Friday, September 14, 2012

Harris County jail population reductions may be short-lived if judges, new DA don't act responsibly

It wasn't long ago that the Harris County Jail - the largest in Texas and one of the largest in the country - was bursting at the seams and county commissioners were seeking voter approval to issue more debt to expand the facility. "There is no question that we need more jail cells," County Judge Ed Emmett told the Houston Chronicle after voters rejected jail expansion in 2007, yet that turned out to be flat-out wrong.

Harris County has successfully reduced its jail population in the last couple of years to the point where they no longer must ship inmates to jails in Louisiana and other Texas counties due to overcrowding. And despite Chicken-Little pronouncements from the police union and tuff-on-crime zealots, the sky didn't fall and in fact crime continued to decline in Houston. As of August 1, the jail was at 86% capacity, with zero inmates housed in other counties, and there's little question that those numbers could decline even more through relatively minor policy tweaks. But that would require the cooperation of judges and the district attorney's office, and there are few signs at  the moment that those public officials will act in the taxpayers' interest to further reduce jail costs.

The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney's office: The cessation of charging people caught with drug paraphernalia with felonies based on trace amounts, and the creation of the DIVERT program for DWI defendants, which reduced the long-time trend of offenders choosing jail over probation for low-level DWI offenses. Unfortunately, the incoming District Attorney has pledged to reverse both those policies, meaning we can expect the Harris jail population to climb upwards beginning next year. Soon thereafter, the inevitable calls to build more jail space will resume in earnest, with more Chicken Littles telling us the sky will fall if more people aren't locked up for longer periods.

It doesn't have to be that way, and besides the DA, local judges are primarily responsible for excessive incarceration in H-Town. Last weekend, the Houston Chronicle ran an important story implicating jail populations ("Judges leery of no-cost personal bonds," Sept. 9) that merits Grits readers' attention. The story focused on a familiar theme to long-time Grits readers: the failure of Harris County judges to utilize personal bonds, requiring bail in most cases regardless of risk assessments from the county's Pretrial Services division. The story by James Pinkerton opened:
Whether the charge is robbery, shoplifting or drug use, most people arrested in Harris County stay in jail because they can't afford to post bail.

That's largely because this conservative county and its judges have been reluctant to grant no-cost personal bonds that are increasingly popular in other large metropolitan areas in Texas, say attorneys, judges and those in the bail bond industry.

"There's no good reason for it,'' said Mark Hochglaube, the trial division chief of the Harris County Public Defenders Office. "I can't speak for what they do in other counties, but I can tell you the general sense of the culture here is one that is opposed to pretrial release. I wish it weren't, but it's as basic as that."

Last year, just 5.2 percent of slightly more than 94,000 people arrested by Harris County police agencies got out of jail on no-cost personal recognizance bonds, according to a report by the Harris County Pretrial Services office.

In July, 65 percent of the county's 9,133 inmates were pretrial detainees rather than convicted criminals serving sentences, according to the Office of Criminal Justice Coordination.
If judges granted personal bonds based on risk assessments, the jail population would quickly drop:
Last year the pretrial office screened about 80,000 defendants, and [Pretrial Services Chief Carol] Oeller said her officers recommended that 25 percent of those arrested on felony charges and 40 percent of misdemeanor defendants be granted a PR bond.

However, judges granted a little more than 1 percent of the felony requests and 7.4 percent of the misdemeanors, or a combined 5.2 percent.

"I think sometimes the charge is given more weight than our risk assessment," said Oeller.
In Travis County, by contrast, judges approved personal bonds for more than 19,000 defendants, or "61 percent of those who were eligible."

The federal courts abolished bail in criminal cases long ago, as have several US states. Indeed, the United States is an outlier on this question: Besides here, only the Philippines still relies on commercial bail bonds, which have been abandoned everywhere else on the planet. Here, though, bail bondsmen are often politically influential locally, on the short list of campaign contributors in judicial and other criminal-justice related races.

Mark Hochglaube, the trial chief for the new Harris County public defenders office told the Chronicle that "bond practices in Harris County force some innocent defendants to plead guilty because they'd rather accept a plea deal and a short sentence than spend months in jail waiting for a trial. In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received."

