Harris criminal courthouse called "Grand Central Station for Houston's misery"

Patti Hart at the Houston Chronicle has a column today describing the central dilemma behind a real source of innocents convicted of petty offenses as well as overcrowded jails. It opens:

I've come to think of the Harris County Criminal Justice Center as Grand Central Station for Houston's misery, an opinion that was only hardened when I recently spent a few mornings observing our courts handle jail inmates charged with misdemeanors.

Every day about mid-morning in Harris County's 15 Criminal Courts-at-law, a door swings open and six to 10 men wearing orange jail jumpsuits, usually shackled together in a long train, are directed by a sheriff's deputy to march in front of the judge's bench. (Women are handled separately, and often appear alone.)

Responding to a (frequently bored-sounding) judge who appears to be reading from a script, they all plead guilty. The question-"How do you plead?" - is a rhetorical one, of course. The judge, the prosecutors, the court-appointed lawyers, in fact, everyone in the courthouse knows that these criminal defendants have been offered a Hobson's choice. That is, no choice at all: Take a guilty plea, or sit in jail until you can have a trial and plead not guilty. When that time rolls around, you'll have spent more time in the slammer than if you pled guilty.

She points to a report published last year from Houston Ministers Against Crime which:

concluded that expediency seems to dominate equity. Instead of taking into account a defendant's economic circumstances, as required by the state "Harris County rarely deviates from its predetermined bail schedules." Jailing people who have not yet been convicted of even a petty crime is unjust - and costly to taxpayers, the report said. "The rigidity of these rules contributes to high pre-trial detention rates in Harris County and exacerbates the County's budget woes."

See the full report (pdf).

See also related Grits posts:

• Harris jail noncompliance caused by use of pretrial detention to coerce plea deals
• Bail bondsmen not hurting for business in Harris County
• Bail bond industry seeks to retain monopoly
• Reduce Harris County Jail costs through smarter policies
• Increased Harris County Jail costs, inmate numbers third highest in nation over last decade
• Reduce pretrial detention to stave off overcrowding
• Elected Officials Guide to Jail Population Management
• Judges have tools to reduce Harris jail overcrowding if they'll use them
• Counties that rejected new jails must now get serious about diversion
• Pretrial detention, unnecessary incarceration driving Texas jail overcrowding
• Bail blunders boost bulging Harris jail population
• Extra bail conditions: When tough on crime means tough on taxpayers
• Should county government subsidize bail bond companies?
• Lack of counsel, information are bail barriers

Bail Fail: Tarrant collected less than 20% of forfeited bonds on absconders

The Fort Worth Star-Telegram has been publishing an excellent series on bail bond practices in Tarrant County (replicating for Cowtown work done in Dallas by the Morning News):

• Millions of dollars go uncollected in Tarrant County bond system
• Defendants, bondsmen sometimes get off the hook in Tarrant County
• Bail bond system rife with controversy about preferential treatment

Here's a typical tidbit from the first story:

critics question the effectiveness of the county's criminal justice system when forfeitures amounting to millions of dollars go uncollected.

"If the bondsman never has to pay a penalty, then what is the point of having bail bonds?" said Mark Holtschneider, executive vice president and general counsel for Lexington National, a Maryland-based bail bond surety company. "The forfeiture must be enforced."

Read more here: http://www.star-telegram.com/2012/04/01/3850904/millions-of-dollars-go-uncollected.html#storylink=cpy

Tarrant County collects less than 20% of forfeited bonds, repored the Startlegram: "In the past three years, as a consequence of legal machinations or mishaps such as losing track of cases, the county has collected less than $1 million on about $5 million in forfeited bail bonds for felony cases where defendants were missing for 270 days or more, records show."

The bail system in general is an anachronism that Grits believes should be reconsidered soup to nuts. The rest of the planet has abandoned the system, and even feds don't use private bail bondsmen anymore, for example, but rely on risk assessments performed by their own pretrial services staff. By substituting access to money for risk assessment, bail is responsible for errors at both extremes: Too often dangerous criminals are released when they can afford to post bond, while others who pose no threat or flight risk languish in jail awaiting trial because they cannot pay, with taxpayers picking up the tab. That's especially true when counties use one-size-fits-all bail schedules instead of tailoring bail to the defendant.

So I'm not a fan of the surety bond system, even when it works as it's intended. But if counties aren't even enforcing bond forfeitures when defendants abscond, there's no justification whatsoever for the "service" bail bondsmen provide. It becomes just another government giveaway to special interests, letting bond companies bleed criminal defendants for cash without holding them responsible for their clients' supervision.

