Tuesday, September 13, 2016

Podcast: Texas Fair Defense Project's Becky Bernhardt explains Harris County bail litigation

Recently the Texas Fair Defense Project joined with a national group and local counsel to sue Harris County over a money-bail system that jails people who can't pay. (See coverage from the Houston Chronicle, the Houston Press, and the plaintiffs' full complaint.) Grits spoke last week with TFDP's executive director Becky Bernhardt about that litigation and a couple of promising, related initiatives she's tracking at the Texas Judicial Council. You can listen to our 19-minute interview here:

Or find a transcript of our conversation below the jump.

Interview with Rebecca Bernhardt, executive director, Texas Fair Defense Project.

Scott Henson:       Hello, this is Scott Henson with a Grits for Breakfast podcast on September 8, 2016.  I’m here today with the lovely and talented Becky Bernhardt from the Texas Fair Defense Project and we’re going to talk about their litigation in Harris County over the bail system and also some exciting reforms that the Judicial Council is proposing over debtor’s prison, bail, and pre-trial detention issues. So, Becky, thanks for joining us. Happy to have you.

Rebecca Bernhardt:  It’s great to be here.

Scott:                    All right.  So tell us about your lawsuit in Harris County.  It’s O’Donnell v. Harris County and you’ve sued everybody under the sun.

Becky:                  We have.  So we filed back in May and we have partners in this litigation, a law firm, a non-profit law firm, from Washington, D.C., Equal Justice Under Law, although they’re changing to a new name, Civil Rights Corp, and the law firm Sussman Godfrey in Houston who are great partners in all of this.  We have sued the 16 county court at law judges most recently.  The original lawsuit involved Harris County and the Harris County Sheriff and the criminal court at law magistrates or the criminal court magistrates who actually do the bond hearings, the magistrations, in Harris County jail.  So the reason that we sued Harris County, and really most counties in Texas could be sued for this similar problem, is because their misdemeanor bail system systematically treats people with money differently than people who don’t have easy access to $500, $1,000, $5,000 from the point of arrest and booking on and that has dramatic consequences in people’s criminal cases.  So it’s what’s called an equal-protection issue in terms of discrimination based on wealth.

Scott:                    So tell us about your complaint.  What are your specific allegations?

Becky:                  So basically when you get arrested you go to a booking station, one of the various different policing agencies in Harris County because it’s just got a whole bunch of different police departments.

Scott:                    Right.

Becky:                  And you get booked and at booking your bail is set and the police department basically says you can pay $500 or $1,000 right now and get released, and for folks who can do that, and a certain percentage of folks can do that pretty easily, you go home.  Then for the folks who can’t afford to pay bail, at that point, they sit in that booking location, their local lockup - the Houston Police [Department’s] jail is one of the main ones - and until a van shows up from the Harris County Jail. Then they get transferred to Harris County Jail where you get magistrated by the criminal court magistrates and eventually you have your hearing in front of your criminal court at law judge, and probably a couple of hearings until your case is disposed of, if you are one of the 40% of misdemeanants who never get out of jail before their case is disposed of.

Scott:                    So the people can pay bail before they magistrate and get out?

Becky:                  Oh, yeah.  No, you get out within, I mean, hours of your arrest if you can afford it, or at any point from booking throughout the process.  One of the amazing things that we learned is that, you know, folks take the van, involuntarily of course, downtown to the Harris County Jail and there’s a couple of days where they’re getting magistrated, processed and put in housing in the Harris County Jail where lawyers cannot see them for client visits! If you want to bond someone out, they’ll find that person and release them.  But otherwise there are hundreds of people down in the basement of that jail and they don’t know where anybody is, like, based on name or number.  It’s just a mass of humanity being held in the basement of the jail.

Scott:                    Wow.  So you say 40% of misdemeanants sit out the entire time until their case is entirely completed.  What does that look like?

