The Harris County Jail (HCJ)is the third largest jail in the United States, and the largest in the State of Texas. It houses roughly 9,000 inmates, nearly 7,000 of whom are pretrial detainees, of which close to 80 percent are unable to make bail.
77% of Detainees in Jail Because Cannot Afford Money Bail
According to the Office of Criminal Justice Coordination, Harris County—Jail Population March 2016 Report, about 81 percent of the jail’s population was arrested for misdemeanor offenses, half of whom will remain in jail until a final disposition of their case because they were unable to make bail.
Life in the HCJ is both brutal and distressing.
Harris County Jail Unconstitutionally Inadequate
According to a civil rights lawsuit (“lawsuit”) filed in U.S. District Court here in Houston this past May by local attorney Neal S. Manne, working along with Equal Justice Under Law, challenging the county’s bail system, the HCJ has a “documented history of abuse by jail guards, deaths and suicides … and inadequate training of jail staff, and lack of access to medications and medical services. For years, the County has been aware of these intolerable conditions, which exist largely because of the overcrowding resulting from the volume of inmates because they cannot afford to pay money bail. It has failed to remedy them.”
Current Bail Regime Forces Pleas
Harris County operates a wealth-based bail system that serves the interests of a manipulative bail bond industry; a corrupt jail system whose caretaker, the sheriff’s office, needs a bloated budget ($456.5 million for 2016, including a $9.5 million increase for overtime) to cover $8.2 million for jail food, $11 million for pharmaceuticals, and $8.4 million for psychiatric services; and to pay the salaries ($131,518 annually) of five Harris County Criminal Law Hearing Officers who are charged with making probable cause determinations and setting bail pursuant to the county’s inflexible bail schedule—a system, we believe, was intentionally designed to reward those with financial resources and penalize those in poverty by forcing pleas and moving cases through the system..
African Americans, who make up 19 percent of Harris County’s population, comprise 48 percent of HCJ’s population. The remaining 52 percent is mostly Hispanics and whites.
Pleading Guilty to Escape Deplorable Conditions
The lawsuit reports that 77 percent of these inmates, despite their presumption of innocence, remain in the jail awaiting final disposition of their cases because they cannot make bail. Most of them will bring their cases to resolution through a plea agreement in order to escape the deplorable conditions of the HCJ. This is especially so for the 500 offenders arrested on misdemeanor charges on any given night who simply want to get out of the HCJ as fast as possible.
There are essentially four kinds of bail in Harris County:
- Cash Bond – the full amount of the bail posted in cash either through a cashier’s check or a money order.
- Surety Bonds – bail posted through an approved Harris County bonding organization that charges a fee for its services.
- Personal Bond – a defendant’s release is based on his/her own promise that he/she will show up for trial (or other mandatory attendance proceedings) and no security is required. This bond is also known as a “personal recognizance bond.”
- Pretrial Release Bond – personal bond granted by the judge based on information received from Pretrial Services which generally has strict conditions attached.
In order to get bail under this regime, all arrestees must appear before what local attorneys refer to as “magistrations,” “Article 15.17 hearings,” or “probable cause hearings.” These hearings proceed quickly, sometimes lasting less than a minute. The hearing officers do not allow opportunity for an inquiry into the arrestee’s financial condition or personal history. The amount of bail is set strictly within the Harris County Bail Schedule, which is pre-determined by nature of offense and criminal history. Hearing officers routinely tell arrestees that they will not entertain arguments about deviations from the schedule. To make matters worse, virtually all people “magistrated” are done so without counsel and not allowed an opportunity to argue for reasonable conditions of release.
Personal Recognizance Bonds Granted in Only 8% of Cases
While the hearing officers have the power under the law to allow a personal bond in misdemeanor cases, the lawsuit says they do so in less than 8 percent of the cases. County bail policies do not encourage personal bonds, so these determinations are made without any inquiry into the misdemeanant’s financial resources or personal background.
Even for the roughly 8 percent granted a personal bond, release does not come immediately. Pretrial Services, says the lawsuit, can take days or a week just to “verify” a defendant’s references—and if a reference is not verified, the defendant remains in the HCJ until he/she can make the money bail.
