Bail system shortchanges defendants most in need
A review finds that despite reform efforts, little help is given to indigents who are most likely to be no-shows
The shoelaces were a problem.
Public defender Sarah Wood tried to tell Roberto Lopez that he was headed into court on a trespassing charge, but he couldn’t stop focusing on lacing up his shoes.
The homeless veteran seemed older than his 61 years. He appeared confused, she said. When his name was finally called, he shuffled to the bench, holding on to steady himself before the magistrate.
“Mr. Lopez,” Wood said, as the bail hearing began, “is someone who definitely needs help.”
But help was not to come. Unlike some defendants who are assigned pretrial caseworkers to track their whereabouts and help them navigate the judicial system, Lopez was released from jail with little more than a piece of paper with his court date on it.
Chances that he’d show up for court the next day were slim to none, Wood suspected. And she was right.
That’s because, in Harris County, thousands of misdemeanor defendants who need pretrial supervision and assistance the most, such as Lopez, don’t get it.
A Houston Chronicle review of more than 100 misdemeanor cases in Harris County, and interviews with defense attorneys, prosecutors, judges, jail administrators and defendants, revealed a pretrial system that provides little supervision for indigent defendants who are most at risk of failing to appear in court, while offering support to those at lower risk.
The result is a criminal justice system clogged with a growing number of failures to appear, months after a federal judge ordered the release of indigent defendants who can’t afford to post bail.
County officials have said the releases pose a threat to public safety. Critics say the county is deliberately withholding pretrial supervision that could help defendants stay out of trouble, particularly in the ongoing courthouse chaos in the aftermath of Hurricane Harvey.
For Lopez, bail was set at $5,000. Prior to the order from Chief U.S. District
“It’s the most marginal people getting the least help. Then the county turns around and releases these failure-to-appear numbers and says, ‘Hey, the system isn’t working.’ ” Franklin Bynum, defense attorney
Judge Lee H. Rosenthal, Lopez would have sat in jail until trial because he did not have the cash to gain his release.
Instead, Rosenthal’s order required Lopez and most other indigent misdemeanor defendants be released from jail within 24 hours, setting up a system that requires the sheriff’s office to release defendants on unsecured bonds if magistrates refuse to give them personal bonds.
Personal bonds do not require cash up front and include pretrial services and assistance. Judges grant or deny them based on their assessment of the defendants’ criminal history and the likelihood they will appear in court.
Defendants who do not receive personal bonds will be transferred to jail, where the sheriff will determine if they can afford to post bail. If not, they are released on unsecured bonds, which do not include any supervision.
Since Rosenthal’s ruling went into effect in June, more than 8,000 misdemeanor defendants have been released on unsecured bonds, yet more than 40 percent failed to appear for subsequent court hearings. The rate is nearly double that of defendants with personal bonds and far higher than the 8 percent failure rate for those with bail bondsmen providing surety bonds, according to data released by Harris County in November.
Defense attorneys and others say the county could fix the problem by expanding the use of personal bonds.
“These people on unsecured bonds are the people who need the most help, and they’re getting the least,” said defense attorney Franklin Bynum, who is running for judge in County Criminal Court-at-Law 8.
“It’s the most marginal people getting the least help. Then the county turns around and releases these failure-to-appear numbers and says, ‘Hey, the system isn’t working.’”
The Chronicle’s review of cases from July 28 to Oct. 5 found 63 of 125 defendants with unsecured bonds failed to appear in court. Of those, 114 had criminal histories, with 82 having felonies on their record and 26 having more than five felonies, indicating that they may be considered “high-risk.”
Yet about 87 percent went unsupervised, including those with significant failure-to-appear histories and aggravated robbery or aggravated family assault convictions. One unsupervised defendant charged with assault was a sex offender also convicted of assaulting a child and elderly person. Thirtytwo defendants had more than 15 criminal convictions, and several had more than 40 convictions. Many were described as homeless or mentally ill.
Mixed results
The Chronicle’s sampling was a random review and does not provide statistically significant data on the thousands of misdemeanor cases filed very month.
