Harris Co. judges balked at giving defendants representation at bail hearings

The other day Grits expressed skepticism at the sincerity of claims that Harris County officials would commit to a serious plan for reducing the jail population. Lisa Falkenberg at the Houston Chronicle offered an additional reason to think the Harris County plan lacks broad support.

Nearly everyone except the judges quoted in her story agreed with a plan to provide defendants with counsel at their bail hearing:

Whether charged with misdemeanors or felonies, the accused typically are hauled before a split-screen video monitor where a magistrate in another room determines whether to grant bail and how high to set it. The decision is based on the charge and criminal record, with little regard to actual risk or ability to pay.

A prosecutor is there but no defense attorney.

The practice violates constitutional rights to due process during a "critical stage of trial," and it needs to be changed, Harris County Public Defender Alex Bunin wrote last month in a memo, obtained through a Texas Public Information Act request.

Often, defendants have no idea what's going on at bail hearings, Bunin explained. Some are mentally ill. Some may try to speak and end up incriminating themselves. They sometimes seek legal advice from another defendant, from a deputy or any other warm body nearby. Then the magistrate decides whether the defendant will await trial in jail, whether a student will miss school, a single mom will lose her job or a father will be home to help take care of the kids.

"An adversarial system cannot function when only one side shows up," Bunin wrote to County Attorney Vince Ryan, proposing a pilot program to provide lawyers at bail hearings.

Ryan wrote back that he supported the pilot, as everyone should. It's not a novel concept. All of Harris County's large urban peers provide lawyers at bail hearings, including jurisdictions serving New York, Los Angeles and Chicago, Bunin wrote. Even New Orleans does it.

In a news conference last week, District Attorney Devon Anderson said she supports representation at bail hearings. It also was a priority for Harris County Commissioner El Franco Lee, who led the Criminal Justice Coordinating Council but died a week ago of a heart attack. His longtime colleague, Steve Radack, the committee's vice chair, told me Friday he was open to the idea and to finding money to do it.

In truth, it will save the county money to stop jailing people who don't need to be jailed. The current system, as I noted last week, is costing more than $380,000 per day. The council estimates, probably conservatively, that 1,800 inmates are unnecessarily jailed, including those charged with nonviolent felonies, misdemeanors and serious offenses who pose low and moderate risk.

Consider: among large U.S. cities, 25 percent of felony defendants are released without posting money at all, Bunin wrote in his memo. In Harris County, it's less than 2 percent.

"More common sense needs to be injected into the criminal justice system," Radack said.

Despite support from the DA and even from county commissioners who'd have to pay for the lawyers, the measure was removed from the plan submitted to the MacArthur foundation at the judges' request, scaling representation back to providing "lawyers only for mentally ill 'frequent detainee' defendants charged with misdemeanors."

Meanwhile, in the Houston Press, Grits contributing writer and U of H law prof Sandra Guerra Thompson's critiques of the bail system in Houston were featured prominently in an article by Meagan Flynn (who's been providing this issue good coverage lately).

“The question of having counsel at the bail hearings, first appearance, is a really important one,” Thompson said. “We have this crazy un-American system where people appear before a [magistrate] and there's a prosecutor but no defense lawyer. It's not consistent with the adversarial process we think of when we think of a fair judicial hearing. 

Whether someone has counsel at their bail hearing is:

the critical factor [regarding whether a defendant is released],” Thompson said. “It's the most important consideration in determining if a person stays in jail pending their proceedings or not. When you look at a group of people with a lawyer and a group without, the one with a lawyer is two-and-a-half times more likely to be released on a personal bond or have their bond lowered. The difference is dramatic.”

At a minimum, Harris County DA Devon Anderson is enthusiastically on board with the idea, to Grits' delight. The next news will come in a few weeks when a committee produces more specific recommendations.

“Let me say this about having a defender at probable cause court," [Anderson] began." I think it's a great idea—exactly what you're saying: somebody to advocate for a defendant to show a magistrate, 'This is why you can let this person out, and they're gonna be okay.' I think we need them for that reason, and I really think it provides a huge opportunity to expand diversion even more, where we can offer it right then in probable cause court because they would be represented by counsel. We're for it, and I have every hope we're going to get that up and running this year.”

While the supposed "culture change" may have an undetermined deadline, a committee currently studying how to best implement fair representation for all people at bail hearings may have to act much sooner. They're expected to have answers by March 1.