Attorney at Law - How Do We End The Daily 'Purge' In Harris County?

 

by Ken W. Good
Published October 19, 2022
Attorney at Law Magazine

Crime is bad in Harris County, Texas. I mean, really bad. So bad, in fact, that even neighboring counties recognize it. On the highway between Harris County and neighboring Montgomery County there is a billboard that proclaims, “Criminals: This is Montgomery County. We Fund Law Enforcement. We Prosecute.” They mean it, too.

This month in Montgomery County, two individuals were observed stealing catalytic converters from a vehicle. The suspects fled the scene and were pursued by police officers after they were confronted. Following their apprehension, it was learned that both had extensive criminal histories in the Harris County area and were driving a stolen vehicle. Upon their arrest, both suspects asked the officers if they were in Harris County, where prosecutions almost never happen. They were told, “Not today.” The two thieves’ luck had run out because they had crossed over into law-and-order Montgomery County. The suspects began asking how they would get released and were told that with their criminal histories, being set free was not likely.

Harris County seems to be living in a movie, one in which every day is repeated over and over. Only the movie isn’t the 90s romantic comedy Groundhog Day, it’s more like The Purge, a dystopian thriller centered on a city ravaged by crime. In real-life Harris County, criminals are behaving like they can do anything they want and not be held to account. Policies that were established with good intent have been exploited by the worst parts of our communities — gangs, organized crime and career criminals. They are very aware of the practices of the county, as well as any limits that have been set. As result, they are cashing in on these lax policies. They are also cognizant that the current rules in place have tied the hands of officials.

Because the issue has become highly, but unnecessarily, politicized, criminals are enjoying free reign, knowing  their actions can continue virtually unabated under the current crop of elected officials who have shirked their duties to uphold public safety. Criminals now need only fear meandering into neighboring counties.

So how did we get here? The Harris County criminal justice system lost its way when the county entered into a settlement in the case of ODonnell v. Harris County in 2019. The class action case concerned three individuals who were arrested and their contention that they were unlawfully denied the right to bail because of their inability to pay the amount indicated by Harris County’s set bond schedule. The settlement fundamentally and needlessly changed misdemeanor bail in Harris County and the ripple effects have grown to encompass felonies as well. The assumption was that these individuals would appear for court without a bondsman. The grim evidence demonstrates that they will not.

Three years later, it is clear that the rights of the defendant have overtaken the rights of the victims of crimes. The county DA filed a report last year stating that recidivism and failures to appear (FTAs)  for misdemeanor cases were higher than being reported by the monitor hired to defend the settlement.

This past April, the Houston Police Officers’ Union issued its own report after reviewing a random week’s worth of dockets for all 16 misdemeanor courts in which more than 9,000 cases had been set. It revealed bombshell numbers. First, it determined that greater than 75% of defendants who were required to appear for court failed to do so. This meant their cases were forced to be placed on hold until the defendants eventually showed up.

The police union report also revealed for the first time that 72% of all disposed misdemeanor cases the past two years were dismissed. Imagine the impact this has on victims of domestic violence, who have already endured so much. Just as they summon the courage to ask for help, their abusers are immediately released. Not only are these individuals free to continue tormenting their victims, there is a 72% chance their cases will be simply dropped.

A website called Harris County Court Watch was launched in September, using publicly available data from the Harris County district clerk. It allows visitors to select any court or date for the last two years to determine the failure to appear rate for that particular court. Simple to use and remarkably transparent, the website shows that the year-to-date failure to appear rate in Harris County’s misdemeanor courts is over 80%. This means that out of every 100 people who are set for a court hearing, an average of 80 do not show up — and no one is doing anything about it.

The impact of these soft-on-crime policies is essentially a decriminalization of misdemeanor crime. A defendant is arrested and never sees a judge — contrary to current law — and is released on a $100 personal bond, which is free. Then this individual never comes to court, is not held accountable if he fails to appear and there is a nearly a 75% chance the case will be dismissed.

These same overly-lenient policies are also impacting felony cases. An article last month in the Houston Daily detailed the increase of such crimes since reformers took control of the Harris County Commissioner’s Court and began supporting defendant-friendly policies. It noted that the bottom line since 2018 has been “sharp increases in murders and assaults.” It also reported that the Houston Police Department’s year-to-date statistics show a dramatic increase this year in property crimes, including motor vehicle and vehicle parts, with nearly 100 vehicles burglarized per day.

The story also said that county judge Lina Hidalgo claimed that violent crime declined slightly in 2022. However, records from the Harris County medical examiner showed no decrease in the number of homicides investigated to date. The piece concluded that there is no evidence that the crime problem in the county has been solved or that any significant progress has been made to get it under control.

