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Alex Bunin

County will use public defenders at bail hearings

Good.

Harris County commissioners on Tuesday approved a pilot program to make public defenders available at bail hearings, a step aimed at retooling a criminal justice system that has increasingly drawn criticism for jailing thousands of poor, low-risk offenders.

Within months, county officials anticipate that two public defenders will be present at bail hearings for those accused of misdemeanors and felonies. The vast majority of the roughly 80,000 defendants at these hearings each year does not now have legal representation, and the change means that defendants of limited means charged with a Class B misdemeanor or above will be able to have access to a lawyer when a judge sets bail.

The pilot represents a major change in the way Harris County processes those accused of crimes. The move also makes it the first county in Texas to create such a program, though one official noted that the county lags behind other major metro areas – New York City, Los Angeles and Chicago – in making attorneys available at bail hearings.

“I think it’s a huge step forward that will assure that people’s rights are protected at these hearings,” said Alexander Bunin, Harris County’s chief public defender, whose office developed the pilot program.

The attorneys would provide information on the defendants’ financial situations to hearing officers who set bail, with the goal of releasing those who cannot make bail, pose a low risk to society and have not been convicted of a crime.

[…]

Several top Harris County officials – including County Judge Ed Emmett, Sheriff Ed Gonzalez and District Attorney Kim Ogg – have also said recently that the bail system should be restructured so that it doesn’t differentiate between rich and poor defendants.

“This is a positive step forward on the long road to fixing a broken criminal justice system,” said Precinct 1 Commissioner Rodney Ellis, a former state senator who has sharply criticized the county’s bail bond system.

Emmett, a Republican, also praised the pilot program’s creation Tuesday.

“It’s going in the right direction,” he said. “This is one of those things we needed to do.”

See here for the background. This makes sense on so many levels. It will be cost-controlled, as he public defender’s office budget is approved by Commissioners Court. The defenders assigned to bail hearings will always be there. There will be no concerns about quality or conflict of interest with public defenders, which as we know from long and painful history is not always the case with court-appointed attorneys. It will help prevent defendants from incriminating themselves out of ignorance and lack of representation. And not to put too fine a point on it but it greatly reduces the problem of people getting thrown in jail for no reason other than not being able to pay bail. It’s not a complete solution, in that there are still issues to be resolved in the bail practices lawsuit, but it’s a big positive step. Kudos all around.

County approves defense attorneys for bail hearings

Long overdue.

Harris County commissioners voted unanimously Tuesday to develop a pilot program that would make public defenders present at bail hearings, a move aimed at reducing what officials say is the unnecessary jailing of thousands of defendants because they can’t afford bail or are unfamiliar with the legal process.

The pilot could lead to Harris County becoming the first county in Texas to make legal representation available at all hearings where bail is set. The majority of individuals are not represented by attorneys at the hearings.

Advocates for criminal justice reform heralded the county’s move, noting that research shows those jailed and unable to bail out are more likely to plead guilty to crimes they did not commit.

They also pointed to cases like that of Sandra Bland, who failed to make bail after a controversial arrest and committed suicide three days later in the Waller County jail, as examples of tragedies that could be prevented.

Roughly 80 percent of the Harris County jail’s population – some 7,000 to 8,000 inmates – are pre-trial detainees.

“In a jurisdiction that large, this is really a sea change about the way they are going to do business,” said Jim Bethke, executive director of the Texas Indigent Defense Commission.

[…]

The county public defender’s office is working with the budget office to develop the pilot program. It could make public defenders present at some or all bail hearings. Currently, Bethke said, only Bexar County has a similar program – and that is tailored to offenders with mental-health conditions.

The public defender’s office will present a pilot program to county commissioners on March 14, and it would go into effect, if approved, on July 1. The county is also implementing a new risk assessment tool for hearing officers to better determine whether people can be released prior to trial.

I consider this another positive outcome of the ongoing bail practices lawsuit. The time was finally right for the issue to gain salience and require some kind of solution, even before any intervention from the court. I want to see what the effect of this is on the jail population, because if it doesn’t have a noticeable effect then something is wrong. Think Progress, which offers an overview of the case, has more.

Our bail policies are unjust, costly, and stupid

Any questions about how I really feel?

