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.

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.