Are Harris County Officials Trying to ‘Sabotage’ Bail Reform with Misleading Data?

Bail has been operating differently in Harris County, Texas, lately. In April, a judge issued an injunction in response to a lawsuit filed against the county by nonprofits Civil Rights Corps and Texas Fair Defense Project and law firm Susman Godfrey alleging that its practice of jailing people who couldn’t pay bail was unconstitutional. Under the injunction, no one is supposed to be kept behind bars because they’re too poor to afford bail.

Now, some people deemed to be low-risk through an assessment are getting released on a personal bond, or a promise to pay a certain amount if they fail to appear in court, without having to post it up front. Other defendants are given a secured bond, but must be released from jail within 24 hours if they say they can’t pay.

County officials are arguing that the new system isn’t working. Late last month, they shared data with the Texas Tribune, and more recently with In Justice Today, showing that nearly 45 percent of people released from jail after 24 hours failed to return to court for subsequent hearings.

But those numbers are not what they seem. Local public defenders and criminal justice advocates argue that judges and county officials themselves shoulder much of the blame.

“All of the failure to appear problems go back to the county,” Jay Jenkins, project attorney for Harris County with the Texas Criminal Justice Coalition, argued.

It used to be that defendants were typically required to return to court for a hearing seven days after being released. But earlier this year, the courts changed the rules to require misdemeanor defendants booked in the jail to come back within one business day. According to advocates and attorneys, the change was meant to improve due process by offering people a full hearing shortly after arrest.

But the requirement that defendants return within one business day of being booked has presented two challenges. One is technical: The county is trying to update its information system, but the system is still automatically, but incorrectly, setting arraignments for those charged with misdemeanors for seven days after release in the computer system, according to Alex Bunin, Chief Public Defender for Harris County.

So jail employees often tell people that they have to return in seven days, as it says in the computer, not one business day, said Sarah Wood, another public defender. Defendants take those instructions to heart, sometimes more than what’s on their physical paperwork, which should contain the correct date. “They’re very insistent: ‘No, the jailer told me it’s next week.’ They defer to authority,” she said. Others may have trouble understanding the paperwork, which can often be difficult to read due to small type, handwriting, legalese, and confusing instructions. Even “lawyers have a hard time figuring it out,” Wood said.

“The reason that [the failure to appear rate] is not higher is because lawyers working the bail hearings have been actually telling their clients, ‘I don’t care what the sheriff tells you… I don’t care what the court system says online when you look it up — your date is the next day,’” Jenkins of the Texas Criminal Justice Coalition said.

The county disputes this account. “I don’t think that the high failure rate has anything to do with confusion over court dates,” said Ed Wells, court manager for Harris County. He contended that if judges or court staff discovered that a defendant was given paperwork with a different court date, they would reset the hearing for that date. That wouldn’t necessarily account for those who are still being told by jailers to come back in seven days, even if their paperwork says one business day. But Wells argued he doesn’t think that’s occurring, although he noted the sheriff’s office would better be able to respond. (The sheriff’s office didn’t respond to a request for comment.) “All of the bond documents I’ve seen, when the sheriff is putting in that court date, they circle it and bring it to the attention of the person,” Wells said.

Even if everyone received a correct court date, many would still risk missing their hearings, since it can take as long as 20 hours for someone to be processed and released from jail.

“We had a person in court a few weeks ago … who was granted a personal bond [and released] at 7am inside the jail, and when they were filling out his bond paperwork they were putting the court date on there of the same day,” Wood said. “We were like, ‘Well how do you expect him to appear when you’re telling everyone it’s going to take five or six hours to process out of the jail?”

Emails reviewed by In Justice Today showed public defenders discussing clients who were still being processed at 3:30 a.m., even though their court hearings were later that morning. Given that the clients still had eight to 12 hours to go before getting released, there was no way they could make their scheduled hearings.

Wells argued that that this issue wasn’t common. “I don’t think it’s the norm at all,” he said.

Even if defendants get released early in the morning, that gives them little time to go home and then return. After a night in jail, many will want to sleep and shower. It can be tough to get back quickly if they don’t have cars or money to pay for a cab, according to Elizabeth Rossi, an attorney with Civil Rights Corps.

Meanwhile, because the judges aren’t yet comfortable with the new system, they’re more likely to release someone who is deemed to be low risk on a personal bond. That person can then access pretrial services. But that means the higher-risk people, who may face barriers to returning to court, are being booked into the jail. After 24 hours, if that person can’t afford bail, he’s released — but typically without any conditions or services like text message reminders that could help him come back.

“Any problems with nonappearance simply indicate that the county needs to figure out a better system for accurately informing people of their court dates, providing reminders of those court dates, and providing transportation or services to people who have trouble getting to court,” Rossi said. “The answer is not to lock up those people who can’t pay money bail until they plead guilty in order to get out.”

Wells declined to comment on the risk levels of people failing to appear. “That is something we’ll be looking at,” he said.

The data itself may also be misleading. In a letter to Harris County Attorney Vince Ryan reviewed by In Justice Today, Commissioner Rodney Ellis, who had received a copy of the report, raised questions about how failures to appear were being calculated. “While the data in this report is interesting, it lacks some key context that would be useful for interpretation,” including how bond failures were defined and reported, he wrote.

Wells acknowledged that a person who failed to show up for a single court hearing over one arrest would be counted as multiple failures to appear if he or she faced multiple charges — one count for each charge, if each was assessed with a bond, which is typical. “I don’t know how you would count that differently,” he said.

But that means the failure rate isn’t just counting individuals — instead, a small group could be driving up the numbers. “Just a small population of people are really making the percentage extremely high,” Bunin, the public defender, said. He noted one client was facing three charges for the same incident, and when he missed three court dates, that was counted as nine failures to appear. Yet it was just one person and one case.

And many of the people failing to come back to court are the public defenders’ homeless or severely mentally ill clients. “Those people cycle through our system constantly,” Bunin said. “I think if you took those people out of the mix, the number would drop down quite a bit.”

Some advocates see the county’s data, and the practices driving the numbers up, as a form of opposition to the court order reforming Harris County’s bail system. “The judges are doing this to make the failure rates high so when the case comes up they can say, ‘See, we tried and it didn’t work,’” Jenkins argued. “This is sabotage.”

The data also belies the positive side of the story: fewer people behind bars. “We shouldn’t lose sight of the fact that more than 6,000 people have gone home to their families and homes and communities as a result of this order,” Rossi said.