Bail Hearings: Where Prosecutors And Magistrates Ensure Defenseless People Stay In Jail

University of Houston law professor Sandra Thompson promises that bail hearings are not what you've seen on TV—especially in Harris County.

Here's what happens: You get arrested, spend the night in jail, and then, within 24 hours, you're sitting in a little room and speaking to a magistrate (no, not a black-robed judge), usually through a video monitor. You probably have no one representing you yet—although Harris County sends over a prosecutor. Even if you've never been charged with a violent crime and are only accused of a low-level misdemeanor, it likely won't matter to either the prosecutor or magistrate when your bail is set. Because in fact, to do so, the magistrate will almost always just look at a convenient chart—the bond schedule—that does not care if you are an otherwise good person, and rather only considers what crime you've been accused of committing. If you can't pay, then tough luck.

But now, Harris County criminal justice officials are considering a big change to that process: providing you a lawyer during that first hearing. That way, the defense will be able to present crucial information about you to the magistrate (such as why you are not a public safety threat, or that you only make $2,000 a month). Then, the lawyer can argue for either lowering your bail, securing a personal bond for you, or diverting you from jail entirely. And this matters not only because Harris County Jail is already overpopulated, and not only because taxpayers pick up the tab on housing inmates who may not need to be there—but also because sitting in jail, even for just for a couple of days, has been empirically proven to ruin people's lives, whether temporarily or permanently.

“The question of having counsel at the bail hearings, first appearance, is a really important one,” Thompson said. “We have this crazy un-American system where people appear before a [magistrate] and there's a prosecutor but no defense lawyer. It's not consistent with the adversarial process we think of when we think of a fair judicial hearing.

“But I think the bottom line is, change is hard.”

That's especially true here in Harris County, where the magic words “pilot program” seem to be the only way to convince officials it will all be okay—we just need to dip our toes in first.

Yet even though the Harris County Public Defenders Office has prepared a pilot program for this big idea, Harris County judges could not be sold—at least not all the way.

Last Thursday, officials unveiled several major changes to the criminal justice system as part of a proposal to the MacArthur Foundation, which will provide Harris County with funds to implement them should it accept the proposal. One of those big changes is providing public defenders at probable cause hearings—but only for mentally ill indigent defendants, so they can be diverted to treatment instead.

While that is certainly a step in the right direction, some who were involved with planning the MacArthur proposal are calling it a compromise.

For one, that critical reform was not added to the proposal until just four hours before the submission deadline Wednesday night, several sources confirmed to the Houston Press. Secondly, some attorneys on the proposal's planning committee thought all along that this reform would have applied to all people, not just the mentally ill. Texas Criminal Justice Coalition attorney Jay Jenkins was even asked to draft this portion of the proposal—only to find out in late December that they wouldn't be using it anymore. And Thompson, who served as an adviser to the committee, said she had discussed its inclusion with other members on a handful of occasions. 

“It's the critical factor,” Thompson said. “It's the most important consideration in determining if a person stays in jail pending their proceedings or not. When you look at a group of people with a lawyer and a group without, the one with a lawyer is two-and-a-half times more likely to be released on a personal bond or have their bond lowered. The difference is dramatic.”

But it's not required by law, said State District Judge Susan Brown, who, as a result, told us she does not consider bail hearings to be a "critical stage." In addition, Harris County misdemeanor court Judge Margaret Harris said that the reason that counsel-for-all did not make the final cut is because there are too many “due process issues” and questions of “legality” that need to be sorted out with the Harris County Attorney's Office. It's certainly true that questions remain about whether the lawyer who shows up at a probable cause hearing would follow a defendant all the way to trial, or who will employ them. But Bunin confirmed that his pilot program did include those implementation plans (he declined to elaborate), and in a letter obtained by the Press, County Attorney Vince Ryan voiced firm support for Bunin's broader representation-for-all plan, which didn't make it into the MacArthur proposal: “A pilot program will also enable Harris County to determine whether representation at this stage will result in more persons being released on bail, reduce jail population, and more importantly, lead to better outcomes for the accused,” he wrote.

Former judge Caprice Cosper, who heads the Harris County Criminal Justice Coordinating Council, said Ryan did not provide enough guidance.

But as long as the judges' concerns about how this will work are addressed, it appears they will finally hop on board ("If it's the right thing to do," Brown ultimately told us, "then it's gonna happen"). And if the prevailing attitude from local criminal justice officials during last Thursday's press conference is any indication, they plan to do a lot more than that.

At that press conference, criminal justice officials did something that you don't see happen often, whether on TV or in real life: They admitted the system, as it currently operates, is broken. They acknowledged that simply locking people up is not working, and that the changes they are about to make—many of them diversion and treatment opportunities for non-violent offenders—require “a culture change” from every body of law.

As for the judges, Brown explained that the reason so few defendants in Harris County are released on pretrial bonds (less than 6 percent of people in 2014) is because judges aren't comfortable with the current risk assessment tool (i.e., they can't be certain you'll show up for court if they let you go). So they're creating a new one. They are hiring more pretrial supervision officers so they can issue more pretrial bonds. They're going to rethink the bond schedule, too—because right now, magistrates are rarely straying from it because they do not have enough information about a defendant during that first hearing, Brown said.

Which seems to make perfect sense for why defense lawyers matter most in that stage. When asked whether providing counsel here would solve magistrates' lack-of-info problem, Brown said she did not want to speculate.

Harris County District Attorney Devon Anderson, however, took care of that.

“Let me say this about having a defender at probable cause court," she began. " I think it's a great idea—exactly what you're saying: somebody to advocate for a defendant to show a magistrate, 'This is why you can let this person out, and they're gonna be okay.' I think we need them for that reason, and I really think it provides a huge opportunity to expand diversion even more, where we can offer it right then in probable cause court because they would be represented by counsel. We're for it, and I have every hope we're going to get that up and running this year.”

While the supposed "culture change" may have an undetermined deadline, a committee currently studying how to best implement fair representation for all people at bail hearings may have to act much sooner. They're expected to have answers by March 1.
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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn