The Stench of Oppressive Bonds

In these polite days of politically correct speech perhaps it is wrong to mention something so noxious as a smell. Yet, for everyone who works in the jails, around the courthouse, or with prisoners in general, it is a reality. We call it “holdover” smell. It is the fine odor of human fear mixed with only having enough money in the jails for the mandatory every other day or so shower. It is a distinct and instantly recognizable scent, and once you have smelled it you would not forget it. I am pretty sure anyone who has spent a night or two as a guest of the county will not forget it either.

Now, I could say this smell exists because the jail’s overcrowding means that prisoners in Harris County, Texas only get to wash about twice a week unless they have money in their commissary account to buy hygiene items. I could say it is because a lack of air conditioning in many spaces means that prisoners and jailers get to sweat a good bit if they are working or just existing in under-built spaces, or trying to break the monotony by doing manual labor in Houston’s heat. Jailers, however, get to go home and wash off the aroma of incarceration. I am going to put blame for this one, the actual smell of what it means to be poor and accused of a crime here in Harris County, right where it belongs…on the lack of courage among our judges, who will not grant pre-trial personal recognizance bonds for the poor.

Bail is an old common law concept that predates our constitution. It was, in olden times, completely random and often used to make certain that the Crown’s [or the corrupt local judge or Sheriff’s] enemies would remain in jail awaiting their “speedy trial” sometime in the next five years. In essence it is the posting of cash or land as a guarantee that a person shall appear on the date of their trial. Now, in those days when everyone knew everyone in their small town or village, and when people would actually worry about the consequences to their neighbors, the idea of my posting bail, or guaranteeing the appearance of my brother by offering to forfeit my lands to the local sovereign may have seemed workable. One could also see how quickly this system could be corrupted, and used to ensure the seizure of other people’s property, or that someone would remain in jail until the years forced them to accept a plea or else risk their family’s ruin.

How little things have changed.

Oh, certainly, both our Texas state and our federal constitution prohibit excessive or oppressive bail, sentences, and fines, but what does that mean in practice? On any given day, in all of our 22 felony and 16 misdemeanor criminal courts, for any given offense, one will find bail set at 38 different amounts for the exact same crime. Despite much talk of reform recently, there is absolutely no rhyme or reason to the setting of bail in this county. No one has ever determined the rate that most people, for instance, could afford. Since we live in a time when the average income and salary are accessible at the touch of a button, one could have done that years ago.

As mentioned above, per CityData.com, which uses Census data for its figures, the average mean household income in Harris County is $52,489. The mean worth of a single family home is $203,000 and change. So, taking a conservative approach to what an average family could afford to commit on a surety bond [which is when one pays a bond insurer, or as we call them, bail bondsmen, a premium of 10 percent to take the bet our friend or family member will show up for court] and assuming most do not own their home free and clear, one family might be able to scrape up ten percent of their annual income to try and help out a fellow. So, let us say five grand, on a lucky day when no one is behind on the rent or taxes, could be gotten together by a family. That would cover a bond of fifty thousand dollars in Harris. That is the best most any family could do. So, if bonds were based upon what people could actually make, the highest bond would be fifty thousand. Period. Barring a millionaire being caught in the system, that should be the guiding rule. Yet we routinely see bonds of hundreds of thousands set, or bonds set at more than fifty thousand for minor crimes or for people who cannot possibly make them.

Also, for those who live on disability or on the margins of our economy, even that system would fail if it were enacted. For all those laid off in the oil industry, how would you like to suddenly have to post a bond for two and half times the ‘guesstimated’ value of the street drugs your teenage child was just found with? Does not make much sense, does it? Yet that is a common practice in Harris County, one that makes no sense whatsoever, and simply ensures that people accused of crimes stay in jail and rot. Or plead out, which is the unwritten goal of the system.

One other way the system makes no sense is that if one is poor, no consideration for that is given at all when the judges set bonds. Oh sure, there is lip service paid to the notion that judges weigh each situation differently; what that means in reality is that the judges almost never grant personal recognizance bonds, even for people who have no criminal record. That means that right now there are about twenty-five hundred men and women in Harris County jail who could be released tomorrow if the judge in their case had the decency and courage to do the right thing and order a PR bond in the case.

