Bail prac­tices un­der scru­tiny

Daily Local News (West Chester, PA) - - NEWS - By Juan A. Lozano

HOUS­TON >> For univer­sity stu­dent Bryan Sweeney, the three days he spent at the Har­ris County Jail in Hous­ton be­fore he could pay his $10,000 bail for two mis­de­meanor charges, in­clud­ing for driv­ing with a sus­pended li­cense, cost him a chance to regis­ter for classes and grad­u­ate this sum­mer. But Sweeney, an ac­count­ing ma­jor at Texas South­ern Univer­sity, said he’s lucky, as oth­ers in a sim­i­lar sit­u­a­tion might never have been able to pay.

“It’s pretty men­tally dif­fi­cult to fight a mis­de­meanor from in­side of jail,” said Sweeney, 27, who de­scribed the tough choice many poor de­fen­dants face. “I can get out and all I got to do is say, ‘I’m guilty,’ or I can sit in jail, sac­ri­fice my freedoms and fight a mis­de­meanor case for the next six months that I can’t af­ford,” he said.

Crim­i­nal jus­tice re­form ad­vo­cates say U.S. bail sys­tems un­fairly keep low-in­come de­fen­dants — many of whom are mi­nori­ties ar­rested for non­vi­o­lent crimes — in jail for too long, which not only leads to over­crowd­ing but can af­fect the out­come of their cases. In Har­ris County, the na­tion’s third most pop­u­lous, lo­cal of­fi­cials say they are aware of the prob­lems and re­cently im­ple­mented a $5.3 mil­lion plan, in­clud­ing a $2 mil­lion grant from the MacArthur Foun­da­tion, to jump­start re­forms.

“Low-level, non­vi­o­lent of­fend­ers should not be rot­ting in jail wait­ing for a trial. That’s just wrong,” Har­ris County District At­tor­ney Devon An­der­son said.

How­ever, some ad­vo­cates are skep­ti­cal. They say pre­vi­ously dis­cussed re­forms have never come to fruition and they are now fo­cus­ing on lit­i­ga­tion as the best way to ad­dress the prob­lem.

More than 50 per­cent of mis­de­meanor de­fen­dants in Har­ris County are de­tained un­til the con­clu­sion of their case, many of them due to their in­abil­ity to post bail, ac­cord­ing to a July study by the Univer­sity of Pennsylvania Law School. The study also found that mis­de­meanor de­fen­dants who re­mained jailed pre­trial were 25 per­cent more likely to plead guilty. County data shows that of the 20 per­cent of pre­trial de­fen­dants charged with low-level, non­vi­o­lent crimes like drug pos­ses­sion and theft, 51 per­cent are African-Amer­i­can and 21 per­cent are His­panic.

Among the ini­tia­tives Har­ris County is work­ing to im­ple­ment is a new pre­trial risk as­sess­ment tool judges will use in de­ter­min­ing bail de­ci­sions. An al­go­rithm helps iden­tify if a per­son is at risk of com­mit­ting a new crime or fail­ing to re­turn to court if re­leased on bail. The sys­tem, which judges will start us­ing later this month, is in­tended to en­sure low-risk de­fen­dants are di­verted from the sys­tem as early as pos­si­ble.

Re­form ad­vo­cates have long been crit­i­cal of lo­cal judges us­ing bail sched­ules — guides that set dol­lar amounts for bail based mostly on the cur­rent charge — and not re­leas­ing more low risk, non-vi­o­lent de­fen­dants on per­sonal bonds, in which in­di­vid­u­als are re­leased with­out hav­ing to pay bail. In Har­ris County, 5.8 per­cent of all de­fen­dants were granted per­sonal bonds in 2015, in­clud­ing 8.5 per­cent of mis­de­meanor of­fend­ers. By com­par­i­son, nearly 88 per­cent of pre­trial de­fen­dants are re­leased on a per­sonal bond in Wash­ing­ton, D.C.

The Texas Ju­di­cial Coun­cil, cre­ated by the state to study and re­port on its ju­di­cial prac­tices, says it will ask that law­mak­ers dur­ing next year’s ses­sion pass leg­is­la­tion stat­ing the pref­er­ence for pre­trial re­lease in Texas should be per­sonal bonds and not money bail.

An­der­son said other Har­ris County ini­tia­tives in­clude ex­pand­ing in­ter­ven­tion pro­grams that don’t jail first-time mis­de­meanor drug and re­tail theft of­fend­ers but of­fer them a way to set­tle charges by com­plet­ing com­mu­nity ser­vice or ed­u­ca­tion classes. The county has also cre­ated a new Rein­te­gra­tion Court, which will tackle the more than 8,000 low-level, non-vi­o­lent cases such as drug pos­ses­sion and pros­ti­tu­tion that are filed an­nu­ally. The hope is that the court will of­fer a more uni­form ap­proach on bail and treat­ment op­tions for men­tal health or sub­stance abuse prob­lems in such cases.

At a leg­isla­tive hear­ing last month, bail in­dus­try rep­re­sen­ta­tives spoke against the use of pre­trial risk as­sess­ment tools and other bail re­form ef­forts, say­ing such mea­sures are un­proven and would not of­fer any cost sav­ings. County jails across the state are spend­ing nearly $1 bil­lion a year to house pre­trial de­fen­dants, ac­cord­ing to the Texas Com­mis­sion on Jail Stan­dards.

Also skep­ti­cal is Re­becca Bern­hardt, an at­tor­ney and ex­ec­u­tive di­rec­tor of the Texas Fair De­fense Project.

“Un­til the num­bers change, un­til the Har­ris County Jail is not over­crowded, un­til the crim­i­nal jus­tice sys­tem is not dis­pro­por­tion­ately African Amer­i­can and His­panic, it’s words,” Bern­hardt said.

Ear­lier this year, her or­ga­ni­za­tion along with the Wash­ing­ton, D.C.-based non­profit Equal Jus­tice Un­der Law filed a law­suit in Hous­ton fed­eral court, ac­cus­ing Har­ris County’s bail sys­tem of un­fairly jail­ing poor de­fen­dants. Equal Jus­tice has filed at least 10 sim­i­lar law­suits in eight states.

Var­i­ous cities and states across the coun­try are also look­ing at ways to re­form their bail sys­tems, as well as fines and other court costs that can have the same ef­fect on poor de­fen­dants. In Novem­ber, vot­ers in New Mexico will be asked to ap­prove a con­sti­tu­tional amend­ment al­low­ing courts to re­lease de­fen­dants with­out bail if there is no ev­i­dence the de­fen­dant is dan­ger­ous or a flight risk. San Fran­cisco is test­ing the pre­trial risk as­sess­ment tool Har­ris County will be us­ing, which is al­ready be­ing used in about 30 ju­ris­dic­tions across the coun­try.

Sweeney, who took a plea deal to set­tle his case with time served, said he’s fo­cused on get­ting his de­gree and even­tu­ally go­ing to law school. Sweeney said he plans to grad­u­ate in De­cem­ber, “if I don’t go to jail.”

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