Read more here: http://www.star-telegram.com/2012/04/01/3850904/millions-of-dollars-go-uncollected.html#storylink=cpy

Liberty County lowers jail pop nearly 2/3, private contractor wants to up rates, county may de-privatize

Remarkably, Liberty County has reduced its local jail population by nearly 2/3 since early 2011 simply by issuing more personal bonds to low-risk defendants, reported the Cleveland Advocate ("County's jail population down, but companies now asking for more money per inmate," Jan. 22):

Liberty County is already seeing a reduction in costs for the operation of the county jail thanks to a plan initiated by 253rd District Court Judge Chap B. Cain and supported by County Judge Craig McNair, County Court-at-Law Judge Tommy Chambers and 75th District Court Judge Mark Morefield to reduce the inmate population. Morefield discussed the plan as guest speaker of the Cleveland Rotary Club luncheon on Jan. 18

According to Morefield, at the time the plan was put into place, the county was spending 11 percent of its total budget, around $3.85 million, to fund the county jail. Much of the burden had to do with the fact that non-violent offenders were not being released because they were unable to pay their bond.

“It is not about overcrowding. It’s about the expense to the county and ultimately the taxpayers of Liberty County,” said Morefield. “The plan is designed to release low-risk inmates. Give them a PR (personal recognizance) bond and get them out of jail and off the fee list. With PR bonds, there hasn’t always been oversight, but our plan alleviates some of the concern.”

In early 2011, there were 372 male and female inmates in the county jail. For each inmate, the county was required to pay $46.50 to the company contracted to manage the jail, Community Education Centers (CEC).

That equated to around $17,000 per day in costs to the county for housing the inmates.

When the judges met in April prior to the plan being implemented, the inmate population had dropped, but the cost to the county was still around $10,000 per day. According to Morefield, the recent inmate population has dropped to 132.

“That is still not sufficient. We ought to be able to get it down to 100-110,” he said.

While saving county taxpayers is the objective of the plan, the judges are not totally focused on money matters.

“We would never sacrifice the safety of our citizens for economy,” said Morefield.

Liberty County's approach works for one simple reason: The local judiciary led the effort and that's who actually makes the decision regarding whether defendants must put up bail. Any objections by local bail bond companies were apparently overruled and the DA, judging from comments in the article, didn't fight the change, so this is a model that may not be replicable elsewhere.

There's a kicker, though: The private prison company which manages the facility, alarmed by declining inmate numbers (and the state's closure of a small intermediate sanctions faciliity housed at the jail), wants to raise the county's per-inmate rate, wiping out savings to the taxpayer from all their hard work. Reported the Advocate's Vanessa Brasher:

The judges’ plan, having saved the taxpayers millions, may have inadvertently forced the county to no longer outsource the jail’s operation.

The county is currently accepting bids for the jail contract. Morefield said companies submitting bids are apparently aware of the judges’ inmate reduction plan. All of the bids received so far are set on a sliding fee scale.

“One bid said that if the inmate population goes below 200, the cost per inmate goes from $63 to $68 per day. If we work really hard to decrease the inmate population, the cost will go up to $70 per day,” said Morefield. “They are taking all the incentive out of it.”

Morefield feels the county is capable of managing its own jail.

“The prevailing thought any time the government undertakes a project is that the government will pay 1.5 times for something. Government is wasteful. I challenge that thinking that government cannot compete with the private sector. I advocate that you talk to county commissioners about the county taking over the jail,” said Morefield. “I am not saying it will be economically feasible but the taxpayers deserve answers to this issue.”

Most Texas counties can run their jails at a far lower cost per day than the estimates being bandied about in this story, so de-privatization may indeed make a great deal of economic sense, particularly now that jail population numbers are down an amazing 64.5% in just a single year's time!

Grits mentioned the other day how remarkable and noteworthy it is that crime rates (including homicides) declined dramatically in Houston during a period when the county jail population decreased 31%. And in Bexar County, the commissioners court is interrogating why a large reduction (1,000+) in inmate numbers hasn't yielded more savings for the county.

Liberty County's relative achievement (though on a much smaller scale) is even more impressive and worthy of emulation. Their example shows that when judges take the lead, excess incarceration at county jails can be reduced pretty darn rapidly, with little identifiable detriment to public safety. The main barrier to reducing jail costs is a lack of leadership and political courage among judges, who have the authority to act and are uniquely positioned to build consensus among other elected officials (particularly DAs, who can easily throw monkey wrenches into the gears of they have no incentive to work together, and commissioners courts, who must pay for incarceration alternatives).

