HOUSTON — It was an awkward scene for officials of Harris County, Texas, who are defending themselves in federal court against a claim that they keep poor defendants locked up just because they cannot afford bail.
On Wednesday a judge and the county sheriff testified for the other side.
“When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system,” said Sheriff Ed Gonzalez, who was elected after the case was filed.
Both the judge and the sheriff are defendants in the suit. Their defections were yet another sign of the growing skepticism over the fairness of the long-used system of money bail, especially when it is applied to those who cannot afford it.
The class-action lawsuit contends that on any given night, several hundred people are in the Harris County jail on misdemeanor charges solely because they cannot make bail. If defendants with bail bond amounts of $500 or less had simply been released, the county would have saved $20 million over six years, according to a “very conservative” estimate by scholars at the University of Pennsylvania.
The practice of setting money bail, particularly for low-level offenses, has come under heavy criticism, and states like New Jersey and Maryland have sharply curtailed its use in recent months. A growing body of evidence shows that even a brief detention before trial can disrupt lives and livelihoods, make case outcomes worse and increase the likelihood that the defendant will commit future crimes. Putting a price on pretrial liberty can allow those with money to go free even if they are dangerous, and keep the poor in jail even if they are not.
Civil rights lawyers have mounted a series of lawsuits against bail practices like those in Harris County, where people without ready money can spend up to four days in jail before getting a chance to even contest their bond amount. Almost a dozen similar cases across the country have been settled with significant changes to the local bail system.
But two of the biggest challenges, in Houston and San Francisco, are still in play. And in both places, key officials have sided with the bail critics.
In San Francisco, the city attorney, Dennis Herrera, and the state attorney general at the time, Kamala Harris, declined to defend against the lawsuit, saying the bail system was unfair. In Houston the district attorney, Kim Ogg, weighed in with an impassioned friend-of-the-court brief, writing, “It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time.” Like Sheriff Gonzalez, Ms. Ogg is newly elected.
Those left to defend the system have had a lonely uphill fight. James Munisteri, a private lawyer hired by Harris County, faced calls for his removal after he told the court at an earlier hearing that misdemeanor defendants might be in jail not because they couldn’t afford to post bond, but because they “want” to be there. “If it’s a cold week,” he added.
The judge, Lee H. Rosenthal of Federal District Court, was skeptical of that contention, calling it “uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery, because they were afraid of the alternative.”
The case was filed last May on behalf of Maranda Lynn ODonnell, who was arrested on charges of driving with an invalid license. She spent over two days in jail because she couldn’t afford to pay her $2,500 bond. Civil Rights Corps, the organization whose director, Alec Karakatsanis, has led the legal attacks on unaffordable bail across the country, joined with the Texas Fair Defense Project, a nonprofit legal defense organization, and Susman Godfrey, a law firm, to bring the case.
So far, the county has spent $1.2 million on outside lawyers to defend itself.
The Supreme Court has held that liberty before trial should be the norm, and that bail conditions must be set based on the individual’s circumstances. Bail is not meant to be punitive; it is intended simply to ensure that defendants return to court. Texas law requires consideration of “the ability to make bail.”
But the videos made it clear that bail was routinely set with no inquiry into defendants’ ability to pay — or with the full knowledge that they could not. When suspects are first booked, their bail is set using a fee schedule based on the charge and on criminal history. At the probable cause hearing, where typically no lawyer is present, the hearing officer can raise or lower the bond, or grant a personal bond, which allows the defendant to go without an upfront payment.
The county argued that it began reforming its pretrial release system before the lawsuit was filed. It recently issued guidelines recommending the use of personal bonds for people accused of 12 low-level misdemeanors. Beginning on July 1, it plans to make public defenders available at the probable cause hearing. The bail fee schedule will disappear, to be replaced by a risk assessment, a more sophisticated method of determining an arrestee’s likelihood of fleeing or of committing a new crime.
