Sunday, October 26, 2008

Why jail people you're not going to charge?

Counties can save big bucks by eliminating jail time for people who're never charged with a crime if District and County Attorneys implement a "direct filing" system on the front end.

El Paso DA Jaime Esparza gave a presentation this week at a conference of the Texas Task Force on Indigent Defense about his county's upgraded information management system (DIMS), which allows police to immediately file cases with the DA instead of having prosecutors wait to evaluate the case until after the defendant sees a judge.

Harris County, he said, had the first direct filing system in the state. (See excellent bloggerly descriptions of Harris County's system here and here.) In Harris, police must get every arrest pre-approved by prosecutors who are on call 24 hours a day, 365 days per year to evaluate cases at the time of arrest. That eliminates needless delays that in other counties strand people in jail for days or weeks who will never actually be prosecuted.

Esparza declared law enforcement must get away from the idea that arrest is punishment, citing the old cops' adage enshrined in Grits' masthead - "you might beat the rap but you won't beat the ride." That approach maximizes cost to taxpayers and distorts the justice system with little public safety benefit.

There are 3 basic models used by different counties to arrest and charge people with a crime, said Esparza, and most use the third, most cumbersome one. They are:
  • Arrest - Charge - Jail
  • Arrest - Charge - Magistrate - Jail
  • Arrest - Magistrate - Jail - Charge
Direct filing coupled with pre-set bonds for routine cases (the first bullet) facilitates more rapid disposition of cases for people who would ultimately be released under any system. By contrast, the third approach maximizes the time defendants needlessly spend in jail waiting to be charged, frequently causing other undesirable consequences like losing their job, which makes it harder for them to pay fines and probation fees or turn their lives around.

Esparza explained the core assumption behind the system: Most cases are routine. On misdemeanor cases and low-level felonies, in particular, typically once a police car leaves the scene, they're never coming back. It's those routine cases (not more complex ones like murder or sexual assault) where the direct filing has the biggest impact.

Making charging decisions earlier in the process - in El Paso it happens before a defendant is ever booked into jail - reduces jail overcrowding and helps process court dockets more quickly.

In Harris County, he said, 25% of direct-filed cases are completed in just three days; that figure was 15% in El Paso, but it would be zero without the DIMS system.

For routine cases, there's a pre-set bond schedule so defendants can actually bond out BEFORE magistration. (That potentially saves the county money on indigent defense costs because, according to Indigent Defense Task Force chief Jim Bethke, if there's no magistration hearing, requirements to appoint counsel under the Rothgery ruling aren't triggered, a particular boon whenever charges aren't ultimately filed.)

Even for defendants who remain in jail, overall detention rates are lower with direct filing and cases are resolved much faster, reducing the length of pretrial incarceration. El Paso has an open file policy, so the DA's full file on the case is given to defense counsel within 24 hours.

While it might seem like being on call 24-hours a day would put a strain on prosecutors, as it turns out they're paid time and a half when working non-standard hours, so prosecutors tend to consider it a plum and seek out the assignment. Even with extra costs for prosecutors, though, overall savings to the county from DIMS has been about $1.49 million per year, said Esparza, mostly from reduced jail costs.

El Paso's Sheriff initially refused to participate and while that created headaches for the DA, it also created a situation where researchers could evaluate differences in cases depending on how they were filed. El Paso prosecutors receive offense reports an average of 7 hours after an arrest using the DIMS system. By contrast, offense reports for El Paso's non-DIMS cases take an average of 19 days to reach a prosecutor. That's a big difference!

In the meantime, taxpayers pay for the defendant to sit in jail, even though 19% of cases brought by police to the DA in El Paso don't result in prosecution, said Esparza (a figure which closely corresponds to the statewide average of 18%). In Harris County, according to our pal at the blog Life at the Harris County Criminal Justice Center, the arresting officer must phone the on-call Assistant DA, describe the incident and get agreement about the proposed charge up front, which prevents jailing people who will never charged.

When El Paso began using the DIMS system, said Esparza, the county jail was so crowded that officers were in many cases forced to give summons instead of making arrests. Now, he said, the county actually leases jail beds to the feds to generate extra income because the DIMS system reduced the jail population to such an extent. It's hard to argue with that kind of success.

RELATED: See this study of direct filing systems (pdf) by the Task Force on Indigent Defense.


Anonymous said...

