County officials have known for some time that the Harris County jail is overcrowded with inmates who haven't yet been convicted of a crime, who are there in many instances just because they can't afford to pay bail before trial.
But here's how bad that overcrowding situation became over the summer: According to spokesmen from the Harris County Sheriff's Office and the Houston Police Department, the county jail was so full and the booking process so delayed that the sheriff actually had to tell HPD to stop sending him more inmates, because the jail had more inmates than it could handle.
"We couldn't keep up with the rate of people we had coming here," said Harris County Sheriff's Office spokesman Ryan Sullivan. "No room at the inn — that's literally the phrase that we use. We are limited to a certain number of people, and that's that."
While generally inmate transfers from the HPD jail to the Harris County Jail are only supposed to take around 24 hours, at one point the average time increased to 36 to 72 hours because of the delays, Sullivan said. He added that the increase was due to a combination of overcrowding and a booking delay caused by a new mental health screening form that led Sheriff Ron Hickman to put holds on accepting more busloads of inmates from HPD. Sullivan said the new mental health screening form — implemented at all Texas jails to better identify suicidal inmates following Sandra Bland's death — was redundant, because the Harris County jail already has licensed mental health doctors screening every inmate who comes through the door, and therefore caused lags.
What is most concerning to attorneys the Houston Press spoke with, however, is that those delays in the booking process may have led to violations of suspects' constitutional rights.
According to a review of jail booking records from July through August, more than 1,000 inmates waited at the city jail for three or more days before they were transferred to the Harris County jail. The problem with that, attorneys say, is that the Constitution requires all inmates be read their rights in front of a magistrate within 48 hours of being arrested. There's a little room inmates can go to from the county jail where they visit with the magistrate via video — but that can't happen if they're stuck waiting at the HPD jail. That means some inmates may have waited nearly ten days, in some cases, before even being told:
Here's what you're charged with, you have a right to an attorney, the right to remain silent, can you afford an attorney, can you afford this bail? As well as other crucial questions.
"The fact that these folks are being held after more than 48 hours to compensate for a delay on the sheriff's behalf means these people are being unlawfully held," said Texas Criminal Justice Coalition attorney Jay Jenkins. "A delay in intake is no excuse for the sheriff's department to not follow the law."
Harris County District Court Administrator Clay Bowman, who spoke while accompanied by an attorney, has assured the Press that there are other ways to make sure people are read their rights and given an affordable bail if they aren't able to attend their own probable cause hearing because of booking delays. He says firstly that inmates aren't even required to be at that hearing anyway and a judge can find probable cause with or without a defendant present. Bail can also be set with or without that hearing, and Bowman says Harris County Pretrial Services can interview people and conduct risk assessments at the city jail to help the magistrate assess whether someone qualifies for a personal bond, again whether or not they are present.
Last, Bowman says that it's possible for the city's justices of the peace to read people their rights while they are in HPD custody so that there are no constitutional violations.
From the records the Houston Press has reviewed, it is impossible to say with certainty whether all of the above happened or did not happen in those hundreds of cases. Harris County Chief Public Defender Alex Bunin, for one, is not convinced any of it did.
Bunin says that the idea repeated to the Press by multiple county officials that defendants “aren't required” to be at their own probable cause hearings is true only in specific cases. Reasonable exceptions may include that the defendant is at the hospital and can't attend the probable cause hearing, for example. But bureaucratic delays in the jail booking process affecting hundreds of inmates is not one of those reasonable exceptions under the law, Bunin said. As for the claim that other justices of the peace are reading inmates their rights while in HPD custody: “I have no reason to believe they're doing that," Bunin said.
Sullivan said the jail was aware of the delays and was working on a solution to the booking backup that the sheriff's office implemented last month. Now that new mental health screening form has gone electronic, streamlining communication between jail medical staff and booking personnel and easing the delays, Sullivan said. From the looks of it, the solution appears to be working this month, with just a few stragglers here and there still caught up in the process.
Jail overcrowding, however, is still a problem.
Sheriff Ron Hickman has repeatedly voiced support for comprehensive bail reform and jail diversion programs that would ease the pressure on his packed jail by keeping more pretrial detainees out of the jail beds. Bail reform appears to be on the horizon given that Harris County has been sued over its bail schedule by a group called Equal Justice Under Law, which argues that Harris County routinely incarcerates poor people just because they can't afford to pay the bail amount listed on the county bail schedule.
The county has often bragged that its bail process is speedier than those of other counties, which makes it more effective: immediately assigning defendants a bail amount after they are booked into jail and getting them before a magistrate often within 24 hours. But Jenkins said that these delays prove otherwise.
“It's the one thing the county has held onto throughout all of this bail reform discussion — that their system is unique because they're processing people faster," Jenkins said. "Now we know that even that part of it is not true."