Lack of counsel, information, may contribute to bail barriers

This is the fourth in a series analyzing Harris County bail policies and their effect on jail overcrowding. See Parts One, Two, and Three.

Part of the reason Harris County judges over the last decade required cash bond from those who are low-flight risks may stem from defendants' lack of representation at their bail hearing.

According to the JMI consultant's report, most defendants in Harris County aren't represented by counsel at their bail hearing. "Unless they have retained their own attorney, defendants are typically not represented by counsel when they first arrive at this courtroom, though if they request counsel a lawyer may be appointed to represent them during this session."

So, without a lawyer, what chance do defendants have, really to make their case for low bail or release on personal recognizance? Plus, even if they had attorneys, their lawyers aren't routinely getting information that might convince the judge to make bail less onerous.

An elaborate system exists in Harris County to identify lower risk defendants who don't necessarily need to be incarcerated while awaiting trial. The Pretrial Services unit goes to great lengths to prepare a 4-page "Defendant Report" for most defendants, which is provided to the magistrate at the bail hearing. That document summarizes information from interviews and assigns the defendant a risk category -- low-risk, medium risk, etc..

When a defendant is judged to be "low-risk," the Defendant Report should provide a good starting point to argue for low bail or release on personal bond. Often, though, that detailed assessment isn't a factor when judges set bail. According to JMI, "Some judges make extensive use of information in the Defendant Report when fixing a bail amount and setting other conditions of release, while others barely glance at the form or simply do not use the information at all."

What's more, even if a defendant retains counsel, their lawyer may not be able to get access to the risk assessment report. "The defense attorneys do not routinely receive a copy of the Defendant Report, but some judges try to make sure that they receive a copy."

Defendants without attorneys can't adequately argue for their release at a bail hearing. Attorneys without access to risk assessment information are in the same predicament. In both instances, the net effect is to increase the likelihood defendants will receive cash instead of personal bonds, meaning more people will be incarcerated pending trial in Harris County simply because they can't pay.