Becky:                  Well, I mean, that has a lot of impacts.  One is that, you know, they’re at any one time about 500 to 600 misdemeanants sitting in the jail who otherwise wouldn’t necessarily need to be in the jail.  These are low level offenses.  So that costs Harris County taxpayers money.

Scott:                    And one thing that I think isn’t often realized is that the first day in jail is much more expensive than the others. They give, say, $50 a day or whatever as the average, but the first day, because it has all the booking costs and everything rolled up into it, it’s actually much more expensive than that.  So even that short term jail stint, you’re making sure everyone gets that maximum expensive moment in the jail.

Becky:                  Yeah.  I mean I think Harris County benefits from all of those folks who are able to pay money bail at one of those police locations distant from the jail because that second booking that they do when they reach the Harris County Jail is hugely expensive to Harris County.  The full booking where they do a medical review and classify folks for the jail ...

Scott:                    And mental health assessments.

Becky:                  Right.  Right.  And just for a comparison in Washington, D.C., which runs a really big jail, 97% of misdemeanants are released in comparison to the 60% in Harris County.

Scott:                    That’s extraordinary.  And we have states that have gotten rid of money bail like Kentucky and….  And what does it look like there in a system that isn’t based on money bail?

Becky:                  That’s right.  So in Kentucky and also in Washington, D.C., instead of relying on people’s ability to pay some monetary amount, they use a risk-based system. Or when it comes to low level offenses it may just be based on the offense, right?  So with really low-level offenses you might not even rely on a risk assessment tool.  You might just say, “this offense is so low level that unless there’s another reason to hold someone, like they have a different hold ...

Scott:                    Right.

Becky:                  ... like an immigration hold or a hold from a different county, this is such a low level offense, driving on a suspended license, that it’s nonviolent and nondangerous that we just release people on their own recognizance because of the level of the offense, right.”  So that’s one system.  A lot of places can also use risk-assessment tools for higher level offenses, which is a tool that gives judges more information about whether or not someone is a flight risk or a risk of committing a public safety offense or an offense that might harm the community while they are on release.  There are systems where all of the misdemeanants, everybody who is charged with a misdemeanor is released immediately except for categories like, let’s say, alcohol-related offenses, if it’s a DWI, so that there’s a cooling off period, a sobering up period. Or there might be conditions, like, if you were charged with DWI you need an interlock device, or if it’s a violence related offense, [maybe] there have to be protective orders in place [so] that there’s a, there’s an additional level of supervision and structure in place before people with certain offenses are released. 

                   So it, you know, it really depends on the system in different jurisdictions, but there are lots of things that judges and pre-trial services offices have done in different jurisdictions.  Misdemeanors are generally the least complicated part of the system.  It gets harder with felonies, particularly violent felonies, where you really want to be managing risk in a more careful way.  Our Plaintiff, for example, Maranda O’Donnell, is a good example of someone: She was charged with driving on a suspended license where people really question what’s the point of holding her in jail?  She’s not a public safety risk.  Most systems that are more functional than Harris County’s have a pre-trial services office that can make a reminder phone call to make sure that she appears, you know, that they have really high appearance rates based on those kinds of systems and that works just fine.

Scott:                    Right.  And Harris County has never really been willing to embrace and use their pre-trial services systems.  They’ve had one for years.  They just don’t seem to following its recommendations.

Becky:                  Well, they currently do pre-trial, or personal-release unsecured money bonds, in about 8% of their cases for misdemeanors.  So that’s an incredibly low rate.

Scott:                    Right.  So what are the implications for the rest of the state beyond Harris County with this litigation because clearly they are not the only place in Texas holding poor people because they can’t make bail?

Becky:                  Right.  Well, if this litigation is successful, it really implicates the constitutionality, the legality of the system in most other jurisdictions in Texas and it is a good segue into the legislative conversation which is going to be happening this spring about how although Texas has most of the tools that it needs or that these jurisdictions could be using right now to be releasing people without using money, it doesn’t really have all of them to reform its whole system and really deal with more serious offenses in a holistic way.  Right now, what we do is we just use really large bond amounts to unconstitutionally hold people who just can’t afford that amount and that’s the way that we basically do preventative detention, and that’s technically unconstitutional. 

