Saturday, January 12, 2008

Corruption case shows jails becoming too full of pretrial detainees to punish offenders

At this point, the self-inflicted overcrowding crisis at Texas county jails has long ago passed over the threshold into absurdity, certainly in the bigger counties.

Making that point, I was struck by coverage in the Austin Statesman of a corruption story ("Vision Village defendant will work off jail term after all," Jan. 12) featuring Preston Ervin, who was convicted in a scandal costing taxpayers millions of dollars for a project called "Vision Village" that never came to fruition. (Conflict alert: Ervin is a past aide to former Austin City Councilmember Eric Mitchell, and in the interest of full disclosure, I performed the opposition research in an extraordinarily bitter campaign that unseated his former boss.)

Ervin's case shows how the purpose of local jails has become muddled. Historically jails were for prisoners serving sentences assigned them based on a guilty verdict. Today, they're more frequently used to detain offenders pretrial, both to appear "tuffer" to voters and to make it easier for prosecutors to extract plea bargains.

Bottom line: The judge would like to sentence Ervin to jail time - preferably weekend jailings that would allow him to stay employed and make restitution payments, but county jails in both Dallas and Travis Counties for years have been too full to accommodate him. Reports the Statesman:

The 180-day term imposed by [state District Judge Charlie] Baird on Friday calls for the time to be served on weekends.

But because of jail crowding, the Travis County sheriff's department last year converted its weekend overnight jail-stay program to a day-work program, in which offenders do manual labor and then go home. ...

Ervin, who declined to comment as he left court, was the only person sentenced to jail in the scandal surrounding Vision Village, conceived in the 1990s. Organizers received more than $5 million, including almost $1.5 million from Austin and Travis County, to build a social services campus in East Austin that included low-cost housing.

The project never materialized, and investigators have said that almost $1 million was improperly spent.

Lawyers in the case and Wisser agreed that he could serve the time in the Dallas area, where he had worked at the time. When he wasn't accepted into jails there because of crowding, Ervin's lawyers asked for him to serve the term in Travis County on weekends. At the time, though, the jail had stopped its weekend program, so Baird deleted the jail term, he said.

Now that the sheriff has a weekend day-work program in place, Baird said, he reinstated the sentence.

Ervin will serve 30 days a year on weekends for the next six years. Baird also increased Ervin's restitution payments from $200 a month to $500. In 90 days, Baird said, those payments will rise to $1,000.

Ervin's case demonstrates the bizarre place Texas county jails have come to - they're so filled up with pretrial detainees, many jails don't have room for offenders to serve their actual sentences, which then get lowered to reduce jail overcrowding. He'd have served his jail sentence long before now if Dallas and Travis County Jails weren't completely full.

The shift toward greater pretrial detention at the expense of actual, judicially awarded sentences is a relatively recent one. In 2005,

An analysis by Grits of data from the Texas Commission on Jail Standards found that, while county jail populations increased 27% between 1995 and 2005, almost all that stemmed from more frequent detention of defendants before trial. ... In other words, there are many more defendants who can't make bail awaiting trial these days in the county lockup. Particularly for misdemeanants, just a decade ago many of those defendants would have been released on personal bond so taxpayers wouldn't pay to house them.

Bottom line: These trends represent harsher decisions by judges about when defendants should be released on bond -- another case where being tough on crime amounts to being tough on taxpayers, with little public safety benefit. A decade ago, pretrial defendants made up 30.3% of the statewide Texas jail population. Today the number is nearly half, at 48.3%.

Historical data from the Texas Commission on Jail Standards shows dramatic increases in pretrial detention since 1995. The number of felony defendants statewide being held pretrial increased by 60%, while the number of misdemeanants increasd by a whopping 116%. In addition, a new class of defendants that didn't exist before-- those awaiting trial for state jail felonies, mostly low-level drug offenders -- went from zero in 1995 to occupying more than 5,400 county jail beds statewide on September 1, 2005.

What does that mean to the average defendant? Judges are more likely to require them to put up bail than ten years ago, when they may have been released on 'personal bond,' or a promise to appear. Now if they can't pay, more defendants must sit in jail awaiting trial.

(See the rest of this Grits post for a table detailing pretrial detention rates in larger Texas counties, most of which are well over 50%.)

I don't believe this trend best serves public safety. While some offenders may pose a flight or dangerousness risk that warrants significant bail, that's just not the case with the vast majority of defendants cycling through the system, many of whom will receive probation, anyway.

