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

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.

Baltimore’s Latest Plan To Clamp Down On Crime: Tricking And Trapping Youth

Once again, police are vilifying kids.

Children from the Pleasant Hope Baptist Church attend a rally and news conference held by the Campaign for Justice, Safety and Jobs in Baltimore, Maryland. During the rally, the advocacy group called for a ‘six-point plan for police reform in Baltimore.’
Win McNamee/Getty Images

Baltimore’s Latest Plan To Clamp Down On Crime: Tricking And Trapping Youth

Once again, police are vilifying kids.

With the number of lethal and nonlethal shootings, robberies, and assaults on the rise in Baltimore, police and government officials are clamoring for ways to make sense of what is happening and stem the violence. There’s been public finger pointing and posturing, but there isn’t a consensus about who among them should be blamed for the current dilemma. Some say the responsibility falls on judgesSome say it is the fault of State’s Attorney Marilyn MosbyOthers say Mayor Catherine Pugh is the problem. But there is at least one narrative that the Baltimore Police Department, city leaders, and some community members seem to agree on: that crime isn’t just an adult problem but a juvenile one as well.

To hear them tell it, youth in Baltimore have gone stark raving mad — robbing, assaulting, breaking property, and swearing in front of children. They are miscreants who are “out of control” and committing a “rash of violent juvenile attacks” and “wreaking havoc.” They are kids who must be stopped. But a new approach to tackling these so-called violent culprits points to a much more unnerving problem: that Baltimore is reviving disastrous narratives about kids that prevailed during the 1990s.

During a public safety event early this month, Baltimore Police Commissioner Kevin Davis announced a new decoy unit of undercover, “young-looking officers” that will patrol the streets for misbehaving youth. “I’m convinced that these juvenile offenders travel in packs. I’m convinced that they look for people who appear vulnerable to them,” he said.

At a press conference days later, Davis noted that many violent crimes are committed by repeat offenders who have been arrested and released. “They either need to be interrupted with a jail cell or some other type of intervention. But the way we’re doing it now is not working,” he said. The commissioner has also decried the number of kids transferred from adult court to juvenile court. In addition to the new decoy unit, more officers will be stationed in South Baltimore and the Inner Harbortwo of five neighborhoods with the most white residents.

“For the rest of the year, you will see an enhanced police presence, and that is not going to go away,” Davis reportedly told an applauding crowd.

Not everyone is clapping, though.

“It, for me, sounds like a return of the myth of the superpredator,” juvenile public defender Jennifer Egan told In Justice Today. “Baltimore police, media, and public officials have started using the same fear-mongering terms — roving gangs, violent youth, brazen attacks — the exact same language that [John] Dilulio, criminologists, and police used in the 1990s to vilify black youth in urban centers.”

While this year has seen an uptick in juvenile arrests for assault, carjacking, and robbery, BPD hasn’t said definitively that more crime is actually happening. What is clear, though, is that juvenile crime has been trending downward for years. Between 2014 and 2016, juvenile complaints fell 38 percent. Juvenile homicide rates have also plummeted for decades. Despite a recent spike in murders and shootings in Baltimore, kids haven’t been committing them, Egan says. Yet the rhetoric surrounding the new police unit and recent assaults does not reflect this reality, according to the public defender. Instead, it is re-upping racialized narratives that previously painted kids as monsters and led to their mass incarceration.

“Kids are not mini adults,” Egan said. “All kids are kids. Another way to describe ‘brazen daylight attacks’ is ‘immature, impulsive, and unsophisticated.’” And the Supreme Court agrees with her. More than once, it has ruled that kids are reckless, irrational, susceptible to peer pressure, and impulsive — precisely because their brains aren’t fully developed. As such, they cannot be treated like adults.

The latest narratives also ignore the fact that youth are underfunded, under-resourced, and heavily policed already, says 16-year-old activist Chelsea Gilmer of the Baltimore Algebra Project, an organization that fights for education and human rights of local youth. For instance, bus stops have turned into their own “gated communities” due to barricades set up by militarized police officers, according to both Gilmer and Egan. Gilmer says patrol officers park their cars near the bus stops and brandish pepper spray and guns as a form of intimidation. “It’s really crazy to me that there’s systems put in place to target us and put us in institutions to keep us from society. But there’s not a lot of systems put in place to help us,” she said.