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“The numbers clearly tell the story: More than three-fourths of the people in Harris County Jail haven’t been convicted of crime, and the majority of them are sitting in jail simply because they can’t afford to get out – not because they’re a threat to public safety,” said state Sen. Rodney Ellis, D-Houston. “This means the indigent are more likely to be kept in jail pretrial, lose their jobs, affect their family lives, and receive harsher sentences solely because of their income status.”

Harris County locks up more people pretrial than most other large counties utilizing a standardized schedule that sets bond amounts for specific crimes. Magistrates makes bond decisions based almost entirely on charges filed and prior convictions in hearings via video linkup at which few questions are asked and defendants have no attorneys – a process the county’s public defender has described as potentially illegal in an upcoming law journal article.

The magistrate’s bond decisions are almost never altered by the county’s elected district court judges, who reduced bonds in less than 1 percent of cases, court bond data from 2014-15 shows.

Judges can, if they choose, grant personal bonds to defendants in which bail fees are waived in exchange for a promise to appear. But in 2014, they granted personal bonds to about 1 percent of felony offenders and only 9 percent of misdemeanor offenders, county statistics show.

Those rates are below those in other urban Texas counties, including Bexar and Travis, according to a related 2015 report. Several district court judges have told magistrates never to issue personal bonds for anyone assigned to their courts, while others specify such bonds be granted only to students, a former judge and other county officials told the Chronicle.

Once jailed, no mechanism exists to automatically alert elected judges even when an inmate falls severely ill or already has served more time pretrial than the punishment for the alleged crime, Harris County judges said.

In August 2009, after the U.S. Department of Justice found civil rights abuses at the Harris County Jail, a consulting firm hired by the county urged judges to increase the use of personal bonds to reduce crowding in the jail complex, then bursting with more than 11,000 inmates. More than six years later, jail population has decreased, but the proportion of inmates awaiting trial has grown, from 54 percent in August 2009 to 76 percent in November 2015.

Some judges defended their tough bond schedule, explaining that many defendants are repeat offenders or require high bail to guarantee court appearances and protect the public. But in a $2 million proposal the county is preparing to submit to the Chicago-based MacArthur Foundation, judges and attorneys alike have called for reforms. In interviews, many agreed the pretrial system is broken and the jail is regularly clogged with too many mentally ill and low-risk offenders arrested for crimes like smoking pot and trespassing.

Ultimately, the system most punishes the poorest and sickest defendants, defense attorneys and some legislators say.

Fifty-five inmates died in the jail while awaiting adjudication since 2009. Eight were too ill to appear at initial bail hearings.

Emphasis mine. This is outrageous and infuriating. People who have not been convicted of a crime are in jail without any consideration of their risk to the community, their health, or the effect their incarceration may have on their families. Some of them wind up spending more time in jail waiting for their case to be resolved than they ever would have if they had been convicted of the crime for which they were arrested. Many of them wind up pleading guilty to a crime they may never have been convicted of just to get out of jail. Does any of this sound like justice? Does any of it sound like something you would tolerate if it happened to you or someone you knew? Does any of it sound like a viable and cost-effective way to promote public safety? This isn’t something we have to do. It’s not something we are being forced to do by state or federal mandate. It’s something we are choosing to do, and by “we” I mean the judges who set these dumb bail amounts and the people who vote for them. We chose this, and we can choose differently. It’s up to us.

It’s not just bail reform that we need

The latest from Emily dePrang at the Observer:

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It’s a Monday morning, a little past 9:00. Half an hour ago, this hallway on the eighth floor of the Harris County Criminal Justice Center in downtown Houston was swarmed with people. Now all the other courtrooms have opened, swallowed their subjects, and closed up again. Only the hall folk of Criminal Court at Law No. 2 remain, resigned citizens waiting at the gates of the Honorable Bill Harmon’s grim little kingdom.

Harmon’s court handles misdemeanors, though like all the cases heard in this building, the charges being leveled are serious enough to incur incarceration. A single day in jail can cost someone a job or create a child care crisis, but the consequences also activate powerful legal rights. The Sixth Amendment, as interpreted by several U.S. Supreme Court decisions in the mid-20th century, guarantees a right to counsel for all defendants charged with crimes punishable by confinement. Those who can’t afford an attorney shall have one appointed, the Court ruled in the landmark 1963 case Gideon v. Wainwright. “In our adversary system of criminal justice,” wrote Justice Hugo Black for the majority, “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Most Texans hauled into court are indeed poor. Last year, the state appointed counsel in 71 percent of felony cases and 41 percent of misdemeanor cases, according to the Texas Indigent Defense Commission. More than 415,000 defendants qualified for indigent defense services in 2014, and nearly 65,000 of them passed through the Harris County Criminal Justice Center.

