, boosting Democrats’ chances of electing the fourth Democrat to the commissioners’ court this November—and giving them the same level of dominance Republicans enjoyed just a few years ago.

[…]

Now in the minority, Radack and his fellow Republicans have found other ways to show their displeasure. For one, they’ve made a lot of noise. At one meeting regarding transportation funding, Cagle brought copies of George Orwell’s dystopian novel 1984 to distribute to the audience, accusing Hidalgo’s court of engaging in doublespeak.

But the most important scuffle came in October. The commissioners met to pass a tax hike that would increase the county’s revenue by 8 percent before an annual deadline, citing the need to raise money before new laws passed by the state legislature went into effect that would restrict their ability to do so in the future. Cagle and Radack didn’t show up—depriving the court of a quorum and preventing a vote. (State law requires that four of the five members of county commissioners’ courts be present to vote on tax increases.) Hidalgo says the consequences of that missing revenue will hurt the county in the long run. “You won’t see a huge difference from one year to the next,” she said, “but it will compound over time.”

That anti-majoritarian maneuver is one reason why many Republicans in Austin are closely watching what’s happening in Harris County. Never huge fans of cities and counties to begin with, GOP lawmakers, led by several Houston-area Republicans, cracked down hard on local government during the 2019 session.

Now imagine if the Democrats tighten their grip on Harris County, finally flip Fort Worth’s Tarrant County (the last urban Republican holdout), and take over quickly growing suburban counties like Hays (south of Austin) and Fort Bend (southwest of Houston). Then they draw new county commissioner precincts to solidify their control. In this dark future for conservatives, Republicans in the Legislature work even harder to rein in Hidalgo and her colleagues across the state.

If Democrats can pick up Radack’s seat, only one Republican would remain on the commissioners’ court, which would prevent that Republican from breaking the quorum again. But what if the Legislature, learning from Radack’s example, changed the law to require all five members of the commissioners’ court to be present? Many blue counties, even the big Democratic ones like Dallas and Travis, have at least one Republican commissioner who could, if the law were changed, nullify the wishes of the other four and hold one-person veto power over budgetary matters, with huge consequences for local governments across the board. “That would be a pretty major thing,” said Radack, who’s given the issue a good deal of thought. “Probably one of the most major pieces of legislation to come around in a long time.”

I should note, this story was written, and I wrote my draft post of it, before coronavirus took over all of our lives. It should be clear that every politician going forward will be judged on how they performed during this particular crisis. I think Judge Hidalgo is doing quite well on that score so far, but we still have a long way to go. Now here’s what I wrote when I first blogged about this.

Putting Radack’s jackassery aside, I’ve been thinking a lot about what might happen in the near future as Republicans continue to lose their grip on the larger counties and maybe possibly could lose control at the state level. We saw what they did on the way out the door in states like Wisconsin and North Carolina, after all. Imagine if Dems do take over the State House this November. Would Greg Abbott call a special session to get one last shot at passing bills in a full-GOP-control environment? Maybe even take some action to clip a future Democratic Governor’s wings? He’d want to act now and not wait till his hypothetical loss in the 2022 election, because if there’s a Dem-majority House, he’s out of luck. For sure, the assault on cities and counties will be much harder to pull off without a Republican monopoly. The good news for us Dems is that it would be hard for Republicans here to make like their counterparts in WI and NC, but not impossible. We need to be thinking about this, and have some strategies prepared for just in case.

Anyway. To reiterate what I said before, I think Judge Hidalgo has done a very good job, and has positioned herself and the Court to do a lot more good this year. It’s not necessary to trade out Radack for a better model – that 3-2 majority is fine almost all the time – but it would help. And Lord knows, the man has had more than enough time in the spotlight. Move along, already.

(By the way, Fort Bend has already flipped. In the same way that Harris did, by Dems winning one Commissioner’s Court seat and the County Judge’s office, to go from 4-1 GOP to 3-2 Dem. And as with Harris, Fort Bend Dems have a chance to win a Republican-leaning set this year to get to 4-1 in their favor.)

Reducing the coronavirus risk in jail

This is an obvious step to take.

Sheriff Ed Gonzalez

More than 8,500 people are housed inside the Harris County jail, and thousands more move through the building and return to their communities each day to keep the criminal justice juggernaut running.

Sheriff Ed Gonzalez likens the situation to three massive ships docked in downtown Houston. An outbreak of COVID-19 in this setting could be catastrophic to the region and overwhelm hospitals’ limited capacity to treat patients.

That’s why the sheriff overseeing the third largest jail system in the country is pushing for “bold action” to avert the potential fallout — he is seeking compassionate releases of hundreds of vulnerable people who pose a low risk to public safety. For that to happen, judges would need to sign off.

“Jails and prisons are fertile ground for the spread of infectious disease,” Gonzales said, noting that his staff has done “yeoman’s work to keep an outbreak at bay,” addressing hygiene and health concerns. “My nightmare scenario is that an outbreak happens at the county jail.”

But he said, “The standards we implement in the general community are either impossible to follow or hard to do in a jail setting. Our criminal justice system must become more aggressive in granting compassionate releases.”

And time is of the essence, he said.

Harris County Judge Lina Hidalgo is on board and considers taking steps to mitigate an outbreak at the jail “a very high priority,” noting “this could spread like wildfire at the jail.” County officials and judges are discussing the matter and consulting the fine print of statutes that govern such measures to try to assess how to make it happen.

Hidalgo also said she’s looking at ways to limit the population at the county’s juvenile lockup.

“Were trying to do as much as is feasible and can be done in a safe way to have these people not packed in so close together,” she said.

Alex Bunin, the chief public defender for the county, said the situation is dire: “If you are in jail and … and facing charges for a nonviolent crime, that shouldn’t be a death sentence because you’re going to get cornonavirus.”

He said county leaders can give the sheriff the authority to release people on misdemeanors. Felony decisions, under normal circumstances, must come from the judges.

There are easy ways to prioritize who might be released – older inmates, pregnant women, immuno-compromised inmates, and the like. Bear in mind that if the jail becomes a hot spot for coronavirus, then everyone who works at the jail, everyone who provides goods and services to the jail, and everyone they come into contact with including their families, are put at risk. Are we serious about trying to contain this pandemic, or is all that just lip service? The question answers itself if you let it.

Emergency orders extended

In Houston.