Several months ago the Harris County judiciary set up a lengthy public relations exercise that said “hang on, PR bonds with a whole new system are coming your way.” A new agency with a new “screening tool” was supposedly being set up to help monitor the issue and the soon-to-be released poor folks. Yet to this day no one has changed a damn thing going on in our hallowed halls of injustice. No one has been released, and no new PR bonds have been written. This has been going on for decades, since 1994, just as I was finishing my last year of law school. PR bonds were much more common when I was a clerk for a criminal defense firm, and have been wiped out here due to the judges lack of willingness to make the system fair for all, rich and poor alike.

So, this grand “experiment” of PR bonds, which was a matter of common decency for decades, and still exists in every other county around Texas, still has yet to come back to life here. Perhaps it is because the judges are simply afraid.  Afraid and unwilling to follow the Constitution and their oath to do justice. Perhaps they have simply forgotten that folks whose lives are in their care need them to rethink everything they have done to correct this.

Perhaps they are just used to the smell.

Why Do We Imprison Alcoholics?

I was having a conversation not long ago with two friends of mine, Frances Bourliot and Mandy Miller. They are colleagues whose work in appellate law and criminal law in general I respect deeply. In the conversation, up came the topic, brought up by both of them, that there should be a felony treatment court for those who are charged with Driving While Intoxicated on a felony level. That means, in Texas, a third charge for such behavior. It does not matter in Texas if you hit someone or had an accident; simply driving intoxicated for a third time is sufficient to place one in prison for up to ten years. We have such a specialty court, or courts, for the drivers who appear on their first offense or second to have a problem with their behavior. We have none for those who have a third mistake. Other counties, including notoriously “tough on crime” counties such as Montgomery County do, but not Harris.

We have always been a bit of a moralistic people, we Texans, and we Americans. We tend to impose a value judgment on the person who cannot beat their addictions, or who succumbs to them, whether it be the bottle or the pill box or the illicit street drugs that draw in so many people, from heroin to crack to methamphetamines. We treat possession of such drugs in our “war” as a criminal matter rather than a medical one requiring treatment and therapy. Likewise we treat multiple instances of driving under the influence as a cry for prison rather than assistance.

Please do not misunderstand; I think the change in behavior we have all had to evaluate for ourselves these last few decades has helped lower our accidental deaths on the highways. We all believe now that such behavior is irresponsible. We all offer to drive drunk friends home now, or call them a cab, or, these days, offer to Uber for them. [I am not sure to “Uber” is yet a verb, but I am often behind the times.]

Yet assuming the person who is caught has not done something for which they cannot atone, isn’t it better to keep on trying to get them help than to imprison them, in a place where they are guaranteed to get none?

Hear me out. Assuming you could get say, fifty men and women with a drinking problem, and through an intensive form of court ordered intervention designed specifically to attack the root of their drinking, get them to become sober, and to address with professional help the root cause of their addiction, then we as a county would have stopped, at fifty times seven days a week, 17,500 incidents of drunk driving per year. Seventeen thousand five hundred. Seventeen thousand five hundred fewer chances for a mother of two driving home to have an accident. Seventeen thousand five hundred fewer chances for an officer handling a roadside traffic ticket to be blindsided on a dark night on a side road. If we could get that number to a hundred people, it means 35,000 such incidents prevented.

With numbers like that, can we really afford to send people to prison, where not even every unit has an AA meeting? Where they will be dry for a time but released on parole with no follow up, no real help, and so unemployable that drinking will seem like a lovely alternative to the misery of being denied work day after day? What taxpayer wants that burden? Why would we want to risk all the incidents of emergency care, worker’s comp, disability, pain and misery of the accidents from using prison to solve this, when, with treatment courts, you could cut into that misery like a hot knife into butter?

Can we afford to keep putting people with a drinking problem into prison?

Dallas County offers a Felony DWI Court. Montgomery County offers a Felony DWI Court. Isn’t it time Harris County joins? With more drivers on our roads daily than any other county, why are we the last to address the problem?

