Off the Kuff Rotating Header Image

jails

Commissioners Court approves bail lawsuit settlement

Excellent.

Harris County Commissioners Court approved a historic settlement Tuesday fixing a bail system a federal judge found unconstitutional and ushering in a new era for criminal justice in one of the nation’s largest metropolitan areas.

The deal resulted from months of intensive negotiations between the county and lawyers for indigent misdemeanor defendants who sued over a two-tiered system that jailed people prior to trial if they couldn’t pay up front cash bail but allowed people with similar backgrounds and charges to resume their lives and await trial at home.

“This was the result of careful negotiation,” County Judge Lina Hidalgo said just before the commissioner’s voted 3-2 to approve the deal.

The vote split along party lines. Commissioners Jack Cagle and Steve Radack, the only Republicans now on the the commissioners court, voted against it.

The settlement agreement — which still must be approved by a federal judge — installs a monitor to oversee the new bail protocol for seven years. It provides comprehensive public defense services and safeguards to help ensure defendants show up for court. It will allow about 85 percent of people arrested on misdemeanors to avoid pretrial detention. The settlement also calls for transparent data collection, which will allow the county to keep better track of what’s working and what isn’t.

You know the background, so see here for the previous update. I can only wonder what would have happened in a world where Democrats swept the judicial races but failed to win those two seats on Commissioners Court. I feel pretty confident saying that as of July 30 in that alternate universe, there would not be an agreement in place. Elections, they do have consequences. Congratulations one and all for getting this done.

Final bail settlement reached

We are coming to the end of a very long road.

A long-awaited settlement in Harris County’s historic bail lawsuit won tentative approval Friday from all parties, setting up a possible end to a contentious system that kept poor people behind bars on low-level charges while those with money could walk free.

The agreement — if approved by a federal judge and county officials — would formally adopt the judge’s findings and modernize the way local officials handle bail hearings for the steady stream of people arrested every day on misdemeanors.

Key reforms in the lengthy consent decree include revised judicial protocol, access to more public defense services, open court hours for defendants to clear or prevent warrants, as well as text reminders about hearings and a bail education program for officials and the public. The county will have a court-appointed monitor for seven years to oversee implementation.

The county also would agree to pay about $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit. An additional $2.1 million in legal fees has been waived by the Susman Godfrey firm.

Commissioner Rodney Ellis, who has championed bail and criminal justice reform for decades, called the agreement one of the highlights of his career.

“It’s a major civil rights victory that will have national implications,” Ellis said. “This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”

The deal could provide a road map for other jurisdictions around the country to rethink their bail systems amid widespread overcrowding and a nationwide push for criminal justice reform.

Commissioners Court is set to vote Tuesday on the proposed deal. Chief U.S. District Judge Lee H. Rosenthal could then consider approving it after a hearing Aug. 21.

See here for some background. I got a press release from the Texas Organizing Project on Thursday about this, so I’ve been eagerly awaiting the news story. I can predict with confidence that Commissioners Court will approve this by a 3-2 margin. Elections have consequences. Kudos to everyone who worked hard to make this happen.

The Sandra Bland cellphone video

Wow.

Sandra Bland

New cellphone footage from the now infamous traffic stop of Sandra Bland shows her perspective when a Texas state trooper points a Taser and yells, “I will light you up!”

Bland, 28, was found dead three days later in her Waller County jail cell near Houston. Her death was ruled a suicide.

The new video — released as part of a WFAA-TV exclusive in partnership with the Investigative Network — fuels the Bland family’s suspicions that Texas officials withheld evidence in her controversial arrest and, later, her death.

Until now, the trooper’s dashcam footage was believed to be the only full recording of the July 2015 traffic stop, which ended in Bland’s arrest. The trooper claimed he feared for his safety during the stop.

The 39-second cellphone video shot by Bland remained in the hands of investigators until the Investigative Network obtained the video once the criminal investigation closed.

Bland’s family members said they never saw the video before and are calling for Texas officials to reexamine the criminal case against the trooper who arrested Bland, which sparked outrage across the country.

“Open up the case, period,” Bland’s sister Shante Needham said when shown the video.

Read the rest, and read this interview with Sharon Cooper, also a sister of Sandra Bland. It doesn’t look like there will be any reopening of the case, but for sure we need to know why this video hadn’t come to light before now. It’s hard to accept official explanations of tragedies like this when that explanation suddenly changes a couple of years later. We have to know that we have all the available information, and that there are no more surprises lurking in an evidence box somewhere.

House passes a bail reform bill

For what it’s worth.

Rep. Kyle Kacal

The Texas House gave an initial stamp of approval Thursday to a bill that addresses bail practices, which courts recently deemed unconstitutional in the state’s two most populous counties for discriminating against poor criminal defendants who can’t pay for their release from jail.

But a last-minute amendment actually limits who can be released from behind bars without having cash.

Reform advocates have called for a system that could get poor, nonviolent defendants out of jail before their trial, but the amendment by state Rep. Oscar Longoria, D-Mission, is more restrictive than current law on no-cost releases. It would not allow judicial officers to release defendants on no-cost bonds for numerous reasons, including if they haven’t shown up to a court hearing in the previous two years, were charged with a violent offense or were charged with a crime that involves more than 4 grams of a controlled substance.

House Bill 2020 was one of several bail reform measures filed this year after federal court rulings, jail deaths and a state trooper’s murder drew attention to Texas’ pretrial jailing practices after the last legislative session. As it was presented to the chamber, the bill would have required officials to consider a defendant’s risk of danger or skipping court before making bail decisions. The successful amendment nixed that requirement if a defendant is released on a preset bail amount.

The bill’s author, state Rep. Kyle Kacal, R-College Station, said he worked in coordination with Republican Gov. Greg Abbott’s office on the measure, but it has changed significantly since it was filed in March. One of the most notable revisions before coming to the floor was that it no longer puts the power over systemic bail changes under the governor’s office.

[…]

Longoria’s amendment drastically alters the bill, but he emphasized that the move to restrict release for defendants on personal bonds — which have no upfront cost — for some defendants was based on safety, noting that it limited no-cost release for sexual assault and family violence offenses.

“It was more of a community safety issue,” he told The Texas Tribune after the bill passed. “A lot of judges don’t have the proper training to basically admonish the defendants and set proper bond.”

The amendment went against what many advocates have pushed for, and Marc Levin with the Texas Public Policy Foundation, a conservative think tank, said he would push to have the Senate remove it if the bill finally passes the House.

“It certainly would contribute to inequality in the system, and it could contribute to dangerous people who have money being released when they shouldn’t,” he said.

Some bail reform advocates have also criticized the bill for still relying on money bail instead of presuming release on no-cost bonds for nonviolent defendants. At a hearing last month, the criminal justice advocacy group Texas Fair Defense Project claimed the bill at that time didn’t adequately address federal court rulings that said Harris and Dallas counties’ bail practices kept people in jail simply because they were too poor to pay their bonds, and the group called for individual bail hearings within two days. The organization also said the bill’s requirement of a risk assessment would prohibit judges from automatically releasing from jail most misdemeanor defendants on a no-cost bond. Newly elected judges in Harris County adopted that practice amid legal woes the county faced from the federal ruling.

“We would like to see … that they’re still allowed to make a decision to automatically release defendants on really low-level, nonviolent offense,” Emily Gerrick, a staff attorney for the organization, said at the hearing.

Amendments to allow counties to release defendants on no-cost bonds before a risk assessment and to address the court rulings that called for individualized bail hearings failed Thursday.

See here and here for the background. Earlier bills by Rep. Andrew Murr and Sen. John Whitmire appear to be dead at this point, so it’s this bill or nothing. Grits believes none of these bills were going to address the main constitutional flaws in the existing system, which should be clarified in the coming months by the Fifth Circuit. After reading through this story, I’m inclined to agree. If this bill falls short of what the court is likely to order, what’s the point? Whatever the case, it’s up to the Senate now.

We need more than just bail reform

Bail reform is based on the radical idea that locking up non-violent, low-risk people who have been arrested on minor charges is a very bad and very expensive thing to do. But let’s take a step back from that and note that lots of people get arrested for things they shouldn’t get arrested for.

As the House Criminal Jurisprudence Committee today prepares to hear HB 2754 (White), the committee substitute to which would limit most Class C misdemeanor arrests (with certain public safety exceptions), Just Liberty put out a new analysis of data titled, “Thousands of Sandra Blands: Analyzing Class-C-misdemeanor arrests and use-of-force at Texas traffic stops.”

The analysis relies on the new racial profiling reports which came out March 1st, analyzing information for Texas police departments in cities with more than 50,000 people, and sheriffs in counties with more than 100,000. Here’s the table from Appendix One of the report with the underlying data.

Readers will recall that new detail about Class-C arrests, use of force, and outcomes of searches were added to the report as part of the Sandra Bland Actpassed in 2017. But the provision to restrict Class C arrests was removed before the law was passed. So HB 2754 amounts to unfinished business for those concerned about what happened to Sandra Bland.

Our findings: The practice of arresting drivers for Class C misdemeanors – not warrants, and not more serious offenses – is more widespread than portrayed by law enforcement. The 96 police and sheriffs in our sample arrested people nearly 23,000 times for Class-C misdemeanors last year, with the Texas Department of Public Safety accounting for nearly 5,000 more.

[…]

These data represent fewer than 100 law enforcement agencies, but more than 2,000 agencies must submit racial profiling reports because they perform traffic stops in come capacity. Agencies in our dataset represent the largest jurisdictions, but not all by a longshot. If we assume that these departments plus DPS represent 60 percent of traffic stops in the state, and that the average arrest rate for the other 40 percent is the same as in this sample, then Texas law enforcement agencies arrested more than 45,000 people at traffic stops statewide last year, the report estimated.

These higher-than-previously-understood estimates are corroborated by Texas Appleseed’s recent analysis of jail bookings. Examining data from eleven (11) counties, they found more than 30,000 jail bookings where Class C misdemeanors (not warrants) were the highest charge. The difference between analyzing jail bookings and racial-profiling data is that jail bookings include Class C arrests which happened anywhere. The racial profiling reports Just Liberty analyzed only consider arrests made during traffic stops.

Taken together, these analyses demonstrate that the overall number of Class C arrests is much higher than anyone ever imagined when this topic has been discussed in the past.

The full report is here. It’s short, so go read it. How many people over the years do you think have spent time in the Harris County Jail because of a traffic stop? How many millions of your taxes do you think went to keeping them there?

Bail lawsuit settlement outline taking shape

We should have a final version in a couple of weeks.

A proposed settlement in the landmark Harris County bail lawsuit would significantly change how the county treats poor defendants in misdemeanor cases by providing free social and transportation services and relaxing penalties for missed court dates.

The draft deal includes a number of reforms aimed at ensuring poor defendants arrive for court hearings and are not unfairly pressured into guilty pleas. They would, among other changes: require Harris County to provide free child care at courthouses, develop a two-way communication system between courts and defendants, give cell phones to poor defendants and pay for public transit or ride share services for defendants without access to transportation to court.

“I’m not aware of any county, or city the size of Houston… doing those type of innovative things,” said Mary McCord, a former federal prosecutor who filed an amicus brief in the case on behalf of the poor defendants. “Ultimately, the county is going to save so much money by not keeping these people in jail.”

The proffered agreement would require the county to operate at least one night or weekend docket to provide a more convenient opportunity for defendants with family, work and education commitments. Courts would be barred from charging any fees to poor defendants, defined as those earning less than 200 percent of the federal poverty level, which is about $25,000 for someone with no dependents.