But an unknown number of defendants qualified for help and were denied it. Likewise, an unknown proportion of those who received appointed counsel were represented by attorneys too busy to do much more than communicate a prosecutor’s plea deal. In either case, defendants are deprived of the Constitutional guarantee to what the U.S. Supreme Court describes as a “vigorous defense.”

These injustices are hard to quantify for the same reason they’re easy to commit: The state exercises almost no oversight of indigent defense, and most counties still administer their programs through an antiquated process rife with conflicts of interests. Most counties, including Harris, pass the responsibility down to individual courtrooms. The judicial appointment system lets judges decide which defendants will receive appointed lawyers, which lawyers will get indigent appointments, and how many cases these lawyers will be assigned. There are plenty of little administrative rules, of course, such as attorney pay rates and minimum qualification. And, as required by state law, Harris County has an official indigent defense plan that codifies exactly how judges are supposed to evaluate whether a person is poor enough to be entitled to appointed counsel. It instructs judges to consider a defendant’s debts, expenses and dependents when determining indigency.

But that’s all on paper. Here in the hallway, inside the courtroom, and even in absentia, Judge Harmon makes the rules. And Harmon’s rules are among the harshest in Harris County, a place not known for its equitable criminal justice system. More than half the defendants now waiting for Harmon have come to court without an attorney, and many believe they’ll be appointed one. None of them will.

[…]

“The way it’ll work is, the [appointed] lawyer will talk to the [district attorney], the DA will tell them, ‘This is what the offer is,’ and they’ll go back and convey this offer to the defendant,” [defense attorney Robert] Fickman says. “It almost always boils to this: that they’re offering you X, which means if you plead guilty you’ll get out of jail in so many days. Or we can reset [delay] your case, if you want to fight it, and you’ll end up spending more days in jail. It’s a hostage choice — it’s not a choice at all. These are poor people who need to get back out and try to feed their families. So what do they do? They plead guilty. They’re not pleading because they’re necessarily guilty but because they’re getting their liberty. The horror, the horrible irony of this system, is that people are pleading guilty just to get their liberty. And it goes on every fucking day.”

Read the whole thing, and ask yourself ho you would feel if this were happening to you or to someone you knew. Judge Harmon is one of the lucky duckies who gets to run for re-election in non-Presidential years, meaning that as long as current turnout patterns remain the same, he’s set. Pretty sweet deal if you can get it.

Moving the focus back to un-crowding the jails

This is a positive development.

Devon Anderson

Newly appointed Harris County District Attorney Devon Anderson on Wednesday pledged to curb the increasing number of low-level felons being sentenced to serve misdemeanor time in the county jail rather than going to prison, known as a “12.44a” sentence, saying she will encourage her prosecutors to push rehabilitation.

There has been a more than 30 percent increase this year in the number of state jail felons who receive so-called 12.44a sentences, according to information kept by the Criminal Justice Coordinating Council, which Harris County created in 2009 to improve the justice system and reduce jail overcrowding.

The increase has been identified by the council as one of several reasons that the population of the Harris County Jail – the state’s largest lock-up – has escalated this year to the point of being close to capacity again.

Those types of convictions include so-called “trace cases,” where people are arrested for possessing less than 1/100th of a gram of crack cocaine.

Anderson’s husband, the late District Attorney Mike Anderson, who took office in January and died of cancer last month, sparked speculation that the jail population would increase when he decided to prosecute trace cases as felonies. His predecessor, Patricia Lykos, treated the cases as misdemeanors, saying it was difficult to accurately test drug residue and took officers off the streets for too long. She also claimed it helped reduce the jail population.

Devon Anderson on Wednesday, attending her first coordinating council meeting since being appointed as her husband’s replacement about two weeks ago, said she was “not alarmed” by the number of state jail felony filings this year, which have not increased substantially.

