Reform on bail and muni fines would be big boon for H-Town indigents

Two different stories out of Houston portray folks chipping away at unnecessary local jail detention from different angles.

Bail litigation adds oomph to reform push
First, see Lise Olsen's story, "Lawsuit adds pregnant mom who was jailed five days after traffic stop: Harris County pretrial detention practices challenged as unlawful," Houston Chronicle, May 24. She runs through the named plaintiffs in  potentially important impact litigation "filed last Thursday by a Washington D.C. group called Equal Justice Under Law, which has been challenging what it calls money bail practices in federal court cases filed all across the United States. Other jurisdictions it has challenged include Ferguson, Mo. and San Francisco, Ca." (See earlier Chronicle coverage.)  Reported Olsen:

The lawsuit names Harris County Sheriff Ron Hickman, who oversees the jail, and the five county hearing officers that generally review such cases and set bond. On any given day, more than 70 percent of those jailed in Harris County are pretrial defendants who have been accused but not yet convicted of a crime, though typically only about 500 at any one time are jailed for minor misdemeanor offenses like petty theft or trespassing.

U.S. Department of Justice attorneys have been monitoring conditions in Harris County jail since 2008. An investigation by the Houston Chronicle found that 55 pretrial detainees died in Harris County custody from 2009-2015, including offenders jailed for misdemeanor crimes like trespassing. Last month, another man  detained because he could not post bail after allegedly stealing a guitar - a misdemeanor - was beaten to death by two inmates jailed on felony charges.

In part because of federal pressure, county officials have been working on reforms - announcing this year that they had obtained a grant to create a diversion court, revamp pretrial reviews and attempt to urge judges to increase release options for non-violent offenders. But advocates like Sen. Rodney Ellis of Houston say those plans left the flawed bond hearings in place - opening the door for the federal civil rights challenge that he supports.

The civil rights case remains pending in federal court - where Equal Justice Under Law attorneys are seeking reforms in lieu of any kind of monetary compensation for all pretrial defendants jailed in Harris County on misdemeanor offenses.

There was a time 10-15 years ago when the prospects for such litigation would have been much dimmer in the 5th Circuit, despite a similar fact pattern existing for a long time. That's a big reason why most of the 21st century reform movement in Texas has focused on legislative solutions. But shifts on the court itself, in the controlling jurisprudence, and, more generally, in the national conversation over justice reform, have opened up new windows of possibility for successful federal civil rights litigation. Grits is excited about the prospects for this one.

In a separate, related story, the Chronicle's Brian Rogers reported that, in response to examples like this new plaintiff, "On Tuesday, Harris County officials took an important step in attempting to address the issue, by announcing a new screening process to help judges determine which suspects awaiting trial can be freed without bail." (Ed. note: before the top of her head justifiably blows off, let it be said former Pretrial Services director Carol Oeller tried to get them to do this for years!)

Proponents of personal recognizance bonds have been stymied in the past by a reluctance on the part of Harris County judges to let suspects out of jail without bail. The conventional wisdom has been that suspects who do not have a financial stake in returning to court will abscond.

On Tuesday, though, county officials touted a new diagnostic tool as a way to move past a decades-old culture that has required every defendant in Houston to put up money or collateral to ensure they would return to court to resolve their cases.

"Obviously, dangerous people need to stay locked up," state District Judge Susan Brown said at a news conference. "For others, the most effective and efficient course of action may be to release them before trial - with conditions such as electronic monitoring or supervision within their community."

Rogers' analysis shows why I'm less apt to reject all uses of risk assessments. Without them, nobody gets a PR bond! Rogers goes on to give a little more information on the risk-assessment instrument they'll be using in Houston, developed by the indigenous Arnold Foundation:

Tuesday's announcement was made by a county committee that has long worked toward reform, the Criminal Justice Coordinating Council. Earlier this year, the committee spearheaded an effort to diagnose and solve problems in the system with a grant from the MacArthur Foundation.