The proposal also would reduce penalties for missed court dates. A defendant could not be deemed to have failed to appear if he arrived in court on the day assigned, even if he was hours late. Defendants would be allowed to reschedule court appearances for any reason at least two times without negative consequences. Judges only could issue bench warrants 30 days after a missed a court appearance, so long as the court already has attempted to contact the defendant with a rescheduled hearing date.

In addition, judges would be required to permit defendants to skip hearings where their presence is unnecessary, such as routine meetings between prosecutors, defense attorneys and judges that do not involve testimony or fact-finding.

At the heart of the 23-page proposed settlement, a copy of which was obtained by the Houston Chronicle, is the codification of a new bail schedule unveiled by the slate of newly elected of criminal judges in January, under which about 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds.

“Our current goal now is to become the model misdemeanor court system in America,” said Harris County Criminal Court at Law Judge Darrell Jordan, a bail reform advocate and the only Democrat on the misdemeanor bench when the case began. “I think the proposals in the settlement, as far as the wraparound services for misdemeanor defendants, is a great step in that direction.”

[…]

Harris County Judge Lina Hidalgo issued a statement late Friday stressing that the proposal is preliminary, and could change.

“We’re working well with the plaintiffs to reach an agreement that will provide a model for bail reform around the country while also being feasible for the county to implement,” she said.

Precinct 2 Commissioner Adrian Garcia said he is eager to negotiate a settlement that balances the needs of defendants against those of victims and county taxpayers. He declined to speak to specific provisions in the proposed settlement, but said he has concerns that some may be too expensive or unrealistic.

“I’ll just say there’s a number of things that immediately hit me like, ‘I’m not sure how we’re going to do that,’” Garcia said.

Precinct 3 Commissioner Steve Radack and Precinct 4’s Jack Cagle panned the proposal, which they said is too broad. The pair of Republicans said it should instead focus on implementing bail rules that ignore a defendant’s ability to pay.

“If my learned colleagues are going to strive for free Uber rides for the accused, I’d strongly advocate we provide the same to victims,” Cagle said.

Just a reminder, for anyone who might be fixating on the Uber rides or childcare aspects of this, the goal here is to get people to show up for their court dates. I would remind you that the alternative to paying for those relatively small things is paying to house, feed, and clothe thousands of people for weeks or months at a time, and that we have been doing exactly that for decades now. And if it’s the Uber thing that’s really sticking in your craw, then I trust you support a robust expansion of our public transit and pedestrian infrastructure so that it’s practical for anyone to take a bus to the courthouse. (Though having said that, if Commissioner Cagle was being sincere and not sarcastic, providing rides to the courthouse for victims who need them seems like a good idea to me.)

Again, just to review. Locking people up who have not been convicted of a crime is (with limited exceptions) wrong. Locking people up who have been arrested on charges that would normally not carry jail time if they were convicted is wrong. Locking people up for technical violations that have nothing to do with the crimes with which they have been charged is wrong. We spend tens of millions of dollars of our tax dollars every year doing these things. This is our chance to spend a whole lot less, and to get better results for it.

An overview on bail reform

From Mother Jones, a look at how bail reform is progressing in Harris County. I’m going to focus on the part about the second bail-related lawsuit, which covers felony arrests.

A federal judge in Harris County is currently considering a case that would transform the way bail is set for people charged with felonies, a population that comprises the vast majority of people in jail awaiting trial.

The lawsuit, filed in January by civil rights groups against the county and its sheriff, argues that detaining felony defendants simply because they can’t afford bail discriminates against the poor and often forces them to take guilty pleas just to get out faster. The suit asks the court to stop the practice of jailing people who aren’t a threat to public safety prior to trial only because they can’t pay. According to the suit, in 2017, up to 85 percent of those arrested for felonies were booked into jail because they couldn’t make bail.

[…]

The settlement [in the misdemeanor case lawsuit] was a watershed moment. “I don’t think we can understate the cultural significance,” says Alec Karakatsanis, who was a lawyer with Equal Justice Under Law when the case was settled and is now an attorney with Civil Rights Corps. Although other counties and states have similarly reformed their bail systems—California abolished cash bail last year, and Washington, DC, largely did away with the practice decades ago—Harris County’s size makes the victory particularly significant.

And while the settlement details were being ironed out, the same lawyers from the misdemeanor case filed the felony suit.

“Once we were having very constructive, productive discussions with the new misdemeanor judges about a final settlement, we realized it was time now to move on to the next piece of the problem,” said Neal Manne, an attorney representing the plaintiffs in both lawsuits.

The felony case, a class action, was filed on behalf of three men who had been charged with nonviolent felony offenses, including driving under the influence and drug possession. The men were assigned bail amounts between $15,000 and $30,000. None of them could pay, and two of them remain detained since being brought into custody in mid-January. (The other made bail after about two weeks in jail.) Like the misdemeanor case, lawyers for the plaintiffs are arguing that such a bail system discriminates against poor inmates who are otherwise low risk.

But if the misdemeanor case was a big deal, the case currently in front of the court will be a game-changer. As of March 2016, misdemeanor defendants comprise only about 8 percent of the county jail’s pretrial population—felony defendants, meanwhile, account for the rest. In fact, 77 percent of the entire county jail population, or approximately 6,000 people, at any given time are felony defendants awaiting trial, most of them for nonviolent offenses. And like people charged with misdemeanors, most of the defendants in jail for felony charges are stuck there because they can’t afford a bond. Although there are no national figures available on how many people are in jail because they can’t pay, data from the Prison Policy Initiative says that every day, 465,000 people are held in jail pretrial, and the organization estimates that hundreds of thousands of these people are there because they can’t afford bail.

If the district court sides with Karakatsanis and his clients, Harris County would be one of the largest in the country to severely limit the use of cash bail. The parties will be negotiating a settlement over the next several weeks, and Manne said he’s optimistic those talks will result in a similar outcome as the misdemeanor suit.

See here and here for some background. The story does not note that there are bills filed in the Legislature that would implement much of the reforms from the Harris County lawsuit statewide. Harris County was a watershed here not just because it’s the biggest county, with the biggest jail population, but also because for the most part, the other big counties have not taken similar action yet. The precedent this lawsuit set will certainly affect any future and current lawsuits in other counties, whether or not the proposed bills pass. There of course remains some resistance to the whole thing, but that is by this point a diminishing position. I look forward to seeing how the negotiations over the felony bail lawsuit turn out.

A lawsuit against bail reform

That would be a No from me.

A Harris County judge has sided with lawyers for the Harris County Sheriff’s Office and a slate of new Democratic judges vying to loosen misdemeanor bail rules this weekend, rather than grant a request of three bail bond companies that would have delayed the start of the proposed revisions .

The companies argued Thursday that the court-ordered bail reform — believed to be a key step in a lengthy legal fight over the pre-trial detention of poor, low-level offenders — would jeopardize their Houston bail bonds business.

“They won’t get to write as many bail bonds as they did before and they won’t make as much money as they did before,” said Allan Van Fleet, a lawyer representing the judges.

[…]

The reform, the companies argue, violates state law because it would guarantee many defendants a specific type of bail without first providing them individual hearings before a judge, and because it would require the sheriff to reject some bonds that otherwise would be valid under state law, among other reasons.

“We have a constitutional right to make our living by bail bonds and if they want to amend the way the things are, they can do that but it still has to be by state law,” said Kevin Pennell, who represented Set ‘Em Free Bail Bonds, A Better Bail Bond and Advantage Bail Bonds in the county suit filed Thursday.

Eightieth Civil Court Judge Larry Weiman countered the argument before he denied the order.

“Doesn’t the court have to balance the constitutional right of the defendants, those who are arrested and charged with a crime,” Weiman asked, before resetting the temporary injunction hearing to March 11.

I’ll bet tobacco farmers used to make a pretty good living, too. I don’t know about you, but I’m not sorry for the societal and legal changes that led to the decline of that profession. There will still be a need for bail bonds going forward. There just won’t be as much of a need for them. That is as it should be. A hearing to review the proposed settlement in the original lawsuit will be on March 8. We’ll see where we stand then.

Commissioners Court rejects Ogg’s request for more prosecutors

I fully expected that Commissioners Court going from 4-1 Republican to 3-2 Democratic after the last election would signal big changes in how business was done in Harris County, but I didn’t expect this to be the first milestone on the new path.

Kim Ogg

Harris County Commissioners Court on Tuesday rejected Kim Ogg’s request for 102 new prosecutors, a stinging public defeat for the first-term Democratic district attorney by members of her own party.

The rejection came less than 24 hours after a former assistant district attorney filed paperwork to challenge Ogg in next year’s primary, a sign criminal justice reformers may have lost patience with the self-described progressive after helping elect her in 2016.

The three Democratic members of Commissioners Court — commissioners Rodney Ellis and Adrian Garcia and County Judge Lina Hidalgo —supported increasing the district attorney’s budget by 7 percent, in line with increases for other county departments. Ogg had asked for a 31 percent increase, which would grow her prosecutor corps by a third and include 42 additional support staff.

“This is not the only way, and certainly not the most cost-effective way to decrease prosecutor caseloads,” Hidalgo said.

[…]

Ogg, who did not attend the court meeting, issued a statement after the vote.

“We will continue to fight every day to ensure that justice is done in every case for every crime victim, every defendant and the community,” she said. “Harris County must have a district attorney’s office with sufficient resources to ensure that all cases are resolved fairly and in a timely manner.”

See here for the background and here for an earlier Chron story that previewed the Tuesday Commissioners Court meeting. Ogg had addressed the criticism of her proposal, and also answered the question about maybe hiring prosecutors on a shorter-term basis, but it wasn’t enough to get any of her fellow Dems in line. I would say her best bet right now is to take what the ACLU of Texas said in a press release following the Commissioners’ vote to heart:

“Adding more prosecutors in Harris County is not the ultimate solution for reducing mass incarceration and fighting racism in the criminal system. While the Harris County Commissioners Court has taken a more measured approach than the initial proposal, the addition of new prosecutors must come with clearly defined standards for reducing incarceration — such as expanding pretrial diversion, reducing case disposition time, and reducing existing caseloads — instead of prosecuting more cases. The commissioners were right to call for studies into how best to improve the district attorney’s office, and District Attorney Ogg should commit to specific plans for how any newly hired prosecutors will be used. That’s accountability.”

“There is no question that Harris County prosecutors have high caseloads, but the solution is not to add more prosecutors in a cycle that endlessly ratchets up the size of the criminal system. The smartest way to reduce caseloads is to dismiss more cases, identify more cases for diversion, and invest significantly in substance use disorder and mental health treatment that help people who need it and prevent them from ending up awaiting prosecution in the first place.”

Seems to me this conversation will need to include HPD, the Sheriff’s office, and all of the other law enforcement organizations in Harris County as well. If the DA needs to prioritize what cases get prosecuted, they will need to prioritize what arrests they make. Commissioners Court needs to do its part, too, by working to expand mental health offerings. The Lege could also pitch in here, though for obvious reasons I’ll keep my expectations low. Everyone has a part to play – Kim Ogg’s part is bigger than the rest, but it’s not just her. Maybe by the time next year’s budget is being discussed, we’ll have less to argue about.

And speaking of next year:

Audia Jones, the former prosecutor who on Monday filed paperwork to challenge Ogg, spoke against the proposal. Jones said she left the district attorney’s office in December in part because she said Ogg’s administration has been too reluctant to offer jail diversion to defendants of color, in contrast with their white counterparts.

She said temporary court closures caused by Hurricane Harvey are not a driver of increasing caseloads, as Ogg contends, but rather are a result of her administration’s policies.