The criminal justice system operates differently from most other areas of society. If a student does not turn in their homework, they can get a zero. If one does not attend class, they will likely fail. If an individual does not show up for work, they may be fired. But in the criminal justice system, if a defendant fails to appear, their criminal case must be put on hold, except in a few limited situations. The delay may be hours, a single day, or it could be days, weeks, months, years … or the defendant may never come back. This is one of the reasons why delay is the enemy of a criminal case.

The type of release mechanism used by a court will have a dramatic impact on its backlog because of the different failure to appear rates of each. At less than 10%, the private industry — commercial bail — has by far the lowest FTA rate of all the options currently in use. On the other hand, according to Harris County Court Watch, the simple release mechanism being used in the Harris County misdemeanor courts is averaging an FTA rate of over 80% this year.

All other release mechanisms currently in use have a combined FTA rate 200 times worse than the system in place before the reforms. Practically speaking, this means substantially more defendants are failing to appear for court. There is little agreement on the actual statistics, but the general numbers are abysmal. The Harris County district attorney’s report states that the failure to appear rate is greater than 50%, while the Houston Police Officers’ Union says it is over 75%. Harris County Court Watch shows an FTA rate of more than 80% for 2022. Each report may offer different details, but the theme is the same — misdemeanor reform has failed.

The settlement that Harris County agreed upon in the ODonnell case is clearly a disaster. Defendants are simply not showing up to court. Even if we go by the most conservative failure to appear rate of 50%, statistics demonstrate that the county will not be able to resolve the same number of cases with the same number of courts as under the old system.

To illustrate, a judge in Smith County, Texas conducted an informal study for a time and found that for every eight weeks of using only personal bonds, she had created an entire week’s worth of new work for her court. This is clearly unsustainable. So how is Harris County delaying the collapse of its system? It has done so by dismissing 72% of all cases disposed in 2020 and 2021.

There has been some discussion that Harris County needs additional courts. It should be noted, however, that an FTA rate of over 80% indicates that even if the county doubled the number of misdemeanor courts from 16 to 32, it would still not be able to resolve the same number of cases as under the old system. The huge difference in failure to appear rates would still overwhelm the courts. Additionally, even at 32 courts, there would continue to be pressure to dismiss cases to prevent further backlogs from being created.

It would seem that the proponents for change either do not realize the importance of failure to appear rates or they just do not care. The Houston Chronicle alludes to supporting decriminalization in their editorials, but will not declare their position. Advocacy groups like Arnold Ventures and the Vera Institute have publicly admitted that any change will result in a 40% FTA rate and proclaimed they consider this to be acceptable. These statements demonstrate their shocking lack of understanding of the current state of affairs. Anyone knowledgeable about how the criminal justice system works understands that a 40% FTA rate would cause it to collapse.

The current situation in Harris County is critical. Failures to appear will continue to overwhelm the courts forcing the dismissal of large numbers of criminal cases to prevent a complete breakdown of the system.

Time is running out to stop this purge of lawlessness. The first thing that must happen is that Harris County’s misdemeanor courts must comply with the terms of Senate Bill 6, which was passed last year. So far, they have ignored the mandate which says the county cannot release anyone without being magistrated after reviewing a defendant’s criminal history.

Next, if we determine that magistrate judges are part of the problem, then the Texas legislature should consider repealing the statute authorizing them in Harris County. Harris County would not be the first county to lose the use of magistrate judges for a time. The county can use visiting judges until officials decide to follow state law.

In addition, if the county is unwilling to fund the cost to individually magistrate everyone arrested, then it can follow the alternative set out in Senate Bill 6. Despite misguided beliefs to the contrary from newspaper editorial boards or think tanks, this is the only option available.

Equally important, Harris County should reverse Local Rule 9.1, which releases nearly all defendants arrested for misdemeanor charges on a free personal bond and seek dismissal of the ODonnell consent decree. This is logical since the Fifth Circuit Court of Appeals reversed the key ruling in that case and will release a further opinion before the first of the year.

Moreover, Sheriff Gonzalez must be instructed that there is no such thing as a General Order Bond under Texas law and he should stop issuing them. Only a court can issue such a bond.

Another important component is that courts should hold defendants accountable for committing new offenses while on bond and when they fail to appear.

Lastly, Harris County should stop attempting to regulate what bail agents collect on a bond and worry about why defendants are not being held accountable when they fail to appear for court.

The Harris County jail is already filled with some very bad people. But until law breakers realize that the “purge” is over and they will be held accountable for their actions in the county, these individuals will continue to believe that they have a greenlight to continue their current crime spree.

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