It's not just felony cases, though. According to the Pretrial Services division's annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail last year. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn't make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed. (That happens more quickly in Harris than some other jurisdictions because of the DA's direct filing system, but as defense attorney Paul Kennedy noted, it still results in a system designed to maximize pressure on defendants to accept a plea deal.)

These numbers demonstrate why, as corrections expert Tony Fabelo has noted, expanded pretrial detention has been the main driver of increased jail populations since the turn of the century. By his calculations, while statewide jail populations increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. In that sense, Harris County's situation isn't unique except for its massive scope and outsized costs.

Though only judges can approve personal bonds, Mark Hochglaube told the Chronicle, often in Harris County the defense bar doesn't even ask for them. "It's not just a failure of the judges, the district attorney - it's everybody. It's a failure of the defense bar. Even good attorneys don't ask for a personal bond. Everyone is indoctrinated with the idea that if you are charged with a felony you're not going to get a PR bond," he told the Chronicle.

If the incoming DA follows through on his promise to charge trace paraphernalia cases as felonies - a move that would not just clog the jail but boost felony court dockets and crime-lab backlogs - local defense attorneys and judges will need to overcome that "indoctrination," or else the county will soon be shipping pretrial detainees to Louisiana again. These are soluble problems, but the solutions begin with more fiscally responsible decision making by local elected officials.


Anonymous said...

Pardon me, Scott, but you are mistaken about the incoming DA promising to prosecute trace paraphernalia cases as felonies.

Lloyd Oliver has made no such promise, and I'm sure he'd appreciate it very much if you wouldn't make such false claims.

Gritsforbreakfast said...

True enough, there's a snowball's chance in hell Oliver will beat Mike Anderson and I should have acknowledged the race instead of presuming Anderson would win. But Anderson has said he'll change that policy and given that the Democrats tried to remove Oliver from the ballot, I don't expect the Dem base to rally around him for an upset victory.

Anonymous said...

In '08 there were a few Republicans who beat the Obama effect, and the DA was one of them only because of how awful the Democrat running for DA was. So I think Anderson will win, but it will be closer than anyone thinks. One Republican judge won by less than 200 votes in '08, and he only kept his seat because his opponent was one of four Democrats who had a "funny sounding name," which is what happened in all four (of dozens) judicial seats that stayed Republican. Only about half a dozen county-wide seats stayed Republican in that cycle, so we'll see how Oliver does. No matter what it'll be entertaining.


Anonymous said...

And all the lawyers go,
Doo doo doo doo doo doo doo doo doo
Doo doo doo doo doo doo doo doo doo
Doo doo doo doo doo doo doo doo doo
Doo doo doo doo doo doo doo doo doo
Doo doo doo doo doo doo doo doo doo
Doo doo doo doo doo doo doo doo doo
Doo doo doo doo doo doo doo doo doo doo
the lawyer designed system is about the lawyers, and certainly not about justice or liberty before trial. ironically, most voters continue to call upon these system's insiders to offer up "solutions", even though the present broken system is direct result of these same system insiders. the only improvements you can recognize from the insiders, is the increased size of their bank accounts.

Gritsforbreakfast said...

Rage, I guess I expect the electorate in Harris County this go-round to look a bit more like that in 2010. Perhaps I'm wrong (it's certainly happened before, and I've seen no polling on the race), but I don't sense the same excitement over Obama that generated the remarkable '08 turnout, and as you point out even in '08 the R won the DA's race.

Certainly I doubt Oliver would rescind the Lykos policies described in the post. I also doubt, though, that lightning will strike twice for him. Veremos.

To 12:59: SC, is that you? The thing about "insiders," of course, is that often they're the only ones who understand the system well enough to offer solutions. There are a lot of moving parts to it and many "outsider" solutions are just plain foolish.

Anonymous said...

At any one time there a 600-700 inmates in Harris County Jail that are awaiting completion of their probation.

Alan Bernstein said...

"The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney's office."

Got proof? Stats?

Gritsforbreakfast said...

In fact, Alan, I do. On DIVERT, see the chart and table on page 2 of this document regarding the increased number of people who either entered probation or had their cases dismissed following pretrial diversion after the program began.