Just as alcoholism is a disease, prison does no more for alcoholics than it does for drug addicts. It’s time to stop incarceration and start treatment.

Tienen los Cojones?

It is an earthy phrase above. I know that. I do not mean to offend. Yet I also believe it is one that uniquely cuts to the heart of the issues that face, frankly, our judges in Harris County.

Recently we all, judges, prosecutors, defense attorneys, and even a few county officials and law professors, sat down for two days of presentations of interesting figures and statistics regarding the cost of incarceration versus things like drug treatment and mental health diversion. [all part of a grant you can read about here and here]

To her credit, the elected District Attorney has actually put forth several new jail and prison diversion programs focused on drug treatment and education, which she is implementing. Despite interesting stories [well, ok, let us be honest, at 3pm on a Friday afternoon none of the stories were all that interesting, but hey, they were good enough to show up and speak so we listened as politely as possible] from various researchers in various fields about how one individual or another might be turned around by diversion, or how “new risk assessment tools” might make a difference in Harris County. We [the defense] all yawned.

We yawned because the only question that matters here is whether the judges, those 22 felony and now 16 county criminal black robes, actually have the will to use these things and actually increase personal recognizance bonds in our huge factory of injustice at 1201 Franklin.

So, to you 38 magistrates, who actually are the ones who have to sign the orders for release on bond, I ask quite simply, if a bit more nicely than my title…do you have the guts? Do you have the courage to return to the good sense of past decades when the use of PR bonds was common and their use did not cause the sky to fall, or the boogey man to rise from beneath the bed and snatch away small children in the night? Do you have the will to actually save the county money, to help mentally ill folks get to treatment instead of being stuck in a hole and forgotten, to let poor but honest people go home to their families instead of being ground up inside one of the most coercive plea systems in Texas?

Sadly, I did not hear one judge, not one, pledge to increase their use of such bonds, which basically permit poor working people to leave jail without posting bail on their promise to return so they will not have to choose between taking a plea for time served or losing their apartments, their homes, their jobs, and making their families homeless. So all those hours spent listening to the well meaning reformers discuss their well-intentioned plans are likely going to be a waste of time because the 38 men and women who actually have [and have always had] the power to make things better are probably not going to do a damn thing differently.

To you 38, I will simply ask…what are you afraid of?

The statistics show that those on PR bonds typically have lower rates of failing to appear than those on surety bonds, which are the ones the bondsmen post. Are you afraid the bondsmen will no longer contribute to your campaigns if you support this? That is simply silly – no bond company is competing for people who cannot make surety bonds anyway!

Do you think that this will slow down the plea mill that your courts sadly have become? Well, I suppose that is a risk, but then perhaps it might inspire ADAs to actually dismiss cases that were poorly screened in the first place. After all, many misdemeanor charges result from bad information given to tired cops who just want to go home, and sleepless night shift assistant district attorneys who try to screen the charges at their intake desk but simply do not have time or sufficient caffeine.

For those who may read this and are not familiar with the PR bond crisis, it has been brewing for two decades. The lack of PR bonds is the single major reason the Harris County jail is as over-crowded as it is and one of the reasons it is still under investigation by the FBI. It is why jail costs have soared because our jail in Harris County is now the single largest asylum on the entire Gulf Coast, holding several thousand mentally ill people every day. It is why on any given morning in this county one can sit down and watch a literal chain gang of pleas delivered in five minutes in almost any court by any judge in this county, district or felony. It is why thousands of people who might not have criminal records today have found themselves at the edge of a cliff, wondering whether they should lose their jobs and their homes or take a plea simply because they could not afford the arbitrary and absurd bonds that are set for them. [For those of the readership that wonder how this could be, think back to when you were a college student – could you or your college dorm mates, on your own, have come up with the ten percent required by a bondsman of a ten thousand dollar bond on any given Saturday? With proof you were “good” for the rest? I did not think so.]