Finally, it's a welcome development that counties are beginning to see jails as an expense that could be cut instead of a sacred budget cow they daren't touch. I don't think Harris, Bexar, and Liberty will be the last counties we hear of in the next 3-5 years reducing jail populations to save costs.

Learning from others' mistakes: Solutions to jail overcrowding in Los Angeles

With California state prisons sending offenders back to counties to serve their time, the Golden State's largest jails - especially in Los Angeles - face a near-epic task of reducing incarceration levels to make room for more serious offenders. The Vera Institute has published a lengthy, detailed new report suggesting a variety of approaches, many of which will be familiar to Grits readers, most of which transfer quite well to jails in other large jurisdictions. From the executive summary (pdf):

Vera’s analysis has identified many points at which changes, big and small, could produce a measureable impact on the daily population of the jail. The analysis affirms that there is no one part of the system that owns the problem or the solution. Every agency—from law enforcement through the Probation Department—is touched by these findings and recommendations. The primary goals of the recommendations are:

1. To enable more defendants to be assessed and released at the earliest possible point with the support and supervision they may need to remain safely in the community and return to court as directed.
2. To keep people who come into contact with law enforcement because of mental illness, intoxication, or homelessness from becoming unnecessarily enmeshed in the criminal justice system.
3. To understand and improve the current system of probation supervision, violation, and revocation.
4. To improve the flow of communication and documents between agencies to expedite the processing of people and cases.
5. To highlight the need for everyone involved in the movement of cases to work for a just disposition at the earliest point.
6. To improve the efforts of every agency to maintain a data-keeping system that enhances both administrative efficiency and system-wide policymaking.
7. To improve the fair and efficient administration of justice at all points of the system, which can, in turn, reduce jail crowding.

Many observations in the report almost certainly apply in most Texas jails. For example: "In L.A. County, most detention decisions are not based on an informed assessment of whether an individual poses a danger to society or is likely to return to court. Instead, the decision is based on whether the arrestee has enough money to meet bail." The same could be said for most Texas counties.

Los Angeles County under-utilizes its pretrial services division, says the report, with most cases left to commercial bail bondsmen. Vera says this boosts failure to appear (FTA) rates because offenders not supervised by pretrial services don't receive adequate reminders to come to court. In many cases these were for petty offenses: "Vera staff observed arraignments for people who spent one or two nights in jail for FTA on charges of not paying a $1.50 metro fare." It costs $95-$140 per day to keep them locked up.

As in many Texas jurisdictions, police do not utilize "cite and release" authority as often as they could, and thousands are arrested for public intoxication are released hours after booking, wasting valuable resources.

One interesting suggestion was to "Create triage centers for patrol officers to bring people whose main reason for contact with law enforcement is being drunk, disorderly, or demonstrating signs of mental illness to allow evaluation, time to sober up or detox, or contact family without an immediate, and possibly unnecessary, booking into the jail."

Another problem is that plea bargains "tend to take place toward the very end of the process rather than at the beginning," boosting pretrial detention rates. The report includes several suggestions for processing cases more rapidly.

On the mental health front, "defendants receiving competency treatment are in custody much longer than if they were convicted of the charged offenses."  Vera suggests expanding "capacity to evaluate defendants with mental illness and place them in appropriate community-based treatment facilities."

In general, most larger Texas counties face virtually identical (if not as extreme) problems to those described in this document, and at least some of the recommendations would apply in every jurisdiction. Counties face these problems in an atomic, isolated environment, even though the same problems recur in other jurisdictions, meaning when solutions are identified in one place they usually don't translate to the next jail down the road. As is often the case in life, it's wiser whenever possible to learn from others' mistakes.

Dallas judges cut breaks for bail bondsmen when clients fail to appear in court

The Dallas News on Sunday published an well-researched report on judges who don't make bail bond companies pay when their clients fail to appear in court, an issue which I'm coming to realize also arises in many other Texas jurisdictions. The story by Kevin Krause and Ed Timms ("Dallas County judges give bail bondsmen financial breaks when clients disappear," Oct 2, behind a paywall) opens:

Some of Dallas County’s criminal court judges have been letting bail bondsmen walk away from hundreds of thousands of dollars in court judgments against them — often with the blessing of the district attorney — and in many cases without scrutiny or explanation for their decisions.

The Dallas Morning News found cases in which felony court judges dismissed six-figure forfeiture cases against bondsmen even though their clients had missed court and apparently hadn’t been recaptured. There may have been a good reason, but the case files didn’t reflect one. And many judges and bondsmen aren’t talking.

