Friday, February 08, 2008

Pretrial detention, unnecessary incarceration driving Texas jail overcrowding

The topic of the panel I presented on at yesterday's jail overcrowding symposium in San Antonio was "Who are in county jails and why?," and a significant part of my own presentation focused on excessive pretrial detention. I'm in the process of expanding this research into a longer, footnoted paper, but for now here are some excerpts on the subject:

The biggest single reason for jail overcrowding: Put simply, more Texans are incarcerated pending trial, i.e., before they're convicted, than at any time in history.

An analysis by Grits of data from the Texas Commission on Jail Standards found that despite declining crime over the same period, county jail populations increased 27% between 1995 and 2005. Almost all of that increase stemmed from more frequent detention of defendants before trial. In other words, there are many more defendants who can't make bail these days in county lockups. 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.

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 identifiable public safety benefit. A decade ago, pretrial defendants made up 30.3% of the statewide Texas jail population. Today the number is more than half, at 53%.

What does that mean to the average defendant? Judges are more likely to require them to put up bail than ten years ago, when more low-level offenders would have been released on 'personal bond,' or a 3% bail fee and a promise to appear. Now if they can't pay, more defendants just sit in jail awaiting trial.

With so many jurisdictions operating local lockups that are bursting at the seams, it makes little sense to continue the trend (unless, perhaps, you're a bail bondsman). Here are the incarceration rates for pretrial detainees at Texas' largest county jails:

What percentage of Texas county jail inmates are awaiting trial?
In 1995, just 30% of Texas county jail inmates statewide were incarcerated awaiting trial. As of January 1, 2008 that figure had risen to 53%. In many counties the figure is much higher:


Total percentage pretrial defendants

Misdemeanor and state jail felony pretrial defendants



















The same pattern repeats itself around the state in jails big and small. Pretrial detention decisions by judges drive most local jail overcrowding problems.

There are few substantive barriers to solving the problem, only ideological ones. One year ago Nacogdoches County had to ship prisoners to other jurisdictions because of overcrowding, but has eliminated its problem entirely by reducing pretrial detention. County commissioners invited USDOJ consultants to assess their situation, and DOJ “told commissioners the jail was being 'over-used,' and that more innovative programs could be implemented so that non-violent offenders 'never occupy a bed in the jail.'"

In response, over the past year Nacogdoches has been doing just that. As of the most recent monthly jail population report, their 292-bed jail was less than 2/3 full. In December 2006, a whopping 68% of the Nacogdoches County Jail population was made up of pretrial offenders; by January 1, 2008, that number had declined to just 34.5% of the jail population.

(I had a chance to speak briefly with Nacogdoches County Judge Joe English at the event who confirmed that their once full jail now had more than 100 empty beds! He said that public meetings where the DOJ consultants focused on pretrial incarceration decisions by judges caused the local judiciary to rethink its bonding policies. I'll be following up to get more detail about exactly what they did there and how they went about it - that's a real success story)

That same jail overcrowding solution will work for nearly every jurisdiction in Texas with full jails. If Bexar County, for example, could lower its percentage of pretrial detainees to 34.5% from the current 58%, it would reduce the jail population by 935 inmates, eliminating the short-term crisis entirely.

A county sheriff pulled me aside later to agree with me, and said he believed that too many judges these days were improperly using bail as punishment, which I thought was a good point. There must be some motive that explains these numbers, and that fits as well as any.

Tyler District Judge Cynthia Kent reacted negatively to my comments in the following panel, claiming that when she'd tried to use more personal bonds in her own court, 70% of defendants didn't show back up! However, I've reason to think that figure is inaccurate or skewed. Another conference participant leaned over to me at that point and declared that he previously ran a federal pretrial services division where use of personal bonds is much more widespread. He told me his division experienced around a 5% no-show rate (making me think I need to learn more about the federal pretrial system to see what can be adapted for local use). In Harris County, those deemed lowest risk by pretrial services have about a 3% no-show rate.

Speaking to Judge Kent later, it turns out that their local District Attorney stridently opposes creating a Pretrial Services division in Smith County, which means that there's literally no infrastructure there to support the use of personal bonds. Even so, county officials still want to build a bigger jail! If it were me, I'd invest in a new pretrial services division long before I spent money on bricks and mortar. (UPDATE: A commenter tells me Smith County DOES have a pretrial services division, it's just unpopular with judges and other local officials.)

The other big focus of my talk was the large number of mentally ill people filling up local jails, but the truth is solutions to that problem are more difficult to come by and likely will arrive much farther in the future. Reducing pretrial detention is a solution that can work today, immediately. For county officials looking to solve a short-term jail overcrowding crisis, there's little doubt this is the quickest, least painful solution. The question really is not can they solve the problem, but are local judges and county officials willing to do so?

RELATED: See coverage of the event from the SA Express News, which included this graphic:


Anonymous said...

My experience is that in smaller counties the percentage of pre-trial misdemeanors is even bigger. It would take forever to verify with every county, but I know of several where at times misdemeanors make up almost 50% of their population.


