Act now to end Harris County Jail outsourcing later
When someone is locked up, they don’t stop being a father, mother, son or daughter, and soon some Harris County family members will face driving more than seven hours to see their loved one behind bars. Several years ago, the wife and child of an incarcerated man named Charles Davis died in a car crash on a trip to visit him, but much more commonly many families in Harris County simply won’t be able to afford the long trip.
On July 20, Harris County Commissioners Court approved spending $25 million to send hundreds of jailed individuals to a privately operated prison in West Texas, adding to almost 600 people already sent out of the county, that group at a Louisiana jail. This stopgap approach that relies on one-time federal funds is costly and unsustainable, demonstrating that further actions are needed to address our jail population crisis in a safe and effective way.
It’s important to note that neither Commissioners Court nor Sheriff Ed Gonzalez has direct control over the jail population, and that commissioners faced a lack of other immediately viable options to address the dangerous conditions in Harris County Jail. But the drawbacks to outsourcing are significant, and go well beyond the cost to taxpayers.
For starters, pretrial defendants housed near Lubbock or in Louisiana will likely have far less access to in-person meetings with their attorneys and visitation with family. For those who ultimately receive probation or are discharged, being jailed hundreds of miles from Houston also complicates efforts to connect them with employment, housing and substance use or behavioral health treatment — support that is correlated with better outcomes, including lower recidivism, for those reentering society.
While overcrowded and understaffed conditions have fueled over a thousand assaults and dozens of deaths in the Harris County Jail since 2021, it is difficult to monitor the quality of conditions, programs and health care in remote lockups. At least one person shipped out of the county to Louisiana has died — 35-year-old Billie Davis, who had been confined in Louisiana’s LaSalle Correctional Center.
In September, the commissioners are scheduled to receive staff recommendations on more sustainable solutions to the jail crisis. In the meantime, we all must ask: what can be done to help the county avoid choosing between two bad options?
Given that pretrial defendants account for
over three-quarters of the Harris County Jail population, the first and most ripe area for action is bolstering the capacity of Harris County courts to dispense justice. Earlier this year, county commissioners took significant steps in this direction, approving funding for eight visiting judges and providing an extra $7.2 million to hire more prosecutors and raise prosecutorial pay, a carrot intended to help fill vacant positions.
But more must be done to address the six-figure active and inactive case backlog. Fueled by pandemic-related court closures, it includes nearly16,000 pending active criminal cases that are at least 361 days old as of July 2022. The remaining cases are either newer or inactive cases, matters in which charges have been filed but something has blocked the case from proceeding, such as a defendant who still needs to be arrested.
Fortunately, there are possible solutions for state and local policymakers that fall into a few categories.
Beyond funding even more visiting judges, other options for relieving the backlog include conducting bond hearings and perhaps even some bench trials on nights and weekends; identifying civil court judges whose schedules would permit them to handle some criminal cases; expanding the capacity of the mental health court, which emphasizes public safety, lowering
recidivism and hospitalization as well as improved quality of life for defendants with mental illness; and transferring certain mental health cases to probate courts.
Of the roughly 10,000 individuals in the Harris County Jail, 80 percent have a mental health indicator in their file and 30 percent are on psychotropic drugs, with the latter likely better reflecting the share who suffer from serious mental illness.
Focusing on defendants with mental illness is justified not only by the numbers, but also by the capacity for compassion that bridges the political divide. The Bipartisan Safer Communities Act, passed by Congress earlier this month, includes a provision, sought by Sen. John Cornyn, allowing states unlikely to pass red-flag gun laws (such as Texas) to redirect funds intended for red-flag implementation to expanding mental health courts, which have been proven to reduce recidivism, including in felony cases.
Another tool lies in a provision of the Texas Health and Safety Code that provides an offramp from criminal court for defendants with mental health disorders. It enables prosecutors to obtain an order of “temporary” or “extended mental health services” in cases that do not involve charges of serious bodily injury to another. This can include residential care for between 45 days and one year, coupled with a mental health bond. Because these services would be overseen by a probate
court judge, this procedure could not only provide diversion to treatment in appropriate cases, but also allow probate courts to relieve overburdened criminal courts. Despite its significant potential, however, the Texas Judicial Commission on Mental Health reports this procedure is sparingly used.
State leaders must also uphold their end of the bargain. Lucky for them, they just received word from the Texas comptroller that an extra $27 billion is burning a hole in their pockets. While the next biennial budget won’t go into effect until September 2023, either interim budget execution authority or a supplemental spending bill at the beginning of the next legislative session could be leveraged to ease long waits for mental health beds in state hospitals and expand outpatient and jail-based competency restoration capacity to help people with mental health issues or psychiatric and substance use disorders who are found incompetent to stand trial. As of March, the number of defendants waiting (2,309) exceeded the number of beds that exist (1,510), with the average wait time for a high-security bed standing at some 538 days. .
Another priority must be increasing the capacity to expeditiously process forensic evidence. According to Harris County Criminal Court District Judge Darrell Jordan, current wait times are 218 days for biology testing, 300 days for DNA testing, 228 days for firearms testing and 255 days for fingerprint testing. Possible responses to
this logjam include more funding to boost the productivity of the Harris County Institute of Forensic Sciences and contracting with private services to supplement the institute’s work.
Even with all these steps to accelerate the traditional wheels of justice, we must also think outside the box. The Ohio Supreme Court has recommended mediation as one strategy to relieve backlogs, which requires agreement by the prosecutor, victim and defendant and is typically used in low-level property theft cases. The Harris County Dispute Resolution Center has a cadre of volunteer mediators and has previously handled some minor juvenile and adult cases.
It also makes sense to carefully identify old cases suitable for dismissal, such as those that involve low-level charges against defendants without a long rap sheet. Some defendants have demonstrated that they are not a threat to society by spending significant time on pretrial supervision without incident; typically, in Harris County, around 46 percent of misdemeanants on supervision face drug tests and 63 percent must refrain from consuming alcohol, while higher-risk individuals also may be subject to electronic monitoring and curfews. The public rightfully expects consequences for crime, but being on pretrial supervision is similar to being on probation, and restitution obligations as a condition of dismissal provide still another form of accountability. While cases that are suitable for mediation or dismissal will primarily be those of defendants not in pretrial detention, such strategies free up court, prosecutorial and indigent defense capacity to focus on more serious cases.
Finally, let’s remember that the Harris County Jail crisis would be even worse without misdemeanor bail reform, which allowed most misdemeanant defendants not in excluded categories such as domestic violence to be released without financial conditions. This ensured that many would no longer unconstitutionally languish in jail because they could not afford bail.
Only 184 pretrial misdemeanant defendants are currently incarcerated in the Harris County jail, a figure that would likely be several hundreds higher if the misdemeanor pretrial detention rate prior to the settlement had persisted. Even as changes are needed at the state and local level to address the high number of homicides by felony defendants mostly released through commercial bail, the share of misdemeanant defendants who were re-arrested for any type of offense or violation in 2020 was slightly below that of 2018, when litigation over misdemeanor bail reform was settled.
Stopgap measures such as outsourcing to relieve an overflowing jail should not become a “new normal,” but rather an impetus for strategies and investments that enhance safety and justice for years to come.