City council on Tuesday extended Houston’s emergency health declaration, reflecting a warning by Mayor Sylvester Turner that the public health crisis fueled by the spread of COVID-19 will not go away anytime soon.

“This is a crisis. I hope there’s no one around this table that’s questioning that,” Turner told his colleagues during a spirited special meeting Tuesday. “And it’s a crisis that’s going to be with us for several weeks if not several months. And I hope no one is questioning that.”

The measure gives the mayor power to suspend rules and regulations and to “undergo additional health measures that prevent or control the spread of disease,” such as quarantine or setting up emergency shelters. Similar orders have been issued after hurricanes.

Turner declared the emergency last week, after the region’s first confirmed COVID-19 case of community spread, in which the virus was contracted locally rather than travel. The order was used to cancel the Houston Livestock Show & Rodeo.

Here’s the Mayor’s press release, which notes that among other things, all city-produced, sponsored and permitted events are canceled through the end of April, and the city expects to begin COVID-19 testing this week, with an announcement to come.

Harris County took similar action.

Commissioners Court on Tuesday extended Harris County’s public health disaster declaration in response to the coronavirus, but only for eight days.

The agenda for Tuesday’s emergency session called for a 30-day extension. However, Precinct 4 Commissioner Jack Cagle asked for a shorter extension so other elected officials and the public can give input.

The other four members agreed and unanimously extended the declaration, which allows the county to more quickly purchase necessary supplies and services, though March 25. County Judge Lina Hidalgo said she hoped Cagle was acting in good faith and not trying to build discord around the declaration.

“There is lives on the line in this thing,” Hidalgo said. “We’ve got to stick together, and this is not the time to be whipping up political opposition.”

[…]

Precinct 2 Commissioner Adrian Garcia asked Hidalgo to do all her office can to halt evictions. Garcia said many residents are losing income because schools and businesses have closed, and should be given a break.

Cagle said Commissioners Court should not take any action seen as swaying eviction proceedings in favor of defendants or ordering judges how to perform their duties. Garcia said he simply is seeking a delay in evictions so vulnerable residents have a chance to catch up on rent.

“I’m not asking for judges for any ruling,” Garcia said. “I’m just asking for the judge to halt the process until we can see some light at the end of this tunnel.”

The county judge does not oversee independently elected constables and justices of the peace who administer evictions. Assistant County Attorney Barbara Armstrong said emergency powers allow the county judge to close public buildings and allocate resources, which Hidalgo could exercise to prevent hearings from taking place. Armstrong said cases would resume when the crisis subsides.

Hidalgo said she has spoken with several of the county’s 16 justices of the peace, who have indicated they intend to temporarily stay eviction proceedings.

Other counties are taking similar action on halting evictions, and also making fewer arrests for low-level crimes, as is Harris. These are among the things that maybe we ought to continue after the crisis subsides. Just a thought.

Coronavirus and the courts

More things that will be shut down for the time being.

Courts in the Houston region are announcing measures to reduce or suspend some operations in response to the new coronavirus outbreak and local declarations of emergency.

Harris County’s court system announced Thursday that jury service will be suspended from Friday through March 20, another move by local authorities as they grapple with the spread of the new coronavirus.

Local Administrative Judge Robert Schaffer said that the Board of District Court Judges met and decided to suspend service. “Jurors who have received a summons for these dates do not need to appear and do not need to schedule,” he said in the order released Thursday.

In addition Harris County Civil Administrative Judge Michael Gomez said earlier that civil trials will be canceled through the end of the month, and individual judges would determine how to handle bench warrants.

Brazoria County also announced suspension of jury duty because of the coronavirus outbreak for the week of March 16 and the week of March 23. “Residents that have received a jury summons for the week of March 16th or the week of March 23rd will not need to report for jury duty,” the county said in a release.

The federal courts have also announced some adjustments to civil matters in the wake of the public health pandemic, although federal courthouses across in the massive Southern District of Texas – which stretches from near the Louisiana border to the Mexico border — will remain open. Civil jury trials in Houston and Galveston have been postponed until April 1 or thereafter. Judges have the discretion to postpone bench trials.

The federal clerk’s offices will become a virtual operation, with aides available to the public by phone and responding to snail mail. The intake desks will process electronic court filings.

On the criminal side, juries are still being called. In addition, all hearings before a district, bankruptcy or magistrate judge will remain as scheduled unless the presiding judge in the case makes a change.

There’s more, involving civil, criminal, and family court, so read the rest, and check in with your court or your attorney if you have any legal proceedings in the near future. Texas Lawyer has a more comprehensive roundup of court actions around the state. As Alex Bunin, the head of the Public Defender’s office says in the piece, once there’s a confirmed case involving someone in a courtroom, whatever their role may be, it’s going to snowball from there.

Let’s also not forget the prisons and jails, which could be a major vector for the spread of the disease. The Harris County jail is doing screenings and can do quarantines, but maybe the short term answer is to arrest fewer people and let asylum-seekers and others out of detention. There’s lots of ways to do social distancing.

Meet your bail reform overseers

They’re where the buck will stop.

A federal judge Tuesday approved the choice of a Duke University law professor to oversee Harris County’s historic bail reform agreement that governs what happens to thousands of people arrested on low-level offenses.

Chief U.S. District Judge Lee H. Rosenthal ordered Brandon L. Garrett, from Duke’s Center for Science and Justice, to serve as monitor for implementation of the seven-year consent decree. The judge also approved Sandra Guerra Thompson, a former New York prosecutor who teaches at University of Houston Law Center, as deputy monitor for the settlement.

[…]

Garrett has a background in criminal justice, policy-making and reform, according to a biography on Duke’s website. His research and teaching has focused on criminal justice outcomes, evidence and constitutional rights. He has also studied DNA exoneration, eyewitness identification and corporate crime.

Guerra Thompson, a native of Laredo, is an award-winning professor who directs the university’s Criminal Justice Institute for the UH law program, according to the UH website. Her scholarly work includes articles on wrongful convictions, eyewitness identification, forensic science, civil asset forfeiture, federal sentencing, discrimination in jury selection, prosecutorial ethics, police interrogations and immigration-related crimes.

She has played a key role in the transition to office for Mayor Sylvester Turner in 2016 and Harris County District Attorney Kim Ogg in 2017. She was a founding board member for the Houston Forensic Science Center and was tapped in 2009 by Gov. Rick Perry to serve on the Timothy Cole Advisory Panel on Wrongful Convictions.