Some current and former judges say decisions about bond forfeiture cases are generally made informally through discussions with the various parties, without hearings or motions or any record of such talks.

They say they will usually approve a forfeiture case dismissal only if the DA’s office and the bondsman are in agreement. If not, a hearing will probably be held — usually by the magistrate judges. Such hearings are rare, judges say.

Seven recent felony cases alone resulted in the collective loss of $700,000 in potential bail bond forfeiture revenue to the county, court records show. That’s equal to all of the bond forfeiture revenue the county has received over the past two years combined in felony court.

Those are the latest findings of a continuing examination by The News of Dallas County’s bond forfeiture operations. The News also found that:

In many cases, judges are not initiating forfeiture actions against bondsmen when their clients miss court and disappear.

Dallas County judges are inappropriately dismissing numerous other forfeiture cases after bondsmen request to “go off bond” to avoid liability if their clients miss court.

The DA’s office is agreeing to let bondsmen off the hook for thousands of dollars in forfeitures even after their clients disappear. In one case, a prosecutor signed off on a deal to dismiss a $100,000 forfeiture judgment against a bondsman even though the defendant was a fugitive.

It’s unclear how widespread these practices are because the county doesn’t track them. 

Grits has been researching a similar story- coming soon - related to bail bond forfeitures in Smith County, but in the meantime Krause and Timms seem to have dotted all their i's on this one.

There's little identifiable benefit to eschewing bond forfeitures for anyone but the bail bond industry itself.  Wrote Krause and Timms: "The result of these decisions is that many bondsmen in Dallas County are being allowed to pocket thousands of dollars in fees from defendants for writing essentially risk-free bonds, and they have little incentive to try to track down fugitives they helped release from jail."

The cost to county taxpayers during an era of fiscal austerity is tremendous: "Felony bond forfeiture revenues in Dallas County have fallen almost 70 percent since 2006 and are significantly less than what’s collected in neighboring Tarrant County, which has a smaller population."

There are certainly legitimate reasons for dismissing forfeiture cases for absconders. Under state law, reasons that justify such dismissals are "sickness or some other uncontrollable circumstance, the defendant’s death, the defendant’s incarceration, an invalid bond, or failure by the state to win an indictment of the defendant within a certain time," reported the News.

But in many counties across the state, not just in Dallas, forfeiture amounts are routinely reduced or eliminated by judges or DAs. Under the Texas Occupations Code:

Sec. 1704.205.  BAIL BOND SETTLEMENT. Before a final judgment on a forfeiture of a bail bond:

(1)  the prosecuting attorney may recommend to the court a settlement in an amount less than the amount stated in the bond; or

(2)  the court may, on its own motion, approve a settlement.

So District Attorneys offices can recommend lowering or eliminating forfeiture amounts or judges can do it on their own without any input from the DA. In Dallas it sounds like mostly judges doing it on their own. Further, the crop of new Democratic judges swept into office in 2006 and 2008 appears to have exacerbated the problem. Again from the Morning News:

Felony bond forfeiture revenues in Dallas County have fallen almost 70 percent since 2006 and are significantly less than what’s collected in neighboring Tarrant County, which has a smaller population.

And bond forfeiture set-asides are on the rise.

The News analyzed Dallas County bond forfeiture data dating to 2005 and found that forfeiture set-asides have increased greatly since 2007.

Set-asides numbered about 780 in 2006. And every year since 2007, when a new slate of judges took office, they have totaled more than 2,300. In 2006, the county potentially lost about $4 million worth of forfeited bond money because of set-asides. In 2007, that grew to $8.4 million.

Dallas County District Clerk Gary Fitzsimmons said the actual numbers are even higher because the data collected by the county is not accurate.

In Harris County, according to a knowledgeable source Grits spoke to yesterday, District Attorneys dating back to Carol Vance (1966-'79) have considered the state law allowing reduced or waived forfeiture settlements to be unconstitutional. That's because of a provision in the Texas Constitution, Article III, Section 55, which states that, "The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual to this State, or to any county, or other municipal corporation therein." The only exception is for "delinquent taxes which have been due for a period of at least ten years."

