Constructing the plea mill

Documents obtained by the Houston Chronicle cast new light on the ways Harris County judges systematically refused to grant personal bonds to defendants for years. Many district judges instructed magistrates not to grant personal bonds to any defendant - regardless of the offense and the ability of the defendant to post bond. This is Step One in created a plea mill.

Today, after US District Judge Lee Rosenthal declared Harris County's misdemeanor bond schedule to be unconstitutional, three-quarters of the county's 8,700 inmates are in jail awaiting trial. Think about that for a second. There are more than 6,000 people behind bars who haven't been convicted of anything.

This process came to light when three Harris County magistrates, Eric Hagsteette, Jill Wallace and Joseph Licata III, during disciplinary hearings before the State Commission on Judicial Conduct. The complaints were filed by State Sen. John Whitmire (D-Houston). During the hearings the magistrates told commissioners that they were instructed by judges not to grant PR bonds.

The following district court (felony) judges instructed magistrates not to grant PR bonds on cases assigned to their courts:

• Devon Anderson, former district judge and DA, 2006-2007
• Mike Anderson, former district judge and DA, 2006-2009
• Jeannine Barr, 182nd District Court, 2006-2017
• Denise Bradley, 262nd District Court, 2012-2017
• Marc Brown, former district judge and current Justice on the 14th Court of Appeals, 2012
• Susan Brown, 185th District Court, 2006-2012
• Katherine Cabaniss, 248th District Court, 2014-2017
• Joan Campbell, former district judge, 2006-2012
• Marc Carter, 228th District Court, 2006-2014
• Caprice Cosper, former district judge, 2006-2007
• Denise Collins, 208th District Court, 2006-2012
• Mark Kent Ellis, former district judge, 2006-2017
• Catherine Evans, 180th District Court, 2014-2017
• George Godwin, former district judge, 2006-2007
• William Harwin, former district judge, current county court judge, 2006
• Belinda Hill, former district judge, 2006-2012
• Joan Huffman, former district judge and current state senator, 1999-2005
• Hazel Jones, 338th District Court, 2009 and 2012
• Jan Krocker, 184th District Court, 2006
• Renee Magee, former district judge, 2014
• Michael McSpadden, 209th District Court, 2006-2017
• Ryan Patrick, former district judge and current US Attorney, 2012 and 2014
• George Powell, 351st District Court, 2017
• Brian Rains, former district judge, 2006-2007
• Herb Ritchie, 337th District Court, 2009-2012
• Debbie Mantooth Stricklin, former district judge, 2006-2009
• Don Stricklin, former district judge, 2006-2007
• Brock Thomas, former district judge, 2006-2007 and 2014
• Vanessa Velasquez, 183rd District Court, 2006-2007
• Jim Wallace, 263rd District Court, 2006-2017
• Michael Wilkinson, former district judge, 2006-2007

Each of these judges systematically deprived defendants of bond. Yes, in some cases, individual decisions to deny PR bonds - or bond in general - was correct given the nature of the allegation and the criminal history of the defendant. But, making it a blanket policy to deny PR bonds without taking into account the individual circumstances of each defendant is wrong - and it is a systematic denial of justice.

"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. 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 can tell a young black man... They teach contempt for the police, for the whole justice system."

-- Judge Michael McSpadden, 209th District Court

Judge McSpadden even made a point of defending his position by blaming movements like Black Lives Matter for the problem. He hits all of the dog whistle talking points in his statement without taking into account the institutional racism found in law enforcement, police brutality and violence against unarmed black and brown men or the capricious nature in which bond decisions are made in Harris County.

No, Judge McSpadden, the contempt people of color feel for the criminal (in)justice system has more to do with the acts of those in charge of the system and the systemic racism inherent in the way our courts operate. Denying PR bonds to defendants because of the color of their skin or without regard to their ability to post bond breeds contempt for the system.

It's a swing and a miss

And it's strike two against Harris County in their efforts to maintain an unconstitutional and discriminatory bail policy in place.

Last June, US District Judge Lee Rosenthal ordered Harris County to change the way in which those arrested for non-violent misdemeanors are treated. Out went the bond schedule that failed to take into account the individual financial circumstances of the accused. In came a system in which folks who couldn't afford bail were released on personal bonds and pretrial release.

Fourteen of the county misdemeanor judges joined together to challenge Judge Rosenthal's order. As noted here, Judge Mike Fields removed himself from the rest of the Republican judges recently.

Now the Fifth US Circuit Court of Appeals has issued its ruling and it affirmed Judge Rosenthal's order. This should be the death blow to the county's attempt to reinstitute the plea mill as no one would ever come to the conclusion that the Fifth Circuit Court is anything other than conservative at heart.

While the Court stopped short of saying that everyone charged with a misdemeanor has the right to pre-trial release, Harris County is required to conduct an individual assessment of each detainee.

The stance of the judges fighting to overturn Judge Rosenthal's order should come as quite jarring when compared to their tame campaign promises to see that justice is done.  The justice these judges have in mind is coercing defendants who can't afford to post bond to plead guilty to criminal acts without having the opportunity to investigate the facts and to hold the state to its burden of proof.

Now the leverage the judges and prosecutors had over many defendants is gone. And that's a very good thing, no matter what the Republican judges tell you between now and November.

Is Harris County deliberately undermining a federal court order?

This past June an order from US District Judge Lee Rosenthal went into effect that drastically altered the way pretrial bonds are handled in Harris County.