Sounds like two good people for the job. It’s not totally clear to me what exactly their responsibilities will be, but I assume if things are not going the way they should, we’ll hear about it from them.

Endorsement watch: For Menefee

We have our first major endorsement against an incumbent as the Chron recommends Christian Menefee for County Attorney over Vince Ryan.

Christian Menefee

Harris County Attorney Vince Ryan’s decision to spend millions of dollars and waste precious legal resources to prolong the defense of an unconstitutional bail system raises serious questions about his judgment.

That Ryan still contends that the bail process was constitutional demands change.

This is a large part of why we recommend civil litigation attorney Christian Menefee in the March 3 Democratic primary for the job Ryan has held since 2008.

We were also impressed by promises made by Menefee, 31, to bring added energy and fresh perspective to the part of the job that goes beyond serving as a lawyer to county officials and judges. The county attorney also is responsible for using civil enforcement to protect neighborhoods, clean up the environment and shut down illegal enterprises.

“We need a relentless advocate who’s going to fight for the people of Harris County, all the people,” Menefee said in an interview with the Chronicle Editorial Board.

[…]

“I have great respect for Judge Rosenthal, but her finding of an unconstitutional system was, quite frankly, not something we agreed with,” Ryan told the Editorial Board, a stand that puts him in conflict with the courts and a growing body of legal reformers locally and across the country.

My interview with Vince Ryan is here, my interview with Christian Menefee is here, and my interview with Ben Rose is here. The Chron did endorse some challengers in judicial races, but this is a more significant decision. I’ve been saying for a long time that the bail lawsuit was going to be the main factor in this race, and however you feel about Vince Ryan – as I have said, I think he has been a pretty darned good County Attorney overall – Ryan has had to answer for this, and his answers have not been great. I don’t understand why the Chron didn’t stick to their position of strong support for bail reform in the primary between Judge George Powell and challenger Natalia Cornelio, but they are being consistent here. Again, I don’t know what the effect of the expected high turnout for the primary will be. I do expect that this issue has resonated with the Democratic electorate, but I don’t know how deep that goes.

The Observer overviews the DA primary

You’ve had a chance to listen to my interviews with DA candidates, now read this story for more on this important primary.

Kim Ogg

When Kim Ogg first ran for Harris County district attorney, she had a simple pitch for criminal justice reform: stop jailing people for petty pot possession. The position, novel to Houston politics in 2014, proved so popular that even her Republican opponent embraced a version of it. Ogg lost that first race, but she tried again in 2016, this time adding bail reform and a promise to create “a system that doesn’t oppress the poor” to her platform. She beat the incumbent by 8 percentage points to become Harris County’s first Democratic DA in 40 years.

Ogg was among the first wave of reform-minded “progressive prosecutors” elected across the country in recent years. This new class rejected a tough-on-crime ethos, advocating instead for fairness and jailing fewer people. Ogg quickly declared herself “part of the national reform movement” and started dismissing low-level marijuana charges for people who took a class and paid a fine. She also rejected so-called “trace cases” involving miniscule drug amounts and called for diversion instead of jail for small-time offenders. 

Over the course of her first term, however, progressives have soured on Ogg. While she publicly supported bail reform, she continued to seek high bail for people charged with minor offenses. She further disappointed them by objecting to historic bail reforms that followed a years-long lawsuit to end the practice of keeping low-level offenders in jail simply because they’re poor. Progressives have also bristled at Ogg’s repeated attempts to expand her office.

Now at the end of her first term, Ogg feels squeezed between opposing forces: a police union that accuses her of being soft on crime and critics on the left who say she’s failed to live up to her reputation. She’s facing a combative Democratic primary next month, flanked by challengers who insist that she’s stood in the way of progress during her first term. A Democratic sweep in the midterms that turned Harris County solid blue further emboldened local organizers who are seeking a new kind of reform prosecutor. 

While Ogg credits herself with boosting diversion programs and reducing prison sentences during her first term, her critics insist more fundamental changes are needed to fix yawning racial inequalities in the local justice system and to decarcerate one of the largest jails in the country. There was palpable tension between Ogg and the forces that helped elect her at a ACLU of Texas candidate forum in downtown Houston last Thursday. Some people in the standing-room-only crowd jeered as Ogg urged them to stick with her “balanced approach” to reform. After the forum, a woman walked up to Ogg and began arguing with her before campaign staffers quickly intervened.

In a phone call this week, Ogg sounded aggrieved and unappreciated, the way incumbents often do during tough re-election fights. “I started running before people in our local political arena even knew what a district attorney did,” she said. “Everything I wanted to do was a reformation of decades of static prosecutorial policy in Harris County. So of course I’m a reformer, and to be labeled otherwise—that’s a political issue more than a factual one.”

Ogg’s primary is one of several prosecutor races in Texas this year that could redefine the bounds of criminal justice reform in the state. As state lawmakers fail to make meaningful progress each legislative session, advocates for change have increasingly focused on amplifying key district attorney, judge, and sheriff races to transform how their communities are policed and prosecuted.

The article touches on the race in Travis County as well, where incumbent Margaret Moore is under similar fire. I have no idea what will happen in these races – they’re as prominent as any local election, but it’s hard to say how much of that breaks through in the non-stop fusillade of national political news – but they will have a significant effect in Harris and Travis Counties. A side issue I’ve been pondering, which I asked Audia Jones about when I spoke to her, is whether the Legislature (especially but not exclusively if it remains in Republican hands) will step in and try to impose some limits on what prosecutors can and can’t do. I can very easily see this as a red meat law-and-order issue for Dan Patrick (and, whenever someone wakes him up and reminds him that he’s Governor, Greg Abbott) in the 2021 session. I have no idea what they may try to do, but I’m sure their imagination won’t be so limited. Just something to keep in mind.

Endorsement watch: Ed again

This is an easy call.

Sheriff Ed Gonzalez

[Sheriff Ed] Gonzalez, 50, a soft-spoken Houston native, former councilman and 18-year veteran of the Houston Police Department, ran as a reformer and he hasn’t disappointed in his first term. From taking a bold stance in support of bail reform to minimizing the use of solitary confinement to expanding vocational programs to women in the jail, changes big and small have prioritized public safety as well as fairness and the dignity of inmates.