Somehow the collective mind of our judges in both parties here in Harris County determined that PR bonds were bad, or dangerous, or would make them look, instead of smart and just, …well, weak. So, despite their widespread and successful use in every other neighboring county and in every major county across this state, they died here. They died because the judges chose not to do what they should have, for whatever reason they chose. Fear, political expediency, indifference. Pick one.

Now, the collective criminal justice system is being told this “innovative concept” of PR bonds is being “considered” again. That is a lie. Until I hear at least one sensible brave judge actually stand up and commit that every indigent person in their court will be eligible for a PR bond and then see them give them out, it is a lie. I know it is a lie because these same judges have refused to implement PR bonds despite decades of requests from all sides, the defense, the media, even the sheriff, that fell on deaf ears. It is a lie designed to trick the folks at non-profits like the MacArthur Foundation into giving the county money which will be spent on other things besides helping the working poor get out of jail prior to a trial or plea.

Tienen los Cojones? No creo.

For reformers on bonds, welcome to the party!

Recently I have heard rumors amongst our Harris County judges that they are considering, under pressure from reformers and the Harris County Criminal Justice Coordinating Council (HCCJCC), which wants access to the money from the MacArthur Foundation to feed into our criminal injustice system, some new reforms.

One of the suggestions to help relieve the chronic over-crowding in the jails and make a significant difference in poor people being coerced into pleas was to institute [re-institute, really] the practice of granting “personal recognizance” bonds. These are bonds, for you criminal practice folks who thought they were as extinct as the passenger pigeon, where the judge releases the person on…wait for it…their own promise to appear again. No surety bonds are needed; no cash bonds are posted.[i]

Instead of rotting in a jail cell while their employer hires someone else, instead of getting evicted from their apartment or house, instead of having their family forced to move away or become homeless, and instead of becoming sick due to the jail’s often inadequate medical care, these presumed-innocent citizens would be permitted to actually go back home and trusted to come back to their assigned court dates. Imagine, these folks can go back home, go back to work, and keep supporting their families. A shocking idea whose time perhaps has come again.[ii]

Well, to the judges, non-profits, and county officials who have finally seen this light-bulb go off in their heads that this might actually be a good idea…welcome. It has only taken you all two decades.

Back in 2006, Robert Fickman, then president of Harris County Criminal Lawyers Association, called for the rebirth of PR bonds. Articles in the Houston Chronicle noted the near-death of such bonds over the prior decade due to the sweep of Republican judges in 1994. Those articles appeared in 2005, 2007, under our current President’s first term in 2009, and again recently in the Sunday Chronicle. To be fair, the Democratic judges who came in to office in 2008 have been just as bad or worse on the granting of such bonds.

Seems like folks who actually pay attention to such things have been pointing out for quite a awhile that there are likely three thousand or so folks in the jail at any time who might benefit from such a bond. Now, again, judges have to weigh a decision on bond that also should include thoughts about public safety, so some of these poor folks who have records of violence will not get such a bond. Nor should they. However, when one looks at the historical statistics that show a LOWER rate of failure to appear on PR bonds than those who posted surety bonds, that seems to also indicate this is an idea whose time has come again. Lower numbers of people in the jail mean less cost to the county for their care, and for the lawsuits that result when overcrowding leads to illness, injury, and death. So PR bonds make sense for the accused and for the county, always have.

There once was an agency that used to evaluate and then recommend poor people for PR bonds. It was called “pre-trial services”. You folks now may recognize those people as the ones who monitor the often ridiculously expensive and draconian conditions of “pre-trial” supervision; such as constant drug-testing, interlock breath test devices on cars, no-contact orders that include moving out of one’s home, etc. By the way, these conditions are placed on people who have already put up cash and obtained a surety bond. Somewhere along the line, the former head of that agency and the district court judges got cross-wise, and they eventually forced her out and then decided this agency and others were far better employed administering urinalysis than in actually making recommendations on releasing the poor. As a result, the already almost dead-PR bonds died a quiet and [except for the families of those who were kept in jail because they could not afford to post often-high bonds] unnoticed death.