The first priority for using jail space should be to house offenders sentenced under convictions. When pretrial detainees, especially for low-level, nonviolent offenses, come to dominate local jail populations, at that point jail administrators and local judges have lost control of their facilities and lost sight of what they're doing and why.

Another notable conflict arose in Steven Kreytak's story that deserves attention - the question of the purpose of punishment, and whether incarceration or restitution best serve justice:
Assistant District Attorney Patty Robertson said that although she is pleased that the jail term was reinstated, "we'd like to see him do his jail time in one big block."

"You can't put him in there for a flat period of confinement," [Judge] Baird said. "He would lose his job and could not pay back his restitution, which everybody agrees is the most important part of this."

Judge Baird states his reasons for favoring restitution and episodic confinement, and I agree with them. I wish, though, the story had allowed ADA Robertson to explain what benefit she anticipated from her request for a straight up 6-month incarceration stint. The Travis DA's office has a reputation for being "progressive," but that stance seems regressive, counterproductive, and nearly inexplicable.

While I've been highly critical over Ervin and his (mostly never prosecuted) co-schemers in the Vision Village affair, not to mention some of his earlier projects, I don't find Baird's punishment - episodic incarceration over a six-year stretch and $1,000 per month restitution payments virtually ad infinitum - to be particularly soft. As Senate Criminal Justice Committee Chairman John Whitmire is fond of saying, there are many "tuffer" things in the world than being incarcerated, like living up to one's responsibilities.

The lesson here: Jails should be reserved for punishment, when possible, not filled with pretrial detainees. And sometimes justice is better served by a focus on prioritizing safety and making victims whole than by maximizing harsh penalties on every offender.


Anonymous said...

Detention to obtain a plea bargain is a powerful tool!

Taking away that tool would solve a lot of over crowding problems, not only in jails but also prison. Not to mention the benefits to the state budget.

Far more attention should be directed toward the abuse of plea bargains. This tool denies far too many the rights guaranteed by the constitution of the State and Federal government.

Anonymous said...

It's hardly uncommon for the courts to use pretrial detention as a document management tool. And yes, it's been more apparent since 1994, as more Republicans, many of whom were current or former prosecutors, have ascended to the bench. As noted in research over the past 50 years, defendants who are detained: (1) have lesser time to disposition; (2) are more likely to be convicted; and (3) receive stiffer sentences than do defendants who are released on bond, with or without a financial component.

Detention to obtain a plea bargain may be a powerful tool, but when the tool is wielded by a judge who knowingly sets bail in an amount the defendant cannot possibly afford, the judge is no longer a disinterested third party.

I would much rather see someone who safely can be released back into the community be released at the earliest possible time on a personal bond. It makes more sense to have that defendant free to continue earning, to support his or her family and perhaps pay for defense, and to pay taxes, than it does to have him or her unnecessarily occupy a jail bed, lose a job, and become a drain on resources.

Anonymous said...

Having time to pay for defense can also be a double edged sword. Crminal defense lawyers can and do delay court proceedings just long enough for the defendent to pay their fees - on the installment plan. After fees are paid, the real efforts to protect the defendent vaporize because there is no longer an incentive for the attorney.

By the time the poor accused figures out what is going on, it is too late........

More education of the public is needed before there can be any hope of justice.

Anonymous said...


Thanks for reiterating essentially the whole point of the article.

Change your name to Captain Obvious.


Grow up. It's not like a criminal judge would let a lawyer off from representing a client who only had trial left to go.

Not sure if you think an attorney did that to you or what, but that outstrips even my cynical nature and goes straight to ignorance.

Anonymous said...

Forgive me. I just realized I earlier meant to say docket management tool.

Gee, rage . . . I must have stepped on your last nerve pretty hard. You have my permission to call me "Captain Obvious." I appreciate your hero-worship!

Now on to intelligent conversation . . .

Anon 8:02: The practice you describe - waiting for our witness, Mr. Green, to show up - used to happen frequently in Harris County and still is seen on occasion. Of course, if Mr. Green didn't show up for court, you could expect a defense request for continuance. Some years ago, when I discussed the practice with a friend who was a district judge in a neighboring county, he framed it as a pragmatic way to aid defense attorneys who couldn't be expected to work without pay. I didn't like hearing it, but I understood the broader sense of what he was trying to say.