To address the opioid crisis, Gonzalez made the Harris County jail the first in Texas to offer Vivitrol, a drug that helps curb cravings and prevent relapses. In October, the jail began equipping departing inmates grant-funded supplies of the drug naloxone, which can save lives by reversing overdoses.

Certainly, bringing a jail of 8,500 inmates that was under two consent decrees when he took office into full compliance with state standards was no easy task. The sheriff has struggled at times to address vexing problems such as jail suicides, of which there were five in a span of two years. With new protocols in place, however, there have been none in the last year, a trend we hope continues.

[…]

Gonzalez’s track record and his drive to continue reform have earned our recommendation for sheriff in the Democratic primary.

They mention the recent cite and release policy as another reform effort Gonzalez has initiated. I think Sheriff Gonzalez has had a pretty darned solid first term, and he did not draw serious opposition. Like I said, this is an easy call.

Cite and release

This has been a long time coming.

Sheriff Ed Gonzalez

Harris County law enforcement officials on Tuesday will begin a “cite and release” program that treats some misdemeanor charges like court citations for speeding tickets, just days after the district attorney’s office said it could not fully comply with the initiative.

The program, which applies to six charges handled in Harris County’s misdemeanor courts, comes amid countywide discussions about bail reform and over-incarceration, as well as District Attorney Kim Ogg’s repeated requests that Harris County Commissioners Court fund more prosecutors for her office.

The Harris County Sheriff’s Office is the first policing agency in the area that is reported to be participating in the program approved by a working group that includes judges. After voicing concerns in a letter to the sheriff, Ogg’s office agreed to the new procedures.

Ogg’s office sent the Chronicle a copy of the letter but declined further comment.

Sheriff Ed Gonzalez noted that Harris County is behind the curve on using cite and release, as other Texas counties began employing it after the state Legislature in 2007 authorized such programs. The hope is that fewer bookings will allow deputies to have more time to patrol neighborhoods, while people who are eligible can stay with their families and keep going to work, he said.

“This administrative policy should help reduce our pre-trial county jail population and provide local costs savings to taxpayers,” the sheriff said. “Citations can divert lower risk individuals from detention, reserving limited space and resources for more dangerous individuals.”

The class A and B misdemeanor charges that apply are criminal mischief, $100-$750; graffiti, $100-$2,500; theft, $100-$750; theft of service $100-$750; contraband in a correctional facility; and driving while license invalid.

If a resident is stopped on one of those offenses, the sheriff’s office will run a check for active warrants and contact the district attorney’s office to see if the person is eligible for cite and release, according to an internal memo about the procedures.

Once prosecutors accept the charges, the deputy completes the citation as long as it’s signed off by the defendant. The suspect is given a court date on the spot and then released.

These are exactly the types of defendants who would be at the top of the list for a personal recognizance bond, so it makes sense to treat them this way. I feel like we’ve been talking about this for a long time, including with HPD, but it just hasn’t happened before now. As the story notes it’s happened as a direct result of the 2018 election, as the Democratic misdemeanor court judges were a driving force behind it. This is the moment, and it’s clearly the way to go. And now that the Sheriff’s office has adopted this policy, maybe HPD will follow.

Judge officially approves final Harris County bail settlement

It’s officially finally final and official.

A federal judge has signed off on a historic bail reform agreement for Harris County, setting in place new protections for people accused of minor offenses in the country’s third largest criminal justice system.

The sweeping agreement and consent decree, officially approved Thursday by Chief U.S. District Judge Lee H. Rosenthal, seeks to level the playing field for the thousands of people arrested each year on misdemeanor charges. For years, judges jailed poor people by default while they awaited trial, while those with money to cover bail could walk free and return to their families and livelihoods.

[…]

Rosenthal wrote that her ruling was rooted in extensive legal findings over the past three years.

“No system can guarantee that all those accused of misdemeanors who are released on personal bonds — rich or poor — will appear for hearings or trial, or that they will commit no crimes on release,” Rosenthal said in a 55-page opinion. “No system can guarantee that all those accused of misdemeanors who are detained pending trial — rich or poor — should have been detained. But Harris County … can stop systematically depriving indigent misdemeanor defendants of their constitutionally-protected rights by detaining them simply because they cannot afford to post money bail.”

Her opinion acknowledged the objections brought up by “amici,” or friends of the court, including the state Attorney General’s Office, District Attorney Kim Ogg and County Commissioner Steve Radack, who voiced concerns at the final hearing that the deal limited judicial discretion and did not do enough to ensure the safety of communities.

“The court does not question the amici and objectors’ good faith,” she wrote. “The public safety and public resource concerns they raise are important.

“The proposed consent decree and settlement agreement are approved because these concerns are fully recognized and addressed,” the opinion said.

Harris County Judge Lina Hidalgo issued a statement following the judge’s decision, saying it “puts to rest the arguments used to instill fear regarding the impact of bail reform.”

“We do not have to choose between protecting the constitutional rights of defendants and protecting public safety,” she said. “In fact, by reforming our broken bail system, we are taking a step toward rebuilding trust between our system of justice and the residents it serves.”

Precinct 1 Commissioner Rodney Ellis said: “After decades of harmful injustice and three years of a legal battle waged in defense of our core principles of liberty, equal treatment and due process for all — no matter how much money you have or the color of your skin — Harris County’s oppressive and discriminatory misdemeanor cash bail practices are ending.”

You know the story by now. At this point, we need to focus on making this work as it is supposed to, to ensuring that we are making adjustments to the risk assessment tool as needed, and just generally measuring everything so a year from now we can present some metrics to show how it all has gone. There are still political fights to be had – just ask the people running against Vince Ryan and Kim Ogg, for starters, and the Lege still needs to address bail reform in a meaningful way – and there are still legal fights to be had – the second bail lawsuit, which is about felony defendants, and the Dallas County bail lawsuit, among others – but this was a huge step forward. A copy of the consent decree is here, and a copy of the settlement agreement is here. Kudos to everyone who helped make this happen.

Last bail lawsuit hearing

At least I assume it’s the last one. I’ve been thinking this was all over but for the formality for months now, so what do I know?

Dianna Williams has witnessed the “collateral damage” of jailing on the fabric of a family. The 61-year-old criminal justice advocate told a federal judge Monday that for generations, her relatives lived paycheck to paycheck and could not afford cash bail when her father and then her brother and her son were held pretrial on low level drug charges.