So now, the rumor is that our local judiciary, at the urging of the HCCJCC, is considering bringing back this “radical idea,” supported by the reformers who are dangling money in the faces of our county officials, and to try this “experiment” of granting the working poor a chance to avoid being forced into a plea or watch their lives flushed down the toilet. I want to encourage this, but I am frustrated because the simple good sense and money saving possibilities of this idea have been ignored for years due to this simple, ugly truth; the people the judges kept inside without bail over the last two decades were people who were never going to vote for them, so they did not care.

They did not care. Despite the fact that, based upon even an extremely conservative figure of one thousand PR felony bonds per year which could have been granted but were not, over twenty thousand people were held in the miserable conditions of the Harris County Jail for months without trial. Twenty thousand families were faced with the choice of waiting more months and losing their homes or asking their loved ones inside to end the misery and take a plea. It is likely the figure was much higher, but I cannot prove it, so we will go with that.

On behalf of those faceless twenty thousand who would have liked to have been given the option of going home, who would have liked to not have to choose between a criminal record and losing their jobs, homes, and families, I just wanted to welcome our judges and those who have discovered the idea of PR bonds to the party.

It is about damn time.

Read more about the HCCJCC grant proposal and lack of PR bonds from Houston Chronicle’s Lisa Falkenberg

[i] Clearly those who make their living as bondsmen are adamantly opposed to personal recognizance bonds and have been quite vocal in that position. See Houston Chronicle, September 9, 2012

[ii] And don’t forget, there is a hammer for breaking the promise to come back: they can be arrested and charged with bail jumping.

Buddy, can you spare a pack of smokes?

How the cost of dramatically improving criminal justice is within the reach of all of us

Here are the facts, based upon figures obtained from the indigent Defense Commission in Texas: Texas ranks 48th in per capita spending on indigent defense [defending poor working folks charged with a crime] among all fifty states. Our closest competition is apparently, once again, Mississippi, always competing with us for the race to the bottom. So, on average, in Texas, the average taxpayer forks out just over 8 dollars per year as their per capita share of the cost for indigent defense. Most of this comes out of the county property taxes, as that is how our system is arranged here. 8 dollars is just over the average price of a pack of cigarettes in Texas, which last i saw from figures listed at one of the numerous anti-smoking organizations was about $7.24.

So, let us think abut this. If I asked you to spot me a pack of smokes, assuming you did not oppose my choice to poison myself with tobacco fumes, would you do it if you were my friend or co-worker? Now, if you shared my bad habit, then most likely the answer would be yes, since I might later share some of my smokes with you. If you had concerns about my health as my friend, you might decline out of a deeper sense of loyalty. In no case would you let the decision come down to the price of a pack of cigarettes, would you?

So, what is it that makes a just society, one in which an average citizen trusts that they or their loved ones will be treated fairly? Equal before the law, as the saying goes. Well, one hopes it is a fair wage for a decent lawyer in a criminal case. Since we know the cost right now for a system which leads the nation in exonerations of the wrongfully convicted is about one pack of cigarettes, why not double down on justice? Why not actually advocate to your local county commissioners and state representatives that we pay two packs of cigarettes per year for the knowledge that our friends, family, and neighbor will all be treated fairly if accused of a crime? That they will have access to a competent defense lawyer, and an investigator to look at the facts which, per the Innocence Project of Texas, we somehow manage to get so wrong so often here? That they will get objective forensic help if the case is about DNA, or fingerprints, or ballistics?

There are a myriad of reasons to do this. We can find inspiration in scripture, in the paraphrase of what someone is once reputed to have said “As you treat the least of me, so shall you treat me”. We can find it in the words of our favorite fiction, as Atticus Finch, the lead character in “To Kill a Mockingbird” stated, “The one place a man ought to be able to expect a square deal is in the courtroom.” There is perhaps the simple self-interested proposition that a system that people trust to function properly is one that inspires peace and order, making it a better system for all of us. Or one can look at it in this way…for the cost of a pack of smokes, what do we have to lose?

So, , my fellow citizens, …can you spare a pack of smokes to make a better system, one that makes us the envy of country, instead of the butt of jokes about “Texas justice”?