Any injunction striking down parts of its pretrial release system would hamper these ongoing reforms, county lawyers argued. They also contended that a court order would tie judges’ hands, reducing their discretion and potentially allowing dangerous detainees back onto the streets. “There are a category of high-risk detainees who should not be released,” Melissa Lynn Spinks, a lawyer representing the county, said.
Besides the sheriff, another star witness for the plaintiffs was Darrell Jordan, elected as a Harris County criminal court judge last November. At first, Mr. Jordan said, he followed the bail practices of his 15 fellow judges. But he radically changed his approach after learning of research showing that locking people up makes them more likely to be repeat offenders.
Mr. Jordan began releasing nearly all defendants, either on a personal bond or on one they could afford. .
A homeless man who recently came before Mr. Jordan was prepared to plead guilty to a misdemeanor charge just to gain release, but changed his mind when he realized that the judge was willing to let him out of jail immediately.
”He had never heard of a personal bond,” the judge remembered. “He started crying when I told him he could go home.”
a. The Good News–This elevates criminal justice reform to being a “must pass” a bill situation given the Governor, Senate President, House Speaker and Chief Justice are behind it.
b. THE CHALLENGE: The bill they file will likely NOT strong enough and focus on probation, parole, and recidivism. It will likely ignore the repeal of long mandatory minimum sentences on non-violent drug offenders etc.
WHAT YOU CAN DO
1. Attend the Rally / Press Conference on December 13 at 10:00.
2. Contact your legislators and/or come to the Jobs Not Jails Lobby Day in January – ask that they co-sponsor the omnibus criminal justice reform bill, The Justice Reinvestment Act, which will include the Jobs Not Jails Priorities. More details to come – filing deadline is Jan 20
3. In March 2017, the coalition will organize six major public action meetings in Boston, Brockton, New Bedford, Worcester, Springfield, Lynn, Lowell to show large-scale public support from major criminal justice reform and engage legislators, mayor, sheriffs, police chiefs.
BARRY CHIN/GLOBE STAFF Chief Justice Ralph Gants of the Supreme Judicial Court says a review of socalled finetime practices is underway. Scores of indebted become ‘finetime’ inmates. Posted from The Boston Globe.
By Milton J. Valencia GLOBE STAFF NOVEMBER 07, 2016
They call it “finetime” — a questionable practice in which defendants “pay off” court fines and fees by serving time behind bars, even if they never committed a crime deserving of jail time in the first place.
A sampling of cases in Massachusetts from last year showed more than 100 instances in which defendants were sent to jail because they could not afford to pay a fine, a practice first laid bare in the federal investigation into the criminal justice system in Ferguson, Mo., two years ago, sparking outcries of discrimination in that state. The 105 examples were cited in a report to be filed this week by the state Senate Committee on Post Audit and Oversight. Among them:
■ A defendant charged with driving under the influence of alcohol was ordered to serve 25 days in jail for failing to pay $760 in fines and fees. “Do I have any say on this? Like, any defense?” the defendant asked.
■ In Leominster District Court, a defendant who owed $175 two years after a shoplifting offense was sent to jail, even though he told the judge he intended to pay the money within a month.
■ A third case was described to the Globe directly by the defendant, identified as James K. He told state officials he was looking to get his driver’s license, so that he could apply for a job, after serving prison time for a robbery in New York City when he was a teenager, he said. However, he had outstanding fines for a drug arrest years earlier in Dudley District Court.
When he returned to Dudley last year looking to address the fines, he said he was told he owed more than $1,000. He said he could not pay, that he had stayed in a homeless shelter the night before. He was sent to jail for 36 days.
“I was in disbelief, saying ‘You’re going to lock me up because I can’t pay a fine?’ ” said James K, who asked that his last name not be used to protect his privacy during job searches.
“It’s counterintuitive,” he said. “I was sent to jail because I was poor.” The 105 examples are from Worcester, Plymouth, and Essex counties. It’s unclear how many other cases may have also occurred in other counties.
The review found that most of the 105 defendants who were sent to jail had initially arrived at the court for a relatively minor offense: 40 percent of the cases related to automobile violations that did not involve allegations of operating under the influence. In 16 percent of the cases, the original charge was for public disorder, such as disorderly conduct, public drinking, or trespassing.