Mary Nan Huffman offered an opposing take to the judge presiding over a deal upending Harris County money bail for low level offenses. She recounted how her friend was walking with her 3-month-old when a man in a red truck trailed her and later showed up in her yard, masturbating with a knife in his hand. Under the new bail deal, the man would never see a judge and no one would hear that he was a three-time felon who’d been to prison for rape, indecent exposure or kidnapping, said Huffman, a spokesperson for Houston Police Officers’ Union.

Ultimately, the sheriff who oversees the third largest jail in the country sought to assuage fears of constituents on both sides of this contentious issue, telling Chief U.S. District Judge Lee H. Rosenthal the consent decree approved last summer provides fundamental guarantees of justice enshrined in American law and warning against the inclination to let scary scenarios involving particular cases be the foundation of a bail system.

“I don’t think it’s effective for us to develop public policy on outliers,” Sheriff Ed Gonzalez said during the court gathering known as a fairness hearing. “We have to rely on research and facts.”

The hearing attended by six misdemeanor judges who support the historic settlement and three commissioners court members, two of whom oppose it, and about 100 stakeholders lasted three hours, with the judge saying she would consider the input and issue an order soon.

[…]

In a typical class action, a fairness hearing offers class members a chance to express concerns with a settlement. The hearing Monday was unique in that nearly all the speakers were not parties in the lawsuit.

Here’s a preview story of the hearing. I think we all know the basic outline at this point, so all I really care about is when we’ll get the final order from Judge Rosenthal. And then we can relitigate everything in the 2020 elections.

Ogg continues to have problems with the bail settlement

I don’t like this.

Kim Ogg

District Attorney Kim Ogg is rallying police officers across Harris County to show up in federal court en masse to oppose to a landmark bail reform agreement at a final hearing set for this month.

She emailed about 100 police chiefs to invite them to attend an Oct. 28 court proceeding before Chief U.S. District Judge Lee Rosenthal to lend support on an issue she says “endangers the public.”

In addition to recruiting top brass to the hearing, Ogg also requested that her lieutenants be present to support her concerns about portions of the settlement that allowed most defendants arrested on minor offenses to await trial at home without posting up-front cash bail, according to her spokesman, Dane Schiller.

Ogg expressed misgivings about the proposed consent decree approved last summer by Commissioners Court after months of intensive meetings between county leaders, judges and the lawyers for the plaintiffs in the 2016 class action.

Ogg, who is not a defendant in the lawsuit, is among a number of parties, including many from the bail bond industry, who submitted concerns about the settlement in court during the summer.

“The district attorney has always supported bail reform, so that nobody is held just because they are poor, but she also says public safety should always be considered,” Schiller said.

[…]

The county public defender, who has been friends with Ogg since law school, said he suspects Ogg’s approach will be perceived as overkill by Rosenthal, the region’s highest ranking lifetime appointee to the federal bench.

“A courtroom full of police officers is not going to intimidate her,” said Harris County Public Defender Alex Bunin. “She might be insulted that they would do that to her.”

“It’s over the top, and this kind of bravado backfires every time,” Bunin added. He said the majority of the concerns Ogg raised were resolved by a judicial rule passed in January.

See here and here for the background. I agree with Alex Bunin here, this is not going to help and will serve as fuel for Ogg’s primary opponents. The fears being expressed are overblown, and frankly it’s fine by me if the county has to experience a little inconvenience to accommodate a non-violent offender who need assistance getting back to court. As I’ve said before, I’d much rather pay for an Uber for that guy than pay to feed, clothe, and house him for some number of weeks or months. Maybe – stay with me here – we could arrest fewer of these non-violent mostly drug offenders in the first place, which would go a long way towards reducing inconvenience for everyone. In the meantime, the bail agreement is in place and it is going to be the law. Let’s all do what we can to make it work.

Galveston ordered to provide counsel at bail hearings

Sure seems like the proper thing to do.

Add Galveston to the list of Texas counties that have been court ordered to change their bail practices.

A federal district judge on Wednesday issued a temporary injunction in a 2018 lawsuit where attorneys for inmates have called Galveston County’s money bail system discriminatory against poor criminal defendants. The court’s order doesn’t target the entire pretrial system — which has largely changed since the suit was filed after federal rulings against Harris County. But it requires poor arrestees to have a lawyer at their first court appearance, where their bail is set to determine the monetary or other conditions under which an arrestee can be released from jail before trial.

The ACLU of Texas, which represents Galveston County inmates in the lawsuit, said in a statement after the order that it was the first court in the country to conclude that the Sixth Amendment, which guarantees a right to counsel, requires defense attorneys to be provided at initial bail-setting hearings.

“It’s a matter of basic fairness that you should get a lawyer before a judge decides whether to lock you in jail,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Unsurprisingly, without lawyers to advocate for their release, many people wind up in jail who shouldn’t be there. And even a short time in jail can have devastating repercussions on someone’s life.”

[…]

Since the lawsuit was filed — and as the two most populous counties in the state were repeatedly slammed by federal judges for their bail practices — Galveston County has transformed its pretrial practices. The district attorney’s office still recommends bail amounts from a schedule, but the judicial officer setting bail now has financial information the defendant provided before the first court appearance. Defendants who want to request a lower bond amount for financial reasons can get a second bail review hearing, typically within 12 hours of their first court appearance, where a defense attorney is present to represent all the defendants before the judge in that time slot.

U.S. District Judge George Hanks Jr.’s injunction, however, said the county needs to have a lawyer not just at the review hearings, but at the initial court appearance. He clarified that the order applies to those arrested without warrants and that are first seen in court through Galveston County jail. Hanks adopted the recommendation of magistrate judge Andrew Edison, who said having a defense attorney at a hearing where the court determines how, if at all, to release a defendant before trial, is “a no-brainer.”

See here and here for the background. A copy of the ruling is here and a copy of the magistrate’s recommendations is here. I have to say, I don’t know what the argument against providing an attorney for defendants at bail hearings is, but we’ll find out if there’s an appeal. The Chron has more.

One more step towards the bail lawsuit settlement

We’re almost there. I know it feels like we’ve been there for awhile and are just waiting for it all to become official, but there were still a few checkpoints to get through first, and this is one of them.

In a move that signals she will likely approve a landmark bail agreement, a federal judge in Houston issued a lengthy opinion Thursday meticulously addressing concerns raised by outside parties to the proposed consent decree that would govern bail practices in Harris County for the next seven years.