Murray Newman, who had some earlier thoughts about the Ogg proposal, notes that Audia Jones is married to Criminal Court Judge DaSean Jones. I’m not sure how that conflict gets sorted out if she wins (one obvious remedy would be for Judge Jones to step down), but that’s a concern for another day. I would have picked County Attorney Vince Ryan as the first member of the class of 2020 to get a potential primary opponent – designating a treasurer is a necessary step to running for office, but it doesn’t commit one to running – but here we are.

How many prosecutors do we need?

Opinions differ, but it’s a big question in Harris County right now.

Kim Ogg

Hanover is one of many prosecutors Harris County District Attorney Kim Ogg said are overburdened — the reason she has asked Commissioners Court for a budget that would fund 102 additional assistant district attorneys and more than 40 support staff. Ogg said the surge is needed to clear a backlog in cases exacerbated by Harvey, a driver of overcrowding at the Harris County Jail.

Her proposal to expand the prosecutor corps by a third, however, has evolved into a proxy battle over the future of criminal justice reform in Harris County. Ogg finds herself so far unable to persuade Democrats on Commissioners Court as well as reform groups, who have questioned her self-identification as a progressive and said her proposal would lead to more residents in jail.

“Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is police and prosecutors,” said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.

Ogg, a first-term district attorney who unseated a Republican in 2016 with the support of many progressive groups, said these critics fail to grasp the on-the-ground realities of her prosecutors, whose heavy workloads mean they sometimes are the reason cases are delayed and defendants languish in jail.

Ogg pledged to send the first 25 new hires to the felony trial bureau, where she said they can help achieve the reforms progressives seek, such as identifying low-risk defendants who can be sent out of the criminal justice system without a conviction.

“Who else is going to divert offenders who should re-enter society, and prosecute the people who should be incarcerated to protect the public?” she said. “This is a question of how fast do our funders really want to reform our justice system?”

Ogg laid out her argument in an interview Wednesday at the district attorney’s temporary quarters at 500 Jefferson, where a regular shuttle takes prosecutors to the criminal justice complex more than a mile away.

Ogg said since taking office, she is proud to have diverted 38,000 defendants for a variety of low-level offenses, including marijuana possession, misdemeanor theft, first time DUI and mental health-related charges such as trespassing. With an active caseload that jumped from about 15,000 when Harvey hit to 26,523 this week, she said prosecutors are not always able to give victims and defendants the attention they deserve.

Her staff noted Harris County’s 329 prosecutors are less than half the number in Illinois’ Cook County, which is only slightly more populous.

“With adequate staff, we’ll be able to offer pleas that are reasonable earlier,” Ogg said. “We’ll be able to focus on public safety to make sure we don’t let someone go who is really a risk and threat to either his family or his community.”

She sought to mollify the concerns of progressives who fear it could lead to more people in jail, saying, “There’s no data showing that more prosecutors equals more prosecutions.”

Here are the original statements put out by TOP and the TCJC. This subsequent Chron story gives some more detail.

“We would like to stop the clock and take time to consider other options, primarily looking at funding for mental health issues,” organizer Terrance Koontz said.

Koontz said TOP is looking at housing options for nonviolent offenders who may need to reset their lives.

“We’re talking about individuals who are being arrested for minor drug charges or being homeless on the street or having a mental problem, and they definitely shouldn’t be sitting in jail,” Koontz said. “We are not here to attack D.A. Ogg, we just want more time to consider our options.”

[…]

Doug Murphy, president of the Harris County Criminal Lawyers Association, agrees with Ogg’s proposal.

“Having witnessed the daily reality of their lack of manpower what we’re seeing is Harris County was the fastest moving docket in the country, we called it the rocket docket, and it slowed it down to a snail’s pace,” said Murphy. “What we got is bloated dockets because they don’t have the manpower to work these cases up and marshal the evidence.”

Murphy believes more prosecutors would help pick up the pace of getting cases to trial, resolved and even dismissed. “If I weren’t witnessing daily the backlog and the frustration, I would be in total agreement with the other organization,” Murphy said.

Koontz still worries that more prosecutors would ultimately mean more arrests and more people wrongly incarcerated.

“We just want to consider other viable options outside of just hiring the prosecutors,” Koontz said. “Because although it does not seem like putting more people in jail, at the end of the day we feel like more people will end up in jail than not and at the end of the day its black and brown people who are overwhelmingly being incarcerated.”

Honestly, I think everyone is raising valid concerns. The chaos of Harvey has caused a big backlog for the DA’s office, and it doesn’t serve anyone’s interests for cases to drag out because there just isn’t the time or the bandwidth among overworked assistant DAs to get to them. On the other hand, Kim Ogg made promises about how she was going to reform the system, and a big part of that was not prosecuting a lot of low-level crimes or crimes involving people who need mental health treatment. They also worry that while Ogg might not backtrack on her stated priorities, the next DA who inherits her bigger office may not share those priorities. It’s not at all unreasonable to worry that an increase in prosecutors will be counter to Ogg’s stated goals.

So how to resolve this? Grits suggests increasing the Public Defender’s office by an equivalent amount – Commissioner Rodney Ellis has suggested something like this as well, and the PDO is seeking more funding, so that’s on the table. I like that idea, but I also think it may be possible to assuage the concerns about what happens after the backlog is cleared by putting a time limit on the hiring expansion. Is it possible to hire people on one or two year non-renewable contracts, to get the office through the backlog but then have it return to a smaller size afterward? I’m just spitballing here, but if we agree that clearing the backlog is a worthy goal, then we ought to be able to find a way to ensure that doing so doesn’t lead to mission creep. I’m open to other ideas, but I feel like this is something that needs to lead to a compromise, not one side winning and the other side losing. I hope we can get there.

Trying again for bail reform at the Lege

A very worthwhile pursuit.

Sen. John Whitmire

State Sen. John Whitmire, D-Houston, and state Rep. Andrew Murr, R-Junction, announced Monday at the Capitol that they have again filed legislation that would implement a risk-assessment tool for judges to use when making bail decisions, among other proposals. Joining them in support of the legislation were the state’s two top judges, Texas Supreme Court Chief Justice Nathan Hecht — who has publicly called for a change to Texas’ system for years — and Court of Criminal Appeals Presiding Judge Sharon Keller.

“I don’t believe I’ve seen anything more broken in the criminal justice system than our current bail bond process,” Whitmire said. “If we do not fix it, ladies and gentlemen, the federal courts will.”

Bail is a legal mechanism to ensure defendants appear in court for their hearings after being charged with a crime. The most common practice is money bail, in which judicial officers set a bond amount that defendants must pay in order to be released. In the last few years, lawsuits have popped up all over the country — including in Texas — arguing that the system wrongfully detains poor defendants until their case is resolved while similar defendants with cash are allowed to go free.

In a speech to the 2017 Legislature, Hecht argued for reforms by noting that 75 percent of people in Texas jails have not been convicted. To illustrate what he considers a flawed system, he cited the case of a grandmother who was kept in jail for about two months on a $150,000 bond after allegedly shoplifting $105 worth of clothes for her grandchildren.

The bipartisan legislation filed Monday aims to help poor, low-level defendants get out of jail on free bonds and keep in jail those thought to be flight risks or threats to public safety. The proposed risk-assessment tool would have to be used within two days of arrest to help judges determine the defendant’s level of risk based on criminal history, not just the current offense. The bills are similar to last session’s, when legislation passed the Senate but died before reaching the House floor.

Whitmire blamed his 2017 bill’s failure on the powerful bail bond industry, which includes companies that front the full cost of a bail bond at a fee of about 10 percent. (A defendant being held on a $1,000 bond, for example, could pay $100 to a bail bond company to be released.) He said last session that bail bond companies opposed the bill because it would cut into their cash flow, but those in the industry have argued the measure would lessen a judge’s discretion and threaten public safety by letting more people out of jail.

[…]

To set bail, most Texas jurisdictions use bail schedules, in which a bond amount is set based solely on the criminal charge. The proposed risk assessment tool would also take into account the defendant’s criminal history and age.

If the tool determines that a defendant shows a lower risk of skipping court hearings or posing a threat to public safety, the judicial officer would release the person on a no-cost “personal bond” with or without conditions, like GPS tracking or drug testing. Under the proposed measure, judges and magistrates could still impose money bail if they decided it was the least restrictive way to ensure court appearance and public safety, but they could not use it as a way to detain poor defendants before their trials.

The risk assessment tool is meant to keep poor defendants from being kept in jail before being convicted simply because they can’t afford a low-cost bond amount. Critics of current bail practices have argued that risk assessment tools considering criminal history can reinforce a system that prejudices against poor people of color. If someone was arrested on a charge earlier tied to race or poverty status, that person would be given a higher risk level. But the critics still support the tool over current practices.

“Until we can get some better tools, then the risk assessment system would need to work for now,” said Tarsha Jackson, criminal justice director of the Texas Organizing Project, a nonprofit that advocates for low-income communities and people of color.

The other piece of the proposed legislation would change bail practices — and the Texas Constitution — to allow judicial officers to deny bail if they believe money bail or a personal bond couldn’t reasonably ensure the person would show up for court or if that person might endanger the safety of a victim or the public.

Since release on bail is a constitutional right in Texas except in capital murder cases, changing this part of the law requires voter approval even after the Legislature passes it.

See here and here for the background. Whitmire got his bill through the Senate in 2017, but neither his bill nor Murr’s made it out of committee in the House. This year, we have the settlement of the Harris County litigation and support for the idea of bail reform from Greg Abbott, so perhaps the odds are better. It’s never a bad time to call your legislators and let them know you would like them to support these bills.

Bail reform settlement looks to be a go

Excellent news.

Chief U.S. District Court Judge Lee H. Rosenthal on Friday offered initial support for new bail rules proposed by Harris County, signaling the three-year lawsuit challenging the county’s cash bond system soon may reach its conclusion.

The settlement of the case, which Harris County has spent more than $9 million defending, would seal victory for the poor misdemeanor defendants who brought the suit and allow Rosenthal and both legal teams to turn their attention to a similar lawsuit challenging the county’s felony bail system.

“We’ve actively been talking to each other,” said Neal Manne, an attorney representing the poor defendants. “I think we’d be ready in a month to come back to the court with a final, permanent order.”

For the first time in a federal court hearing, all the parties in the misdemeanor suit stood in agreement Friday afternoon about how the case should be settled. In an unusual scene in Rosenthal’s 11th-floor courtroom, the attorneys in the once-contentious case urged Rosenthal to sign off on new bail rules proposed by the newly elected slate of Democratic misdemeanor judges.

[…]

Rosenthal, who in 2017 agreed Harris County’s bail system was unfair to poor defendants, suggested waiting to see how well the new bail rules work in practice before issuing her approval. With the opening of the new joint processing center for inmates, the judge said minor, unforeseen problems may need to be addressed.

“The devil, in the broader issues, is in the day-to-day,” Rosenthal said. She ordered the parties to return March 8.

Allan Van Fleet, the attorney representing the misdemeanor judges, agreed that the revised bail system will require each part of Harris County’s criminal justice apparatus to cooperate.

“The judges are committed, with the sheriff, the DA, the plaintiffs, that we’re going to work together to get the best system that anybody can come with,” Van Fleet said.

See here for the previous update. We’re headed in the right direction, and we know where we’re going. It’s a new day.

Joint processing center opens

This was a long time coming, but it should be worth the wait.

More than a decade after city voters approved a bond measure to fund it, Houston and Harris County opened a joint inmate processing center Thursday that officials say will eliminate the redundant practice of booking inmates at the city jail before transferring them to the county lockup.