Egan and criminal defense lawyer Jason Downs agree that any violence committed by young people in Baltimore is not a symptom of depraved, monstrous youth but a result of systemic neglect. Downs points to the new $35 million juvenile detention facility that received three times more funding than a local job program for the city’s youth. “The idea of targeting youthful offenders by creating a unit full of ‘young looking officers’ is, at best, the equivalent of putting a Band-Aid on gunshot wound to stop the bleeding,” he said. “Until we seriously invest in deterring children from the criminal justice system, our City will not be truly safe.”

Reviving the superpredator myth while ignoring educational neglect, unsafe housing, lead paint, and other forms of societal abuse, does the exact opposite, says Egan. “Right now I’m very worried that people are trying to score political points on the backs of children who they have personally failed.”

This article was published in partnership with The Root.

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America Had Fewer Executions In 2017 Than In 23 Of The Last 25 Years

Why Execution Numbers Continue To Fall Off A Cliff

David McNew / Getty Images

America Had Fewer Executions In 2017 Than In 23 Of The Last 25 Years

Why Execution Numbers Continue To Fall Off A Cliff

Midday on Tuesday, November 28, the Texas Court of Criminal appeals stayedthe execution of Juan Castillo, who was convicted and sentenced to death as the trigger-man in a 2003 robbery-murder on a San Antonio lovers’ lane. At Castillo’s trial, another inmate testified that Castillo had confessed his role in the crime. That wasn’t true; in what has become a familiar scenario, the inmate recently signed an affidavit declaring that that he made the confession up to curry favor with the State in his own case. The stay was significant for another reason: Castillo was the last American inmate scheduled for a 2017 execution. Every execution concludes a distinct story worth telling, but the end-of-year statistics generate a blaring headline: execution activity continues to fall off a cliff, and is concentrating in a small cohort of capitally-active jurisdictions.

America’s execution activity is dwindling. There were twenty-three executions in 2017. To put that in perspective, there were ninety-eight executions in 1999. Those numbers are not outliers; they are representative of the execution activity during each of the two eras. Execution activity between 1999 and 2001 was well over triple what it was between 2015 and 2017 (eighty-three to twenty-four). Execution activity bottomed out in 2016, when American jurisdictions only executed twenty people. Texas, the most active death penalty jurisdiction in the country, executed thirty-five people in 1999. In 2017, it executed seven, the lowest number since 1996. One might be inclined towards an obvious explanation — American jurisdictions are sentencing fewer people to death, so they are executing fewer of them. That theory, however, fails to account for the fact that death rows are crowded enough to keep the execution chambers quite busy without a new supply of death-sentenced inmates, even in jurisdictions experiencing a slowdown.

That slowdown has to do with a few other things. First, there’s growing judicial acceptance of science about wrongful convictions. Whereas previous generations of judges were conditioned to think of lengthy post-conviction litigation almost exclusively as a means of stalling, there is growing awareness that — particularly in death cases — there may be serious innocence-related errors capable of being corrected. “Death qualified” juries pruned of community members having philosophical objections to executions tended over-credit eyewitness testimony, shoddy forensic evidence, and incentivized-witness accounts. That change in judicial attitudes corresponds with what seems to be a change in the practices of State’s Attorneys, who are relatively more willing to accede to proceedings involving new evidence.

Second, even when capital sentences are lawful, problems with execution method seem to be throttling the execution rate. California has America’s largest death row but hasn’t executed anyone since 2006 because it lacks a lawful lethal injection protocol. As drug manufacturers have moved to prevent their products from being used in executions, a number of American jurisdictions have struggled to obtain an alternative supply. As a result, states seeking to execute inmates are being forced to litigate things like the acceptability of different lethal injection sequences, the use of lethal injection drugs from questionable foreign sources or compounding pharmacies, the use of lethal injection drugs nearing or past an expiration date, the availability of specialists necessary to deliver the drugs without causing excessive pain and suffering, the acceptability of abrupt changes in execution protocol, and the secrecy sometimes used to conceal attributes of the process. One need look no further than Arkansas to see just how spooked states are about lethal injection litigation — it tried to execute eight people in eight days because its batch of midazolam was about to expire.