In Harris County, the DA's Office interprets that provision as trumping Sec. 1704.205 of the Occupations Code and thus won't agree to waive or reduce forfeitures as is done in Dallas. The problem is, in counties like Dallas that routinely use authority under 1704.205, nobody has standing to challenge the practice in court. Bail-bond companies themselves obviously have no incentive to do it, and if local officials interpret the Constitution as Harris County does, they simply change their own policies instead of litigating the matter. Since the debt dispute is a civil claim between the bail bondsmen and the county, nobody else has standing to challenge their interpretation, much less a vested interest in doing so. Taxpayers have a theoretical interest at stake, but not a legal one.

The missing, unspoken piece of the puzzle here is the political influence of bail bond companies, whose owners and employees are often reliable contributors to incumbent judges, DAs, state legislators on key committees, and county officials on the local bail bond board. It's a safe bet that if you compiled lists of owners and employees of bail bond companies and cross-checked them with political donors to the various pols involved in the process, they're pumping significant amounts into the campaign coffers of incumbents who affect their business. (As the kids are chanting in the Wall Street protests, "This is what democracy looks like.")

I'd love to see reporters across the state replicate the work done here by Mssrs. Krause and Timms. From their reporting, it sounds like the Harris and Bexar DAs won't reduce or waive forfeitures at all, though individual judges might still do so. But according to an email I received this morning from Ken Good, a Tyler attorney representing bail bond companies, many other counties aren't requiring bail bond companies to forfeit the full amount: "Tarrant County settles for 35% with no defendant. There are other counties [that] do similar. El Paso County will always settle for less than 100% without the body." It'd be a great mitzvah for reporters in other jurisdictions to explore these questions elsewhere in the state.

Other than simply eliminating Sec. 1704.205 of the Occupations Code, which would be fine by me, it's difficult to suggest reforms to fix the situation because the process is so opaque. If anyone at the Legislature wanted to address the matter, the first step might be simply to require data collection on forfeiture reductions and waivers. It'd also be a good idea to make judges put their decisions on forfeiture reductions and their reasons for giving them in writing. As it stands, the process is too murky and smacks of good ol' boy cronyism. Even when everything is on the up and up and the reasons for reductions are legitimate, from taxpayers' perspective the situation just doesn't pass the smell test.

Bail bondsmen not hurting for business in Harris County

On Saturday, Grits assessed a report from KHOU in Houston claiming that bail bondsmen could barely make a living because of increased use of personal bonds for felonies, which the TV station said increased 90% over a three year period. Today, reacting to the story, the director of Harris County pretrial services distributed the following data to county stakeholders in response to concerns about that story:

The KHOU figures regarding personal bond releases are not accurate.

Comparing January-August 2010 with the same time period for 2011:

1. Arrests for defendants with felony charges are down 4.2% in 2011 compared to 2010 (24,255 in 2010, 23,229 defendants in 2011)

2. Similarly, the number of defendants with a felony offense receiving a personal bond is down too, but the decrease is greater at  12.3% (439 defendants in 2010, 385 in 2011).  There is a 43% increase in personal bond releases if you compare the same time frames in 2011 with that in 2008.  Then, 270 defendants with a felony offense received a personal bond.  However, the January-August 2009 releases (414) were higher than what we have experienced so far in 2011.

3. Defendants who had a felony offense and who were released on a personal bond in 2011 represent 1.7% of the defendants arrested with a felony arrest, in 2010 that percent was 1.8%.  It was 0.9% in 2008 and 1.5% in 2009.  If you compare the percent of defendants arrested for a felony who got a personal bond, that increase is 88.9% (.9 % increasing to 1.7%).  But that would be a rather disingenuous portrayal of personal bond release activities.

Did you see the Grits article on the KHOU piece? Puts the 90% increase figure in perspective.

Just as Grits suspected, the large percentage increase more reflects how seldom personal bonds have come to be used in recent years as opposed to a significant change in how many are issued. It's one thing to say the number of personal bonds increased 90% from 2008 to 2010, which sounds like a big number. It's quite another to say bonds increased to 1.7% from .9% of all felonies over that period, and actually declined in the year following compared to the high water mark cited in the KHOU statistic.

Bail bondsmen aren't hurting a bit in Houston: They still have tens of thousands of felony defendants who're required to post bonds, even after a minor uptick in defendants released on their own recognizance. No doubt, bail bond companies would prefer that courts never use personal bonds and that every defendant charged with a crime were held in jail unless they post significant bail. But that doesn't mean that's best for the taxpayers or good public safety policy, particularly given the county's jail overcrowding quandary. Reporters would do well to doublecheck or at least provide greater context for stories where their main sources are rent seeking bail bondsmen. It's too easy, as in this case, for self-interest to taint data or misrepresent it in ways that don't reflect what's really going on.