When it Comes to Bail Reform…Follow the MONEY!

By: Sanford L. Houston

Things are heating up on the bail reform fronts, both in the legislature and in federal court in Houston. Change is coming . . .

There is something very important we all need to know as it relates to the issue of bail reform: FOLLOW THE MONEY.

In Houston, Equal Justice Under Law, the lead group suing Harris County over its regressive bail policies added all 16 of Harris County’s misdemeanor court judges as defendants in a federal civil rights lawsuit. The lawsuit does NOT seek money damages. The county, however, has paid generous amounts to hire two law firms to represent the officials being sued. When the sixteen criminal judges were added to the lawsuit, the County hired a second prestigious, high-priced law firm to represent the judges at taxpayer’s expense. The Greater Houston Coalition for Justice called on the County Commissioners to settle the lawsuit, fix the bail system, and stop wasting taxpayer money.

The hundreds of thousands of dollars the county is spending to avoid making the bail system humane now exceeds the amount of money that it would have cost to start a “pilot project” to provide attorneys for poor people at bail hearings. At present, people accused of crimes have a hearing before a magistrate and a prosecutor, and the person must face this tribunal with no attorney. The reason you’ve never seen a one-sided hearing like this on TV or in the movies is that viewers would never believe it.

What kind of government makes a poor person face a judge and prosecutor with no attorney to defend him or her, and then takes the person’s liberty because he or she can’t pay? The movies make it seem like everyone gets a real trial and a good lawyer, but that is just fiction. The Harris County judges have been “thinking about” whether to give poor people lawyers for two years. Yet, it took the county no time at all to come up with taxpayer dollars for the best lawyers that money can buy to represent themselves. The public defender’s proposal called for $50/hour for public defenders at bail hearings. The county is paying up to $610/hour to defend the judges.

The bondsmen and the bail bond insurance lobbyists like to talk about how much money they bring in for the county. They don’t mention how much they owe, which is about $26 million in Harris County and $35 million in Dallas. Judges in Dallas apparently let bondsmen off the hook, even when people who skip court are not recaptured. I suspect the amounts owed are proportionally the same in smaller counties. In Waco, the DA’s office allowed bondsmen to pay a fraction of the amount of the bond owed. The law provides many loopholes that allow bondsmen avoid paying the amount of the bond to the county when a person fails to appear.

Despite the loopholes, they still rack up millions of dollars in forfeited bonds owed to the county.

The fact that bondsmen almost never pay on forfeited bonds is great news for the $14 billion bail bond insurance industry. The 30 insurance companies (none of which are Texas companies) that underwrite bail bonds make a killing on this type of policy because they almost never have to pay. For other types of insurance like auto and property, companies typically pay 40 to 60 percent in revenue to cover property losses. By contrast, bail bond insurance companies pay only one percent of revenue on forfeited bonds. It is no wonder they are prepared to spend so much on lobbying!

Meanwhile, the use of bond schedules means we lock up a lot of poor, low-risk people. By one study done in 2012, Harris County could save $28 million per year on incarceration costs by allowing low-risk people to be released on PR bonds, and releasing medium-risk people with appropriate conditions. That study assumed a $40/day cost for all inmates, which is actually ridiculously low. In fact, the county holds a relatively large group of special needs inmates with mental and physical illnesses. These inmates cost the county in the neighborhood of $200/day to house an inmate with special medical needs. Moreover, the county is now outsourcing juveniles to another jail about 170 miles away. I’m not sure of the cost of outsourcing inmates, but it has to be pretty high. So, how much could the county save if it implemented a risk-based system like Kentucky’s? Far more than $28 million.

In the state legislature, a joint hearing of the committees of County Affairs and Criminal Jurisprudence heard from many voices on pretrial justice. Most importantly, the joint committees heard from Chief Justice Nathan Hecht who gave an inspired talk on the historical importance of just bail laws in Texas history. He explained the work the Judicial Council has been doing for the past 15 months. In addition, David Slayton of the Office of Court Administration outlined the Judicial Council’s proposed reforms. This committee’s recommendations are likely to be most influential in shaping legislation in the upcoming legislative session. The committees then heard descriptions of state-of-the-art risk-based pretrial release programs from Matt Alsdorf of the Laura and John Arnold Foundation and Tara Blair, the Director of Kentucky’s Pretrial Services Agency. In addition, they heard from mental health professionals, sheriffs, academics, and even bondsmen, as well as testimonials on the public safety risks of a money bond system.

Next month promises to bring more exciting developments. Probably a good idea for all of us to keep our eyes and ears open to see and hear about any updates and new developments, both here in Houston and in other cities across the country.