                             To back up a little bit, we are a right-to-bail state which means that, except for a few categories of offenses, people are supposed to have the right to bail and to be able to pay a bail and the way that most judges get around letting people they don’t want to let out is they just give them a really high amount of money bail.  So what we really should have is a preventative detention system that says this 5%, this 7% of people we figured out they are so dangerous we’re just not going to let them out of jail until their case is resolved.  And that’s going to require legislative change.

Scott:                    Right.  One of the crazy things about the bail system is that if you’re a very high risk person but have money, you can still get out.  There was an instance that made national headlines just this week where, not in Texas, but where a fellow actually agreed to commit murders in exchange for someone else paying his bail.

Becky:                  Right.

Scott:                    But clearly that person was a very high risk person and if you were doing a risk assessment they might be one of the 5 or 10% that would have a preventive detention instead of just, “You have the money so you get to be free.”

Becky:                  Yeah.

Scott:                    Good luck!

Becky:                  I mean it’s, it’s always, it’s been pointed out that the bail system creates a variety of opportunities for new criminality in terms of people stealing money to get people out of jail, in terms of people making really scary trades - you know, “I’ll commit a new crime in order to get out of jail” - that there’s something inherently dangerous about the opportunities created by the current bail, money bail system.

Scott:                    Right.  So it isn’t just that’s it a problem that poor people are being held to shouldn’t be, we’re also releasing some dangerous people who shouldn’t be released and for whom the bail system creates opportunities.  So, if you’re a member of the drug cartel and they have plenty of money so they can get you out, you’re great.  You’re going to be free.  But if you’re a poor person who has low income, you’re stuck.  So on both ends it really is problematic in that way. 

                             Since you’ve segued a little to the legislature, let’s talk about the Judicial Council, the Texas Judicial Council, if I can say that correctly, they are supposed to come out in October, is that right, with recommendations on bail reform?  Tell me about that process, where all that’s coming from, where you think it’s headed.

Becky:                  Well, that started with Chief Justice [Nathan] Hecht who’s the Chief of the Texas Supreme Court, and it’s really part of a national movement among chief justices recognizing that we are holding too many people in jail pre-trial and, even though he’s not the head of the criminal courts, he’s the head of the whole judiciary in Texas and is really concerned about this as an issue. And so he’s led the Judicial Council in the direction of learning more about how Texas can have a risk-based system instead of a money-based system. And so they’re looking at New Jersey’s law as a model for what Texas should do and they’re working on proposed legislation and going to be working on recommendations.  I think that at their last meeting they issued a draft report so folks can see if they want to go on their website kind of where the Judicial Council is headed. 

                             But in general, it will involve having the counties use and rely on a risk assessment tool that the Judicial Council or the Office of Court Administration is going to be giving counties [for] guidance on how to do this. Money bail will not disappear, but it will take a very backseat role in our system, that will only be utilized to ensure appearance and in a circumstance where the court makes a finding that nothing else, none of the other tools that the court has available to it that are nonmonetary, are going to be sufficient.  And then it will have a third component, which is the preventive detention component, which we talked about, for very high risk folks which will hopefully be used on a very limited basis. To be constitutional, [preventive detention] needs to have deadlines in terms of how quickly the folks who are being preventatively detained, [how quickly] their trials move, because there’s a problem with holding people indefinitely if you’re also not permitting them to have an opportunity to be released.

Scott:                    Okay.  Well, let’s pivot just a moment to another issue the Judicial Council is highlighting and [which] has really been making a lot of waves, which is on debtor’s prison questions.  And they have come out with new proposals.  Tell us what’s going on with debtor’s prison issues at the Judicial Council.