The downtown center, replete with a digital processing system, open booking areas and dormitory-style units, was designed to be more efficient and to square with the city and county’s evolving attitude on criminal justice, officials said.

“This streamlined, expedited booking process is a true game-changer for Harris County law enforcement families,” Sheriff Ed Gonzalez told a roomful of elected officials and law enforcement officers at the new facility Thursday. “Every minute an officer spends escorting a prisoner through the intake process is another minute that they’re off the street keeping our neighborhood safe.”

For years, Houston police have booked suspects at one of two city jails, before transferring them to the Harris County Jail and booking them again. Eliminating the excess work is anticipated to free up about 100 police officers assigned to jail duty.

The city is set to cover 30 percent of the facility’s annual operating costs, amounting to about $14.5 million, said Andy Icken, Houston’s chief development officer.

[…]

The facility’s new digital booking system means officers will be freed from much of the paperwork that typically bogs them down. Officers also no longer will have to escort suspects across public streets, Gonzalez said, because they will be able to park in a sallyport attached to the building. He estimated officers would be in and out of the center within 20 minutes.

The facility, located across from the Baker Street Jail on San Jacinto Street, covers 246,000 square feet and will begin processing detainees Saturday.

See here for the previous update, which was in 2015 when ground was broken following the successful 2013 bond referendum. A 2007 county referendum that would have built more jail space had been voted down, and boy howdy does that look like a good decision in retrospect. This will get people processed through faster, and will cost less to operate. I just hope it won’t be prone to flooding. Kudos all around for finally getting this done.

Bail lawsuit 2.0

This one will be tougher to tackle, but the principle remains the same.

A hard-fought battle to reform Harris County’s bail system has prompted a second civil rights action.

The legal team that successfully challenged the county’s bail practices for low level offenses on the grounds they unfairly detained indigents, filed a new federal class action suit this week tackling money bail for felonies, which results in thousands of poor defendants being locked up before trial or entering guilty pleas to avoid lengthy incarceration.

This new lawsuit, which hit the docket during the Martin Luther King Jr. Day holiday, claims the county is holding people unjustly, simply because they cannot afford to pay a cash bail. Currently, people arrested who can post a cash bond or hire a commercial bonding company can simply resume their lives as their cases proceed through the criminal docket.

The lawyers argue that pretrial release should not be contingent on how much money a person has. Its one of a number of lawsuits around the country, including one before a district judge in Galveston, attempting to topple bail systems that treat people differently based on their income.

“This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community,” the lawsuit argues. “Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children.”

[…]

The lawsuit noted there are human costs to keeping people in jail. Since 2009, the complaint stated, 125 people have died while awaiting trial in the county lockup, including a woman who committed suicide this month after she could not pay her original bail of $3,000.

“Now is the time for a new vision and a new era of collaboration and innovation,” the lawyers said in a joint statement to the Houston Chronicle. “We are confident that with the leadership of the county judge, the sheriff, the district attorney, the public defender, and the felony judges, all of whom have expressed their commitment to bail reform, we will be able to resolve this case without wasting millions of dollars of taxpayer money as happened in the prior case.”

Most of the key stakeholders struck a similar note in responding to the new lawsuit.

Tom Berg, first assistant to District Attorney Kim Ogg,said the office is glad to work with the parties toward “a fair, just and speedy resolution” and at the same time “responsibly conserve the county’s resources so that they go for the staffing needed for bail reform implementation and not litigation costs.”

County Judge Lina Hidalgo said the county aims to support public safety, fairness and a cost-effective, fiscally responsible system. She acknowledged that there’s a long way to go.

“We’ve got a system that in a way fails on all three fronts,” she said Tuesday. Hidalgo said the crop of newly elected officials seem dedicated to enacting these types of change.

The sheriff also mentioned safety concerns, saying felony bail improvements require careful examination. However, he lauded the idea of reforming what he has referred to as a “broken system.”

“I support all efforts to improve our criminal justice system that strike a smart balance between our duty to ensure public safety and upholding our American ideal that everyone is presumed innocent until proven guilty in court,” Gonzalez said. “I support equipping judges with the data they need to accurately measure each defendant’s unique risk of failing to appear in court and committing additional crimes before they stand trial.”

Of the three plaintiffs in this lawsuit, two were busted for drug possession and the other for DUI. There’s still a lot of non-violent inmates in the jail awaiting disposition of their case because they couldn’t scrape up a bond payment. As with misdemeanants, the ability to write a check to a bail bond agency has no correlation with whether you will show up for your court date or if you are likely to commit further crimes while out. Again, Robert Durst was out on bail. It makes sense to separate the genuine risks from the harmless shlubs. Will such a system be perfect? No, of course not. Some people who get out on a personal recognizance bond are going to turn out to have been bad risks. But again – I can’t say this often enough – people do that right now, under the current system. We just accept it as the way things are. Well, the way things are is capricious, unjust, and almost certainly unconstitutional, as the system for misdemeanors was as well. We’ll never have a better chance to design a better system. Let’s get to it.

We really are about to do away with the old cash bail system

I have four things to say about this.

The new slate of Democratic judges has approved a drastic revision to Harris County’s bail system that could serve as a model for a settlement in the historic lawsuit in which a federal judge found the county’s judicial rulings unjustly relegated poor people arrested on minor offenses to jail because they couldn’t afford costly bonds.

The 15 new court-at-law judges and new presiding Democrat who was not up for election voted Wednesday on the new bail protocol that will affect thousands. They have spent weeks hammering out a plan with the sheriff, the district attorney and county leadership and will ask the federal court this week to implement it as a foundation for a settlement.

County Court at Law Judge Darrell Jordan, the presiding judge, estimates that 85 percent of people arrested on misdemeanors will now qualify to be released after arrest on no-cash bonds, with a few exceptions for people who must await a hearing – for up to 48 hours – for bond violations, repeat drunken driving offenses and domestic violence charges. At that point, they may also qualify for personal recognizance bonds.

“What it means is that no one will be in jail because they cannot afford to get out,” Jordan said. “The only people who will be detained and have to speak to a judge are a very small subset who will be processed through the Harris County Jail and those carve outs are aligned with best practices from around the country.”

The change was widely celebrated.

“It’s a big day for Harris County,” said attorney Allan Van Fleet, who represents the judges in the federal lawsuit. “It will make Harris County safer and more equal and provide more efficient processing of people accused of misdemeanors.”

1. Elections have consequences. I almost can’t believe this is actually about to happen.

2. Just a reminder, many of the people now in the jail are there awaiting trial. They have not been convicted of anything. Many others like them in the past never were convicted of anything, and many more pled guilty to something so they could get out. This will ensure there are far, far fewer people like them in the future.

3. The question of who was in jail awaiting trial and who was not was always largely about financial wherewithal, not about risk and danger to society. Remember, Robert Durst was granted bail.

4. One hopes that having far fewer inmates, many of whom don’t need to be there, will allow us to do a better job of ensuring the safety of those inmates, and enabling the jail to meet state standards. No more inmate suicides, please. We really need to do better than that.

Appeal of bail injunction dropped

Elections have consequences, and thank goodness for it.

Less than a week after the new jurists were sworn into office, Harris County’s misdemeanor judges on Monday withdrew their appeal in the landmark lawsuit over local bail practices that a federal judge said unfairly targeted poor people accused of crimes.

The historic litigation began in 2016, when attorneys and civil rights groups sued the county on behalf of defendants jailed for days because they couldn’t afford bond on low-level offenses. Though Chief U.S. District Judge Lee H. Rosenthal said the practice was unconstitutional and amounted to wealth-based detention, so far the county has spent more than $9 million in legal fees to fight the case, according to Harris County Precinct 1 Commissioner Rodney Ellis.

But many saw the Democratic wave in November’s elections as a sign of change ahead – and Monday’s court filings look to be one of the first indicators of that shift.

“It’s going to be a new day,” Neal Manne, attorney for the plaintiffs, said in November just after the ballot-box sweep. And now, according to Judge Darrell Jordan – the one misdemeanor judge who did not lose his bench in the last election – the parties have already begun hashing out a settlement they hope to have in place in the next few weeks.

“Our goal is have this accomplished by February 1, 2019,” Jordan told the Houston Chronicle.

One of a series of documents filed in recent days, the two-page motion simply lists the names of the new judges – who automatically replaced their predecessors as defendants in the suit – and asks that the case be dismissed. The court granted the motion and dismissed the appeal by mid-day.

[…]

Mike Fields, the one outgoing judge who supported the lawsuit, lauded the move as a “great first step” toward reform.

“Quite frankly, it’s overdue,” he said. “I remain convinced that fighting against bail reform was a mistake and, I believe, part and parcel of why the citizens of Harris County voted for such a sweeping change in our political landscape. Hopefully, this issue will, finally, be put to bed and taxpayer money better spent going forward.”

[…]

Meanwhile, the Harris County Attorney’s Office issued a statement expressing confidence in the possibility of a settlement.

“The County Attorney’s Office supports the newly-elected judges in their effort to resolve this case on terms they find acceptable,” County Attorney Vince Ryan said in a statement. “This is a case about judicial discretion.”

The next hearing, in Rosenthal’s court, is slated for Feb. 1.

Out-fricking-standing. The new judges are now represented by a pro bono attorney, instead of the high-priced guy that had been arguing the case in court. What this means is that the injunction will remain in place while the settlement is hashed out, with no further briefs or arguments or whatever else before the Fifth Circuit. (The last update I had on this was from August; I don’t think there was any other business on the agenda, but if there was it’s now moot.) Perhaps once we get this settlement in place we can stop outsourcing inmates once and for all. Now we need the city of Houston to get its act together and follow the county’s lead. Bottom line is that this, as much as anything, is what I wanted from the 2018 election. Well done, y’all.

Dallas County gets the Harris County treatment in its bail lawsuit

We have a precedent, even if everything is still a work in progress.

Taking a cue from the rulings on Harris County’s bail-setting practices, a U.S. district judge in Dallas issued a temporary order Thursday evening saying the county’s post-arrest procedures routinely violate inmates’ constitutional rights. The judge gave the county 30 days to change its ways.

U.S. District Judge David Godbey in Dallas said that the county has to stop the practice of imposing pre-set bail bond amounts, which often keep poor defendants locked up for days or weeks while letting wealthier ones go free, without individual consideration if arrestees claim they can’t afford it. He sided with the plaintiffs’ allegation that the county uses “wealth-based detention.”

“Wealthy arrestees — regardless of the crime they are accused of — who are offered secured bail can pay the requested amount and leave,” Godbey wrote. “Indigent arrestees in the same position cannot.”

[…]

Godbey relied heavily on Harris County rulings from the federal district court and the appellate court. He said the cases had the “same roots” — despite Dallas’ lawsuit also including felony defendants whereas Harris only involves those accused of misdemeanors — and concluded that doing anything other than what the appellate court ruled in Harris would “put the Court in direct conflict with binding precedent.”

“Broadly, those procedures include ‘notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decision-maker,’ he wrote, quoting the higher court’s ruling.

See here for some background, and here for an earlier story on how bail hearings have been done in Dallas. You know where I stand on this, and we both know that Dallas County has Democratic leadership, and thus I hope more than enough incentive to find a settlement. Some long overdue change is coming, and it is in everyone’s best interests to embrace it. The Chron and the Observer have more.

You know, there is a cheaper way to do this

Why are we still outsourcing inmates?

County commissioners next week will consider a proposal to outsource inmates to the Fort Bend County Jail, which would allow Harris County Sheriff Ed Gonzalez to slow — but not stop — the flow of inmates to a private prison in Louisiana.