In the past if a defendant charged with a misdemeanor couldn't afford to post bond or his family couldn't afford to hire a bondsman, that defendant sat in jail until his case was resolved. This put pressure on defendants to plead their cases even if there was no evidence or even if they were innocent, just to get out of jail.

Judges and prosecutors loved it. It cleared dockets. It meant fewer trials.

In light of Judge Rosenthal's ruling, defendants charged with nonviolent misdemeanors who can't afford to post bond are to be released on personal bonds - that is, on their promise to return to court on a certain date.

Many of these folks were placed on pretrial supervision in which caseworkers do what they can to ensure they return to court when scheduled.

But, according to this article in the Houston Chronicle, many of those who need supervision don't receive it and, subsequently, don't show up for their court dates.

Judges are up in arms because of the number of warrants they have to issue for defendants who miss court. County officials blame Judge Rosenthal for the problem.

Keep in mind that for decades in Harris County the jail was filled to capacity primarily with detainees who hadn't been convicted of anything. The county also fought, tooth and nail, to defend its system that denied the accused their due process rights by confining them absent a showing of guilt and absent a showing that they were a danger to society.

And, in what is most likely a deliberate attempt to undermine Judge Rosenthal's order, Harris County does not place those who most need supervision on pretrial supervision. This policy of neglect almost guarantees that folks are going to fall between the cracks. I suspect the county hopes that this policy will allow them to go back to the old system when they present "evidence" that the public was placed at risk by nonviolent misdemeanor defendants who failed to appear in court.

The judges want to return to the old system so they can move cases off their dockets. Everyone involved in the criminal (in)justice system knows that it's much easier to fight your case when you aren't behind bars. But having folks exercise their constitutional right to a jury trial gums up the works down at the courthouse - especially after Hurricane Harvey.

I know that judicial efficiency is a big deal for those wearing the black robes, but it doesn't - and shouldn't - trump the due process rights of citizens accused of breaking the law.

Taking away freedom on the cheap

One of our worst nightmares is being wrongly arrested by the police and getting lost in the criminal (in)justice system. Thanks to a cheap drug test kit, many folks around the country have had the pleasure of being arrested, having their cars impounded, losing their jobs and their apartments for no reason at all.

Factor in the pressure some folks have to plead guilty by appointed attorneys in order to get out of jail quicker and you have a situation that should shock the conscience of our nation. Yet it's something we are more than happy to sweep under the rug.

Last week the New York Times Magazine ran an article about the real life aftermath of the cheap roadside test kit focusing on the ordeal faced by one Amy Albritton from Louisiana. Her nightmare occurred right here in my hometown, Houston.

She and a friend were stopped by officers when they were in town for her friend's job interview. One officer claimed to have found a syringe needle in the visor and a (coerced) search of the car then turned up a powder-like substance (that Ms. Albritton said was BC headache powder) and a grain of something on the floorboard.

The officer who broke open the test kit claimed it showed the grain of something was, in fact, a piece of crack cocaine. Ms. Albritton was arrested (her friend disclaimed any knowledge of the substance and, since it was her car, she took the ride downtown) and charged with possession of a controlled substance - a state jail felony punishable by up to two years in prison.

There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.

The next morning Ms. Albritton met with a gentlemen who told her he was her court-appointed attorney. While she claimed innocence, he told her that the prosecutor would offer her 45 days (under a provision of the Texas Code of Criminal Procedure that allows certain felonies to be punished as misdemeanors) and that she would be in jail for much longer if she actually chose to fight her case. She gave in and pled guilty before Judge Vanessa Velasquez.

A later test of the substances by the Houston Police Department Crime Lab (who apparently tested substances from closed cases on a regular basis but never notified anyone of the results - among other sins that have been documented previously) showed that the substance in question was not crack cocaine. The tests also showed that there was nothing in the needle and that the powdery substance was BC powder.

All of this was a day late and a dollar short for Ms. Albritton who lost her job and was now hamstrung with a felony conviction due to her wrongful arrest.

Now, if we know that these kits are inherently unreliable and that their accuracy is affected by light and temperature and other environmental factors, why do we allow these tests to be the basis of criminal charges that have serious ramifications for the people involved? Why aren't we waiting for the results of actual lab tests before we file charges against someone? Why are we holding folks in jail for non-violent drug offenses simply because they can't afford to post a bond? And why the fuck are attorneys pressuring their "clients" to plead guilty without the benefit of a lab report?

Field tests provide quick answers. But if those answers and confessions cannot be trusted, Charles McClelland, the former Houston police chief, says, officers should not be using them. During an interview in March, McClelland said that if he had known of the false positives Houston’s officers were generating, he would have ordered a halt to all field testing departmentwide. Police officers are not chemists, McClelland said. “Officers shouldn’t collect and test their own evidence, period. I don’t care whether that’s cocaine, blood, hair.”

Another question, posed by former Houston Police Chief Charles McClelland, is why do we allow the folks who want to arrest someone to run the test that determines if someone gets arrested? Shouldn't that testing be done by someone who is (nominally) not a part of the police department?

Yet another question is why we continue to charge people who possess trace amounts of drugs with felony offenses?

This is reality for a sizable portion of the population yet you will never hear a politician talking about how innocent people get caught up in our criminal (in)justice system. You will never hear then talk about the gross inequities in how different people are treated. Instead you will hear nothing but the common platitudes of those who claim to be tough on crime in order to please white suburbanites whose idea of a colorblind society is an all-white neighborhood.

