Will Lawmakers Reform the System That Keeps Poor, Legally Innocent People in Lockup?

When state lawmakers met to discuss jail policies this week, Sen. John Whitmire rattled off a list of names to show how even a short stint in lockup can lead to tragedy.

There was Sandra Bland, whose arrest and ultimate hanging death inside the Waller County jail this summer became a highly publicized part of the national debate on policing. Days after Bland's death, Hung Do was found hanging in his Houston Police Department jail cell, just 12 hours after his arrest on a drug possession charge. Then there was Jesse Jacobs, who was denied medication after he turned himself in to the Galveston County jail earlier this year to serve out the rest of his 30-day DWI sentence. (Jacobs's doctor says Xanax withdrawal triggered the seizures that killed him.) 

Tuesday's meeting of the Senate Criminal Justice Committee, which Whitmire chairs, was called to discuss jail reforms in light of the deaths of inmates like Bland, who told jailers she'd attempted suicide months before her arrest in Waller County, and Jacobs, whose doctor urged jail staff to give him his medicine. At the meeting, Whitmire argued that along with specific policy reforms, the criminal justice system in Texas needs “a change in culture” in order to fulfill one of its most basic responsibilities: “If you deny somebody their liberty, you have a responsibility to make them safe.” 

Much of Tuesday's hearing focused on how to screen for and treat mentally ill defendants who cycle through the jails. (With nearly a third of inmates on medication for some type of psychiatric condition, the Harris County jail has become the largest mental health provider in the state of Texas.) But to reduce pressure on overcrowded county jails, Whitmire says, officials have to fundamentally reconsider which defendants should be detained while their cases play out in court. 

When you're arrested, you get a court date and bond amount, which, if you can pay in cash, will keep you out on bail while your case plays out in court (if you make your court dates, the county will return the money, minus a small administrative fee). Those who can't fork over the whole bond amount in cash have to go through a bondsman, who will charge a non-refundable fee for his services (being poor actually costs more money in the long run). 

There's a third option for people who can't afford bond but don't present a flight risk, a tool Whitmire and others say Harris County judges hardly ever use: a personal recognizance bond. In most other major cities, judges hand out PR bonds to about a quarter of defendants. Researchers studying the issue say PR bonds are almost nonexistent in Harris County; in 2012, judges granted PR bonds in just 1 percent of felony cases and 7 percent of misdemeanor arrests.

Whitmire acknowledged that some fraction of pretrial inmates (about 70 percent of Harris County's 9,000 jail inmates haven't yet been convicted of a crime) need to be locked up for public safety reasons, such as those accused of heinous or violent crimes. Yet there's a whole other category of people at the low end of the charging spectrum — like low-level, nonviolent offenders — who sit in jail simply because they're poor, he says. 

At Tuesday's committee meeting, Whitmire saved some of his sharpest criticism for the industry that he says is at the heart of this flawed system: bail bondsmen.

“They think that if you leave somebody (in jail) long enough, somebody — a girlfriend or a grandma — is going to get a payday loan or a car title loan and bail them out,” Whitmire said. “And I just think that’s unconscionable when it doesn’t have a damn thing to do with the public safety factor.” 

Some say current bail bond practices have effectively created a two-tiered justice system that disproportionately hurts the poor (as comedian John Oliver recently put it, “Jail can do for your actual life what being in a marching band can do for your social life. Even if you're just in for a little while, it can destroy you.") In fact, researchers who have studied thousands of Harris County cases report that defendants locked up pretrial are less likely to get deferred adjudication or probation or to have their charges dismissed than their counterparts who can afford bail. It also appears that defendants stuck in lockup while their cases are pending face tougher penalties than those who get out of jail pretrial. 

“In Harris County this morning, we probably have 1,500 people being held for misdemeanors in the county jail because they can't afford a $10,000 bond, which is $1,000,” Whitmire said Tuesday. “It's just so frustrating for me to know that if they were in another jurisdiction, like Travis or Dallas or Bexar (counties), they would be able to go to work … That person would not lose his or her job and would be able to support their family.” 

Glenn Strickland, a longtime veteran of the local bail bond industry, insists criminal justice reformers like Whitmire have wrongly demonized bondsmen. Strickland represents the interests of the local industry as vice chair of the Harris County Bail Bond Board, which regulates and licenses local bondsmen.

It's not that poor people are held in jail simply because they're poor, Strickland says. Rather, it's that being that poor “raises a red flag.” As Strickland told the Press in an interview this week:
“If a person can't come up with that $500 or $1,000 or whatever it is by borrowing, then there is a real issue. If they can't get a good friend or family member to loan them that money and, more importantly, co-sign on the bond, then they're dealing with an individual that has in all probability burned everyone they've come in contact with. They're just those kinds of people.” 
Yet complaints filed with the county against bondsmen, which the Press obtained through a public records request, show it's often those friends or family members, not necessarily the defendants, who struggle to keep up with a frustrating and sometimes opaque bail bond system. 

One woman, who put up some property as collateral last year to bail her brother out of jail on a burglary charge, later contacted her brother's bondsman to see if the company could lower the biweekly payments because the family was struggling to pay. It appears the woman filed her complaint with the Harris County Sheriff's Office, which collects and investigates allegations against bond companies, after the bondsman threatened to forfeit her brother's bond. She questioned why her brother, who showed up in court and complied with every other condition of his release, would have to go back to jail simply because they didn't have enough money. 

“I know the money has to be paid, but I would like for them to work with us and not call constantly saying if you don't pay [amount redacted] they will take my properties,” she wrote.

Other families who filed complaints struggled for months to have collateral refunded after charges were dismissed or bond was raised to an amount they couldn't afford. One man complained that the company wouldn't give his mother, who tried to bail him out, a refund even though his charge was dismissed before bond was posted. 

"Collateral that was given has not been returned,” he wrote. “Have been threatened with being re-arrested for charge even though it has been dismissed; also been threatened with my parents house being taken; also being sued.” According to records, a deputy called the bondsman, who agreed to refund the money and the complaint was “resolved”; it's unclear if the deputy looked into who threatened the family because they asked for a refund.

It's also unclear how closely the local bail bond board even reviews such complaints. When the Press asked Strickland whether such allegations are taken into consideration when renewing a bondsman's license, he said, “As you well know, people can complain about anything.” Harris County Criminal Court Judge Don Smyth, who has chaired the bail bond board since January, said members mostly just ask whether bonding companies have enough collateral and have paid off any judgments. 

Among other consequences (like someone who loses a job or housing because he or she doesn't have the money to bail out), Whitmire told lawmakers on Tuesday that current bail practices can actually lead to wrongful convictions. “I witnessed it as a young lawyer in the holdover cells,” he said. “You can plead guilty and get out of jail today and go back to work, or reset your case for 30 days from now because you don't have the money to bond out yet.” 

Skeptical lawmakers like Republican Sen. Joan Huffman, a former state district court judge from Houston who sparred with Whitmire at Tuesday's committee hearing, don't even have to take Whitmire's word for it. 

Last year the Harris County District Attorney's Office had to inform hundreds of defendants who took plea deals on misdemeanor or felony drug cases that lab tests conducted months (or, in some cases, even years) after their convictions proved they didn't have drugs. The public defender's office, which represented dozens of defendants whose cases were ultimately overturned, told the Press that some of those people knew they were innocent but took a plea bargain and a drug conviction so they could get out of jail quickly, back to their jobs and families. 
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Michael Barajas
Contact: Michael Barajas