The deal would bring as many as several hundred inmates closer to their families and attorneys, but would cost Harris County more than twice as much as shipping prisoners to Jackson Parish, La. It would also fail to address the root causes of overcrowding at the Harris County Jail, one of the nation’s largest, and prolong an elaborate game of musical chairs as the sheriff searches for jails to take his inmates.

Harris County’s 10,162 inmates are already spread across five facilities in Texas and Louisiana. It currently outsources 724 inmates, more than twice as many as any other Texas county.

[…]

“If there’s a desire to bring inmates closer to Harris County, this is the best deal we’ve been able to find so far,” said Harris County Sheriff’s Office spokesman Jason Spencer. “It doesn’t fully address the outsourcing issue, but it chips away at it.”

Harris County pays $29.33 per inmate, per day at Jackson Parish Correctional Center, with transport included. Fort Bend’s per diem is $55.00, and Harris County would also have to pay for transport. Spencer said the additional costs would push the county’s total monthly inmate outsourcing bill to around $1 million.

The jail had stopped farming out inmates in 2017 but a backlog in the courts following Harvey led to a surplus of people in the jail, and so here we are today. The monthly cost of doing so now is more than $500K, which will go up to about $1 million with the more expensive Fort Bend option. That may not be a choice as defense attorneys in Harris County have asked the Court of Criminal Appeals to bar sending inmates out of state. I know you know but I’m going to say anyway that if we had fewer inmates in the jail – and remember, the lion’s share of these inmates have not been convicted of any crime – we wouldn’t need to spend this money. It’s a choice we’re making, one we’ve been making for way too many years. At least we get to make another choice this November.

The city has its own bail lawsuit

It’s not going well.

Houston city officials intentionally destroyed evidence, wiping crucial data from the computer drives of top police commanders that is potentially relevant to a lawsuit about the detention of suspects beyond the 48-hour deadline for a magistrate hearing, a federal judge has ruled.

U.S. District Judge Kenneth M. Hoyt’s rare ruling last week means that if the case goes to trial, jurors will receive an “adverse instruction” about the records destruction. The jury must infer as fact that authorities destroyed evidence, knowingly and routinely detained people more than 48 hours without a probable cause hearing, and acted with deliberate indifference to the fact that they were violating defendants’ constitutional rights, the judge ruled.

The judge did not accuse the city of destroying evidence specifically to help it gain an advantage in the lawsuit, but the action is a blow to any defense the city could mount.

[…]

The 2016 class-action lawsuit challenged the city’s treatment of thousands of people jailed for days after warrantless arrests between January 2014 and December 2016. The complaint accuses officials of false imprisonment and alleges that they violated defendants’ constitutional rights to equal protection and a determination of probable cause by a judge. The case was brought by Civil Rights Corps and the Texas Fair Defense Project — the groups that led the landmark suit challenging Harris County’s bail practices — and lawyers from the Houston firm Kirkland & Ellis LLP.

The suit was filed after the January 2016 arrests of Juan Hernandez, who was held 49 hours before seeing a magistrate on an assault charge, and James Dossett, who spent 59 hours in custody before facing a hearing officer via videolink on a charge of possession of a controlled substance. After a week in custody, Hernandez pleaded guilty. Authorities ultimately dropped the charges against Dossett when police failed to prove he had drugs.

The lawsuit also cites arrests in which defendants were held for more than 10 days before receiving a probable cause hearing. Overcrowding at the county jail creates a bottleneck at the city facility, the suit said.

The plaintiffs’ lawyers argued that the city had a “broad, longstanding, and consistent policy of refusing to release warrantless arrestees” even when more than 48 hours had passed since their arrests, and that the city failed to provide thousands of records relevant to this policy and practice.

See here for some background, and here for an earlier Chron story (embedded in this one and the basis of that post) on the subject. I’m appalled by what’s in this story, which I don’t think can be adequately explained by simple incompetence on the city’s part. There needs to be a serious investigation of who was responsible for what, and consequences to follow. This is unacceptable at every level. The city needs to throw itself on the mercy of the court and make an extremely generous settlement offer to the defendants.

Bail practices lawsuit hearing

We so need to be done with this.

More than a dozen Harris County misdemeanor judges contend that public safety would be imperiled if they followed an “untenable” new pretrial release order by a Houston federal judge who has found the current county bail system unconstitutional.

An appellate lawyer representing 14 county court-at-law judges, all who are Republicans, argued before an appeals court in Houston Tuesday that Chief U.S. District Judge Lee H. Rosenthal’s revised instructions overstepped the narrow directions she was given in June by the federal appeals court to fine tune elements of her initial order. The revision afforded liberties that the appeals court did not mandate, allowing people arrested on certain offenses be released as promptly as those who are able to secure money bail, the judges’ lawyer argued.

“Since the Magna Carta money bail has been seen as sufficient surety and wealth is an inevitable factor…when that surety is money bail,” said Charles Cooper, a Washington D.C. lawyer representing the judges.

Many of the judges won’t be on the bench much longer to oversee the new bail policies, since seven are not seeking re-election this fall.

An attorney for the indigent defendants argued that Rosenthal’s order did not stray from the U.S. Fifth Circuit Court of Appeals instructions, nor does it create “irreparable harm” for the courts and the public. The courts can impose “unaffordable bail” if they can justify it, he said.

“A period of ‘wealth based detention’ is OK, but you have to show that you’re serving some interest,” said Alec Karakatsanis, who represents the indigent defendants in the class action suit.

See here for the most recent update. Just a reminder, this is all about the initial injunction. The case itself has not been heard, just the request for a restraining order, which is what is being appealed. Also as a reminder, we can ensure that there are no future plaintiffs for this lawsuit in November. You know, in case you needed another reason to vote. A three-judge panel will rule on this request, and we’ll see where we go from there.

Revised final bail order

We go from here.

The federal judge in a landmark bail lawsuit against Harris County set new ground rules for law enforcement and judges about pretrial release for thousands of low-income people arrested on low-level offenses in a revised injunction issued Friday.

The order prohibits the county from detaining a poor person in instances in which a person with money would be allowed to pay and get out of jail. Specifically, qualified poor people charged with certain offenses, such as drunken driving or writing bad checks, will be permitted to leave jail immediately and return for future appearances. However, the finding also gives judges two days to make a bail determination for people arrested on more serious offenses or who face holds or detainers that would prevent them from being released.

[…]

The county will have another chance to argue the full case when the 2016 lawsuit goes to trial on the merits on Dec. 3, however, county officials could opt to settle the case, something both sides have indicated they would like to do. In two years litigating the case, the county has hired dozens of lawyers at a cost of $6.7 million.

Precinct 1 Commissioner Rodney Ellis, a long-time criminal justice reformer who has backed the lawsuit, said Friday’s decision affirmed the courts’ finding that there are “no legal or moral grounds” for the “unconscionable and futile defense of a two-tiered system of injustice that favors the wealthy and punishes the poor.”

“The county’s indefensible money bond system routinely violates the constitutional rights of poor defendants and forces people to languish behind bars simply because they cannot afford bail — there is no disputing this basic fact,” Ellis said. “Countless families have been torn apart and lives have been ruined by an unfair bail system that denies pretrial liberty and basic constitutional protections to poor defendants.”

The lawyers defending the county called Chief U.S. District Judge Lee H. Rosenthal’s order “an excellent beginning for a settlement.”

“The county remains committed to a settlement that maximizes the number of misdemeanor detainees who are eligible for prompt release from jail without secured bail, that provides due regard for the rights of victims and protection of the community and preserves the independence of the judiciary,” said Robert Soard, first assistant to Harris County Attorney Vince Ryan.

See here and here for the background. It’s hard to remember because this has gone on for so long, but the entire fight so far has been about the preliminary injunction, which is what is being finalized here. This is the order to define what the county can and can’t do while the lawsuit proceeds. Litigating the case on the merits could take years more, and cost many more millions. So if the county really does see this order as a good foundation for a settlement, we should all be glad to hear it. Of course, that is mostly up to the misdemeanor court judges, who are the defendants and who have refused to budge throughout. Perhaps Commissioners Court can put some pressure on them, though outside of Commissioner Ellis they’ve been part of the problem, too. If you truly want to see this come to a just and cost-effective end, the answer is to vote those judges out in November. Ultimately, we get to decide. Grits has more.

Once more with the bail order for Harris County

Getting close to the end.

The federal judge presiding over the landmark bail lawsuit against Harris County said she planned to issue revised instructions within two weeks for how pretrial release should operate for thousands of poor people arrested on low-level offenses.

Chief U.S. District Judge Lee H. Rosenthal fielded input Thursday from attorneys on both sides of the contentious two-year dispute about which defendants should be held in custody and which ones released during the first two days following an arrest.

Rosenthal’s instructions from the 5th U.S. Circuit Court of Appeals were to figure out details, but she said she hoped the county, which has spent more than $6.1 million battling the lawsuit, was on board with the appeals court’s overall findings about the unfairness of “wealth based detention.”

[…]

The attorneys for the indigent defendants asked Rosenthal to consider ordering the immediate release of poor people arrested on certain offenses like drunk driving or writing bad checks if people with the means to pay bond were being released immediately on the same charges.

Lawyers for Harris County, and the hearing officers and county court at law judges who oppose the lawsuit, requested that Rosenthal follow the appeals court instructions to allow up to 48 hours for indigent defendants to appear before a judge who can make an appropriate determination about bail.

Judge Rosenthal had issued final instructions earlier in June, so I presume this is a modification of that. It’s my hope that the next development in this case will a ruling that satisfies the plaintiffs and that the defense accepts. We really do need to end this litigation, and there’s not much of an argument left for the county to make. Regardless, it’s still a good idea to vote out the judges that made us go through all this in November. A political resolution on top of a legal one would really make the difference.

Final instructions in bail practices lawsuit

We may finally be nearing a conclusion in this matter.

A year after a landmark ruling that upended Harris County’s bail system, a federal appeals court Friday issued final instructions for a Houston judge to craft a revised plan for releasing poor people who qualify after arrests for low-level offenses.

Lawyers on both sides of the contentious two-year lawsuit hailed the ruling Friday as a victory, and the county said it offered a solid template for a final settlement.

Chief U.S. District Judge Lee H. Rosenthal, who issued an injunction last year halting longstanding bail practices, set a new hearing June 14 for both sides to begin hammering out a detailed plan.

A New Orleans appeals court Friday rejected the county’s requests to halt or alter portions of the historic 2017 ruling in which Rosenthal found the county’s bail process violated constitutional rights to equal protection and due process, subjecting poor people to what termed “wealth-based detention.” The 5th U.S. Circuit Court of Appeals handed the case back to Rosenthal to begin implementing adjustments to her order addressing the release of misdemeanor defendants who don’t have holds or detainers.

“Harris County has been working diligently to improve the criminal justice system,” said Robert Soard, first assistant to Harris County Attorney Vince Ryan. “The county remains committed to a settlement that maximizes the number of misdemeanor detainees who are eligible for prompt release from jail without secured bail, that provides due regard for the rights of victims and protection of the community, and preserves the independence of the judiciary.”

But the court denied several requests from the county for immediate changes to Rosenthal’s order. Neal Manne, one of the attorneys for the indigent defendants, said he was delighted the court amended its ruling the way his legal team requested.

“We went 3-for-3 today, which is usually done only by Jose Altuve,” he said.

See here for the background. All I can say is that if everyone feels like they won in this ruling, then everyone should feel like they’re in a good position to negotiate a final agreement, and that maybe there aren’t that many points of disagreement left to dicker over. Perhaps we’ll find out on June 14. It is long past time for this matter to be resolved, and for a better and more just system to be implemented.

Reducing solitary confinement

This is good.