Standing up to coercive bonding guidelines

The first post I wrote for this blog - way back in August 2008 - was a short piece on the need for PR (personal recognizance) bonds in Harris County. A PR bond is nothing more than a promise from a person accused of a crime that he or she will show up in court when ordered (much like your signature on that traffic ticket).

Today, more than five years later, there are too many people locked up in the Harris County Jail for non-violent offenses - mostly driving while intoxicated and possession of marijuana. The lucky ones are able to arrange for a friend or loved one to post a bond so they can fight their case from the outside. Some aren't so lucky and sit in jail for weeks or months while their cases are being litigated.

In the meantime law enforcement demand taxpayers take on more debt and build another jail as the existing jails don't have enough room to hold all of the folks the county insists on keeping behind bars.

What too many of our black-robed officials and prosecutors have forgotten is that a person accused of a crime is innocent unless proven otherwise. That includes those arrested for driving while intoxicated, possessing a baggy of pot, shoplifting and driving with a fake inspection sticker.

There is absolutely no excuse for not issuing PR bonds for folks charged with non-violent offenses who have no prior convictions. The purpose of bail is to ensure a person's appearance in court - not to punish the accused. Instead of looking for reasons to keep someone behind bars, our judges should be looking for reasons to release them pending trial.

Anyone who has done this job for any period of time is well aware of the fact that it is far easier to fight a case when your client is not behind bars. Keeping someone in jail does nothing more than coerce them into pleading guilty in exchange for being released. Who's more likely to wait for the results of a blood test in a DWI case - the guy who posted bond or the guy sitting in the holdover? The prosecutor is more than willing to offer time served (or a few days in jail) to the guy who can't post bond on the theft case while the defendant sitting out in the courtroom has the time to challenge the allegations.

PR bonds would lead to fewer first setting pleas as there would be fewer members on the chain gang to be pled out without bothering to investigate the facts. They would also present a challenge to the bondsmen in Harris County who depend on the judges blindly following the bond schedule to make their living.

Robb Fickman has had enough. Mr. Fickman is on a fast to bring attention to the problem. While the vehicle for his protest may be extreme, his argument is just and right. It is high time to bring an end to "coercion by bond" in Harris County. It is time we all remember that the only presumption we are allowed to make in the criminal courthouse is that the defendant is innocent.

From The "Meaning" of America...

For years, I have observed the chain of orange jump suits come into our courts.  I watch people pleading guilty, not long after they have met their appointed counsel. The lawyers who plead multiple clients guilty an hour after they met them, are not truly functioning as defense lawyers. A defense lawyer is duty bound to investigate the law and the facts. Those lawyers who plead multiple clients guilty, not long after meeting said clients, cannot possibly have done an adequate job of investigating the law or the facts. A lawyer who is appointed to represent 6 clients at 9AM, does not have sufficient time to investigate the law and facts for those 6 clients between 9AM and 11AM. Yet we routinely see lawyers who were appointed at 9AM, pleading 6 clients guilty at 11AM.  Doing the math, that affords the lawyer no more than 20 minutes tops to work on each client’s case. I suspect if it were our loved one, we would all expect a lawyer to spend more than 20 minutes on our loved one’s case before making even an initial recommendation. 

There is no time for these lawyers to interview the client in any meaningful way, interview prospective defense witnesses, investigate potential defenses, investigate the state’s case, or investigate relevant legal issues. That cannot be done in 20 minutes.  I refer to this system as the “Harris County Plea Mill”. I am not picking on Harris County, I am aware similar bad systems exist elsewhere. (Nor am I picking on all lawyers who do court appointed work in the county courts. We have some lawyers who, despite the system, do their very best to provide effective assistance. These lawyers are more the exception than the rule.) 

I believe the inherently unfair “Plea Mill” stems largely from the incarceration of the accused. The accused remain in jail because they have not been able to hire a bondsman and because your courts will not give them personal recognizance bonds. Logic dictates that people prefer liberty over incarceration.

So, while you're enjoying your turkey, ham or whatever other food is on your table today, give a brief thought to the sacrifice that Robb Fickman is making to bring attention to a problem that happens to "those other people." Criminal defendants aren't anyone's favorite constituency. No one wants to be seen by the voters as "soft on crime." But those folks sitting in jail because they can't post bond are our friends, our neighbors, our co-workers and, sometimes, our family members.

Keep up the good fight, Robb.

The Harris County squeeze play

Last year, just 5.2 percent of slightly more than 94,000 people arrested by Harris County police agencies got out of jail on no-cost personal recognizance bonds, according to a report by the Harris County Pretrial Services office. 

In July, 65 percent of the county's 9,133 inmates were pretrial detainees rather than convicted criminals serving sentences, according to the Office of Criminal Justice Coordination.

Anything about those numbers strike you as wrong?

In this country we are supposed to be presumed innocent unless the state can prove otherwise. In this country, and in this state, bail is not to be used in a punitive manner. The purpose of bail is to ensure that defendants show up on their scheduled court dates.

Whenever 2/3 of the folks sitting in your jail haven't been convicted of anything, you've got a problem. A very serious problem. And, should Murray Newman's BFF, Mike Anderson, take over the 6th floor at 1201 Franklin, the problem will only get worse.

There is no reason that any first-time offender charged with a non-violent offense, such as driving while intoxicated, possession of marijuana or theft should be held pending someone posting bond. They should be released on personal bonds.