“What I was alarmed about was the 12.44a disposals,” she said. “Creating a class of felons, first offenders, about 800 people who have never been in trouble… now have felony convictions because of the 12.44a punishment. That is what we’re going to address. “

She continued: “I’m a former drug court judge and I’m very interested in rehabilitation and that is what I’m going to encourage my prosecutors to work on, to identify people whether they’re first offenders or if they have prior drug felonies and no violent priors, to try to get them to enter treatment. As a former defense attorney, I know that there are some people who just (say), ‘I don’t want to be on paper, I don’t want treatment, I want to go right back on the streets.’ Well, the problem is they come right back to the jail. So we need to work with defense lawyers and judges. We all need to get unified on this and try to get treatment and to try to stop the revolving door.”

Anderson had previously told the Chronicle she would continue her husband’s trace case policy, but would look at whether they are “giving a disproportionate number of state jail felons county time.”

See here and here for some background. Anderson’s position seems a bit muddled to me, but maybe that’s just because I don’t know what “12.44a” means. Is there some other class of felony that isn’t a trace case but is a “12.44a” that’s been trending up and causing an increase in the local inmate population? You lawyers out there, please chime in on this. Be that as it may, the fact that Anderson is acknowledging the problem and her office’s role in it, that’s a positive sign. Assuming she’s not putting up a smokescreen, then there’s a path forward from here.

On a tangential note because I didn’t get around to blogging it earlier, there was a story in the Chron about what the new public defender’s office has been pu to.

Harris County’s recently created public defender system is seeing positive results, including an uptick in dismissed cases for Houston’s mentally ill, according to a report released Tuesday by the Council of State Governments Justice Center.

“It says we provide a lot of value to the system,” Alex Bunin, the county’s chief public defender, said of the results.

Those results include dismissal rates that are five times higher for mentally ill misdemeanor suspects than similar defendants with appointed attorneys.

The office, which began in 2011 with a state grant funding the first four years, handles about 6 percent of the county’s indigent trial-level cases. The rest of the indigent cases are handled by private attorneys appointed by one of the county’s 40 criminal court judges.

In general, the report found that the public defender’s office does more investigation, which leads to better results in court, advocates for the defense bar in community issues and offers free training, mentoring and advice that was not available before.

Those courtroom results include a greater proportion of dismissals, deferred sentences and acquittals. The report also pointed out that the office sees a smaller proportion of “guilty” verdicts than appointed lawyers. Overall, the public defender office secured acquittals at three times the rate of appointed or hired attorneys, according to the report.

Pretty good so far. There are some complaints in the story from Jared Woodfill about the cost of the PDO, but Woodfill benefited greatly from the old system of judicial appointments of defense counsel for indigent defendants, so take his comments with a grain of salt. Grits has more.

Harris County and court costs

Grits has some interesting local news.

An appellate court has ruled that all court fees in Harris County criminal cases, going back for some indeterminate amount of time, are invalid if the county did not produce a written “bill of cost” documenting their source, as the county apparently, routinely failed to do. Moreover, the issue need not have been preserved at trial for court costs to be appealed. The implications are potentially profound.

Former Office of Court Administration chief Carl Reynolds, who retired earlier this year and is one of the few Texas criminal justice experts who’s willing and able to enthusiastically discuss court costs with you, emailed to notify Grits of an opinion last week out of Texas’ 14th Court of Appeals (uploaded here; see all the filings in the case), which ruled, as Carl put it, that “Harris County does not comply with [Texas Code of Criminal Procedure] 103.001 by failing to create a bill of costs in each case. If a judgment lists the court costs, but there is no evidence in the record to support those costs, then no costs are owed. Often these costs total many hundreds of dollars and are garnished by TDCJ from commissary funds, or they become owed as conditions of probation. The issue is therefore very important. It need not even be raised in the trial court to preserve it for appeal.” (emphasis added)

What does it mean? Translated from court-speak, if the government can’t justify the court costs it assigns in writing in a formal bill of costs – as apparently Harris County is not set up to do and has not historically done – then the defendant does not owe any court costs! That’s really pretty huge.

There’s an update here, and you should read both posts. This sounds like there could be a significant financial impact on counties all over Texas, not just Harris. It’s their own fault for playing so loose with the law, of course, it’s just that they never got called on it before now. It’ll be interesting to see how this mess gets resolved.

Complaining about the public defender office

At least one judge doesn’t like the new Harris County Public Defenders office.