Forced to Plead Guilty
The inflexible hearing officers, the inordinately restricted probable cause hearings, the wealth-based bail schedule, and horrible conditions in the HCJ all undermine the constitutional presumption of innocence and literally force thousands of defendants, guilty or not, to plead guilty to get from under this sledgehammer of injustice.
Reasonable Alternatives, Save State Money
The lawsuit points out that “other jurisdictions employ numerous less restrictive methods of maximizing public safety and court appearances when necessary to guard against a particular risk. These include: unsecured bond, reporting obligations, phone and text messaging reminders of court dates, rides to court for those without transportation or a stable address, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
“Other jurisdictions also employ non-monetary conditions of release, including unsecured or ‘signature’ bonds, … stay-away orders, curfews, or even home detention.”
These alternatives to pretrial jail detention are available to Harris County hearing officers and judges but they choose, for a host of self-serving reasons, not to utilize them, even for impoverished misdemeanants.
We should note that this past April Harris County District Attorney Devon Anderson unveiled what the Houston Chronicle called “a sweeping plan … for criminal justice reform aimed at keeping low-level, nonviolent offenders out of the crowded [HCJ] and reducing the burden on poor and minority defendants.”
The plan is funded to the tune of $5.3 million with an additional $2 million grant from the MacArthur Foundation.
The most significant component of this plan will be the creation of a diversion court to handle about 8,000 nonviolent cases. If administered correctly, this should slightly ease some of the criticism about the racial disparities so inherent in the current wealth-based criminal justice system.
“As research continues to mount on the negative impact that jail and prison can have on low-level offenders, the mentally ill, and communities of color, [Harris County] can no longer afford to operate with a ‘business-as-usual mentality,” Anderson told the media. “As in most jurisdiction, people of color are overwhelmingly represented in the Harris County jail.”
More is Needed, Bail Reform
These local efforts, while ostensibly well intended, fall well short in addressing a massive problem. We would encourage state lawmakers to take up the task in the next legislative session to statutorily mandate pre-trial release for all first time, nonviolent offenders, without requiring cash bond or security. Pre-trial release on one’s own recognizance should be presumed until the state can point to demonstrable reasons that this would not sufficiently secure a defendant’s appearance at court or would pose a risk to society.
We would also urge increased pretrial diversion efforts for low-level, nonviolent offenders that would prevent unnecessary incarceration and allow low level, first time offenders an opportunity to “pay their debt to society” without creating the lifelong stigma of a criminal arrest and conviction.
The Harris County Bail Schedule is not only obsolete but constitutionally unfair. It is far past time that serious bail reform. In the meantime, Harris County hearing officers must be required to slow the ridiculous speed of their probable cause hearings and to utilize personal bonds. They need to earn their $131,000-plus salary with the effective administration of justice, not rubber-stamped allegiance to an outmoded, racially and economically insensitive bail schedule. We understand they are busy and these are crowded dockets, but we are also mindful that these “arrestees” are human beings, with families, jobs and lives that that must be considered and respected.
*HARRIS COUNTY BAIL SCHEDULE
The Harris County Bail Schedule is made up of categories:
- Kind of Offenses:
- Capital Offenses no bond
- Murders not particularly specified below $50,000.00
- All first degree felonies not particularly specified below $20,000.00
- All first degree felonies with prior conviction $30,000.00
- All first degree felonies committed while on bail for any offense No bond
- All second degree felonies not particularly specified below $10,000.00
- All second degree felonies with prior conviction $20,000.00
- All second degree felonies committed while on bail for any offense No bond
- All third degree felonies not particularly specified below $ 5,000.00
- All third degree felonies with prior conviction $10,000.00
- All third degree felonies committed while on bail for any offense No bond
- All fourth degree (State Jail) felonies not particularly specified below $2,000.00
- All fourth degree (State Jail) felonies with prior conviction $5,000.00
- All fourth degree (State Jail) felonies committed while on bail for any offense No bond
- Other Situations:
- Felony DWI with previous felony DWI conviction Double bond amount for each DWI conviction
- Multiple counts Separate standard bail each offense in the transaction
- Persons on felony probation for any grade felony No bond
- Any 3g offense or where deadly weapon alleged $30,000.00
- Person with deportation history or undocumented presence in United States
- Motion to Revoke Probation No bond
- Motion to Adjudicate Guilt At judge’s discretion
- Large quantities of control substances or stolen property Double the value of the large quantities of controlled substances or stolen property