You want to know why Harris County ships prisoners to other jails in Texas and Louisiana? Just take a second look at those numbers. And, if Mike Anderson does what he says he's going to do (always a tough bet when dealing with a politician), someone is going to be asking the voters of Harris County to cough up a bunch of dough to build (yet) another jail.

Oh, but we have direct filing in Harris County, apologists will say. We have a bond schedule. Folks can get bonded out at any time relatively quickly. But those who can't get caught up in the Harris County squeeze. They will sit in jail until their first court appearance. The prosecutor will make an offer that will get them out fairly soon. The court-appointed attorney is only too eager to please his masters and encourages his "clients" to plead before he investigates the case.

The result? Young people walking around with criminal records that will follow them for the rest of their lives.

"I do think some of it is attributable to Harris County's process of direct filing, which means a lot of people can bond out before a magistrate can see them. If they don't bond out, they go to court within 24 to 72 hours, and they can plead out. So they no longer need a bond if their case is disposed of." -- Carol Oeller, Director of Harris County Pretrial Services

And I bet she even said it with a straight face. That's right. We don't need to discuss these personal bonds because if someone can't afford to post bail they can plead out on the chain in misdemeanor court. We're not in the business of justice at the Criminal (In)justice Center, we're in the business of making sausage.

Judges are opposed to personal bonds. State District Judge Michael McSpadden doesn't like them because he's worried defendants might find something better to do that go to court. Well, at least that's what he says in public. And I'm not just singling out Judge McSpadden (he just happened to be the one quoted in the article). The real reason the judges don't want personal bonds is because it will reduce the volume of quick pleas in their courts.

We all know that it's easier to fight a case when your client isn't behind bars. It also takes away some of the state's leverage when trying to coerce pleas. The robed ones know that if more personal bonds were granted, there would be fewer mass pleas every morning and more cases being carried on their docket.

And then there's the bonding companies.

Michael Kubosh, of Kubosh Bail Bonding, said PR bonds are a threat to public safety because those who don't appear in court are not tracked down. 

"A pretrial release bond has a high recidivism (rate), because anytime you get something for nothing that's how you treat it. It doesn't seem important to you," Kubosh said.

Of course Mr. Kubosh doesn't want to see a rash of personal bonds. They aren't good for his business. The bonding companies are the big beneficiaries of the way we do things in Harris County. A dearth of personal bonds means families have less leverage with bonding companies when trying to get their loved ones out of the county jail.

I would like to stand on my soapbox and tell you that the system is broken and needs to be repaired. But that wouldn't be the truth. You see, the system is working just as it was designed to. That's the real tragedy.

Staggering dockets won't relieve jail overcrowding

Harris County Sheriff Adrian Garcia has taken it upon himself to try to resolve the county's long-term problem of jail overcrowding. It's too bad that it won't solve a thing.

There are 22 district (felony) criminal courts and 15 county courts-at-law (misdemeanor) in the Harris County Criminal (In)justice Center. There is a "holdover" cell in each courtroom that is supposed to hold no more than 19 inmates. As they would say across the pond, that guideline is honored more in the breach than in the observance.

There is a giant holding cell in the tunnel between the county jail and the courthouse that can hold roughly 250 inmates. Now do the math. Thirty-seven courts with 19 inmates is a bit more than 250. The overflow inmates are lined up in the tunnel where they wait.

What is one to do?

Sheriff Garcia decided to stagger the times he has inmates delivered to courtrooms.This means that an attorney may walk into a courtroom and have no idea when his client might be brought over.

The problem with Sheriff Garcia's plan to alleviate overcrowding is that it doesn't. His plan only treats the symptoms, not the disease.

The way to reduce jail overcrowding in Harris County is to find a way to get those people in jail awaiting trial out of jail. Every person brought into the county jail is innocent unless proven guilty. To force someone to stay behind bars due to the arbitrariness of the county's bail schedule is a crime.

The first blog post I wrote dealt with the need to increase the number of personal bonds issued. Every person without a prior criminal record arrested for a non-violent offense should be released with a personal bond. The only reason to keep them behind bars is to coerce a plea out of them. Just wave that offer of time served in front of their face and they will gladly plead guilty to something they didn't do just to get out of that hellhole.

The other way to reduce the jail population in Harris County is to issue citations and summonses for non-violent misdemeanor drug possession cases. Confiscate the goods, issue the person a ticket along with a summons ordering them to appear in court on a certain day at a certain time under threat of arrest.

We need to do away with this notion that anyone charged with domestic assault must be held without bail until such time as he can see a magistrate so a temporary protective order can be issued. If we can find judges who are more than willing to hang around the courthouse (or by a fax machine) at all hours of the night to sign fill-in-the-blank warrants authorizing forcible blood draws, certainly we can find a judge or two who can sign an emergency protective order on short notice. It's not like they're going to read it or set a hearing to determine whether it's necessary or not.

Sheriff Garcia's plan addresses none of these issues.

Galveston looks to eliminate pretrial services

Galveston County is in a mood to cut their operating budget and one of the biggest targets is the Pretrial Release Agency. The PRA serves two primary functions: they monitor defendants who have interlock devices installed on their cars and they acts as a low cost bonding agency for jailed defendants who qualify for their services.

Members of Commissioner's Court view the agency solely in terms of the latter - a subsidized competitor to the private bonding companies doing business in Galveston. Due to the severe poverty in the county (which county officials would rather ignore), there are plenty of people being held in the Galveston County Jail because they cannot afford to post a bond.