Protesters slam Taylor County Jail at rally

By Jerry Daniel Reed
Thursday, October 16, 2008
Reporter-News Photo by Ronald W. Erdrich Lance Voorhees, a volunteer chaplain with Taylor County Detention Ministries, speaks during a protest Wednesday at the Taylor County Courthouse organized by the Texas Jail Project. Voorhees described incidents reported to him by jail inmates who alleged improper and cruel treatment. during their incarceration there. According to their Web site, the Texas Jail Project is an Austin-based volunteer organization working to improve the conditions for county jail inmates statewide. Reporter-News Photo by Ronald W. Erdrich Texas Jail Project Director Diana Claitor holds up an envelope claimed full of complaints about the Taylor County Jail during a protest Wednesday, Oct. 15, 2008 at the Taylor County Courthouse. According to their Web site, the Texas Jail Project is an Austin-based volunteer organization working to improve the conditions for county jail inmates statewide. Reporter-News Photo by Ronald W. Erdrich Texas Jail Project Director Diana Claitor holds up a copy of a certificate Wednesday, Oct. 15, 2008 they wanted to present to the Taylor County Jail for complaints they have received about the facility. According to their Web site, the Texas Jail Project is an Austin-based volunteer organization working to improve the conditions for county jail inmates statewide. Leaders of the Texas Jail Project on Tuesday delivered a harsh indictment of the Taylor County Jail, including a mock "Texas Hellhole Award." The organization announced the designation at a news conference and rally at the war memorial north of the Taylor County Courthouse that attracted roughly two dozen people. The Abilene jail's selection stemmed from a "gut feeling," jail project director Diana Claitor said. But she also brought a large envelope that she said contained about 200 pages of complaints about the local jail sent to the Texas Commission on Jail Standards. Taylor County Commissioner Stan Egger is a member of the jail standards commission. Sheriff Jack Dieken labeled the organization's finding "unfounded, untrue and unwarranted." He said parents of inmates should have come to him first with questions about their treatment, rather than the media or an advocacy group. "My door has been open for 16 years," Dieken said, referring to his tenure as sheriff. Dieken will leave office at the end of the year. Voters will choose between Republican Les Bruce, who defeated Dieken in the GOP primary, and Democrat Art Casarez on Nov. 4. Claitor said no precise statistical comparisons can be made among Texas jails, because no standard record-keeping system is required of them. The 2-½-year-old organization advocates several changes in how Texas jails operate, including resident review boards not connected with sheriff's offices. Other suggested reforms include: n More community involvement, including by church congregations, to provide support for inmates and to keep the public aware of what happens in the jails. n More training and better pay for county corrections officers. n Real investigations of complaints about jails, with consequences for wrongdoing. Diane Wilson, a shrimper from Seadrift, said that she and two women supporters founded the Texas Jail Project after Wilson spent four months in a Victoria jail resulting from what she called resistance to pollution. The women's health care was neglected, two women had committed suicide in the shower, and several had gone months without access to a judge or a lawyer, Wilson said. Lance Voorhees, a volunteer chaplain in the county jail, listed several complaints concerning inmates' treatment that he included in a letter to Texas Attorney General Greg Abbott dated Sept. 8, 2006. Several involved the alleged use of pepper spray as corporal punishment, plus the alleged withholding of medications, physical abuse, and taunting of inmates with mental problems.Cheryl Freeman, the mother of a former misdemeanor inmate, said county jailers once threw her son to the floor and kicked him, pepper-sprayed him and then did not allow him to immediately wash off. He also was denied his medications at times and was taunted that he should hang himself, she said. Dieken said the jail standards commission and the Texas Rangers have exonerated the county jail after investigating complaints about mistreatment of inmates."Jail Standards said we have done nothing wrong, and our records are up to date. Our discipline records are up to date. We have nothing to hide, nothing to be ashamed of," Dieken said. County Commissioner Egger voiced confidence in the efforts of both the jail standards commission and Taylor County officials to improve the county jail and others in the state. He said he is especially proud of Taylor County's record regarding inmates with mental disabilities.The jail commission seeks to address concerns, such as making the complaint process "easier and smoother." As for the county jail, he said, "If there is a problem, it's not because we haven't tried to fund what we needed to do."
abilene reporter news abilene tx

Anonymous said...

"appoint counsel under the Rothgery ruling aren't triggered"

Interesting Esparza sees Rothgery as a good thing for DIMS, when it may be bad news for DIMS...why Miranda if DIMS effectively denies both a magistrate and a attorney?

If a indigent asks for a attorney upon warrantless arrest, then is DIMS process 'monkey wrenched' because of Rothgery?

Soronel Haetir said...

In answer to the question posed by your post title, "Because it's fun.", or "Because we can"

Gritsforbreakfast said...