Sheriff Ed Gonzalez

Almost five years after images surfaced of a mentally ill inmate wallowing in a cell full of human waste and bugs, the Harris County jail has cut in half its use of solitary confinement.

The decrease is due in part to a decision to stop putting rule-breakers in solitary, officials say, and in part to the creation of two rehabilitative mental health units that provide a path out of isolation.

“It’s a step in the right direction,” said Anthony Graves, a death row exoneree who has spoken out against the use of solitary confinement since his release. “It says that people are now getting serious about criminal justice reform.”

In the fall of 2014, the jail had 240 inmates isolated in so-called administrative separation. By March of this year, that number had plummeted to 122, or just over 1 percent of the jail’s population, according to data from the office of Sheriff Ed Gonzalez.

[…]

“There’s a nationwide trend where correctional facilities are moving away from the use of administrative separation and in keeping with best practices and current practices, and also trying to do what’s best for the inmates themselves,” [Sheriff’s Office Major John] Martin said. “There are a lot of studies out there that suggest keeping them confined by themselves might not be best so gradually we started changing a lot of our practices. I think a difficult part is changing mindsets – just getting people to think differently.”

The following year, in an effort to shift mentally ill inmates out of isolation, the jail launched the first of two pilot programs. The 2015 initiative, now known as the Social Learning Program and housed in the 2L unit at the 1200 Baker complex, holds just under two dozen inmates who get 16 hours of out-of-cell time per day.

“They were in the hole — but now they’re not because of the program,” said Major Mike Lee, who oversees the jail’s mental health and diversion programs.

In the 2L unit, arrestees get programming and cognitive behavioral therapy-based groups twice a day. Groups focus on communication skills, medication management and anger management.

“It’s so they won’t resort to the same behaviors when they get out,” said Sean McElroy, the jail’s mental health program administrator through The Harris Center.

But part of the goal is also that, after some time spent in the program, the inmates can be transferred back to general population.

“It’s something we feel is in everybody’s best interest,” Martin said.

Michele Deitch, a criminal-justice expert and senior lecturer at the LBJ School of Public Affairs at the University of Austin, concurred, adding that mentally ill inmates are often at a higher risk for landing in solitary.

“It’s well-established that solitary confinement is detrimental to the health of people, especially people with mental illness,” she said. “People with mental illness are far more vulnerable than other populations in the jail. They are more likely to be exploited by other inmates, they’re less likely to be able to follow directions, they are more likely to deteriorate under the conditions of confinement in the jail and, because of their frequent inability to conform their behavior to the rules, they are disproportionately likely to end up in solitary.”

This is what I want to see. This change in policy is more humane, will lead to better outcomes, and will ultimately cost the county less money. And it’s just heartening to see the Sheriff’s office staying on top of staying on top of the research and following the best practices. We deserve and should expect nothing less.

ACLU sues Galveston County over bail practices

From the inbox:

The ACLU of Texas, the ACLU and Arnold & Porter filed a federal class-action lawsuit today against Galveston County, Texas, for violating the constitutional rights of people arrested for misdemeanors and felonies.

The lawsuit was brought against the County itself, as well as each of the County’s judges who hear felonies and misdemeanors, the County magistrates, and the District Attorney. This is the first filing by the ACLU to include the District Attorney as a defendant in bail reform litigation. It seeks an immediate and permanent change to an unconstitutional cash bail system that discriminates against people who are financially strapped.

Those who cannot afford to pay money bail amounts determined by the county’s bail schedule are detained for a week or longer, while those who face the same charges but can afford to pay the money bail amounts are freed until trial. Galveston County’s district attorneys are involved in setting bail amounts for felony charges, often recommending bail amounts even higher than what the bail schedule suggests.

“A system that requires people to buy their freedom is not a system interested in dispensing justice,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Our client is seeking one thing: a fair hearing. Rich or poor, everyone should have a meaningful chance for a judge to hear them out before they are locked in a jail cell – but that’s not what’s happening in Galveston County.”

The lawsuit argues that Galveston County’s system of money bail violates the Constitution because it keeps people in jail if they can’t afford bail, while allowing those who can pay to go home to their families, jobs, and communities. With each day in jail, the person’s chances for a fair trial diminish as evidence and witnesses disappear, and many who are innocent nonetheless plead guilty simply to end the ordeal.

“A person’s wealth should never decide their freedom, but that’s exactly what’s happening in Texas and across the country,” said Brandon Buskey, staff attorney with the ACLU’s Criminal Law Reform Project. “Galveston’s bail system disregards the presumption of innocence, destroys families, and negatively affects jobs, and homes.”

The suit, filed on behalf of one plaintiff representing a class in U.S. District Court for the Southern District of Texas, accuses county officials of operating a two-tiered system of justice based on wealth, in violation of the right to counsel, the right to due process, and equal protection under the law.

“Studies consistently show that individuals who are held in jail until trial are more likely to be convicted, and more likely to be sentenced to prison, than those who are released pending trial,” said Christopher Odell, an attorney with Arnold & Porter. “Our goal is to ensure that the criminal justice system is fair to everyone in Galveston County, whether they’re rich or poor or somewhere in between.”

The plaintiff Aaron Booth, age 36, was arrested on April 8 for drug possession. He cannot afford the $20,000 money bail required by the court’s bail schedule. Mr. Booth fears losing his job because he is in jail; a job he needs to help his mother afford her monthly expenses.

Galveston’s system of wealth-based detention is arbitrary, the lawsuit argues. Each offense has an assigned dollar amount. If a person can arrange to pay the full amount to the sheriff in cash or property, or can arrange for payment through a bail bond company or another third party, the sheriff releases that person automatically.

Those who cannot pay the pre-determined bail amount must remain in jail indefinitely.

The lawsuit against Galveston County is a continuation of efforts from the ACLU Campaign for Smart Justice to end wealth-based bail detention in Texas and across the nation. This January, a related lawsuit aimed at ending Dallas County’s disciriminatory, wealth based bail practices was filed by the ACLU of Texas, the American Civil Liberties Union, Civil Rights Corps and the Texas Fair Defense Project.

The ACLU Campaign for Smart Justice — an unprecedented effort to reduce the U.S. jail and prison population by 50 percent and to combat racial disparities in the criminal justice system — is focused on bolstering the movement to end money bail and eliminate wealth-based pretrial detention through legislative advocacy, voter education, and litigation. Thirty-seven ACLU state affiliates are spearheading efforts to end this unjust system.

The complaint can be found here. The Chron adds a few details.

The Galveston County Commissioner’s Court issued a resolution in September supporting an immediate end to pretrial detention for misdemeanor and state jail cell arrests and committing a minimum of $2 million to those efforts.

The county also voted in December to approve a contract with the Council of State Governments to help implement reforms to the county’s jail system.

But Trigilio said that the county has not committed to large-scale changes to its bail system in an appropriate timeframe. The ACLU drafted a standing order proposal outlining steps that needed to be taken to create a model pretrial system and requesting that the county come up with its own detailed plan. Their requests were ignored, with only one judge, Lonnie Cox of the 56th District Court, reviewing the standing order in November.

“We’re very open to collaborative solutions with policymakers, in fact, that’s what we prefer,” Trigilio said. “But it’s important to act with the urgency that the situation merits, and when they’re locking hundreds of people away every day just because they’re poor, that’s not something we can tolerate while we work out the nuances of a system that might be in place any year from now.”

Galveston County Judge Mark Henry said on Monday that he had not had a chance to look at the lawsuit yet but that the county has been working with the ACLU “for nine months or so” to implement their suggested reforms to the bail system.

“We are certainly trying, yes,” he said, adding that he had not yet seen the suit but that the county was “absolutely committed” to making the changes already discussed.

“It’s not necessarily in our control,” he said. “There are about 15 other elected officials that have to agree and implement their part of it.”

Those of us in Harris County can relate to that complaint. You know where I stand on this, so let me just say that I hope other counties are looking at their own practices and taking proactive steps to get in line so they don’t have to be sued as well. But if suing them is what it takes, then so be it. Think Progress and KUHF have more.

Misdemeanor diversion

Sounds good to me.

Kim Ogg

Houston’s non-violent misdemeanor offenders will soon be cleaning up trash and invasive plant species plants along Buffalo Bayou in an initiative to help offenders clear up their criminal record, Harris County District Attorney Kim Ogg announced Wednesday.

The program, dubbed “Clean and Green,” has existed in several incarnations since the 1970’s and was one of Ogg’s campaign promises when she ran for DA in 2014, and again when she won in 2016.

“It’s a big reason why I ran,” the top prosecutor said Wednesday as she announced the program at the historic Allen’s Landing, a downtown recreational area on the bayou. “I wanted to ‘green’ criminal justice. I felt like our system could give back in a measurable, meaningful way. Counting the cubic tons of garbage or how many tons of plastic we pull out, it all has a public safety value.”

Misdemeanor offenders, 17 and older, will be allowed to clean up litter and invasive plants, skim waterways and perform other conservation services in public spaces across the county, especially along bayous and tributaries, according to Ogg.

Eligibility for the program, which starts this month, will be determined by prosecutors on a case-by-case basis and excludes defendants facing domestic violence, assault or weapons charges.

[…]

The initiative is expected to offer 160 offenders a month the opportunity to avoid a criminal record while reducing tax dollars currently spent on traditional prosecution and punishment of those offenders.

If selected, participants will be required to work one or two six-hours shifts. They will have to pay $240 to participate, unless they are indigent. Completion of the program fulfills the community-service requirement of pre-trial diversion contracts.

If they successfully complete the program, their criminal case will be dismissed and the arrest can be expunged, Ogg said.

I approve of all of this. This is what we should want to do with non-violent misdemeanor offenders. And yes, it’s what we voted for. Keep up the good work.

ACLU goes after Judge McSpadden

As well they should.

The ACLU of Texas is asking Harris County’s longest serving felony court judge to resign after making a statement to the Houston Chronicle on his views about black men’s attitudes toward the criminal justice system.

The civil rights group also is asking that the judge be automatically recused from cases involving African-American defendants until an investigation into potential racial bias occurs, according to a news release Tuesday.

[…]

“If there remained any doubt that the deck is stacked against people of color in our criminal justice system, Michael McSpadden just dispelled it,” said Terri Burke, executive director of the ACLU of Texas. “When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can’t be trusted, it’s time to take action. This kind of flagrant racism has no place in our justice system.”

She said, “The Texas Commission on Judicial Conduct needs to take the first step toward rooting it out, and Judge McSpadden should voluntarily step down.”

McSpadden could not be immediately respond to a request for comment Tuesday. His court staff said he was on the bench hearing cases.

The civil rights organization said McSpadden’s comments violate the Texas Code of Judicial Conduct and could merit removal from office.

“Judge McSpadden’s remarks are inexcusable, but not at all surprising for those of us who know the justice system well,” said former death row inmate Anthony Graves, who runs a criminal justice initiative for the ACLU of Texas.

See here for the background. Perhaps there’s some context Judge McSpadden can add to his comments, or perhaps he could just admit that was a dumb and offensive thing to say and offer an apology for it. People may or may not accept either action, but at least it would be something. In the absence of any such followup, one is left to conclude that he has nothing further to say on the matter. Whatever one may have thought of Judge McSpadden before now, that’s not a good look. And as a reminder, Judge McSpadden is up for election this fall. For all the griping some people do about partisan judicial elections, they do at least give the voters the chance to correct errors on the bench.

On a side note, two of Judge McSpadden’s colleagues on the misdemeanor courts are again urging the county to settle the bail lawsuit.