“In short there is no evidence that a public defender’s office can be of any benefit to the Harris County Juvenile Justice system,” state District Judge John Phillips said last month in an open letter.

Chief among Phillips’ complaints is that the public defender system in the juvenile courts costs two and half times more than the system of appointments he uses, a number denied by those connected to the office.

Phillips said the average cost per case is $649, compared to $264 for assigned lawyers.

Alex Bunin, who oversees the public defender’s office, said Phillips’ numbers are wrong. He said the judge cited a preliminary feasibility study with estimates that were not accurate.

“Those numbers are not meaningful,” he said.

Bunin said the costs are closer to actual public defender averages across the state. Established public defender offices in Texas average $406 per case against $540 for appointed attorneys.

“The point is that the numbers are fairly comparable,” Bunin said. “There’s no support for ‘two and half times the cost.’ ”

Bunin said a comprehensive review has been commissioned and is expected in about six months.

“We’ll know things about the quality of our work, as well as the cost effectiveness of it,” Bunin said. “When we get ready for midyear budget, we’ll have something on paper.”

I found Judge Phillips’ letter here. The story references an open letter in response to Judge Phillips from Lawrence Finder and George “Mac” Secrest, but I was not able to locate it. (Dear Houston Chronicle: Would it kill you to include links to stuff like this that you reference in the online version of your stories?) Not being familiar with the system, Judge Phillips’ letter and the documents he included as evidence did not make much sense to me. I do agree with Bunin that the costs cited in an initial feasibility study don’t really mean much any more, and that the actual costs that will be reflected in their midyear budget will tell a much more accurate story. Judge Phillips also cites a number of reforms that the juvenile courts have implemented to save money, to which I say Great! Good job! But I don’t see why those reforms and the Public Defender office should be mutually exclusive, and even if they were that doesn’t address the need for the Public Defender office in other courts. And finally, not to be crass, but I’d like to know what if any connections there are between Judge Phillips and Gary Polland. Judge Phillips complained that supporters of the Public Defender office have politicized the issue, but that is quite clearly a two-way street. Let’s see what their budget request looks like and we’ll go from there.

A few words with Alex Bunin

The Sunday Chron had a brief conversation with the head of Harris County’s new public defender office, Alex Bunin.

Q: You don’t know if the office is going to save taxpayer dollars for attorneys per case, but you say it will be a better value for the money spent?

A: Absolutely. If you’re asking me to give you a dollar figure that says it’s going to save this amount of money, I can’t tell you that. But we think we’re going to do it in a more efficient manner and provide better representation.

Q: Why is that?

A: You’re going to have lawyers who have access to the assistance of other lawyers and investigators on a round-the-clock basis. You’re just going to have a greater body of knowledge and assistance.

Q: But the hope is that it will save the county money, especially in jail beds?

A: Right. You can’t just compare what you’re paying assigned lawyers to what you’re paying us. There are so many interrelations in the system that are outside of what the courts pay lawyers. There’s the jail cost, there’s the social services, there are a lot of things that are affected.

Good stuff. Mr. Bunin is high on the list of people I’m looking forward to interviewing in the future. I wish him and his office good luck in completing their mission.

Harris County appoints its public defender

Meet Alex Bunin, who was unanimously appointed by Commissioners Court to be the chief of Harris County’s first ever public defender office.

Bunin, 51, set up federal public defender offices in southern Alabama, Vermont and northern New York. He currently runs the Albany and Syracuse offices in New York and teaches at Albany Law School.

“This is really a major project. It’s much bigger than the offices that I’ve run before, a real diversity of issues,” Bunin said. “I think there’s just a lot more opportunity to help people on the ground level in a county office.”

Bunin starts his new job Dec. 6 with a temporary office, no employees and no office equipment. By February, his office is expected to start representing mentally ill indigent defendants facing misdemeanor charges and appeals cases for the indigent.

This is still a pilot project, meaning that if it doesn’t go well – read that as “doesn’t prove to be more cost effective than the current system of judge-appointed public defenders” – Commissioners Court can kill it. The reaction to Bunin’s hiring is positive, with Mark Bennett expressing hope and State Sen. Rodney Ellis releasing a statement (see below) praising the selection. I look forward to seeing what Mr. Bunin can do with this office, and hope for great things.

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