2:34, I agree that's an odd twist on all this - Jim Bethke said it so I included it in this analysis for the sake of completeness, but I don't understand completely how Rothgery interacts with cases where bonds are set by a schedule instead of a magistrate, and I suspect additional litigation may be required to settle the question.

That said, Esparza said counsel is appointed in El Paso quickly and they receive the prosecutor's file within 24 hours; Bethke made that statement in the context in a different part of the event, not specifically discussing El Paso. So the conflict may be theoretical rather than actual.

I'll try to find out more on that, or if any readers know more (or have a compelling theory) I hope you'll share it.

Anonymous said...

I think Rothgery makes a stronger case that Bail Schedules should not be used. I agree the courts are going to have to decide how to apply Rothgery. First Appearence is often also a bail hearing setting. I found a Mass State case post Rothgery citing it as to how a atty can help attain lower bail or even get a PR bond. With DIMS this is not possiable thus also excessive bail concerns. Also with a likely new El Paso Sheriff wanting to enter DIMS like the city, concern may be that it is the Sheriff not El Paso police who have more bail and magistrate responiabilty,liabilty concerns ie almost like why not coordinate with the field deputies to control just when the person gets a atty...

Gritsforbreakfast said...

Hmmmm, I'm not sure Rothgery means bail schedules should not be used, but it could wind up meaning that when they are people still get to have a lawyer appointed. That's pure speculation, I really don't have a clue. I was surprised when Bethke put forward that interpretation.

Soronel Haetir said...


Certainly under the deprevation of liberty test outlined in Rothjury, I would expect adverserial judicial proceedings to have begun unless the only condition of schedule based bail is a promise to appear.

Anything more and I would expect attachment.

Anonymous said...

Even if bail has been set by the court, especially in cases where an indictment has been issued, the defendant is still entitled to Rothergy.

The CCP does not make any exception as to whether the arrest was made warrantless, by warrant, capias after indictment with bail already set; it requires that in each case that the person arrested be taken before a magistrate within 48 hours to receive the required warnings, including the appointment of counsel.

The key words are "in each case."

Anonymous said...

The problem I see here is that El Paso county is making new law.

While I understand the concept of getting people released more expeditiously, doing so is infringing upon certain rights of the defendant.

The previous post is correct that in each case the defendant is entitled to Rothergy and to be informed of his right to court appointed counsel. That is what the court said!

Furthermore, defendants in felony cases have the right to an examining trial. If no magistration occurs because bail has been predtermined, how does the defendant know of this right? After he is indicted? I don't think so. That's the purpose of this right so a hearing can take place before indictment.

Gritsforbreakfast said...

To 5:30: There's no indictment at the time bail is set in El Paso County, they haven't even been magistrated - that's the root of Bethke's argument that a critical stage has not been reached when that's done. I'm not saying I agree with it, it's just what was said.

Soronel, I think you're right that if bail imposed any more conditions than a promise to appear, Rothgery would be implicated. But when it's just done with a schedule and not by the judge, it seems like that's (typically) the case. Whaddya think?

Anonymous said...

Straight from the Texas CCP........

Art. 26.04. PROCEDURES FOR APPOINTING COUNSEL. (a) The judges of the county courts, statutory county courts, and district courts trying criminal cases in each county, by local rule, shall adopt and publish written countywide procedures for timely and fairly appointing counsel for an indigent defendant in the county arrested for or charged with a misdemeanor punishable by confinement or a felony.

Why don't you make an open records request to see how many Texas counties have a written plan. Therein lies a big part of the problem.

The written plan has only been required since January 2001.

Anonymous said...


I understand there is no indictment in El Paso County. Whether there is pre-set bail amount or not, Rothergy applies in each arrested case. That is what the code says and even greater, that is what the court ruled.

Gritsforbreakfast said...

FWIW as far as making new law, El Paso is relying on this AG opinion for authority to do bail as they're doing.

Also, the county plans are all online. Go here and select the county you want to see in the left hand sidebar to access them.

Gritsforbreakfast said...

To 6:26, actually Rothgery ruled narrowly that the right to counsel attaches at the magistration (15.17) hearing. I'm not sure it directly speaks to what happens when bail is set without one, though obviously the spirit of the decision (as opposed to the letter) would imply they're still eligible for a lawyer while out on bond.

I'm not backing El Paso's stance, nor criticizing it - I don't know the right analysis here and as mentioned before suspect future Rothgery-based litigation will be needed to clarify some of it.

Gritsforbreakfast said...

