Extra bail conditions: When tough on crime means tough on taxpayers

This is the second in a series analyzing Harris County bail policies and their contribution to jail overcrowding. See Bail blunders boost bulging Harris jail population.

Expanded use of "special conditons" as bail requirements are another big cost-driver undermining Harris County's bail system, according to the recent Justice Management Institute (JMI) consultant's report. Historically, most people who bonded out of the Harris County Jail were placed on "general supervision" while awaiting trial, requiring defendants to comply with the following standard conditions of release:

• Phone check in every two weeks.
• Call in the day before court.
• In-person check-in on court date.
• Notify agency of change of address, phone or employment.
• No travel outside county.
• No contact with complaining witness.

Pretty basic stuff. In recent years, though, local judges wanting to establish their tough-on-crime credentials have taken to tacking on numerous "special conditions," including urinalysis (the most common additional requirement), submitting to home confinement and electronic monitoring, abiding by an evening curfew, and "stay away" orders forbidding contact with alleged victims or witnesses. According to the Justice Management Institute:

While the average number of "general supervision" cases has decreased [between 1994 and 2004], the average number of defendants supervised for compliance with special conditions at any one time has increased from 383 to 1,202. Because the amount of work and skills needed for supervising defendants on special conditions are far greater than for supervising those on general conditions, this has meant significantly greater workloads for agency staff responsible for supervision of defendants.

It also meant more bail revocations for failure to comply, which boosts jail overcrowding and generates extra costs, with little benefit to public safety. "Compliance with some of the special conditions imposed by judges -- including submitting to urinalysis tests, abiding by curfew restrictions, and abstaining from alcohol use -- can be ... difficult to monitor, requiring substantially more staff effort," reported JMI And what's the result of that extra staff effort? More opportunities for defendants to have their bail revoked and wind up sitting in jail awaiting trial.

That means judges who want us to think they are tough on crime are really being tough on Harris County residents' pocketbooks.

Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system. Presently in Harris County, "Turnaround times for receiving the results are repotedly very lengthy -- ten days to three weeks if the results of the test are negative, and as long as four to eight weeks if the test of a urine sample is initially positive and confirmatory analysis must be conducted," JMI reported. Fees by defendants cover only a fraction of drug testing costs.

Moreover, forensic lab testing in Harris County has been notoriously unreliable. Who knows if you can even trust the lab results when you get them?

The most frustrating difficulty with the imposition of "special conditions" is that they vary from judge to judge: Some use them extensively, some hardly at all. That means when new money is put into pre-trial supervision, a handful of judges quickly soak up all the funds. According to JMI:

Judges vary widely in the frequency with which they call upon Pretrial Services to monitor defendants' compliance with special conditions. For example, during the first six months of 2004, one County Court judge imposed a total of 1,240 additional conditions on 301 different defendants. At the other end of the spectrum, during the same period another County Court judge imposed 97 such conditions (of which 87 were simply requirements for telephone check-in) on 94 different defendants. The range of variability in the use of special conditions is similarly wide among judges of the District Courts.

That difference is so great one almost wonders whether the distinctions might raise Fourteenth Amendment (equal protection) concerns -- after all, if you and I are arrested and jailed on similar charges, under similar circumstances, there's no justifiable reason one of us should be subjected to urinalyses and a curfew while the other merely checks in by phone every two weeks. JMI recommended that

The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered, for what types of drugs, how and by whom the tests should be conducted, what responses should be made to test results, and when (under what circumstances) the drastic step of revoking bond should be taken.

Indeed, with inmates sleeping on the floor of the jail and no place to house defendants whose bond has been revoked, perhaps the policy should change to require urinalysis very rarely, especially since the county can't afford to revoke anybody's bail, anyway, at least for a dirty urinalysis.

Imposing "special conditions" without special circumstances soaks the taxpayers, with little benefit besides letting judges and prosecutors grandstand as being "tough on crime." I doubt taxpayers would approve if they knew the truth of it.

Next: Subsidies for bail bondsmen.