The 55-page document from Chief U.S. District Judge Lee H. Rosenthal is not the norm in that preliminary approvals at this point in most class action suits usually take up half a page, at most two pages, according to lawyers familiar with typical dockets.

In the opinion, the judge addresses whether the deal was properly negotiated, whether it addressed the needs of all parties and whether the solution was adequate given the potential delays, costs and impact on public safety.

Specifically, she said the plan hit on the key factors required: it addressed the constitutional violations, protected poor defendants, safeguarded the public and reduced the chances that defendants would miss hearings.

While atypical, Rosenthal’s comprehensive memorandum and opinion are in keeping with how the judge runs her office, according to a former law clerk who served in the Houston federal courthouse.

“I’d say this is pretty standard for a judge who is thorough to a fault,” the former clerk said. “It definitely signals ultimate approval, but the point isn’t to telegraph.”

The clerk, who asked to remain anonymous, continued, “It’s simply to respond to the filings in a complete and timely way.”

[…]

Two county commissioners who opposed the resolution — Jack Cagle and Steve Radack — submitted their concerns to the judge along with District Attorney Kim Ogg, the Pasadena police chief and several organizations. The objectors included the Harris County Deputies’ Organization, the Houston Area Police Chiefs Association, the Texas School District Police Chiefs’Association, the Professional Bondsmen of Harris County, Equal Justice Now, Crime Stoppers of Houston, Inc. and the Harris County Domestic Violence Coordinating Council.

The parties directly involved in the case then submitted detailed responses to these amicus or “friend of the court” briefs.

Rosenthal said “the amicus briefs and objections do not identify an adequate basis to deny preliminary approval of the proposed settlement and consent decree.”

See here for the background. Ogg, who continues to talk about the imminent settlement in a way that makes one think she’s asking for trouble in her forthcoming primary election, made a statement about how it’s now all up to the judges to make this work. It’s always been all up to the judges, it’s just that in the past they did a lousy job of that. There’s a “final fairness hearing” set for October 21, and I’m guessing we’ll get the officially signed and sanctioned settlement agreement some time after that. I’m ready for this to be over and done.

More ways to improve access to voting

In Harris County:

Inmates of the Harris County Jail may soon be able to vote. Harris County leaders have approved a study on setting up a polling location at the jail as early as this November.

The County Clerk’s and Sheriff’s Offices will explore if they can set up a polling location at the jail in time for this Election Day. Commissioner Adrian Garcia proposed the measure.

“It’s their constitutional right, and so we need to make sure that we’re following that particular law,” Garcia said.

Commissioner Rodney Ellis seconded the proposal, which passed along party lines in a three-to-two vote. “Remember, the ones sitting in the jail haven’t been convicted yet, unless they’ve been convicted of something else,” Ellis said. “And for what it’s worth, there may be people in line to visit them who can vote.”

If you don’t like this idea, then I have good news for you: The bail lawsuit settlement means that there will be far fewer inmates in the jail who might get to take advantage of this. Just remember, you don’t lose your right to vote until you plead guilty to or are found guilty of a felony, and if that happens you’re going to a state prison, not the county jail. If you’re in the jail awaiting trial or serving a misdemeanor sentence, you’re still a legal voter.

From Bexar County:

[County Commissioner Justin] Rodriguez, a former Democratic member of the Texas House, is asking the Bexar Commissioner’s Court to form an advisory committee to identify improvements to the county’s voting procedures, step up voter education and drive higher turnout. He hopes the group — made up of residents and members of nonprofits and other stakeholders — can make progress on that work ahead of the November 2020 presidential election.

“It doesn’t seem like we’re getting much help from state leaders on how to best administer elections or get people out to vote,” said Rodriguez, who worked with voter-turnout group MOVE Texas to formulate his plan. “I think the best solution for us is to act locally.”

[…]

Rodriguez said he’s confident he has the votes on County Commissioner’s court to support his measure and start assembling the committee in coming weeks.

As that story notes, Bexar County is also implementing voting centers this year. I don’t know what Commissioner Rodriguez and his committee will come up with, but I hope we keep an eye on them here in Harris. I’m sure we’ll be able to learn something from their experience.

UPDATE: Received the following email from County Clerk Diane Trautman:

“Due to the Labor Day holiday and other prior commitments, the Harris County Clerk and Sheriff’s offices are still in the exploratory stage of determining the best way to meet the voting needs of Harris County residents that are in jail. Determining a new voting location requires several steps and usually takes many months to confirm. This process includes wifi connectivity, ADA compliance, available parking, legality of location, and availability of location. Due to voting locations already being set for the upcoming November election, the ballot by mail program will be the best voting option for those who are incarcerated in the November election.”

For more information please email [email protected]

Hopefully this can happen in time for 2020.

The felony judges who abused the bail system

Shame on them all.

Three sitting judges and eight former district judges in Harris County were publicly admonished by the State Commission on Judicial Conduct in response to complaints that for years they violated state law and judicial cannons by ordering hearing officers to deny no-cost bail to thousands of poor defendants.

But the actions this week came too late to affect most jurists’ behavior on the bench. Seven left their district seats last year either because they didn’t run or lost elections. One lost re-election back in 2016.

The misconduct probes of all 11 judges began in February 2018, when the Houston Chronicle obtained copies of memos and notes that showed that for a full decade most of Harris County’s felony court judges had provided different types of written or verbal instructions to the county’s hearing officers to routinely deny no-cash bail to all or most newly-arrested defendants.

The agency’s findings confirm most bans were in effect for years and largely went unnoticed and unchallenged until 2017 when Harris County judges and other officials were civilly sued in federal court for allegedly violating the rights of poor defendants by routinely failing to provide no-cost bail in many misdemeanor as well as felony cases.(The county is now in the process of settling that lawsuit).

In its August disciplinary orders, the commission concluded that through various actions all 11 Harris County district judges willfully violated judicial cannons and also “failed to comply with the law and failed to maintain competence in the law” by instructing hearing officers not to issue personal bonds even though under state law the hearing officers had the authority and duty to do so, the orders say. Under state laws and ethical cannons, the hearing officers are supposed to consider each defendant’s case and circumstances individually.

Let’s be clear here: These judges were found by the State Commission on Judicial Conduct not just to have violated rules of conduct that they are expected to follow, they actually broke the law by systematically denying personal recognizance bonds to poor defendants. This is serious stuff.