Here's El Paso's indigent defense plan (doc) - they handle DIMS cases, apparently, via an "Attorney of the Week."

Even after reading it I'm not sure I understand exactly how the process works or whether bonded Ds have an attorney besides the one under whom they lump together all the DIMS cases.

Anonymous said...

As a side, the Interlocal Act 791 says a Gov body can interlocal where each is individually authorized to, examples and codes found in Gov Code include interlocaling to fund streets and buses etc, no code is found that says a City can fund the county for DA-DIMS services...for jail-detention a code is found but not for prosecution. One big difference in Harris County DIMS is it has not cost the taxpayers $10 million like Esparza's total fee to date.

Anonymous said...

I'm no lawyer, but does it matter that every defendant has the option not to take the scheduled bond? In that case they receive a magistration within 24 hours. It's the defendant's choice.

Anonymous said...

Daily Law Bulletin July 11, 2008 Ruling connects Constitutional defenses


SECTION: Pg. 10005

LENGTH: 1192 words

The Supreme Court decided Willis in 2005. So why is this a good time to re-examine such a recent decision?

First, take a look at a brand new U.S. Supreme Court case decided June 23 called Rothgery v. Gillespie County, Texas, No. 07-440. For our purposes the facts are irrelevant. What is important is the holding: the Sixth Amendment right to counsel attaches at the moment a defendant makes his initial appearance before a judge or magistrate, regardless of whether a prosecutor (as opposed to a police officer) is involved in the case.

Now connect the dots. Illinois's version of the Gerstein hearing is codified in section 109-1 of the Code of Criminal Procedure. 725 ILCS 5/109-1. (In fact, the statute goes beyond Gerstein by mandating such a hearing regardless of whether the arrest was accompanied by a warrant.) And the statute specifically provides that at this initial appearance the judge must advise the defendant of his right to counsel and, if he is indigent, the judge shall appoint counsel. 725 ILCS 5/109-1(b)(2).

What is so significant about this is the constitutional bonus the defendant receives the moment he retains (or accepts the appointment) of counsel at this first appearance. For the U.S. Supreme Court has held that the police must subsequently treat the defendant as if he had actually been read his Miranda rights and had explicitly asserted his right to counsel under Miranda. Michigan v. Jackson, 475 U.S. 625 (1986). In other words, once the right to counsel has attached at this first appearance, police are forbidden from even trying to interrogate the defendant on that offense.

Gritsforbreakfast said...

To 9:20 - Taxpayers pay for the Harris County system too, of course - I'm not sure who you think is footing the bill there, the tooth fairy? Besides, the Task Force on Indigent Defense study said the program resulted in "substantial cost savings" to taxpayers when you look at both sides of the ledger instead of only expenses.

Whether the interlocal agreement is authorized under state law I don't know, but the AG thought the arrangement was okay.

9:21 - I have no idea how that plays into it; maybe somebody else has an opinion.

To 9:49 - the possibility that post-magistration confessions or line-ups might be thrown out was discussed at the recent TFID event. See the discussion here.

Anonymous said...

Rothgery and DIMS Prosecutor

Marquette Law Review Summer, 2008 91 Marq. L. Rev. 895 To date, the question of when formal judicial proceedings begin has still not been fully resolved. Indeed, the Supreme Court has granted a petition for certiorari from the Fifth Circuit's decision in Rothgery v. Gillespie to consider precisely this question. See 491 F.3d 293 (5th Cir. 2007) (holding that a defendant's Sixth Amendment rights had not yet attached when he was brought before a magistrate judge because no prosecutor was involved in his arrest or his appearance before the magistrate).

The Champion April, 2008 32 Champion 6 Rothgery v. Gillespie County, U.S. Sup. Ct., No. 07-440, brief filed 1/23/08. Opinion below 491 F.3d 293 (5th Cir. 2007). Right to counsel -- Bail hearing. NACDL amicus curiae brief in support of petitioner. Question presented: In this case, petitioner was arrested and brought before a magistrate judge who informed petitioner of the accusation against him, found probable cause that he had committed the offense based on a police officer's sworn affidavit, and committed him to jail pending trial or the posting of bail. The question presented is whether the Fifth Circuit correctly held -- in a decision that conflicts with those of other federal courts of appeals and state courts of last resort -- that adversary judicial proceedings nevertheless had not commenced, and petitioner's Sixth Amendment rights had not attached, because no prosecutor was involved in petitioner's arrest or appearance before the magistrate judge. Author: Ian Heath Gershengorn, Jenner & Block, Washington, D.C.