Part 1: Your County Should Not Adopt the Harris County Model for Bail Reform
I. Introduction
This is the first in a four part series to address whether any county in Texas should implement a Harris County type model calling it bail reform. This article will highlight the various issues that should be considered in making this decision. The Dallas Morning News recently included an editorial that addressed bail reform. It stated, “it now appears that there is another type of bail ‘reform’ that is growing into a national movement championed by some district attorneys. This type of bail reform drives toward the uncritical release, on outrageously low bonds, of people accused of violent crimes who have a history of violent behavior.” The Harris County model falls into this category and should be rejected.
II. What is the Goal of Bail?
Bail was created to allow someone to be freed from jail while their criminal case is prosecuted. The person’s release is in exchange for their agreement to appear in court any time required by the trial court. If they do not appear for court, the case cannot move forward. Many say that bondsmen do a single job and that is get people to court. This is a job that they have been doing and doing well for over 200 years.
There are many social ills in society today. Bail was not intended to address social ills such as increased drug use, mental illness, inner city crime, failing families, failing schools and high drop-out rates or lost economic opportunity. Any jurisdiction attempting to address these issues through bail reform has a distorted and unrealistic idea of the actual purpose of our bail system. Additionally, in many situations a criminal case is the last opportunity to get an accused back on track to be a productive citizen.
In our biggest counties, law enforcement arrests large numbers of people annually, meaning there is a constant and heavy flow of individuals being processed through our county jails. Because of the sheer volume involved, courts have been pressed to establish systems that processes them effectively. The Harris County model and the New York model which has been on the news lately are based upon the same premise that everyone should just be “released.” In New York certain crimes have to be released with no bond. In Harris County certain crimes are released with a PR bond with an arbitrary amount without seeing a magistrate which does not comply with article 17.15 of the Texas Code of Criminal Procedure. In New York the conclusion has been swift that this type of release is not working. Instead, it is jeopardizing public safety and increasing crime. In Harris County, law enforcement officials have come to the same conclusion.
The reforms attempted so far have made the system worse and in some cases have caused chaos.
III. The Harris County Federal Court Case: Myth vs. Fact
Harris County was on track to win the federal court litigation. The 5th Circuit Court of Appeals had reversed the trial court in one appeal and issued a stay in a subsequent appeal stating that the former judges had a substantial likelihood of success on the merits. Then there was an election and these judges were defeated and replaced.
A lawyer for the plaintiffs recently made a public admission that they knew they could not win the case on the strength of their legal arguments. Instead, they took a different strategy, looking to achieve victory through the only means possible: through the ballot box, by replacing the judges in Harris County with those who would provide the plaintiffs what they wanted in settlement since they could not get it through the legal process.
During the 2018 election campaign, proponents insisted that a settlement was necessary because of Harris County's expenditure of more than $8 million in legal fees. Their tactics worked and a new slate of judges, who promised sweeping changes, was voted onto the bench.
The aftermath of the election revealed that the same advocates who criticized spending $8 million in legal fees were now calling for a down payment of more than $95 million to carry out the measures set forth in the proposed settlement agreement.
IV. The Texas Office of Court Administration Has Stated that It Opposes Any other County Adopting the Harris County Model
The Texas Office of Court Administration has determined that it is opposed to any other county in the State of Texas adopting the Harris County model. OCA has stated that the basis for this determination is because the vast number of individuals never see a magistrate. Therefore, if your county is seeking to adopt a similar model, it should seek direction from the Office of Court Administration to determine why the office over the courts in Texas oppose its use in any other county in Texas.
V. The Vera Institute has Conceded these Models Will Increase Failures to Appear
The Vera Institute championed many of the changes in the bail reform movement in New York. The Vera Institute recently conceded that the changes they proposed would result in a 40% increase in failures to appear, but argues that should be acceptable. This statement recognizes that the Vera Institute does not realize the great damage done to the disruption of the criminal justice system anytime there is a failure to appear. When this happens the case has to be put on hold until the defendant returns whether it is a few hours, a few days, months, years or in some rare situations never. Anything that slows the process down will contribute toward a backlog of cases in our larger counties.
VI. The Harris County Model Destroys Accountability
A prime example of how the changes is Harris County are destroying accountability is the case of Alex Guajardo. This past May 6, Guajardo, a resident of Pasadena, was arrested for a DWI-2nd and was granted a PR bond. On July 31, he was arrested again, this time for assault-family member. On August 1, the trial court entered a protective order for the family member and released Guajardo on a PR bond. On August 4, Guajardo was arrested once again, only this time it was on charges of capital murder. His pregnant wife, Caitlynne, who had been the family member subject to the protective order, was the victim of Guajardo’s vicious attack in which she was stabbed 20 times, killing her and her unborn child.
Guajardo reported to investigators that he intentionally stabbed his wife’s belly to ensure that if she lived no one else could raise his child. He was denied bond for the charge of capital murder. But amazingly, on August 11, a General Order PR bond was entered in the assault-family member case and on August 12, a General Order PR bond was entered in his DWI-2nd case. Guajardo would have been released yet again except for the no-bond on his capital murder charge.
This mind-boggling scenario raises serious questions about our criminal justice system and the agenda of public officials we entrust to look after the victims of crime and protect the public safety of our residents.
This is just one of untold examples where defendants are being released, they miss court and they are released again and again and again without any accountability even when the accused commits further crimes.
In New York which recently attempted similar reforms as Harris County, it has been noted that public safety has been put further at risk with significant increases in all crimes across the spectrum. Robberies are up 32%. Grand Larceny regarding autos are up over 60%. Burglaries are up 17%. Shooting incidents are up 40% and overall incidents of crime are up 13.6%. Now both democrat and republican politicians are calling for changes in the New York system.
The "new" system in Harris County authorizes a defendant to miss court at least two times without penalty. This means that the defendant can ignore an order to appear without penalty no matter how long they are gone and they must be released again when they return. Further, the settlement raises the burden of proof higher than set forth in both state statutes and the Texas Constitution, making it even more difficult to detain anyone without bail. It is illogical that a county would give itself less discretion regarding the setting of bail. If the criticism of the old Harris County system was that the judges failed to exercise their discretion enough, it would seem equally improper to reform the bail system by removing a judge's discretion entirely.
These provisions do not make the criminal justice system better. These provisions are making the system worse as cases get slowed down as they go through the process.
VII. The Harris County Model is Very Expensive
As pointed out above, the Harris County system is expensive. Harris County approved a down payment toward implementing the system with $95 million taxpayer dollars. These funds were not for programs mandated by the United States Constitution.
VIII. Conclusion
This is the first in a four part series which will address whether any county in Texas should adopt a system similar to the Harris County model for its criminal justice system. The Professional Bondsmen of Texas and your local bondsmen stand ready to work with you to make improvements to the bail system. We should always be looking for ways to improve the criminal justice system. But the Harris County model will not make the system better. It will make it worse. It should not be adopted.
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