On the crack pipe trace cases, in Nov. 2009 Harris County had 1,181 people incarcerated who were convicted of a state jail felony and sentenced to county jail as a condition of probation - almost all of them less than a gram drug cases. (Under Rosenthal, as I recall, that number topped out at about 1,500.) Since 2003, less than a gram cases got mandatory probation on the first offense, and the HCDAO took to incarcerating them in jail since they couldn't send them to prison - the only major county to do so. As of Aug. 1, according to the most recent report to TCJS, that number was down to 258, or a 78% increase in that category of prisoner since 11/09.

The rest of the Harris County jail population reduction IMO is attributable mainly to two factors: Lower crime rates overall and reduced traffic tickets given out by HPD, which reduced the number jailed for Class C violations. As you likely recall, that had become such a problem that at one point your boss, Sheriff Garcia, had to stop taking such arrests.

Having put my cards on the table, do you have an alternative explanation for the 30+% reduction in the jail population? Your boss thought the jail population would increase ad infinitum and wanted to build more jail cells, and I've seen no policy changes besides Lykos' that account for the significant population declines that made that expansion unnecessary.

Alan Bernstein said...

At the Sheriff’s Office, we’re glad to see other agencies such as the DA’s contribute to jail pop reduction. I’ve heard official estimates that the trace case policy alone accounted for a reduction of 400 inmates on any given day, which would account for about a sixth of the overall decline since Sheriff Garcia took office in January 2009. That’s a significant contribution.

DIVERT started in August 2010. And, as you show, the program is probably responsible for the 1,800 decline in “straight convictions” over a 2-year period. Another significant contribution! But that is not the same as a decline of 1,800 inmates on any given day. I don’t have the algorithm or the brain power to tell you how many constant bed days over a year are saved by that many fewer convictions, but I know it ain’t 1,800. (One of the variables would be how long each sentence would have been). And in some cases substance abuse offenders placed on probation must (sadly) spend time in jail waiting for residential treatment beds to open up – meaning more probations and fewer straight convictions can still lead to more jail time.

So there have to be one or more other significant factors, some big enough to even outweigh the DA’s policies. The fact that you “have seen no policy changes besides Lykos’ that account for significant declines” does not disprove their existence. It could even be my fault that you have been in the dark.

First, you have to turn part of your gaze away from the front door and watch the back door, too. In 2011 alone, our Earned Early Release program – designed to reduce recidivism by granting 3 for 1 credit for low-risk inmates who complete vocational or educational programs – was applied to 3,100 inmates, saving 54,000 bed days. EER cut their sentences a maximum of two months each, without a corresponding subsequent increase in re-offending. Sorry I don’t have the numbers at home for 2012, but I hope you get the idea. Botton line: shortening sentences reduces jail pop.

Overall felony and misdemeanor case filings from 2009 to 2011 were down in Harris County by about 10 percent, partially reflecting the crime rate reductions you mentioned. Other reasons for fewer case filings should best be saved for another day.

The Sheriff’s Office hiring of a re-entry director/counselor and expansion of the chaplaincy force (by HUNDREDS) that provides re-entry type services in addition to religious services (pardon the pun) have helped reduce recidivism, which has an impact on jail pop.

Ten months ago, joining the HPD program that existed only inside the city limits, we brought to the unincorporated areas a Crisis Intervention Response Team program that has done more than 160 jail diversions for would-be defendants who instead were sent to mental health treatment, which if successful will stop them from cycling through the jail, saving even more bed/days.

Judges have either started or expanded specialty courts since 2009 for drug abusers, alcoholics, veterans and the mentally ill, creating many more jail diversions than our CIRT program. This is another non-DA significant contribution that apparently you did not know about.


Alan Bernstein said...

Your humble opinion about county jail reductions in HPD traffic tickets contributing to county jail pop reductions is baseless, for the simple fact that HPD does not bring Class C arrestees to the county jail. You also erred in saying the sheriff stopped taking Class C arrests from HPD, since there were none to take. In reality HPD stopped arresting people on traffic warrants because they ran out of room in the CITY jail as we slowed the admission of defendants charged with more serious crimes.