“The most conservative appellate court in this country, strict constitutional conservatives, have said that this practice that we are doing is unconstitutional,” said Judge Darrell Jordan, one of the defendants in the lawsuit.

Jordan told County Judge Ed Emmett and county commissioners that fighting the suit had already cost Harris County $6 million in legal fees. “I’m asking that you all cut this last check, fire these $6 million lawyers, let the County Attorney’s office come, and we all sit down and work out a settlement.”

Jordan’s co-defendant, Judge Mike Fields, urged Emmett and the commissioners to “use every tool in your arsenal to help us settle this lawsuit.” Fields added, “Our county needs to settle this for financial reasons, and our public needs it settled for reasons of good governance and confidence in the criminal justice system.”

Judge Emmett said he’s willing to settle on the basis of the 5th Circuit’s ruling, but said plaintiffs haven’t responded to offers to talk.

Judge Jordan, the lone Democrat on these benches, and Judge Fields have been the lone voices from those courts for sanity. Unfortunately, their colleagues remain uninterested in such matters as the cost of the litigation and the fact that they’ve lost at every step and looked bad in doing so. And they’re all up for election this November. See my comments above on that.

More judges caught up in the bail scandal

More judges to vote out.

For more than a decade, most of Harris County’s felony court judges directed magistrates to deny no-cash bail to all newly arrested defendants, in apparent violation of state judicial conduct rules, according to internal documents obtained by the Houston Chronicle.

The documents include charts with explicit court-by-court instructions from 31 district judges to reject all requests for no-cash bonds when defendants made initial appearances in court.

Records and testimony show that misdemeanor judges also routinely told magistrates for years to decline personal bonds, which allow a person to gain pre-trial release from jail without posting cash bail.

The previously undisclosed bail and bond instructions, which surfaced during disciplinary hearings against three Harris County magistrates, appear to corroborate longstanding complaints from criminal justice activists that the county’s bail system deprived defendants of a fair chance at pre-trial liberty.

[…]

Among those listed in the documents with no-bond policies are former judges Ryan Patrick, now the U.S. Attorney for the Southern District of Texas; former Harris County District Attorney Mike Anderson, now deceased, and his wife, Devon, who succeeded him in office after his death; and state Sen. Joan Huffman.

State District Judge Michael McSpadden, a long-serving jurist in Harris County, said he also had a no-bond policy for magistrates for at least a dozen years because he didn’t trust the lower-level jurists not to make errors.

“Almost everybody we see here has been tainted in some way before we see them,” he said. “They’re not good risks.”

“The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents,” he said. “Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, ‘Resist police,’ which is the worst thing in the world you could tell a young black man … They teach contempt for the police, for the whole justice system.”

Please, Judge McSpadden, tell us how you really feel. You all know how I feel, so I’m going to outsource this one to Scott Henson, whose continuation after the ellipses is addressed specifically to McSpadden:

The truth about Harris County judges misleading the courts and intentionally violating the constitutional rights of defendants before them is finally coming out.

When Texas state Sen. John Whitmire filed a complaint with the State Commission on Judicial Conduct against Harris County’s magistrate judges, they defended themselves by saying the elected judges directed them to deny personal bonds, which the judges themselves at first denied. The magistrates were sanctioned anyway, and sources in this must-read Houston Chronicle story by Gabrielle Banks suggested that the Commission is likely now investigating the judges who gave those orders, which is basically all of them.

During the case before Judge Rosenthal, the county claimed they could come up with no evidence that judges directed magistrates. But when the magistrates were accused of misconduct, they produced 600 pages of evidence in that regard that implicated many current and former judges.

Now we know for certain the policies were explicit, widespread, and top-down. This wasn’t a case of rogue magistrates denying bond without the knowledge of the judges. This is a case of magistrates serving as dependent vassals with no capacity for independent decision making whatsoever. And they obviously weren’t too keen on revealing that truth to the federal judge presiding over the case, who justifiably felt blind-sided when representations made in the magistrate’s disciplinary case flat-out contradicted those made in her court.

[…]

Let’s be clear: A) This was happening for DECADES before Black Lives Matter was on the scene, and B) the county NOT letting defendants be advised by lawyers at bail hearings was a big part of the suit! In fact, the county has now begun providing lawyers at bail hearings, so this is the first time they’re being advised by anybody.

It wasn’t Black Lives Matter or defendants’ families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it.

Vote ’em out. There’s never been a better time.

Fifth Circuit largely upholds bail practices ruling

Good.

The 26-page opinion by Judge Edith Brown Clement affirms the majority of Chief U.S. District Judge Lee H. Rosenthal’s landmark ruling, including her finding that the county’s bail policies violated the due process and equal protection clauses of the U.S. Constitution.

However, Clement and fellow judges Edward C. Prado and Catarina Haynes disagreed with Rosenthal’s analysis on three matters and sent the case back for her to reconsider those elements.

They concluded Rosenthal was overly broad in her analysis of the due process violation and in extending no-cash bail to all indigent defendants. They found her demand that qualified defendants be released within 24 hours was “too onerous,” opting instead for a 48-hour window.

They also ordered Rosenthal to fine tune how officials assess a defendant’s ability to pay bond.

County Commissioner Rodney Ellis, a supporter of the lawsuit who traveled to New Orleans to hear the oral arguments in the case, called it “a significant victory for justice.”

“With this decision, the conservative 5th Circuit is telling Harris County that it’s unconstitutional to have two justice systems: one for the rich and one for the poor,” Ellis said. “Yet Harris County has already spent more than $5 million defending a morally and legally indefensible bail system that violates the Constitution and punishes people simply because they are poor.”

[…]

Attorney Neal Manne, whose firm, Susman Godfrey, joined in filing the lawsuit, praised the decision.

“I am absolutely thrilled by the ruling, which is a huge and historic victory for our clients,” he said.

The appeals judges found that the county had acted mechanically in reviewing bond decisions, failing to take the time to consider economic factors. The ruling summarized Rosenthal’s equal protection findings by imagining the outcomes for two hypothetical misdemeanor defendants, identical in every way — facing the same charge, from the same criminal backgrounds, living in the same circumstances — except that one was wealthy and the other indigent.

While the wealthy arrestee was less likely to plead guilty and get a shorter sentence or be acquitted, and less likely to pay the social costs of incarceration, it found, the poor arrestee, “must bear the brunt of all of these, simply because he has less money than his wealthy counterpart,” they wrote.

See here for the previous update, and here for a copy of the ruling. This was basically how I read it based on the coverage of the arguments. I agree with attorney Manne and Commissioner Ellis that this is a great ruling, and that it’s way past time to settle this effing thing.

The Trib adds on:

But the ruling wasn’t a total win for the plaintiffs. The appellate court still said Rosenthal’s ruling was “overbroad” and asked her to narrow some of the orders against the county.

Perhaps of most significance, the appellate court pushed back on Rosenthal’s order for the sheriff to release at no cost all misdemeanor defendants who claim they can’t afford their bond within 24 hours of arrest, regardless of whether they’ve had their bail reviewed or set at a higher cost. The appellate judges appeared suspicious about Rosenthal’s time limit in their hearing and said Wednesday that it was too strict.

In sending the case back to Rosenthal for a modified ruling, the higher court suggested an injunction that demands that poor defendants who claim they can’t afford their bail be entitled to a hearing within 48 hours of arrest where they can argue for a lower or no-cost bond.

If a judicial officer declines to lower the bond at this hearing, he or she would have to put the reason for their decision in writing, and the arrestee would then get a formal bail review hearing before a judge. If, after those 48 hours, there are no records showing an individualized bail review process took place, the sheriff could release the defendant at no cost.

‘The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention,” Clement wrote.

I’m fine with that, and I expect the plaintiffs will be as well. Mark Bennett sums it up.

It’s time for the fourteen criminal court at law judges to declare victory and go home. ((Just between you and me, this opinion is a rout for the judges. The changes are small, and the current injunction remains in place until Judge Rosenthal modifies it.))

Indeed. I really hope this time they listen.

The next frontier in criminal justice reform

We need to lock up fewer kids for bad reasons.

Hundreds of juveniles are jailed in Harris County often for weeks at a time for infractions as minor as failing drugs tests, violating curfews, running away or failing to attend school classes or rehabilitative programs, according to county records.

The records show a “pattern and practice” of detaining juveniles for technical violations that should instead be handled through the probation system, according to attorneys and juvenile justice advocates.

“You’re not complying with the terms of probation, but you’re not actually a risk to public safety,” said Elizabeth Henneke, an attorney with the Lone Star Justice Alliance, which advocates against incarcerating juvenile offenders.

“You never want to have a technical violation, especially for a kid, result in detention, because we know the negative effects,” she said. “Even a short amount of time can be problematic for kids, but long, protracted, weeks out of school, weeks out of your home environment – that can have really big consequences for them.”

Of the 1,055 juveniles cited for a probation violation in 2016, nearly 73 percent were detained, a proportion Henneke said is alarming, particularly in a county where the 250-capacity juvenile justice center has faced recurrent overcrowding problems for several years.

It is the largest percentage of juveniles ordered detained on probation violations since at least 2003, when 69 percent of 1,502 juveniles were detained, according to data from the Harris County Juvenile Probation Department.

The most recent 2017 data, which goes through Oct. 15, shows that 73 percent of juveniles continued to be jailed for probation violations – an average of 55 kids each day.

The average length of time spent behind bars on the violations ranged from nine days for leaving the county without permission to 30 days for violating special probationary terms, which can include specific judge-ordered requirements such as routine drug assessments or compliance with taking medication.

The Trib then went and wrote an even longer story on the same topic.

“Harris County is bucking the trend,” said Michele Deitch, an attorney and senior lecturer at the University of Texas at Austin who specializes in Texas juvenile justice policy. “All around the country, and certainly all around the state, the numbers are down in detention.

“The need for the beds just isn’t there anymore,” Deitch said. “So the idea that this one county is experiencing an increase … that should raise a lot of questions.”

The overcrowding affects kids and families far beyond the Houston area: It is one reason lawmakers decided not to raise the age of adult criminal responsibility in Texas from 17 to 18 last year. Seventeen-year-olds accused of crimes in Texas are usually sent to an adult county jail; the “raise the age” bill would have made them part of the juvenile justice system instead.

Harris County’s juvenile probation chief, Tom Brooks, said the detention center’s overcrowding is mostly due to “a high number of egregious offenders” — kids accused of crimes like armed robbery and assault — who often stay in detention longer.

Brooks added that the county has worked hard to stop unnecessarily locking up kids. Last year, nearly 2,000 fewer kids were booked into detention compared to 2010, according to county data. The ones that are left “actually are here for a legitimate reason, and their due process takes longer,” Brooks said.

But data obtained by The Texas Tribune — along with interviews with experts, parents and advocates — suggest there’s more to the story. Local officials might blame the overcrowding on bad kids, but experts say it’s more about a bad system in Harris County, where local officials plan to build a new juvenile detention center at an estimated cost of $65-70 million.

The data from Harris County’s juvenile probation department shows:

  • The average number of kids held in the detention center charged with minor offenses such as trespass, theft and violating probation — things that some experts say shouldn’t land kids behind bars at all — increased by 64 percent from 2010 to 2017. Meanwhile, the average number held for violent crimes like armed robbery and rape, called “felonies against persons,” increased by about 46 percent.
  • Minor offenders were locked up in the detention center for an average of nearly three weeks in 2017, twice as long as in 2010.
  • From 2010 to 2017, the average number of African-American youth held in the juvenile detention center more than doubled, and the number detained despite being labeled “low risk” has increased by 75 percent.