These folks turn up on the daily afternoon misdemeanor jail docket. The county has already reduced the number of jail docket attorneys from three to two in an effort to save $57,000 a year in attorney fees. If the PRA is eliminated, the number of inmates appearing on the jail docket will increase which will create a need to put a third attorney back on the docket - or putting added pressure on the jail docket attorneys to plead their clients out.

All of us who work within the criminal (in)justice system know that it's a whole lot easier to fight a case when your client is able to work and sleep in his or her own bed. As long as a defendant is locked up, the pressure to plead out increases. When you're sleeping behind bars, the siren song of "time served and a fine" sounds a whole lot nicer than litigating a suppression motion.

According to Ms. Bonita Quiroga, the director of the Office of Justice Administration, eliminating the agency will result in all of two people being laid off -- hardly a savings bonanza. Elimination of the agency would also put the Galveston County Sheriff's Office in charge of issuing personal bonds for defendants who qualify for them.

Of course the private bonding companies want to see PRA go away. They look at the number of folks who walk out of the county jail through pretrial release and see dollar signs. The problem is, if these folks could have afforded to post a bond, they would have.

Quiroga.ltr.Pretrial.release

Stuffed to the gills

Forget about all that 6th Amendment nonsense about the right to counsel, Harris County has decided that's not nearly so important as cramming as many pre-trial detainees into the Harris County Jail in order to coerce guilty pleas.

From: Armand, Stephanie (DCA)
Sent: Friday, May 20, 2011 2:50 PM
To: DC Criminal Coordinators (DCA)
Cc: DeLeon, Sisto (HCSO)
Subject: Contractual Logistics Transfers
Sent: Friday, May 20, 2011 2:50 PMTo: DC Criminal Coordinators (DCA)Cc: DeLeon, Sisto (HCSO)Subject: Contractual Logistics Transfers 

Good afternoon,   Due to jail overcrowding, pre-trial inmates with a future date of 35 days or over are transferred to outlying jail facilities in Newton and LaSalle County.      The inmates will be returned to Harris County Jail, two weeks prior to the setting in the court.     Video Conferences are available at both of these facilities to allow the defense attorney to visit with his/her client.         Defense attorneys may contact one of the following individuals to arrange the video conference: Lt. J.D. Clay @ 713-755-8434 or 713-755-8425 Sgts. C.D. Minshew or F. Dlouhy at 713-755-8420 Or Deputy Station at 713-755-1188 or 713-755-1189   Please convey this contact information to the defense attorneys.    This information is also available on the Coordinator’s Resource Webpage under Contractual Logistics Transfer Procedures.       Thank you in advance for your assistance in this matter.
 
Stephanie Armand Business Process Manager Administrative Offices of the District Courts 713-755-5704

Keep in mind that we aren't talking about people who have been found guilty of anything. These are the folks that are supposedly innocent unless proven guilty. These are the folks who are unable to post bond. These are the folks that most people don't give a rat's ass about.

But they're being transported all over the state because Harris County refuses to do anything to address the underlying problem of jail overcrowding -- punitive bonds.

And then there's HB 1173 that would allow counties with populations over 3 million people to extend the time they can hold a suspect without a probable cause hearing from 24 to 36 hours. That's just what we need here in Houston -- there's not enough room at the inn as it is and now we're going to allow the state to hold a citizen in jail an additional 12 hours.

Of course, if it's a bad bill related to criminal justice you know it must be sponsored by Sen. Joan Huffman. Interestingly enough, the fiscal analysis indicates that there should be no additional cost to the state (understood) or to local government (?). Just how many pretrial detainees are being transferred out of the county to make room for the new blood over on Baker Street?

Here's an idea for our legislators in Austin -- how about mandating the issuance of citations for Class B possession of marijuana cases? Confiscate the contraband, issue a citation with a promise to appear and go on about your business. It's going to be cheaper than shipping detainees out of the county and it might just allow Harris County to take care of its business when it comes to holding probable cause hearings within 24 hours.

One lump or two?

Oh, the hypocrisy of those limited government folks never ceases to amaze. As Grits for Breakfast reports, Teabaggers in Smith County (that would be northeast Texas, for those of y'all not in the know), have come out in favor of (yet another) referendum to build a new jail.

Nevermind the fact that voters in Smith County (hardly a liberal stronghold) have said "thanks, but no thanks" on four previous occasions. Nevermind the debt the construction project would impose on county coffers.  Nevermind the fact that it costs Smith County less to house a few inmates in other counties than it would to pay for a new jail. Nevermind that the majority of folks being housed in jails across this state are being held for nonviolent crimes.

In other words, nevermind the fact that the Teabaggers proclaim themselves to be champions of limited government. The same folks that tell the world we need less government, not more, have no compunction about lobbying for restrictions to be placed on the constitutional rights of those accused of criminal activity. The same folks that tell the world we need less government, not more, have no compunction about creating new crimes or harsher penalties because of one bad incident that occurred. The same folks that tell the world we need less government, not more, have no compunction about allowing the police to intrude more and more into the lives of ordinary citizens -- whether it be through "back-dooring" our e-mail or cell phone communications or fondling people boarding planes.

You want to reduce the cost of incarcerating our fellow citizens? How about personal bonds for folks charged with minor nonviolent offenses who have no prior criminal record? How about allowing police officers to issue tickets for possession of trace amounts of marijuana instead of hauling someone off to jail? How about more pretrial diversion programs for folks without criminal records? How about reducing bonds so that defendants don't have to sit around in jail until their cases are disposed of?