Your statement that the sheriff “thought the jail population would increase ad infinitum and wanted to build more jail cells” is a gross distortion and goes back to the first friendly discussion between you and me. The sheriff proposed construction of a joint booking and releasing center (for the city and the county) which would include front-door diversion facilities and back-door re-entry-into-society programs, all aimed at lowering jail population. Yes, there would have been jail cells – for inmates with acute health needs and for women to be separated from buildings where men are housed. There will still be a need for such cells as the three existing jail buildings continue to age –and as you saw, only one of the three jail buildings was originally built to house inmates. As I said in 2009, it is smart work for the sheriff to seek pop reductions and plan for future capacity needs.

Thanks for allowing me to respond.

Gritsforbreakfast said...

Alan, I'm glad to see you iterate the Sheriff's programs and I'm happy they were implemented, but you needn't be so defensive to see others get credit, too. I don't doubt that the earned release program helped reduce the jail population and I'm sorry I didn't mention it. You asked for my evidence regarding HCDAO policies and I gave it. If you'd asked a different question, I might have mentioned the earned release program. As we both know, many factors are at play. But earned release played a smaller role IMHO than changes in policies at the HCDAO. I'd have to see more hard data to believe they "outweigh the DA’s policies."

On traffic tickets, many arrests for other offenses, small and large, originate at traffic stops, so reduced traffic enforcement by HPD also contributed to reduced county jail admissions. And according to the Chronicle story linked above, "Sheriff Adrian Garcia told the city to slow down the flow of arrestees into the county's booking center." That policy, according to the Chron, applied only "people in jail for new or existing traffic violations." They may have ended up in the city jail but they were processed through your booking center, which was and is a principle bottleneck in your system.

Finally, as for the Sheriff's hopes for jail expansion, to me the point is moot because y'all can barely staff the jail you've got without expending millions in overtime. Jail population reductons have probably lessened the need for overtime - I haven't seen recent numbers - but y'all couldn't staff the extra beds you were seeking even if the facilities were constructed. As in the past, we'll probably have to disagree on that score.

Alan Bernstein said...

You asked me to put my cards on the table and I did and now I'm "so defensive." I can't win. But then, winning is not what this is about.

After turning around a $56 million annual budget deficit in 2008-9 to a $2.8 million "surplus," we were able to hire hundreds of civilian detention officers. The overtime issue is going away.

Alan Bernstein said...

Also, I'm glad to see you go from "I've seen no policy changes besides Lykos' that account for the significant population declines" to "many factors are at play."

Anonymous said...

"At any one time there a 600-700 inmates in Harris County Jail that are awaiting completion of their probation."

Can you explain this Alan? Why are there so many probationers sitting in your jail just on technical violations? These are on warrants issued directly by the judges.

Anonymous said...

Correction 9:55... DA's are the ones requesting the warrants for technical violations. Please keep in mind, there is no Motion To Revoke w/warrant unless the DA wants it. Probation Officers notify of violations, DA's choose to file/not to file the Motion to Revoke with a warrant. Judge simply reviews whether there is grounds or not. Seldom will you ever hear of a judge refusing to turn down a prosecutor's request for a Motion to Revoke. A judge does that a few times and the prosecutor then has a political platform (I'm tougher on crime) to seek that district judge's job come next election. You just gotta love how prosecutors instigate bullshit policies while sitting back and watching everyone else take the blame. Then dumb ass electorate votes prosecutors into office a judge. Do you really not understand why the corrections system is so screwed up?

Thomas R. Griffith said...

Hey Grits, even after all of that back & forth I still haven't read a word about the fake / alleged (OTW) Outstanding Traffic Warrants used by the H.C. Deputies when dropping off probationers at the City. This has to have an impact on jail populations. Despite that, this was a very interesting / educational post.

*Folks should know that the Constable's Offices' of the Districts' arrested in can verify over the phone if they existed or not. They won’t put it in writing so don’t ask.

I might have missed it but also no words regarding the 95% + / - TapOut rate with probationers after they spend upwards of 120 days waiting for a jury trial. Those tricked in to plea bargaining due to being told that their probation was revoked at time of arrest and that they are going to prison Guilty or Not just for being arrested should know that it was 'not' revoked until you signed the paper. Thanks.

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