Experts say this is an unusual trend when it comes to juvenile justice. It’s becoming widely accepted that imprisoning kids — and even adults — for low-level crimes is probably doing more harm than good. Taking someone away from their home and school for a minor offense like shoplifting, and placing them alongside those accused of far more serious crimes, is bad for the child and for society, they say.

“Anytime you disrupt the kids’ routine, you take them out of the home, away from whatever stable influences they have … It’s not a good situation,” Deitch said. She added that the Harris County data suggests “there’s something very punitive going on.”

Michael Schneider, one of the judges who handles juvenile delinquency cases in Harris County, expressed concern after seeing the data. “Why is the increase in detention greater than the increase in violent crime?” he asked.

Paul Holland, an associate law professor at Seattle University who studies national juvenile justice policy, called what’s happening in Harris County “alarming.” He said the trend in detention there can’t just be blamed on an increase in violent crime; local decisions are probably having an impact, too.

“It really does seem like it’s a system thing and not a kid thing,” Holland said.

There’s a whole lot more, go read it. So just to review:

1) These kids were on probation, meaning they had committed lesser offenses to begin with.
2) They were put in jail for breaking a rule, not a law. Kids do break rules sometimes. It’s what kids do.
3) Putting kids in jail leads to all kinds of bad effects, from missed school to exposing them to real criminals to endangering their safety.
4) It costs money to detain and guard these kids, and detaining them does nothing to further the rehabilitative efforts that probation was supposed to foster.
5) Anyone want to bet that the kids who do get detained for probation violations will turn out to be disproportionately black and Latino?

Let’s do less of this, okay? And if you’re looking for a political solution, remember the names of Juvenile Court Judges Glenn Devlin and John Phillips, both Republicans and both on the ballot this year. Different judges will be our best shot at getting different results.

One more judge for bail reform

Once again, credit where credit is due.

A long-serving Harris County Republican judge has broken with 14 Republican colleagues, withdrawing from the county’s appeal in a landmark federal lawsuit challenging its bail system for discriminating against poor, low-level offenders.

Criminal Court-at-Law Judge Mike Fields, who has presided in misdemeanor court since 1999, had a dramatic change of heart this week at a federal court hearing on the bail case, and he now wants the county to put its limited resources into settling the matter.

“If we just talk to one another, if we can just get in the room and talk, maybe we can resolve this issue,” said Fields, 52. “It’s costly on both sides — it costs in terms of human lives and it costs in terms of taxpayer dollars.”

The county has spent more than $5 million defending itself, and has appealed an April 28 ruling by Chief U.S. District Judge Lee H. Rosenthal that the county bail practices violated the Constitution by setting up a “wealth-based” detention system. The county retained a top-dollar D.C. appellate firm to handle its appeal to the 5th U.S. Circuit Court of Appeals.

Fields said when he saw — during his first visit to the federal courthouse on Tuesday — how many lawyers the county had hired and how many county officials’ time was tied up with the lawsuit, he estimated the two hours for all those people amounted to $60,000.

“Two hours in a courtroom costs more than what the average citizen makes all year. Sixteen judges sitting in a courtroom (together), not doing the work of the people, think about the enormous expense of that,” Fields said.

He added: “We’re fighting about how many people get to stay in jail. I don’t see how anyone can sit in that room and not think maybe we should try another tack.”

Judge Fields had previously expressed concerns about the cost of the lawsuit, so this would be the natural next step. It won’t change anything – the appeal will go on, as all of Fields’ Republican colleagues want it to – but it is the right thing to do. He says he was convinced by Judge Rosenthal’s ruling in the case. Whatever his reason, I applaud his action. May others follow his lead.

Project Orange

This is a good thing.

Still the only voter ID anyone should need

This past Friday, January 12th, Harris County Sheriff Ed Gonzalez held a press conference along with Houston Justice representative Charnelle Thompson and Harris County Tax Office Communication and Media Relations Director Tracy Baskin, to announce what many are calling the most ambitious effort ever undertaken to help qualified incarcerated citizens register to vote who are currently in the Harris County Jail. That initiative is called Project Orange.

Project Orange is the brainchild of Houston Justice co-founder and Executive Director Durrel Douglas, whose first job out of high school was as a prison guard at a Texas prison. Douglas was moved to start this initiative after seeing how incarcerated individuals, who happened to make a mistake in their lives, were treated before and after being behind those prison bars.

“When we sat down to plan Project Orange, our goal was to reach out to eligible voters who are often ignored,” said Douglas. “When people have paid their debt to society, they should be able to rebuild their lives. Point blank…we want as many eligible voters to register, and vote. I don’t care what party they prefer, or which candidates or issues drive them. Our goal was, and continues to be to engage as many citizens as possible.”

As part of the Project Orange initiative, for four consecutive Sundays, beginning this past weekend, volunteers from Houston Justice will be escorted through the jail with voter registration cards that qualified inmates will be able to fill out. In addition, Houston Justice is staffing voter registration booths in the visitation waiting areas at the 1200 Baker Street and at the 701 San Jacinto locations.

“In our first Sunday, we registered 100 new voters,” said Douglas. “We have three more Sundays to go for our inaugural push. In the future, we plan to do this in other cities across the state as well.”

“Qualified” means just what it says – people who are legally eligible to register to vote. As the story notes, some 70% of people in the Harris County jail have not yet been convicted of anything. Many of them will not be convicted of anything, and many of the rest will plead to or be convicted of a misdemeanor. All of them have as much right to vote as you and I do. And if you still don’t like the idea of a dedicated effort to register a bunch of mostly low-level inmates at the jail, I have good news for you: You can support bail reform, so that there are far fewer of those inmates in one convenient place at a time to be registered. It’s a win-win.

Lawsuit filed over Dallas County bail practices

Bring it on, I say.

On the heels of a federal ruling slamming Harris County for its bail practices, civil rights lawyers have now set their sights on a county with a similar system: Dallas.

Six indigent misdemeanor and felony defendants arrested this week and held in the Dallas County Jail filed suit against the county on Sunday night, claiming the bail system unconstitutionally discriminates against them by holding them in jail for days or weeks while letting similar defendants with cash walk free. One plaintiff, Shannon Daves, is a 47-year-old homeless and jobless transgender woman arrested on a misdemeanor theft charge. She has been kept in solitary confinement in the men’s unit since Wednesday under a $500 misdemeanor bond she can’t afford, the lawsuit claims.

“This system is really devastating for the people who can’t afford to purchase their freedom,” said Trisha Trigilio, a senior attorney at the ACLU of Texas, one of the legal groups representing the inmates. Lawyers with the Civil Rights Corps and the Texas Fair Defense Project are also leading the lawsuits in both Dallas and Harris counties.

[…]

In Dallas County, the plaintiffs state that judicial magistrates set money bail based on the alleged crime and prior convictions without considering an inmate’s ability to pay or determining if non-monetary conditions of release, like an ankle monitor or cab fare voucher, could ensure the defendant shows up to court. Texas law requires officials to consider financial ability when setting bail.

Instead, poor inmates who have yet to be convicted usually stay in jail because they can’t afford the bail, sometimes causing them to lose their jobs or housing, the lawsuit said. The lawsuit also argues that the threat of lengthy jail stays while awaiting trial encourages defendants to plead guilty.

Dallas County Judge Clay Jenkins said Sunday that he wouldn’t comment on a pending lawsuit, but said the county is working to improve the system.

“I support bail reform because some low-risk suspects that don’t need to be there are held in Texas jails at taxpayer expense simply because they can’t afford to bond out,” he said.

Dallas County Commissioner John Wiley Price also pointed to the county’s efforts to reform its bail system, touting a decrease in the county jail population. As of December, there were about 5,000 inmates in the jail, which has a capacity for about 8,700, according to the Texas Commission on Jail Standards.

You can see a copy of the complaint here. There are differences between the Dallas and Houston cases – the Dallas one involves felons as well as misdemeanants, and as noted their jail population had already declined by a significant amount. And, not to make too fine a point of it, Dallas County is ruled by Democrats, not Republicans. I would hope that means they’ll be much more amenable to finding a settlement rather than draw this out. (As this story reminds us, the Harris County case hasn’t even been heard yet – Judge Rosenthal’s ruling was an injunction, not on the merits.) We’ll see what happens. The ACLU’s statement on the suit is beneath the fold.

(more…)

More pre-trial diversion

DA Kim Ogg moves forward on more campaign promises.

Kim Ogg

During a press conference Tuesday, Ogg laid out in broad strokes the policy recommendations written by the committees and emphasized that she is seeking participation from experts and Houston’s leaders.

“We listen to the community,” she said, flanked by about 30 volunteers including former HPD Chief C. O. Bradford and Thurgood Marshall School of Law professor Lydia D. Johnson. “We are evidence-based and data driven, but it is important to know how the community wants tax dollars spent to enhance public safety.”

Ogg released the full reports from committees on officer-involved shootings, evidence integrity, equality, immigration, bail-bond reform, mental health and diversity.

Many of the reforms proposed using technology and data more efficiently to streamline the criminal justice system, such as moving to a paperless district attorney’s office or using evidence-based risk assessments to determine bail amounts.

Tarsha Jackson, the Harris County Director with the Texas Organizing Project, was on the bail bond committee and applauded Ogg for involving people with different backgrounds, some with conflicting interests.

“It was a tug of war,” Jackson said of her committee that included a bail bondsman and a representative of the Texas Criminal Justice Coalition. “We had deep debate on what the district attorney can do in regard to bail reform, about what’s possible. And the final results were some good policies that she can implement.”

You can see the committee reports here. The themes all came from the campaign, and however you feel about the conclusions, I’d hope we can all respect a process that involved a broad spectrum of stakeholders who worked together across a range of perspectives. The Press read through the reports so you don’t have to.

Among the most noteworthy is the passing mention that Ogg’s administration “will work with all of the Harris County Law Enforcement agencies” to implement cite and release “for appropriate misdemeanor crimes,” which was not mentioned during the press conference. This has been a topic of debate for years, if not a full decade, after the Texas Legislature authorized police in 2007 to issue citations for various small-time crimes rather than arresting people and hauling them to jail. It’d be like getting a traffic ticket, then going to court for it later. It applies to crimes such as driving with an invalid license, criminal mischief, graffiti and possession of less than four ounces of pot (Ogg already diverts most pot cases).

[…]

Also noteworthy are plans to expand mental health diversion. Staci Biggar, a Houston defense attorney who was on Ogg’s mental health transition team panel, said that the idea was to transition people charged with low-level crimes like trespassing, often related to a person’s mental illness, away from jail and into treatment. Rather than asking for money to fund a program, she said judges can still issue pretrial diversion contracts to mentally ill defendants and individualize the terms based on that person’s needs.

“The idea is placing more people on bond and placing them in facilities, making pretrial conditions be to go see a particular health provider, or maybe they need to stay in a particular living situation,” Biggar said. “They can order somebody to see a doctor and they can order somebody to be treated by one organization. If you take a misdemeanor [defendant] and maybe that’s the first or second time they’re arrested, yes, you’ve been arrested, but we’ll drop the charges if you go and do these various things. It shouldn’t be that we wait until you’re really, really in trouble before there’s a stronger intervention for mental health.”

Other noteworthy nuggets from the eight transition team reports include the end to hiking bail to sometimes tens of thousands of dollars for suspected undocumented immigrants; vetting expert witnesses in capital murder cases more extensively and never “expert shopping”; and releasing to the public body-cam footage of officer-involved shootings as long as it does not impede an ongoing investigation — among various recommendations from the officer-involved shooting panel headed by former Houston police chief C.O. Bradford.

As Ogg says, you can judge her by her results in 2020. I think she’s off to a great start.