If you're accused of a crime in Harris County, within 24 hours, you'll reach a fork in the road: a bail hearing. There, a magistrate will usually set your bail based on whatever the bail schedule says. Either that or you pay bondsmen or stay in jail.
The latter is usually the only option for poor people (unless they are among the lucky 6 percent of people released on a personal bond), who can actually get poorer as they sit in jail, even if it's just for one or two days. They can lose their job, get behind on rent, lose their home, lose their scholarship if they happen to be a student. Roughly 70 percent of people in Harris County are pretrial detainees. Criminal justice officials have pledged to lower the Harris County Jail by 20 percent in the next several years by diverting more people charged with low-level crimes. But Harris County Chief Public Defender Alex Bunin has for months been pushing for another key reform that would ensure that more presumed-innocent, indigent people are not needlessly detained on the taxpayer dime.
If those people had lawyers to represent them during bail hearings, Bunin has proposed, then those lawyers could advocate for their release on a personal bond, try to lower the bail to something more affordable, or divert them from jail entirely. Bunin has managed over several months to convince criminal justice officials that this is crucial — but still, despite promises, officials haven't done much.
In January, Harris County District Attorney Devon Anderson, who strongly supports Bunin's plan to give poor people attorneys at their bail hearings, said that a committee tasked with implementing his proposals would have a report released on March 1. Harris County Commissioner El Franco Lee, who died earlier this year, is the one who set up that committee and set that deadline.
Bunin, who is also on the committee, said they are not much closer to releasing any official proposal.
Back in January, State District Judge Susan Brown and misdemeanor Judge Margaret Harris — the two judges on Commissioner Lee's committee — explained to the Houston Press that there were some unresolved “due process issues” stopping them from implementing Bunin's plan to give poor people attorneys at bail hearings. Before they could move forward, they said, those needed to be ironed out. (Harris couldn't be reached for comment this time, and Brown declined.)
For example, should the attorney assigned at bail hearings continue with the defendant all the way through the criminal case? Will having to assign someone counsel interfere with the magistrate's 24-hour deadline to find probable cause or else release the person on a personal bond?
Bunin says he has answered these questions, but for some reason that still hasn't satisfied judges' concerns. Bexar County, which already provides defendants counsel at bail hearings, appears to have already solved the first concern: There, all the judges signed an order in which they agreed that the bail-hearing attorney would be temporary — that way, they wouldn't have to consistently grant motions to appoint new counsel. Harris County Attorney Vince Ryan, in a long memo supporting Bunin's plans, said that this would work perfectly well here. As for the second concern, Bunin said that the lawyers could be readily available at probable cause court at all hours — just as prosecutors are for the state.
Now, though, judges are concerned that it may not be the magistrates' role to find someone is indigent — that's usually the judges' job, and each judge has his or her own specific plan for how to do it. That new concern has Bunin scratching his head a bit: The Texas Fair Defense Act, which requires that every criminal court have a procedure for appointing poor people an attorney, clearly says that a magistrate can do this, and in fact in Bexar County, it's the pretrial services workers who do it.
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“I get to these meetings, and they have new issues, and I keep having to go back and do a much more detailed explanation to answer them,” he said. “I don't think they're saying no. I think they just don't have a really good sense of the answers to all of these questions. There's been such a time lag now that they don't even really remember what we said at the last meeting.”
To Jay Jenkins, a project attorney with the Texas Criminal Justice Coalition who has closely followed these plans, that lack of urgency is doing nothing to bolster officials' promises to reduce the jail population — especially among minorities. "We're asking taxpayers to foot the bill for a criminal justice system where [more than 70 percent] of the thousands of inmates who have not been found guilty of a crime are there because they can't make bail," he said. "And so failure to meet this March 1 deadline is just more indicative of how disconnected county officials and judges are from average Houstonians in low-income, black and brown communities."
Ryan even warned of potential lawsuits should county officials continue to drag their feet. He opened with a recent U.S. Supreme Court lawsuit, filed by a Texas man charged with being in possession of a firearm as a felon, who was unable to afford bail. He demanded an attorney while in jail, and once he finally got one, the attorney uncovered that the man was not even a felon — something that could have been handled the first time the man appeared before a magistrate.
The longer Harris County waits to offer poor people counsel at that initial hearing, Ryan said, "it is only a matter of time" before a suit like that one happens here.