Will the Change Be Real?

With the potential of a $4M prize over two years, Harris County officials seem motivated to change business as usual at the Harris County Criminal Justice Center. But, I have to ask, just how serious are they?

Harris County is one of 20 groups to submit a proposal in the Safety+Justice Challenge, offered through the MacArthur Foundation, in hopes of winning the prize to implement new policies and procedures for reducing local jail populations at each step in the criminal justice system. By tackling each phase or step, the overall goal is to curtail the over-incarceration of America.

Looking to these steps or phases (as outlined in their grant summary below), Harris County is largely stressing diversion opportunities, greater use of pre-trial supervision (supervision of those who are released on bond or personal recognizance), reducing jail stays through quicker diversion decisions and expanded pre-trial diversion options, and reducing the time between arrest and final disposition in felony cases (getting cases to trial faster).

In summarizing their plan, Harris County first notes that overall jail population has reduced since 2008, but for a surge in 2015. Interestingly, 2014 and 2015 marks the return of the prosecution of “trace” cases: possession of a controlled substance cases wherein the “drug” is mostly not seen by the naked eye and cannot be measured quantitatively. (See Judge McSpadden’s criticism of these prosecutions as a huge factor in over-crowding.) These and other low-level, non-violent felony defendants amount for about 20% of the felony population in the jail.

With a large emphasis on diversion opportunities, it appears much of Harris County’s plan falls squarely on the District Attorney as the only entity authorized to offer and grant opportunities to be diverted from prosecution. Though we may disagree on some issues and policies, I applaud our District Attorney, Devon Anderson, for expanding diversion opportunities. She has created pre-arrest diversion for low-level first-offender marijuana offenders. She is expanding that program (First Chance Intervention) by forcing police agencies to offer the program and expanding the group who might qualify for such program. Additionally, she is extending diversion for low-level felony drug cases as well as theft cases. And finally, she is proposing diversion opportunities for the mentally ill in hopes of stressing treatment over punishment. While these options are included in the grant proposal, Devon Anderson has pledged to implement them whether or not the grant is received.

So, outside of the diversions offered by our District Attorney, what exactly are the courts and judges contributing towards solutions?

Apparently, they see pre-trial supervision as a means of lowering jail population. This means that citizens released either on bond or on their own personal recognizance (PR bond), will be supervised much like a person serving a probation. They will regularly report to a supervision officer, be subject to random drug testing, participation in court-ordered services, and other bond conditions. This is akin to being on probation before one has ever even been found guilty.

Additionally, the courts are proposing the addition of more courts to handle trials faster, thus decreasing the amount of time pre-trial detainees are held in custody.

And that’s about it. Unless I’m missing it, the courts are not proposing much more.

All-in-all, what does this mean for justice in Harris County? I guess it means we will start supervising more people pre-trial and getting cases to trial a little faster. And, it means Devon Anderson will be doing her part to divert as many low-risk offenders as possible from the system.

I know this particular grant is focused on reducing the over-incarceration of America, but when will we also get serious about justice. Justice is fairness. Justice is blind. Justice does not give the prosecutor a leg-up against the defense. Justice means having counsel available to the accused earlier and at the very start of criminal proceedings. Justice means individual assessments for bonds rather than an arbitrary schedule. Justice is so much larger than jail population. Let’s hope jail population is just the start in this new error of “reform.”

The Harris County Summary of its Safety+Justice Challenge can be viewed and downloaded here: strategysummary


About JoAnne Musick

JoAnne Musick is a criminal, juvenile and family lawyer and is board certified in both criminal and juvenile law. She is a two-time past president of HCCLA (the only president to serve two terms) and is active in many legal organizations including TCDLA. JoAnne is also a regular contributor at Fault Lines, HCCLA, and her own blog. Catch up with her on social media @joannemusick.