The diagnostic test announced Tuesday was developed by the Houston-based Laura and John Arnold Foundation. It was described as a neutral-based data tool that would assist judges in gauging the risk that a defendant poses to the community.

Foundation representatives were on hand to explain that defendants do not have to be interviewed and given a subjective assessment. Instead, information about them that is readily available in court documents will be weighed by an algorithm to put each person on a continuum of risk. That assessment will be provided to judges who determine whether a defendant can be released without bail.

The nine factors that are considered include age, prior convictions - including misdemeanors, felonies and information about whether the offenses were violent - and whether they appeared for court in other cases. The assessment does not consider race, gender, past drug use, national origin or income.

Matt Alsdorf, vice president of criminal justice at the Arnold Foundation, said the diagnostic tool was developed using more than 1.5 million cases across the country.

"Our research team figured out the factors that are most predictive of defendants' likelihood of missing court or being re-arrested, and in particular being re-arrested for a violent crime," he said. "There's actually a fairly limited set of factors that are highly predictive of those outcomes."

The tool, which backers said has seen success in cities like Chicago and in the state of Kentucky, is being provided with training to the county for free.

Alsdorf said the assessment will provide judges with two risk scores: one on whether defendants will return to court and another on whether they will commit another offense.

With that information, a judge can decide if a suspect should be freed without bail, offered a bail outlined in the county's posted bond schedule or held without bail.

Screening suspects to figure out, statistically, who can be released on a personal recognizance bond, sometimes called "free bail," is expected to lower jail populations, which represent a major county expense.

But officials said it may take weeks or months to train personnel and launch the new system

Not only is this good news for Harris County, it also bodes well for Senate Criminal Justice Committee Chairman John Whitmire's pledged push to enact bail reform during the 85th Texas Legislature. Litigation can help achieve reform not just by getting courts to order it, but it can also spur action to either preempt or react to the courts, as witnessed with the implementation of this new screening tool. Litigation helps prime the institutional players to steel themselves for possible change, giving them a common enemy and thus a psychological motivation for solidarity. After all, every local official has an interest in them calling the shots over their respective areas of turf instead of some federal judge. So next session will be an excellent moment to show up proposing solutions, both for the chairman and for advocates hoping to effect bail reform statewide.

Houston muni courts almost never waive debt for indigence
Next, let's turn to municipal courts and debtors prison issues. Check out "Get a ticket while being poor in Houston? Here's how you might end up in jail," Michael Barajas, Houston Press, May 24. Explained Barajas:

Under Texas law, if you fail to pay, miss your court date and get arrested on an outstanding municipal court warrant for that no-insurance ticket you couldn’t afford to quickly pay, a municipal court judge (or, if you’re in the county’s jurisdiction, the local justice of the peace) is supposed to hold a hearing to determine why you didn’t pay. If the judge finds that you’re too poor and can’t afford the fines against you, you’re supposed to be given some options, like a reduced fine or community service, to pull you out of the red.

That rarely happens in Houston, according to a report by Mayor Sylvester Turner’s transition team tasked with studying the city’s criminal justice policies. According to that report, of the 168,948 Houston municipal court convictions in 2014, community service was offered in lieu of fines in only 2,759 cases. In only six cases did a judge deem someone poor enough to justify reducing or partially waiving fines. That means that while nearly a quarter of Houstonians live below the poverty line, the alternatives for low-income people struggling to pay tickets are used in fewer than 2 percent of cases before Houston’s municipal court judges. The mayor’s transition team report calls Houston’s Municipal Courts Department a “profit center” designed to rake in as much in fines and fees as possible, disproportionately punishing the city’s poor in the process.

Despite reforms her department has implemented in recent years, Presiding Judge Barbara Hartle says a number of factors can lead to someone’s arrest over simple municipal court fines, from overwhelmed judges and court staff to defendants who aren’t forthcoming to the court about the problems they have paying their fines and instead skip their court dates. Plus, she says, it’s not always up to the court who lands in jail for fine-only offenses. Hartle says she’s explicitly asked that Houston police officers stop arresting and jailing people with only class C warrants and instead bring them to an on-call judge. Hartle says that both state and local politicians have for far too long looked to municipal courts as revenue-generators — Hartle’s court, the largest in the state, sends millions of dollars to both the state of Texas and Houston’s general fund every year.