The problem with those ideas, though, is that they're logical.

On measuring cups, crack and jail overcrowding

The boys over at Freakonomics have posited an interesting question -- did the sale of Pyrex hurt the crack cocaine industry?

It sounds quite far-fetched, I'm certain, but it makes some sense if you look into the issue a bit more deeply. The theory goes something like this...

Pyrex is (or at least, was) a great material for handling extreme changes in temperature. You could fill a bowl with a cold substance, throw it in the microwave and boil it, all without the glass shattering. At least you could before Corning sold Pyrex in 1998. The new owners, World Kitchen, changed the manufacturing process around and now Pyrex isn't quite so good at handling extreme temperature changes.

Crack cocaine is made by melting powder cocaine in water at high temperatures then letting it cool. It wasn't a problem for the old Pyrex measuring cups -- but the new ones, not so good. Crack manufacturers had to find new vessels to cook up their brew - namely, test tubes stolen from labs.

Now we all know it's far easier to buy a Pyrex measuring cup than it is to steal test tubes. Hence, the cost of producing crack has gone up and the supply has gone down.

Pyrex is valued by cooks for its sturdiness in the kitchen, particularly its ability to withstand rapid, dramatic temperature changes that typically shatter normal glassware. It turns out that people making crack cocaine valued this quality too. The process of cooking powder cocaine into hardened crack is intense, and involves a container of water undergoing a rapid temperature change. For years, Pyrex measuring cups, manufactured by Corning, were a key component of the underground crack industry. 

But Corning sold Pyrex in 1998 to World Kitchen, which altered the makeup of the Pyrex material, making it less resistant to temperature changes and more prone to shattering. 

If you're a fan of Mythbusters you'll get a kick out of this video in which the boys at Popular Science show the different ways you can cause a Pyrex cup to explode.

The lesson is that you can never be certain of the consequences of any particular decision until somewhere down the road.

This principle plays out on a daily basis in the criminal courthouse. By not granting personal bonds for people charged with nonviolent Class B misdemeanors, the courts "force" defendants to plead guilty in order to get out of jail. These folks now have criminal records that can make it harder for them to find housing or jobs. As a result of overcrowding in the county jail we've had to spend money to build new jails and even more money to pay other counties to hold Harris County inmates awaiting trial.

Harris County could institute a "catch and release" program for minor possession cases. Instead of arresting the person and hauling them off to jail, the police could issue a citation with a promise to appear in court. Such a policy would reduce the number of people held in the county jail and would take away the pressure to plead guilty in order to get out of jail. That conviction for a possession of marijuana could prevent a student from receiving financial aid in college - putting a degree beyond their reach.

Our state legislators rarely (if ever) consider the long-term consequences of anything they do -- they are focused on the next election, to the detriment of everything else. There are days I thank my lucky stars that they are only in session for 140 every other year.

Harris County Sheriff looks to ankle monitors to reduce overcrowding

Harris County Sheriff Adrian Garcia is looking into allowing low-risk inmate at the county jail to serve their time at home with ankle monitors. A test program will be conducted using 10-20 inmates who work outside the jail under armed guard.

The program seems aimed at inmates who serve weekends in the jail and work during the week. According to the sheriff's office, these so-called "weekenders" eat up more space and man-hours than necessary.

" 'Weekenders,' as we refer to them, take up costly jail cells that we would otherwise want to save for accused offenders that are a true danger to the public." Adrian Garcia, Harris County Sheriff

The idea is to reduce the severe overcrowding at the Harris County Jail which would serve to reduce the amount the county pays to other counties to house their inmates. Implementing the plan would require the cooperation of County and State District Court judges, as well.

Sheriff Garcia, if you really want to make a dent in the inmate population in downtown Houston, look into issuing citations for minor Class B misdemeanor offenses such as possession of marijuana and personal bonds for non-violent, first-time arrestees.

Happy marijuana freedom day!

If you didn't already know it, today is Marijuana Freedom Day (4/20, get it?). The folks over at NORML are planning events around the country both to protest the laws making marijuana illegal as well as to celebrate the herb, hippie lettuce, happy grass, pot - whatever you wish to call it. Houston's even in on the act.

As you may know, the Harris County Jail is packed to the gills -- due largely in part to people arrested and convicted of minor possession charges. The inmate processing center was clogged over the weekend that the Harris County Sheriff's Office announced that it would stop accepting people brought in by HPD for low-level traffic offenses. Of course that may have been because a plan for expanding the inmate processing center is scheduled to go before county commissioners.

How would I reduce overcrowding in the county jail? People arrested for what amounts to "personal use" quantities of marijuana (or as those brilliant scholars in the state legislature spell it - marihuana) should either be charged with a Class C misdemeanor for possession of paraphenalia or should be issued a citation with an order to appear in county court under the state's "Catch and Release" initiative.

Update:

According to Alan Bernstein, the Public Affairs Director of the Harris County Sheriff's Office, the sheriff's office never stopped accepting anyone brought to the jail by HPD. He said that it was HPD's decision to  stop making arrests for low-level traffic offenses.

Of course, what's really the difference between threatening not to accept arrestees and turning them away at the door?

Who is indigent in Harris County?

It is a rarity in Harris County for any defendant who is out on bond to receive appointed counsel. There is even one judge in the Criminal (In)justice Center who will tell a (bonded) person seeking appointed counsel that he must sell every non-essential item in his possession and show that he still cannot afford to hire an attorney before the judge will appoint one.