Third, there’s lots of discussion about how expensive securing a death verdict is, and that’s true. The less-discussed truth is that executing the condemned also costs a small fortune. The number of constitutional challenges available to death row inmates is greater than what is available to those convicted of noncapital crimes, and they usually get superior post-conviction representation. Every state except for Alabama requires the appointment of post-conviction counsel in capital cases, and 18 U.S.C. § 3599 guarantees legal representation, including two lawyers, to capital inmates in federal proceedings. The State can no longer assume its ability to steamroll an in-over-his-head insurance lawyer working his first capital case. If it wants to execute someone, then it’s going to have to pay to do it. And if the entity that decides whether to move forward with executions is closely affiliated with the entity that bears the cost of the litigation, rising costs should reduce execution activity.

The data discloses a national decline in execution activity, but it also shows substantial geographic concentration. This year, there were eight states that had executions. A little over thirty percent of those executions were in Texas, actually down somewhat from the historical average of thirty-seven percent. (The Texas number partially reflects the fact that Harris County, America’s execution juggernaut, elected a new District Attorney that expressly campaigned on restrained use of the death penalty.) Between 1996 and 2000, American executions occurred in twenty-eight states and represented death sentences from 200 counties. Between 2011 and 2015, the figures dropped to fourteen states and 104 counties. In short, the geographic footprint of American execution activity is half of what it was just twenty years ago.

One might look at the shrinking execution footprint and just conclude that the shrinkage is entirely attributable to states that stop executing people. Nope. Even within tried-and-true retentionist jurisdictions, fewer and fewer counties are responsible for executions. Take the five jurisdictions that have imposed the most death sentences in the last twenty years. Fifty-seven Texas counties sentenced inmates executed between 1996 and 2000; that figure fell to twenty-seven in the period between 2011 and 2015. The story is the same in Oklahoma (fourteen to nine), Virginia (twenty-seven to three), and Missouri (fourteen to ten). Only Florida bucks the trend (ten to fourteen).

Others, including Justice BreyerRobert J. Smith, and Brandon L. Garrett, have documented, explained, and evaluated the concentration of death sentences. The causes of concentrating sentencing and execution activity, however, are distinct. I’ve devoted considerable energy to teasing out the differences. Certain localities produce disproportionate execution activity because the practice resides in what I call their “local muscle memory.” Speaking quite generally, a jurisdiction’s muscle memory is the correlated exercise of discretion by multiple local stakeholders, which is heavily influenced by the locality’s history of capital punishment practice. In other words, inertia matters — but more on that in a moment.

There is another, even more basic driver of concentration: money. The counties largely responsible for the executions in concentrating states are large and urban — i.e., they have big budgets. As the per-inmate cost of execution increases, so does the budgetary hit. Rural counties that would have to pay for the litigation necessary to execute an inmate are simply getting priced out of the execution market. The geographic distribution of Florida executions would seem superficially inconsistent with that hypothesis, but there is a wrinkle. In Florida, the county has no role in deciding whether to go ahead with the execution of a death-sentenced inmate. Unlike in Texas — where the District Attorney in the sentencing county must move for an execution date — in Florida, the Governor decides.

Moreover, it is precisely these large jurisdictions that are already the most proficient at the death penalty; they are the ones with the superior institutional muscle memory. The State’s Attorneys in these counties reside near the top of a steep learning curve that requires them, among other things, to secure execution dates, to defend against eleventh-hour collateral litigation in state and federal court, and to support the state attorney general and prison warden. The State’s Attorney offices in these counties are also the offices most capable of transmitting institutional knowledge from one generation of prosecutors to the next. What Professor David Dow said of Texas is equally true of virtually any capitally active county: “[It] executes so many people because it executes so many people. . . . [K]illing people is like most anything else; the more you do it, the better you get. If killing people were like playing the violin, [it] would have been selling out Carnegie Hall years ago.”

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