Murray Newman, a criminal defense attorney and former prosecutor, is critical of the Houston court system for keeping ‘indigent potheads and petty thieves’ locked up because they can’t make bail. While he is right that keeping misdemeanants locked up pending trial contributes to a costly overcrowding of the Harris County jail, release on their own recognizance may not always be in the best interests of public safety.
SAVING MONEY THROUGH THE BOND SCHEDULE
By Murray Newman
Chron.com
May 8, 2011
On most Thursday nights at 8 p.m., the Harris County Criminal Lawyers’ Association sponsors a cable access show on Houston’s Media Source called Reasonable Doubt. Todd Dupont and I are the hosts and we have a different guest each week. It runs for an hour and we take call in questions. If you’re ever interested (or bored on a Thursday night), you can check it out by clicking here.
The reason I mention it is that last week’s guest was local defense attorney David Jones, who came on the show to talk about the oppressiveness of the Harris County Bond Schedule. It ended up with some great calls and questions, and we soon found that an hour wasn’t nearly enough time to discuss it completely.
So, I thought I would talk about it here.
When a person is arrested for a crime in Harris County, the arresting officer enters some preliminary information into a computer and sends it to the District Attorney’s Office for “screening.” Once the charges arrive at the D.A.’s Office, an Assistant District Attorney working what we call “Intake” will then screen the case. The prosecutor will see what kind of charge the person was arrested for and then go over the accused’s criminal history. Those two factors are the main factors in determining what the accused’s bond will be set.
Each crime has a “base” bond that is the starting point for where the bond amount begins. Last I looked, the schedule was something like this:
• Class B Misdemeanor – $500
• Class A Misdemeanor – $1000
• State Jail Felony – $2000
• Third Degree Felony – $5000
• Second Degree Felony – $10,000
• First Degree Felony – $20,000
• Aggravated Cases – $30,000
• Murders – $50,000
The criminal history of the accused will then cause that amount to go up. On the misdemeanor cases, $500 is added for every previous misdemeanor conviction and $1,000 is added for every felony conviction. Typically, there is a cap of $5,000 for a misdemeanor bond. For felony upgrades, only the previous felony convictions count, but they typically will bump the bond amount up a degree for every felony conviction. There are various and sundry additional rules that are too numerous to list and not relevant for this particular post.
The Misdemeanor Bond schedule is what interests me here, because in my opinion, it is silly and oppressive to hold people in jail on low-level crimes while complaining of jail overcrowding in the next breath. I don’t have particular statistics available to me at the moment (not that I’ve ever been a big statistic guy in the first place), but I do know that overcrowding in the Harris County Jail leads us to pay Louisiana and Newton County to house the overflow of inmates.
This practice becomes particularly ridiculous when you examine the fact that we are keeping non-dangerous and non-flight risk inmates locked up when they can’t make a bond. Typical misdemeanor cases are first or second time DWI cases, thefts, possessions of marijuana, and non-aggravated cases of assault. These are crimes that aren’t necessarily the trademarks of your aspiring serial killers.
Yet, the indigent potheads and petty thieves are occupying bunk space at the Harris County Jail to such a large degree that the County is having to pay money to other locations to handle the overflow. In the middle of the budget crunch we all have to deal with, it seems rather counter-productive to be sending money out of county to deal with this problem. A little creative problem solving might be in order.
Now, before I get to my proposal, I already know that it will meet with resistance. Prosecutors prefer doing plea negotiations with an accused person in custody, particularly if their punishment recommendation is going to be one involving incarceration. An inmate in custody is much more likely to sign up for ten or thirty days in jail than one who is currently experiencing freedom.
Incarcerated inmates with very “fightable” cases will be much more likely to take a plea bargain that will expedite their release rather than fight their cases. For instance, I can file a Motion to Suppress Evidence for my client the day I meet him, but he won’t get a hearing on the issue for about a month. The prosecutor is offering him time served, today. The problem with that is that a “time served” plea bargain is a final conviction that can have ramifications from the accused’s driver’s license to future enhancement of crimes.
Although many, many defendants are chomping at the bit for a “time served” offer, these offers are, at the end of the day, coercive. If the accused person had the option of going over his legal options from a position of freedom, odds are he or she would make much more thoughtful decisions when it comes to accepting or rejecting a prosecutor’s offer.
So, here’s my proposal (that will never be adopted): Start making misdemeanor offenses presumptively eligible for Personal Recognizance (PR) Bond.
I say “presumptively,” because there will obviously be situations where it won’t be appropriate. A guy who beats his wife and says he is going to beat her some more the second he gets out of custody is obviously not somebody we need to release on his own word to return. Same goes for the guy who has three priors for Bond Jumping.
But if we are going to keep a pothead in jail on a $5,000 bond because we are worried he might light up again? Give me a break. Giving a PR bond to somebody who is most likely to return for his assigned court date without any blood on his hands makes sense, and it alleviates jail overcrowding.
I know that there will be resistance to this idea and people will point out that the pothead probably will light up again when he gets out. My response to that is that Pre-Trial Services can always have him submit a random urinalysis at his next court date to test that theory. Additionally, that line of thinking isn’t really affording the accused his or her presumption of innocence, is it?
The only people who would potentially lose out on this plan would be the Bail Bonding Companies.
And, of course, Louisiana.
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