None of the 105 defendants went to trial on the original offense, and in 60 percent of the cases the charges were continued without a finding or disposed of with pretrial probation. In 40 instances, the defendant was guilty of at least one charge, but only four ended up serving jail time at the original disposition of the case.
Ultimately, the sentences ranged from one day to 112 days. In nearly half of the cases, the defendant was ordered to serve at least two weeks.
The state expects more than $40 million in fees and fines each year, half of it related to probation fees, according to the Committee on Post Audit and Oversight. Senator Michael Barrett, a Democrat from Lexington and chairman of the Committee on Post Audit and Oversight, said the review raised troubling questions about the state’s dependence on revenue from the poor, through the imposition of fees and fines — with stiff enforcement designed to make people pay up.
“We do this in the name of punishment, but it turns out to be a nifty business in terms of revenue generation, and we’ve grown too fond of what it pulls in,” said Barrett, an attorney by trade. “It’s a moneymaking sideline, run by the criminal justice system. The money comes out of the hides of not only poor offenders who have to get their lives back on track, but also the families of poor offenders. . . . We need to descale the hunt for revenue to sustain the court system.”
The review comes as top court officials have recently acknowledged the need for the courts “to provide equal justice for those who face financial challenges.” Ralph Gants, chief justice of the Supreme Judicial Court, said in his annual State of the Courts address last month that “We are examining whether we are unwittingly punishing poverty by the imposition of fines, fees, and restitution that a defendant has no ability to pay, and taking steps to ensure that the inability to pay does not result in the revocation of probation, the inappropriate extension of a period of probation, or time in jail.”
Barrett said the review of cases and state laws shows it may take a combination of new court policies and legislative fixes to address the issue. ‘We are examining whether we are unwittingly punishing poverty by the imposition of fines,fees, and restitution . . . ’
State law, for instance, allows for a defendant to pay off fees by serving jail time, at a rate of $30 a day. Barrett’s committee called for increasing the rate to $60, so that a defendant can pay off his dues quicker if jail becomes an option.
The review also found that judges failed to appoint lawyers for defendants — who had already been declared indigent — when considering whether to send them to jail for failure to pay fines, a potential violation of their constitutional right to counsel. Barrett’s committee called on the Supreme Judicial Court to uphold a defendant’s right to an attorney in such cases, saying the court has not yet addressed the issue directly.
At the least, Barrett said, the courts should set policy requiring judges to appoint lawyers and to better inquire into whether a defendant is being in contempt of the court, or truly cannot pay. He also said the courts should consider alternatives to sentencing someone to jail.
“I’m not suggesting all fees go away. I think there’s a place for fines and fees in the fullness of things,” Barrett said. “Some people can feel the sting, and still pay it, but for some people this is more than a sting. It means you can’t pay rent for the month. That’s what we’re finding in these cases.”
Cassandra Bensahih, executive director of the Worcesterbased advocacy group ExPrisoners and Prisoners Organized for Community Advancement, said the report shows the cycle of hardships that many lowincome people face, in which they can’t get a job because of past encounters with the criminal justice system, and so they can’t pay their fines.
“When they can’t find employment, can’t find jobs, what are they to do?” she said. Milton J. Valencia can be reached at firstname.lastname@example.org. Follow him on Twitter @miltonvalencia.
Restorative justice is a way to prevent people from entering the prison and court systems, and eliminates creating young felons. A short stint of 24-48 hours in jail can change the trajectory of a life FOREVER. More than a dozen communities in Massachusetts have voluntarily signed up for this diversion program. See more here.
Restorative justice is an equitable way for the people, property owners and families of those who are impacted and perpetuated a crime to sit together in a circle, and talk about what happened.
State Senator Jamie Eldridge [D-Acton] has sponsored legislation to introduce restorative justice to every community in Massachusetts. The bill has been introduced in several sessions and has failed to gain endorsement at the State House. Most people don’t understand what it is and how it works.