You may say “but these are FELONY defendants!” Sure, but it’s still the case that some number of them will never be convicted of a crime. Some of them will agree to a plea deal for a misdemeanor or lesser felony for which the sentence includes no jail time. Some, regardless of how their case gets adjudicated, represent little to no risk to public safety. How big a risk they are to public safety is completely unrelated to how much cash or collateral they can scrape up to buy their way out of jail. Again, Robert Durst got bailed out. There remains a bail lawsuit in Harris County over the practices in the felony courts, and there’s a similar lawsuit in Dallas that’s working its way towards a resolution. Standard practices are going to change, because they have to change.

The judges who were admonished included former longtime Harris County District Judge Michael McSpadden, who retired last year after many years presiding over the 209th District Court. The commission found McSpadden had, like many other longtime judges, issued blanket instructions to deny all personal recognizance or PR bond requests from Nov. 20, 2009 to Feb. 1, 2017. McSpadden had previously written a letter to the Houston Chronicle in March 2018 where he admitted that “it is true I have instructed the magistrates not to grant these bonds in our felony cases to all defendants, never specifying a certain race or gender.”

McSpadden told the Chronicle on Thursday that he stands behind his decision to deny PR bonds even if it violated the law.

“I have great respect for the work of the commission. But I still feel the same way. I, as the elected judge, would like to make the decision on free bonds for accused felons rather than turn those important duties over to the magistrates. And it would take one more day to do this,” he said.

[…]

The three active Harris County District Judges who were admonished were: Hazel Jones, of the 174th District Court, Herb Richie of the 337th District Court and George Powell of the 351st District Court.

Michael McSpadden’s first duty as a judge was to follow the law. He did not do that. I don’t give a crap what his feelings were. He failed to do his job, and I am glad he is no longer on the bench.

I am not happy that three Democratic judges were also found to be doing this. All three are up for election next year, and there are no more Republican judges on the district or county courts for Democrats to aim for. But we can still perform upgrades, and these courts are at the front of the line for that. Democrats with a criminal justice background, an interest in becoming a judge, and a commitment to following the law, should look here first.

(Obligatory copy editing nitpick: A “cannon” is a big gun. A “canon” is a fundamental principle or general rule, and is the thing that these judges violated. Spelling counts, y’all.)

Commissioners Court approves bail lawsuit settlement

Excellent.

Harris County Commissioners Court approved a historic settlement Tuesday fixing a bail system a federal judge found unconstitutional and ushering in a new era for criminal justice in one of the nation’s largest metropolitan areas.

The deal resulted from months of intensive negotiations between the county and lawyers for indigent misdemeanor defendants who sued over a two-tiered system that jailed people prior to trial if they couldn’t pay up front cash bail but allowed people with similar backgrounds and charges to resume their lives and await trial at home.

“This was the result of careful negotiation,” County Judge Lina Hidalgo said just before the commissioner’s voted 3-2 to approve the deal.

The vote split along party lines. Commissioners Jack Cagle and Steve Radack, the only Republicans now on the the commissioners court, voted against it.

The settlement agreement — which still must be approved by a federal judge — installs a monitor to oversee the new bail protocol for seven years. It provides comprehensive public defense services and safeguards to help ensure defendants show up for court. It will allow about 85 percent of people arrested on misdemeanors to avoid pretrial detention. The settlement also calls for transparent data collection, which will allow the county to keep better track of what’s working and what isn’t.

You know the background, so see here for the previous update. I can only wonder what would have happened in a world where Democrats swept the judicial races but failed to win those two seats on Commissioners Court. I feel pretty confident saying that as of July 30 in that alternate universe, there would not be an agreement in place. Elections, they do have consequences. Congratulations one and all for getting this done.

Final bail settlement reached

We are coming to the end of a very long road.

A long-awaited settlement in Harris County’s historic bail lawsuit won tentative approval Friday from all parties, setting up a possible end to a contentious system that kept poor people behind bars on low-level charges while those with money could walk free.

The agreement — if approved by a federal judge and county officials — would formally adopt the judge’s findings and modernize the way local officials handle bail hearings for the steady stream of people arrested every day on misdemeanors.

Key reforms in the lengthy consent decree include revised judicial protocol, access to more public defense services, open court hours for defendants to clear or prevent warrants, as well as text reminders about hearings and a bail education program for officials and the public. The county will have a court-appointed monitor for seven years to oversee implementation.

The county also would agree to pay about $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit. An additional $2.1 million in legal fees has been waived by the Susman Godfrey firm.

Commissioner Rodney Ellis, who has championed bail and criminal justice reform for decades, called the agreement one of the highlights of his career.

“It’s a major civil rights victory that will have national implications,” Ellis said. “This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”

The deal could provide a road map for other jurisdictions around the country to rethink their bail systems amid widespread overcrowding and a nationwide push for criminal justice reform.

Commissioners Court is set to vote Tuesday on the proposed deal. Chief U.S. District Judge Lee H. Rosenthal could then consider approving it after a hearing Aug. 21.

See here for some background. I got a press release from the Texas Organizing Project on Thursday about this, so I’ve been eagerly awaiting the news story. I can predict with confidence that Commissioners Court will approve this by a 3-2 margin. Elections have consequences. Kudos to everyone who worked hard to make this happen.

The Sandra Bland cellphone video

Wow.

Sandra Bland

New cellphone footage from the now infamous traffic stop of Sandra Bland shows her perspective when a Texas state trooper points a Taser and yells, “I will light you up!”

Bland, 28, was found dead three days later in her Waller County jail cell near Houston. Her death was ruled a suicide.

The new video — released as part of a WFAA-TV exclusive in partnership with the Investigative Network — fuels the Bland family’s suspicions that Texas officials withheld evidence in her controversial arrest and, later, her death.

Until now, the trooper’s dashcam footage was believed to be the only full recording of the July 2015 traffic stop, which ended in Bland’s arrest. The trooper claimed he feared for his safety during the stop.

The 39-second cellphone video shot by Bland remained in the hands of investigators until the Investigative Network obtained the video once the criminal investigation closed.

Bland’s family members said they never saw the video before and are calling for Texas officials to reexamine the criminal case against the trooper who arrested Bland, which sparked outrage across the country.

“Open up the case, period,” Bland’s sister Shante Needham said when shown the video.