Those interested can see the Mayoral crimjust transition team's full report. (Full disclosure: The document was produced by a committee chaired by Grits contributing writer Prof. Sandra Guerra Thompson.)

Interestingly, Barajas offered this background on the Texan origins of the relevant federal court precedent:

By the late 1960s, Preston Tate had picked up $425 in fines for rolling through stop signs, running red lights and driving without a license on the streets of Houston. Paying off his debt wasn’t an option, not with a wife and two kids to feed off the measly $290 a month he earned, so a judge ordered Tate to serve 85 days at the local prison farm instead.

When Tate’s case reached the U.S. Supreme Court, his lawyers argued that jailing him violated his Fourteenth Amendment right to equal protection under the law, since a wealthy man would have easily avoided jail. The high court justices unanimously agreed, saying defendants must be offered some sort of alternative to jail if they truly can’t pay off the punishment on a fine-only offense.

The same year Tate’s landmark case was decided, his home state passed reforms allowing judges to offer payment plans for people who can’t afford to quickly pay for fines. In later years, the Texas Legislature added community service as an alternative to fines as well as a requirement that judges determine whether someone is indigent before locking that person up for failing to pay. A law passed in 2007 requires judges to make that determination in writing.

Despite the decade-old requirement that muni judges and JPs now must make indigency determinations in writing, wrote Barajas:

Lawsuits filed across the state contend that’s not happening. Last year, Austin was added to the growing list of cities across the country that have come under fire for municipal court practices, with a class action lawsuit filed in federal court by the Texas Fair Defense Project alleging the city “operates a debt-collection scheme that jails dozens of people each month because they are too poor to pay.” Earlier this year, attorneys in Amarillo filed a similar lawsuit saying that city’s collection practices amount to a “modern-day debtors’ prison.” [Ed. note: Our old friend Jeff Blackburn is involved with this one.] According to the lawsuit, Amarillo’s courts dispose of cases by assessing jail time over alternative punishments (like community service, a waiver or a fee reduction) at a ratio of about 47 to 1, despite the city’s 17.1 percent poverty rate. The Texas Civil Rights Project sued the city of El Paso following a Buzzfeed News investigation that uncovered several Texas courts, including one in El Paso, that had failed to give defendants a legally required indigency hearing before jailing them.

Here's an issue I hadn't seen flagged before:

That Houston cops would jail someone for outstanding municipal court warrants isn’t surprising, not when you consider the language printed on each of those warrants commanding “any peace officer of Houston, Texas” to take the defendant into custody “and place him in the jail of your city until the said amount due upon said judgment and the further costs of collecting the same are paid or until the said defendant is otherwise legally discharged.” Trigilio with the ACLU called the wording of those warrants “problematic.”

We also get this data tidbit:

It’s unclear how many of the thousands of people Houston municipal courts have sent to jail in recent years couldn’t pay or simply would not pay. However, Mary Schmid Mergler, with the advocacy group Texas Appleseed, says there’s pretty good evidence the city is jailing people who should obviously qualify as indigent. Mergler, who is compiling a report due out next month on municipal court practices across the state, says data she pulled from Houston’s Municipal Courts Department show that between the start of 2012 and the end of 2015, 12,132 people were jailed for failure to pay fines or to otherwise comply with a municipal court judge’s orders. That averages out to approximately 3,000 per year, or about eight per day. According to Mergler, more than 1,000 of those defendants were listed as “homeless.”

Good stuff. It's exciting to see all the interest and action surrounding these heretofore obscure and seldom-discussed issues. We are living through a period pregnant with opportunity for criminal-justice reform, from Congress to the statehouse in Austin all the way to the most humble county jail or municipal court. One prays Texas doesn't miss the moment.