Nevermind that the purpose of bail is not to punish a person but is, instead, a means of guaranteeing his appearance in court.

On December 3, 2008, the Harris County Criminal Courts last amended their Standards and Procedures [for] Appointment of Counsel for Indigent Defendants pursuant to the Fair Defense Act.

1.0 Financial Standards for Determining Indigency

The indigency standards adopted by the judges shall apply to each defendant equally, regardless of whether the defendant is in custody or out on bail.

1.1 A judge shall consider the following criteria as incorporated by the form adopted by the board of judges in determining whether a defendant is indigent:

1.1.1 defendant's income;

1.1.2 source of income;

1.1.3 assets;

1.1.4 property owned;

1.1.5 outstanding obligations;

1.1.6 necessary expenses;

1.1.7 the number of ages of dependents; and

1.1.8 spousal incomes available to defendant.

1.2 The judge shall not consider whether the defendant has posted bail, except to the extent that it reflects the defendant's financial circumstances.

In Galveston County I have been appointed to represent many a defendant who has posted bond, yet is still eligible for "appointed" counsel (much more on this topic later); yet in Harris County most of the client's for the appointed attorney are still donning the orange jumpsuits of the Harris County Jail.

Many of the misdemeanor defendants were charged with nonviolent offenses yet were denied personal bonds due to the magistrates' strict obedience to the Harris County bond schedule (misdemeanor and felony). The denial of personal bonds (and the subsequent refusal to request one) lead to the mass plea in which defendants "voluntarily" waive their rights to trial by jury, confrontation and appeal in exchange for time served so they can get out of jail and back to their families or jobs.

Convictions based upon expediency and judicial economy -- not on the merits. That's not justice.

Judge orders courtroom spectators to submit to drug tests

Benjamin Marchet of South Carolina has filed suit in Federal Court in Tennessee alleging that Dickson County (TN) Judge Durwood Moore ordered him to submit to a urine test on a hunch that he might have been on something. Okay, judges ordering defendants to take drug tests isn't anything out of the ordinary -- and typically not violating the law is a condition of bond.

Only thing is that Mr. Marchet wasn't a defendant. He was a spectator in Judge Moore's courtroom.

In his response to Mr. Marchet's claim that the judge lacked probable cause or reasonable suspicion to order the drug test, Judge Moore defended his actions by saying it was the routine policy of his court.

Well it's also routine policy in Harris County to deny appointed counsel to anyone who is able to post bond and to deny requests for personal bonds for defendants who can't post bond. That doesn't make it right, either.

Harris County to institute "catch and release" policy

The Harris County District Attorney's Office announced a change in its policy regarding arrests for trace amounts of drugs, particularly crack pipes with cocaine residue.

Beginning on January 1, 2010, if the amount of drug residue is less than .01 grams, a person will be cited for possession of drug paraphenalia, a Class C misdemeanor punishable by fine only. By law a person charged with possession of a controlled substance has the right to examine and retest the substance. The District Attorney's Office has determined that an amount of less than .01 grams is insufficient to allow for retesting of the substance.

According to the new policy, if the person is carrying drug paraphenalia and the officer cannot determine the weight of the drug residue, the officer is to issue a citation and release the alleged offender. If the drug residue is found in some container other than drug paraphenalia, the officer is to issue a citation, release the alleged offender and submit the container for testing. If the amount in question is more than .01 grams, the officer may submit the case to the DA's office and request an arrest warrant.

Harris County to fund public defender's office

Harris County commissioners voted 5-0 to create a hybrid public defender's office in Harris County. Of course the devil of such a proposal is in the details and there is no consensus on how the office would operate and whether the county's various courts would have to participate in a public defender system.

Currently in Harris County indigent defendants are represented by private attorneys. Some courts used a rotating list of eligible attorneys while others employ contract attorneys. Harris County's indigent defense system has been criticized in the past for the number of felony cases assigned to particular attorneys. (See "Crowded House.")

• 11 of the 22 state district courts would use a public defender office for appellate work;
• 5 of the 22 state district courts would use the office for adult felony cases;
• 2 of the 3 juvenile courts want to use both public defenders and private attorneys; and
• all 15 county courts want to use public defenders for defendants who are disabled or who have mental problems.

Commissioner Steve Radack said he was supporting the office in order to take care of overcrowding in the Harris County Jail. Hmmm. Let's think about that for a second. In Harris County (with rare exception) the only defendants who are eligible for appointed counsel are those who are unable to bond themselves out of jail. Offers on Class B misdemeanors range (typically) from time served to 30 days. I fail to see how a public defender's office would alleviate jail overcrowding given that scenario.

And this isn't even factoring in the ridiculous offers of 30 days on DWI cases or the escalating sentences in prostitution cases. The way to reduce overcrowding in the Harris County Jail isn't to create a new bureaucracy -- the answer is to rethink how we handle those accused of committing minor offenses. The police can issue more personal bonds on minor drug possession cases (so-called "catch and release"). Magistrates could take into consideration a defendant's ability to post bond when setting bond by the county's bail schedule.

Instead the county wants to create a new office funded and beholden to those in office to defend those who can't afford to retain their own counsel. Just wait until budgets and staffing are cut in the name of budget constraint and political pressure.

Inspection turns up problems in the city jail, too

This time it's the City of Houston facing criticism over the conditions at its two municipal jails. According to the Houston Chronicle, a court-appointed inspector, the city's two jails are overcrowded and filthy and need to be replaced.