The findings, however, appeared to conflict with county officials’ commitment to a “riskbased” system and a new riskassessment tool, which went into effect in July to help judges and magistrates make decisions about bail and supervision.
The nationally respected Public Safety Assessment tool, developed by the Laura and John Arnold Foundation, is designed to rely on objective factors such as criminal history and failure-to-appear history, rather than socioeconomic factors such as employment and family structure that may introduce bias into bail decisions.
The higher the risk the person poses of failing to appear or reoffending, the higher the levels of supervision that judges may consider ordering as conditions of that person’s release. That’s not how it’s been working in Harris County.
“Really, there’s no tailoring of any conditions that we can tell,” said Chief Public Defender Alex Bunin.
Tom Berg, first assistant at the Harris County District Attorney’s Office, said the county may be focusing its resources on supervising the wrong people.
“It’s a dysfunctional system,” Berg said. “We’ve taken the riskassessment tool that was meant to supplant a bail-bond system, but instead we use it to simply generate risk scores that are then reported on a bail-bond schedule. That’s why we have such mixed results.”
Aggravated by Harvey
Shamira Brown said she must have called the court information hotline a dozen times.
The single mother of two had been arrested for assault in the aftermath of Harvey, days after fleeing her flooded home. She had accused another woman of taking her daughter’s iPad during the chaos, leading to a physical fight, Brown said.
But after being released on an unsecured bond, she was confused about how she was supposed to appear in court a few days later. She had seen on the news that the courthouse had been all but destroyed by flooding, yet no one answered the hotline listed on the form she was given at the jail.
Just to be safe, she took three buses downtown early on the morning of Sept. 8, the day she was ordered to appear. She arrived to find exactly what she expected: a flooded, shut-down courthouse.
So from the courthouse steps, she kept dialing.
“I thought, now what?” Brown said. “I didn’t know where to go, what to do. Even though I knew the courthouse was flooded, I thought, maybe there is some way I can get in there, some kind of way … But they never picked up.”
Brown is now among an untold number of defendants with warrants out for their arrest, despite being sent to the wrong place or at the wrong time — a problem exacerbated after Harvey.
The Chronicle identified at least 31 cases in which defendants were given wrong information about their court date; 15 of them forfeited their bonds for failing to appear at the first setting. Since June 6, more than 3,500 warrants have been issued in misdemeanor cases for failure to appear.
County Court-at-Law Judges Paula Goodhart and Darrell Jordan told the Chronicle they are not sure how or even if defendants on unsecured bonds were notified that court dates were reset directly after Harvey.
Brown said pretrial supervision would have helped her return to court, if she’d just been assigned a case manager to assist with court dates and where to go.
“I didn’t get anything in the mail, no lawyer papers. They just never told me where to go,” Brown said. “Y’all wasn’t even doing your part, but you’re quick to put out a warrant for someone?”
A matter of time
Sometimes, defendants are given so little time to return to court they don’t know they’ve missed it, defense attorneys said.
They may be released from jail at 1 a.m. or 4 a.m. only to be expected in a different courtroom at 8 a.m., records show. They may not be released from jail until after their follow-up court date has already passed.
They may not be able to make arrangements in time for child care, their job or transportation, Bynum said. And since these are most often defendants who cannot afford to pay a bail bondsman, their mobility may be limited compared to others with more financial means.
Of the 125 cases reviewed by the Chronicle, 26 of the 63 defendants who failed to appear had missed the first court setting. Sometimes the county never sees them again, Wood said.
“There are people that miss that first-day setting over and over and over again, then are required to come back the next day, then they miss it. Over and over and over,” Wood said. “(The Harris County Public Defender’s Office) represents people who have been released and re-arrested nine times in the same case. And these are mentally ill homeless people. The mentally ill homeless generally don’t get the personal bonds. They get unsecured release, because they’re considered high-risk.”
In 29 cases reviewed by the Chronicle, mentally ill defendants with unsecured bonds failed to appear three or more times in a matter of weeks or months. Some failed to appear more than 10 times, with one failing to appear as many as 24 times while out on bond for 15 other criminal cases.
The majority are charged with trespassing, and often have more than 10 prior arrests for the same crime; one had up to 24 prior trespassing charges, indicating homelessness, Wood said.