Read the rest, and read this interview with Sharon Cooper, also a sister of Sandra Bland. It doesn’t look like there will be any reopening of the case, but for sure we need to know why this video hadn’t come to light before now. It’s hard to accept official explanations of tragedies like this when that explanation suddenly changes a couple of years later. We have to know that we have all the available information, and that there are no more surprises lurking in an evidence box somewhere.

House passes a bail reform bill

For what it’s worth.

Rep. Kyle Kacal

The Texas House gave an initial stamp of approval Thursday to a bill that addresses bail practices, which courts recently deemed unconstitutional in the state’s two most populous counties for discriminating against poor criminal defendants who can’t pay for their release from jail.

But a last-minute amendment actually limits who can be released from behind bars without having cash.

Reform advocates have called for a system that could get poor, nonviolent defendants out of jail before their trial, but the amendment by state Rep. Oscar Longoria, D-Mission, is more restrictive than current law on no-cost releases. It would not allow judicial officers to release defendants on no-cost bonds for numerous reasons, including if they haven’t shown up to a court hearing in the previous two years, were charged with a violent offense or were charged with a crime that involves more than 4 grams of a controlled substance.

House Bill 2020 was one of several bail reform measures filed this year after federal court rulings, jail deaths and a state trooper’s murder drew attention to Texas’ pretrial jailing practices after the last legislative session. As it was presented to the chamber, the bill would have required officials to consider a defendant’s risk of danger or skipping court before making bail decisions. The successful amendment nixed that requirement if a defendant is released on a preset bail amount.

The bill’s author, state Rep. Kyle Kacal, R-College Station, said he worked in coordination with Republican Gov. Greg Abbott’s office on the measure, but it has changed significantly since it was filed in March. One of the most notable revisions before coming to the floor was that it no longer puts the power over systemic bail changes under the governor’s office.

[…]

Longoria’s amendment drastically alters the bill, but he emphasized that the move to restrict release for defendants on personal bonds — which have no upfront cost — for some defendants was based on safety, noting that it limited no-cost release for sexual assault and family violence offenses.

“It was more of a community safety issue,” he told The Texas Tribune after the bill passed. “A lot of judges don’t have the proper training to basically admonish the defendants and set proper bond.”

The amendment went against what many advocates have pushed for, and Marc Levin with the Texas Public Policy Foundation, a conservative think tank, said he would push to have the Senate remove it if the bill finally passes the House.

“It certainly would contribute to inequality in the system, and it could contribute to dangerous people who have money being released when they shouldn’t,” he said.

Some bail reform advocates have also criticized the bill for still relying on money bail instead of presuming release on no-cost bonds for nonviolent defendants. At a hearing last month, the criminal justice advocacy group Texas Fair Defense Project claimed the bill at that time didn’t adequately address federal court rulings that said Harris and Dallas counties’ bail practices kept people in jail simply because they were too poor to pay their bonds, and the group called for individual bail hearings within two days. The organization also said the bill’s requirement of a risk assessment would prohibit judges from automatically releasing from jail most misdemeanor defendants on a no-cost bond. Newly elected judges in Harris County adopted that practice amid legal woes the county faced from the federal ruling.

“We would like to see … that they’re still allowed to make a decision to automatically release defendants on really low-level, nonviolent offense,” Emily Gerrick, a staff attorney for the organization, said at the hearing.

Amendments to allow counties to release defendants on no-cost bonds before a risk assessment and to address the court rulings that called for individualized bail hearings failed Thursday.

See here and here for the background. Earlier bills by Rep. Andrew Murr and Sen. John Whitmire appear to be dead at this point, so it’s this bill or nothing. Grits believes none of these bills were going to address the main constitutional flaws in the existing system, which should be clarified in the coming months by the Fifth Circuit. After reading through this story, I’m inclined to agree. If this bill falls short of what the court is likely to order, what’s the point? Whatever the case, it’s up to the Senate now.

We need more than just bail reform

Bail reform is based on the radical idea that locking up non-violent, low-risk people who have been arrested on minor charges is a very bad and very expensive thing to do. But let’s take a step back from that and note that lots of people get arrested for things they shouldn’t get arrested for.

As the House Criminal Jurisprudence Committee today prepares to hear HB 2754 (White), the committee substitute to which would limit most Class C misdemeanor arrests (with certain public safety exceptions), Just Liberty put out a new analysis of data titled, “Thousands of Sandra Blands: Analyzing Class-C-misdemeanor arrests and use-of-force at Texas traffic stops.”

The analysis relies on the new racial profiling reports which came out March 1st, analyzing information for Texas police departments in cities with more than 50,000 people, and sheriffs in counties with more than 100,000. Here’s the table from Appendix One of the report with the underlying data.

Readers will recall that new detail about Class-C arrests, use of force, and outcomes of searches were added to the report as part of the Sandra Bland Actpassed in 2017. But the provision to restrict Class C arrests was removed before the law was passed. So HB 2754 amounts to unfinished business for those concerned about what happened to Sandra Bland.

Our findings: The practice of arresting drivers for Class C misdemeanors – not warrants, and not more serious offenses – is more widespread than portrayed by law enforcement. The 96 police and sheriffs in our sample arrested people nearly 23,000 times for Class-C misdemeanors last year, with the Texas Department of Public Safety accounting for nearly 5,000 more.

[…]

These data represent fewer than 100 law enforcement agencies, but more than 2,000 agencies must submit racial profiling reports because they perform traffic stops in come capacity. Agencies in our dataset represent the largest jurisdictions, but not all by a longshot. If we assume that these departments plus DPS represent 60 percent of traffic stops in the state, and that the average arrest rate for the other 40 percent is the same as in this sample, then Texas law enforcement agencies arrested more than 45,000 people at traffic stops statewide last year, the report estimated.

These higher-than-previously-understood estimates are corroborated by Texas Appleseed’s recent analysis of jail bookings. Examining data from eleven (11) counties, they found more than 30,000 jail bookings where Class C misdemeanors (not warrants) were the highest charge. The difference between analyzing jail bookings and racial-profiling data is that jail bookings include Class C arrests which happened anywhere. The racial profiling reports Just Liberty analyzed only consider arrests made during traffic stops.

Taken together, these analyses demonstrate that the overall number of Class C arrests is much higher than anyone ever imagined when this topic has been discussed in the past.

The full report is here. It’s short, so go read it. How many people over the years do you think have spent time in the Harris County Jail because of a traffic stop? How many millions of your taxes do you think went to keeping them there?