Becky:                  So I would say somewhat in the same ballpark [as with bail reform], the Judicial Council has been really concerned about folks being jailed by the municipal and the JP Courts, the Justice of the Peace Courts, which are really the largest part of our criminal justice system even if we don’t think about it that way.  We have, I think, over 900 municipal courts and a comparably large set of Justice of the Peace Courts and really the largest volume of our criminal cases go through those courts and they’re mainly traffic offenses. About two-thirds or more of them are traffic offenses. So when you think about that speeding ticket you got, that’s what we’re talking about. Also other what are called Class C tickets, so this is public intoxication, the lowest level criminal misdemeanors that don’t have a jail sentence associated with them.  So the concern here is that these are crimes that the Legislature, the people of Texas, have decided are not serious enough to warrant jail time, and yet we’re finding that tens of thousands of Texans every year are still doing jail time as a result of these offenses.

Scott:                    And, just to clarify, the difference between a Class C and a Class B misdemeanor is the Class B does have a potential for jail time, and one of the big distinctions is [that], if you’re charged with something where jail is not a potential punishment, then the state does not have to give you a lawyer if you can’t afford one.  And so all of these Class C misdemeanors are mostly people, especially [in] the indigent cases, who are unrepresented.  But in reality, there really is a serious risk of jail time because of the way the system works.

Becky:                  Right.  Yeah.  So we found folks, because my organization has represented folks mainly in the City of Austin and Travis County, you know, but we’ve found folks who were sentenced on Class B misdemeanor to seven days, right, possession of marijuana - not something that the City of Austin and Travis County is really hung up on - and then got 28 or 30 days on their misdemeanor traffic tickets because they had a whole bunch of traffic tickets and they owed, you know, $3,000 and they got $100 a day credit from the City of Austin on those tickets.  So, here’s Travis County trying to not spend their jail resources and gave this person seven days on a Class B misdemeanor and nevertheless 30 days’ worth of Travis County jail time was spent on the traffic tickets.

Scott:                    So what kind of things are being proposed to address that?

Becky:                  So there is a really long list of proposals that gets at a whole bunch of aspects of this problem.  A lot of them go to giving the judges more tools and more discretion.  One is to expand access to community service, expand the types of things that folks can get community service credit for, increase the amount of credit folks get for doing community service.  Basically make it so that the community service alternative is used more often and we just have fewer people who are ending up being put in jail because they didn’t get the opportunity to be considered for community service.  So that’s one big piece.  Another one is giving judges more discretion to waive fines and fees to really make that more robust, and then make some [changes to rules] about folks who are really clearly below the line of ability to pay mandatory: To say that, if you are clearly indigent, then we are going to decrease the amount that we expect you to pay because it’s not realistic to have you be charged.  Really, some of the fines and fees are designed to incentivize folks to pay who have the money to pay.  They don’t work for poor folks.

Scott:                    Right.

Becky:                  So it gets at a whole bunch of different aspects of the system sort of all at once.

Scott:                    All right.  Well, is there anything else you wanted to bring up while we have you here?

Becky:                  I don’t think so.  I think that pretty much covers it.

Scott:                    All right.

Becky:                  Is that all right?

Scott:                    That’s great. Thank you so much for coming to visit.  I appreciate it.

Becky:                  No problem.

Transcribed by http://idictate.com. Edited for grammar and clarity by Scott Henson. Intro music: 99 Tales, "Baby out of jail," public domain.


gerald r. wheeler ph.d. said...

Scott: note Evidence-based research study-Project Orange Jumpsuit findings cited in Federal Complaint exposing Harris County wealth-based detention driving discrimination in detention and sentencing. READ THE poj REPORT

Gritsforbreakfast said...

I've linked to yall's report before, Gerald. You did good work. OTOH, these problems existed before your reports, and mine, and litigation like this is probably the only way to translate those data-based critiques into actual, on-the-ground change.