Part 3: The Harris County Model is not Working
I. Introduction
This is the third of a four part series focusing on whether your county should adopt the Harris County model to reform its criminal justice system. This article will address how the Harris County model is failing.
II. In Harris County, The Numbers of Pending Cases Are Increasing Dramatically
Harris County arrests approximately 50,000 misdemeanor defendants annually. This works out to approximately 1,000 people a week who are added to the criminal justice system to have their criminal cases adjudicated. Anything that slows down the system will prevent the court from resolving the number of cases needed to keep up with the flow of new cases and prevent a build up of an ever growing backlog of cases. If defendants miss court, their case is put on hold until they return. If more and more defendants fail to appear, the number of pending cases increase over time.
The District Attorneys’ office in Harris County is reporting that the number of pending cases that are awaiting resolution has increased by 100 percent over the last year. This means that on average each court has doubled the size of their dockets compared to the number of cases the same courts had just a short time ago. This information was obtained directly from the Harris County District Attorney's office.
This should not be a shock to anyone. When defendants are allowed to miss court without consequences, it is logical that the number of people who will actually miss court will increase. Each time a defendant misses court there is substantial damage done to the criminal justice system because the case must be delayed until the defendant returns to custody. At the same time, every week on average a thousand new cases are added for resolution.
At this rate, the courts will have three times the number of pending cases next year and four times the number of cases the following year etc. Such a system is not sustainable.
Over time, this type of system will increase the number of pending warrants for the Sheriff's office to serve. Just as the increase of the numbers of pending cases will negatively impact the courts, the ever increasing number of pending warrants also will negatively impact the Sheriff's office. This increases the risk of harm to the public and law enforcement. It also increases the costs to the taxpayers who are ultimately funding this new programs.
It would be reckless for any othe county in Texas to attempt to emulate these results..
III. It is the Increased Use of Dismissals and Deferred Adjudications That is Keeping the Harris County System from Total Breakdown
Some of Houston’s highest ranking police officials are criticizing the Harris County District Attorney’s Office and judges about violent criminals who are not held accountable. You can read the article by Joe Gimaldi who is the President of the Houston Police Officer's Association by CLICKING HERE .
One case cited in the article by Gimaldi involves Dahani Davis, who received a plea deal for deferred adjudication that kept him out of jail for violent robbery. Then in December 2019, he was shot by police after an alleged armed carjacking.
Houston police Chief Art Acevedo showed his anger in front of the local TV cameras. “It’s like Groundhog Day around here,” he said. “Because somehow in Harris County we have the judges and sometimes the prosecutors’ office thinking it’s OK to give deferred adjudication to armed robbers.”
IV. The Harris County Settlement Ties the Hands of Judges by Raising the Burden of Proof Higher Than Existing Law
Under Texas law bail is set at the discretion of the trial court. The trial court's discretion will not be reversed unless there is a clear abuse of discretion. If the defendant is charged with an offense where detention is allowed by the Texas Constitution, certain elements must be established by a preponderance of the evidence. Tex. Const. art. 1, sec. 11b, 11c. The Harris County settlement seeks to changes these rules and to further decrease the authority of the judges by limiting their discretion in setting bail. The Harris County settlement did this by changing the standard from abuse of discretion/preponderance of the evidence to a "clear and convincing evidence" standard to be applied to all situations. The effect of this change is to make it more difficult for judges to use any bail system other than PR bonds.
In the last legislative session, Senator Whitmire attempted to amend the Texas Constitution to change the standard of proof from preponderance of the evidence to the "clear and convincing" evidence standard. But the bill and resolution did not pass.
In the settlement, Harris County agreed to raise the standard higher than existing law and higher than the current constitutional requirements. The trial court held that while the court did not have the authority to grant such relief on a trial on the merits, the parties could agree to change the law through the settlement.
By changing the standard from abuse of discretion or even preponderance of the evidence, the settlement makes it more difficult for judges to exercise their discretion and to hold defendants accountable. Raising the standard of proof to "clear and convincing evidence" is intended to prevent judges from having any discretion on the issue of release except to use PR bonds.
In the area of setting bail, any changes should allow trial courts to fully use all of the tools available to them in their discretion to find whatever works to get the defendant to appear for court. Any proposed changes to the system should not limit this discretion.
V. Fixing the Harris County Model Will be Very Expensive
Your county may already have made a substantial investment in new procedures to ensure that it is in compliance with the federal rulings in this area of the law. To change course now would be to squander these substantial investments and start again.
Statements were made that the judges in our meeting that the County is not looking to make wholesale changes to the bail process. Instead, it was stated the county will continue to tweak the current process to ensure that the bail system is in line with statutory and judicial requirements. Currently, everyone is individually magistrated and are represented by counsel/public defender at the initial bond hearing before the magistrate court. It was stated that a future change would ensure that the bond hearing is recorded and the recording is maintained. This issue will be discussed in more detail in our 4th and final part of this series which will highlight what successful bail reform looks like.
Texas Counties should continue down the path of ensuring that they are in compliance with the federal appellate cases in this area of the law. This system should be strengthened by holding people accountable. If they are not successful on a PR bond or are charged with a new crime while on a PR bond, they should not be eligible for a new or additional PR bond.
VI. The Cook County Model is not Authorized in Texas
It has been mentioned that other counties should also consider as an alternative to the Harris County Model, the system of bail used in Cook County, Illinois.
Cook County and the state of Illinois does not allow the use of surety bail. Instead, Cook County sets the bail amount and the defendant is released by paying 10% of the face amount of the bond to the court. If they appear as required, a large part of the amount paid is returned but the court retains a portion as an administrative fee.
Texas does not authorize 10% bail. Therefore, the system of setting bail in Cook County is not available to be used in Texas.
VII. Conclusion
This is the third of a four part series which is intended to address whether your county should consider adopting the Harris County model as “bail reform.” This article has addressed that, without accountability, this model will substantially increase the number of pending cases and the number of warrants pending. Additionally, it has been demonstrated that the Cook County system is not available in Texas.
Related news:
Mayor De Blasio Admits that NYC Crime Jump Linked to Bail Reform
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