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.

About P. F. McCann

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association. His office can be found online at writlawyer.net.

Comments

  1. The 16 Harris County Criminal court Judges purposely deny PR bonds. These judges lie about the reasons they don’t grant PR bonds. The reasons given are all false.

    The judges promise they will institute policies to grant more PR bonds. This too is a lie that they tell when it suits their purpose. When the County wants McArthur Grant money, county officials pretend they will reform the disgraceful system that they knowingly and intentionally perpetuate. That’s all a giant hoax. They have no intention of reforming their system of injustice.

    Pat McCann is right. The judges are accustomed to the smell. However, the stench isn’t coming from the holding tanks. The real stench is coming from the bench and the judges who perpetuate this evil system.

    The county criminal court judges purposely deny PR bonds in order to keep the poor in jail. This is an ugly and undeniable fact. By keeping the poor in jail and assigning them a person who pretends to be a lawyer, the 16 county criminal court judges shamelessly insure that those who are too poor to make bond, plead guilty.

    Poor people stuck in jail plead guilty to get out of jail every day in Houston. Poor people in Houston’s miserable 16 county criminal courts plead guilty to obtain their liberty. The 16 county court judges are content to deny PR bonds en masse in order to effectuate the perpetuation of THEIR plea mill.

    The 16 Harris county criminal court judges are not going to voluntarily change their behavior. These judges are content to make excuses and abuse the poor until the end of time. These 16 Harris county criminal court judges will not change their behavior re the systematic denial of Pr bonds until a Federal District Court mandates that these judges change.

    The systematic denial of PR bonds by these 16 Harris County Criminal Court Judges is a stain on Harris County and the justice system. Those who promise change are liars. After fighting this fight for well over a decade, I am convinced Change will come ONLY when a Federal Distict court orders the long overdue change.

    Pat McCann’s comments are a welcome addition to an old fight. But appealing to the conscience of the 16 county Criminal court judges is a waste of time. They don’t have a conscience on this issue. They have convinced themselves that they are doing justice when they are not. Their communal desire to keep their Almighty dockets moving trumps everything. It trumps the truth, it trumps common sense, and it trumps justice.

    The stench from the 16 Harris County criminal courts will continue to foul our County so long as these 16 judges systematically deny PR bonds.
    Robb Fickman
    440 Louisiana, Suite 200
    Houston, Texas 77002

  2. Project Orange Jumpsuit exposes Harris County judges’ contempt for the poor and alliance with the bail bond industry.

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