The problems are so severe that the city may not be able to tap into federal funds to screen inmates for immigration status, as that program would require the city to hold those inmates until Immigration and Customs Enforcement decided to pick them up.

City jails have been under court-ordered inspections since a lawsuit over the jails' conditions in 1989. Up through June 2008, the inspections were carried out by criminal justice consultant Gordon Kamka (now deceased). His last report (in June 2008) was just two pages long and noted that some phones weren't working and some inmates had been forced to choose between having a mattress or having a blanket.

Either Mr. Kamka wasn't looking, didn't care or covered up the problems, because in May 2009, the new inspector, David Bogard, found, shall we say, a shitload of problems.

Here are the highlights:

• • The frequent use of “interlocking,” a controversial restraint technique in which a person's hands are cuffed behind the back and connected to shackled legs in a way that forces an inmate to lie on his stomach or side on the floor. The report says interlocking has been discontinued by many law enforcement agencies across the country because of “concerns about it being degrading and potentially medically harmful.”

• • Inadequate investigation of a death in custody in November 2008 in which police behavior was examined but not any potential problems in the jail.

• • Food that was improperly cooled in refrigerators in a kitchen area that had been cited by the city health department for unsanitary conditions and gnats.

• • Inmates who had stayed in the jail for days without being arraigned.

• • “Unacceptable” delays in following up on inmate medical care.

Police officials said they are confident that Mr. Bogard's most recent inspection (this month) will show that improvements have been made. The city thinks building a new jail/intake facility and turning its operation over to Harris County would be a good idea. The voters disagreed last year in rejecting the proposal in a referendum.

Here's an idea for the powers-that-be in Houston -- how about issuing more personal bonds on minor cases? It's absurd to fill the jails with people charged with driving on suspended licenses, possession of small amounts of marijuana or criminal trespass. Think fishing -- catch and release.

Harris County to ship inmates to other Texas counties

The Houston Chronicle reported today that Harris County is on the verge of entering into an agreement with four other counties to house Harris County inmates who have been convicted and are waiting transfer to the Texas Department of Criminal Justice and inmates who were convicted of state jail felonies but sentenced to misdemeanor time.

The Harris County Jail complex was built to house 9,400 inmates - the current jail population is a staggering 11,251 (as of August 10, 2009).

Currently the county is paying Louisiana $38 per person/per day to house 1,046 inmates who are serving misdemeanor sentences on state jail convictions. That figure doesn not include transportation or medical care expenses.

The contracts with Bowie, Dickens, Jefferson and Newton Counties calls for a payment of between $42.25 and $45 per prisoner/per day, including transportation and medical care expenses. All in all Harris County plans on spending $16.5 million to house up to 2,100 inmates for up to six months as a way of alleviating overcrowding.

Harris County Commission Steve Radack said that the county should be able to find additional space in other counties at bargain prices as the crime rate drops. No word on whether he made the comment with a straight face. Let's see, crime rate falling, inmate population in Harris County rising... what's wrong with this picture?

Here's an idea, Steve, instead of shipping inmates all over East Texas, why not put pressure on the Harris County District Attorney's Office to issue personal bonds on Class B misdemeanor drug possession cases? Then the officers can issue a citation with a promise to appear. Let's issue personal bonds (cite and release) people charged with driving on a suspended license.

“I think we'll get it into compliance, whether by sending out inmates to other jurisdictions, or building a massive new jail. If we started tomorrow to design a new jail, by the time you got it designed and engineered, it'd take three years. So, frankly, you're going to have to do something in the interim anyway. If you look at cost of a new facility, the cost of labor to run it, many times it's going to be cheaper to go to someone else who needs the income because they have overbuilt the capacity of their jail, and they need the money. They need to pay their bonds, their debt, and they're out looking.” - Steve Radack, Harris County Commissioner, Precinct 3

That's it, Steve. Let's just follow the money.

Harris County trails only LA and NYC for largest daily jail population

A quarter of the Harris County budget goes to fund law enforcement, with over $750,000 spent every day on inmates at the Harris County Jail, according to a report in Forbes. Harris County has the third largest daily jail population - trailing only Los Angeles County and New York City.

Over a three-year stretch the number of inmates increased more than 21%.

"Many people are in jail because they are too poor to post bail. If you have a first-class pretrial program, a county is often in a better position because they can carefully analyze the individual, can figure out better what needs to be done." -- Donald Murray, senior legislative director, National Association of Counties

According to John Dyess, chief administrative officer for the Harris County Sheriff's Office, the county spends some $200 million a year for detention, money that could be spent in more productive ways.

"This really wasn't built for this. I don't know if we can build our way out of where we are today." - John Dyess

The Justice Policy Institute estimates that almost two-thirds of the nation's jail population are awaiting trial. And why are they waiting behind bars? Because almost four out of every five inmates made less than $2,000 a month prior to being arrested.

Between 1986 and 2005, the number of arrests for violent crimes increased 25% but the number of arrests for possession of illegal drugs increased 150%.

The numbers are appalling. The wholesale eviseration of the Eigth Amendement's prohibition against unreasonable bail is unconscionable. The only purpose of bail is to insure the accused's appearance in court. It is not meant to be a tool of punishment. We often forget that these men and women held in jail awaiting trial haven't been convicted of anything. They are innocent unless the state proves them guilty beyond all reasonable doubt.