The 29 defendants alone accounted for 235 bond forfeitures — or failures to appear — in the county’s data. In fact, the inordinately high number of people missing court dates in Harris County may be blamed, in part, on how the data is calculated.
The county counts failures to appear not by individual defendants but by individual bond forfeitures, meaning multiple forfeitures may stem from a single defendant.
Harris County Precinct 1 Commissioner Rodney Ellis, who supports settlement of the federal lawsuit, said he feared the county would try to use the inflated data to thwart reform by claiming unsecured releases aren’t working.
“The recently released data shows that poor pretrial misdemeanor defendants are still stuck at the bottom of an unfair justice system, where pretrial supervision is unequally applied and, as a result, opportunities to improve public safety are missed,” Ellis said in a written statement.
“The county should use complete, accurate data to improve reform efforts instead of fighting reform with data that doesn’t tell a complete story about the defendants or the pretrial treatment they receive,” he said.
Lack of accountability?
Much of the responsibility for releasing defendants under Rosenthal’s order has shifted from the courtroom to the jail, where Sheriff Ed Gonzalez has created a new burden for his staff.
The county too often depends on the sheriff’s staff to release defendants on unsecured bonds after magistrates have refused to grant them personal bonds, said Bunin, the chief public defender.
“Part of it is the way the federal bail order was written — it takes the onus off the courts for correcting these problems, so the county just sees it as an obligation for the sheriff,” Bunin said. “Until they take on the responsibility, I don’t see that changing.”
The Chronicle requested interviews with the magistrates but they instead responded with a lengthy written statement from Hearing Officer Eric Hagstette, who referred all further questions to other county officials.
In the statement, magistrates wrote that a system in which almost every misdemeanor defendant gets released has created a “culture of non-accountability” in Harris County, allowing repeat offenders to keep being released for free.
“What we have seen since the order has been implemented is that some defendants, regardless of how they are released or conditions imposed, re-offend and/or fail to appear,” they wrote.
The sheriff’s office, however, has no authority to add pretrial conditions to unsecured bonds. But neither the magistrates nor other county officials could say why pretrial supervision was not ordered more often at bail hearings.
Goodhart said some defendants who may need supervision don’t show up to the next-day hearing. Some are released by the sheriff within the required 24 hours before they can ever get to a bail hearing, though Maj. Gregory Summerlin, head of the intake division, said it happens infrequently.
“If your question to me is, should there be supervision for people who are released on unsecured bonds, then that seems like it would be a good idea to have them supervised as well,” Goodhart said. “The problem is that in order for a magistrate or a judge to give them conditions of supervision, they have to appear in court.”
First Assistant County Attorney Robert Soard said one contributor to high failure-to-appear rates among unsecured bond defendants may be that Rosenthal’s order provides no recourse for the county to punish defendants who continually fail to appear and are re-arrested on other misdemeanor offenses.
Berg, in the DA’s office, said his office is considering asking for changes to Rosenthal’s order to provide consequences for repeat defendants.
‘It’s business as usual’
In spite of the county’s bail reforms — the new risk assessment tool, assigning public defenders to attend bail hearings — there are days when it feels as though nothing has changed, Wood said.
Without Rosenthal’s ruling, indigent defendants would still be sitting in jail, too poor to get out while awaiting trial, she said.
“It’s business as usual,” Wood said. “Many of the magistrates operate as if the federally ordered unsecured releases were not happening. And so they’ve fallen back on their old ways, of trying to issue orders of preventive detention by setting money bail at an amount they know the person can’t afford.”
Just moments before Lopez appeared in court, Wood represented another man facing misdemeanor charges of trespassing and evading arrest after being told to stop begging for money at a local McDonald’s.
“He takes care of his mom and his mom takes care of him,” Wood told the magistrate. “He takes it seriously and says, you know, he has to beg. … It would be better if he had the help of pretrial services on his bonds, because he’s going to be released anyway.”
The magistrate set the bonds at $5,000 each, leaving the sheriff to decide if he’s too poor to pay.
The man tried one more time. “Can I get a personal bond?” he asked.
“Not today,” the magistrate responded.