Don said...

How can I get the information on % of pre-trial defendants in jail in my community? Must I file a public information request? Or how?

Gritsforbreakfast said...

Don, the monthly report is here To calculate those ratios, add the columns for pretrial misdemeanors, pretrial state jail felons and pretrial felons, and divide by the jail population (NOT capacity). If a county's pretrial numbers are above 50%, IMO, they have no business asking to build more jail beds.

BTW, TCJS puts the new report at that link each month, so when you calculate data it's always good to either print it out or date and cite it, because they remove the historical ones.

I wish TCJS would just put all the historical monthly data online, but they're understaffed for that kind of thing.

Anonymous said...

This is one of my favorite reports:

Incarceration rate by county. Mine is right up near the top, as always.

I'd like to give a special shout out to the county commissioners, county judge, district attorney, district judge, and the assorted other magistrates who set an unreasonably high bail for misdemeanors. Thanks for wasting those tax dollars folks. For the price of 40 pre-trial misdemeanors in jail (which is less than half of what it's been in recent months), we could hire a dozen new deputies to work the streets.


Don said...

Thanks for the link to the population report. I bookmarked the site. Now. I live in Levelland, Hockley County. They are not clamoring for a new jail yet, but they are at 100% capacity, so it is only a matter of time. Out of 63 detainees, 43 of them are pretrial, or almost 70%
26 of the pre trials are misdemeanants. If we could let half of those out, it would save $700 a day. Should somebody be asking some questions about this high percentage of pre trials? Unless I am missing something, I'll start asking questions. For some reason, I live in a complacent, apathetic town, but I love to stir s**t up. Any input?

Anonymous said...

Stir away! Just remember, jail provides leverage for the DA to obtain plea bargains and save court/trial time.

I don't think this is a good trade off financially but be warned.

Criminal justice is about the crime, not about justice.

Gritsforbreakfast said...

Don, you're 100% on the right track. My suggestion: Start by talking to eight people in this order face to face, plus anyone else these people suggest: The court administrator, the sheriff, the DA, the county judge, and the four commissioners. Wanna go the extra mile, make a phone call to each of your criminal judges.

In a small county like that, they could hire 1 person to be a pretrial services person, as they did in Erath County, and save loads of money.

Let us know how it turns out!

BTW, this is model reader behavior, people. You can take the same data and advice and make the same case in you own county. Go forth and raise hell! best,

Anonymous said...

Grits, on Bexar County not giving tickets for DWLI and POM. I can not understand this? Those chargers will get probation and if you violate probation on DWLI the judges only give the defendants 15 days which turns to 5 days. So why not give the tickets out- what kind of logic is it.

Thomas Hobbes said...

Uh, Scott . . . Smith County doesn't need to create a pretrial services department. As much as County officials have tried periodically to gut it, Smith County has had one for several years. It's just been politically unpopular with county officials and the bondsmen who support them.

Gritsforbreakfast said...

Thanks, Leviathan, I made the correction in the text.

Anonymous said...

Are they all pretrial detainees held on a new charge or is a mixture of pretrial and some type of noncompliance (parole/probation violation, failure to appear/pay, contempt or a violation of a non-contact order)? I estimate that about half of our so-called pretrial detainees are held for noncompliance.

In our county community based correction will use 30 days in jail as an intermediate sanction for parole/probation violators instead of revoking them and sending them to prison. The state pays for the parole violators and in some cases they pay for the probation violators. The judicious used of a week or a month in jail for contempt can result in a reduction in jail population once the word spreads (Johnny will behave if you hit the kid next to him).

Our crime lab is overloaded and it can take weeks or months to get a final report from them. In some types of felony cases that can be a major source of delay because neither the prosecution or the defense can do much without that report. We are short a couple of judges because we have no place to put them. We are also short on attorneys and for public defenders we often have problems with conflict-of-interest. It can take an inordinate amount of time to complete a pre-sentence investigation so we have both pretrial and post-trial (not as many) detainees.

Gritsforbreakfast said...

JSN, the categories are "pretrial" and "convicted," so I think the probation revocees would be under "convicted."

The deal about the crime labs is a problem everywhere in the state I didn't have time to talk about in SA, but it's especially true in drug cases where there's a big backlog at DPS.

Using jail as an intermediate sanction is euphemistically called "jail therapy." Part of the shift toward progressive sanctions has been to do things like Tyler's Alternative Incarceration Center, where they're required to report more often until they get a job, etc., and stabilize their life. While somebody's in jail their life's on standstill, whereas at the end of the day the goal is to transform the person into a productive citizen through a system of carrots and sticks. My view, anyway, FWIW. best,

Don said...

jsn: the report has a separate category for parole violators, not included in the pretrial/convicted columns

Don said...

Scott: In my county the county judge is the criminal judge. I would think maybe the county attorney would also be a person to approach about the pre-trial detention. Also, you say the sheriff is one to approach. Can the sheriff have a say as to whether someone is released on a PR bond? BTW, the county judge is not a lawyer, and he pretty much takes what the county attorney says. Hadn't thought about the commissioners, though you are right in that they would probably be the primary ones concerned about saving money.

Gritsforbreakfast said...

Whoever is the criminal judge is the shortest distance between two points. In bigger counties with more judges, there's more politicking involved.

Anonymous said...

Why not make more use of ELM or work release. If a guy has a job
- help him keep it. Are the work release beds full across the state?? If so, get more? Big problem is the Judges, DA's and Defense are all slow and self serving. I think someone needs to pick two or three courts and get in there and examine these cases on a one by one basis and the water will clear.

W W Woodward said...

Jail overcrowding in small county jails due to pretrial detainees - Some things to think about:

A number of the pretrial inmates are repeaters. The jailers in my county refer to them as “frequent fliers”. The community, the police, and the court are sick of dealing with them. An example - When I was sheriff, I had a young man who was booked into my jail 14 times in a single year, usually for drunkenness, domestic abuse, DWI, theft, and other non-felony offenses (this was back in the 80s before enhancement of repeated domestic abuse convictions). Believe it or not when he wasn’t in my jail he was in one of the adjoining counties’ jails for committing like offenses. Members of the criminal justice system in at least three counties knew him and his family members by first name. He and his family was living on the dole and he couldn’t, or wouldn’t, make bond if it was $0.50. Granted, he was an extreme case but there were and still are “frequent fliers” who just will not stay out of jail. These people actually invite arrest and incarceration. I’m sure that other sheriffs, small town police, county attorneys, and county judges can relate stories of similar individuals in their respective communities.

The community (read voters) expects violators to be locked up and doesn’t want to see them bonded out and walking the streets a couple of days after the offense (I believe it’s a righteous revenge thing). “By Gawd, that S.O.B. did whatever he did and should be locked up and here he is walking the street. The police and the courts aren’t doin’ their jobs if they can’t keep him in jail!” “Unless - of course - the defendant is me or one of mine.” For the most part the general public doesn’t know or care about the right of a defendant to bond, they just see him on the street when he “should still be in jail”.

Many county judges are not lawyers and see criminal cases merely as a necessary evil that’s just attached to their more important elected duties. They realize that when they find a local taxpayer guilty of an offense and sentence him to whatever the Penal Code dictates for the offense, they are running a high risk of losing the votes of not only the offender but his family and friends. In my county the criminal court is usually in session only one day per week. The county attorney pro tem ( out of Lubbock 60 miles to the west ) usually only shows up once a week to go over cases. The backlog of county court misdemeanor cases is probably around 300(+) for a county with a population of about 3,000. Usually, once every five years or so the appointed county attorney pro tem gets so overwhelmed and exasperated he quits and a new attorney pro tem is appointed. The new attorney sees the sunami of backlogged cases bearing down upon him and moves to wholesale dismiss all of them and start over. The motion is granted and the cycle starts over again because police, highway patrol troopers, and deputies are out there arresting violators and bringing them to jail . BTW - One of the best methods in my county to “beat the rap” is to enter a plea of “not guilty”, insist upon a jury trial, and then make bond. Your case will very probably never see the courtroom and will be dismissed when the new county attorney pro tem is appointed. You’ll be a guest of the county ( pretrial detainee ) for anywhere from a few days to a couple of weeks until the paperwork is sorted out and you are bonded or released on personal recognizance but you won’t have a conviction on your record. Meanwhile, the public sees “absolutely nothing” happening in the court system ( see above paragraph).

Well, that’s enough of that rant. There are other factors involved in why pretrial detainees are a high percentage of country jail occupants but it’s time for me to climb down off my soapbox.

Gritsforbreakfast said...

WWW, if your experience with that is from the '80s, then it's worth mentioning that the portion of jail inmates awaiting trial statewide has gone up a lot since then. I don't have figures that far back, but in 1995 it was 30% statewide, now it's 53%.

On repeaters, the "thinking error," as the TYC counselors would say, is that pretrial detention is helping the problem. If someone is arrested 14 times in a year, it's because the SENTENCES being imposed aren't either incarcerating him for significant lengths of time nor discouraging misbehavior.

It's harder for that guy to live out in the world than it is to sit in jail - why give him the "easier" punishment that's more expensive and less effective for the rest of us? That approach doesn't make sense to me. That's exactly the type of offender who benefits from stronger probation in a special sanctions/drug court setting. best,

Anonymous said...

So where are the stats on the INFAMOUS Williamson County? Is there a pre-trial intervention system available there? What are the numbers? How many low-level kid criminals are sitting in that "HoosKow." It has to be a ton...based on reputation alone.

The harshest judges, the harshest system...the ZERO sympathy zone.

What say you?

Thomas R. Griffith said...

Mr. W. W Woodward, of those arrested while on adult probation on new unrelated charges,

*what percentage did you witness being advised to take the plea despite a Guilty or Not jury verdict - based on their probation being revoked at the time of arrest? Yes, it's a lie and the easiest method to pull off being a Fake CDL. I took the bait in 84. Thanks.