Restorative justice allows people to take responsiblity for what they did, and for all parties to understand the impact on victims, perpetuators and property owners. The process reduces the rate of recidivism and keeps people out of jail and prison.
In response to activists requests for justice and corrections systems reform and a plethora of bills before the state Legislature in the last 2015-16 term, Gov. Baker convened a 25- member panel of electeds and state bureaucrats. They have partnered with the Council of State Governments [CSG] to propose an omnibus bill [a multi-faced reform bill] in Jan. 2017. What follows is an update on that process of monthly meetings from the State House News Servce, summarizing activity and research by the CSG, a neutral non-profit that advises state governments on best-practices.
By Katie Lannan
STATE HOUSE NEWS SERVICE
STATE HOUSE, BOSTON, SEPT. 20, 2016…..Discussions of recidivism and community supervision slated for this fall are among the final steps in a process policymakers hope will result in reforms to the state’s criminal justice system.
After months studying recidivism trends, drivers of incarceration and other elements of criminal justice in Massachusetts, researchers from the Council on State Governments Justice Center plan to gather with a 25-member working group in December to go over final policy recommendations.
Those recommendations would then become the basis for legislation expected to be filed in January.
The Justice Center’s review launched after Gov. Charlie Baker, Supreme Judicial Court Justice Ralph Gants, Senate President Stan Rosenberg and House Speaker Robert DeLeo reached out in August 2015, requesting support in an effort to study the system and institute new data-driven and cost-effective practices.
In a letter to center staff, the four officials expressed hope that the the analysis would help them “better understand how we can further reduce recidivism and enable successful re-entry, and whether we can further reduce our prison and jail populations through early release programs while ensuring appropriate punishment and preserving public safety.”
Baker, Gants, Rosenberg, DeLeo and Lt. Gov. Karyn Polito sit on a steering committee guiding the development of policy options.
The working group, which includes representatives from law enforcement, legal services, the judiciary, Legislature and executive branch, has held three public meetings so far, during which members have offered their reactions and suggestions to data presented by Justice Center researchers.
Three more meetings are planned for rest of the year, building towards a policy discussion before the start of the new legislative session in January.
The first, tentatively scheduled for the afternoon of Oct. 20, will explore prisoner release, reentry and recidivism, according to Justice Center spokesman Robert Busweiler.
A November meeting focused on community supervision will be followed by the December policy framework discussion, Busweiler said. Dates for those meetings have not yet been set.
Several criminal justice reform efforts this session stalled despite pushes from advocates and interest groups.
A series of Senate-backed bills — creating a medical parole program for terminally ill inmates (S 2433); raising the felony larceny threshold from $250 to $1,500 (S 2176); and a package of juvenile justice reforms including expungement of certain juvenile misdemeanor records (S 2176) — were not taken up in the House before the July 31 end of formal sessions and have remained before the House Ways and Means Committee.
New laws passed this session ended automatic driver’s licenses suspensions for most drug crimes unrelated to motor vehicles; banned the practice of sending women civilly committed for addiction treatment to a state prison in Framingham; and increased the penalties for trafficking of the opiate fentanyl.
Lawmakers have been awaiting the findings of the outside review before tackling other major justice system reforms.
Advocates, too, are watching with interest as the process enters its final months. The Jobs Not Jails Coalition, which rallied on Beacon Hill repeatedly last year in support of sentencing legislation and other reforms, is now working to determine its criminal justice priorities.
The coalition hopes to have its priorities finalized in October, and will then bring them to the steering committee of “decision makers” working with the researchers, said Lew Finfer, a coalition member and director of the Massachusetts Communities Action Network.
“There’s definitely a lot of things we think about,” Finfer said. He said potential reforms could be viewed through “three frameworks” — changes that would affect people before they are incarcerated, while they are in prison, and after release.
If new laws do result from the recommendations, Justice Center staff will then work with policymakers for two to three years, developing implementation plans, providing progress reports, and testifying before relevant committees. According to a January overview of the project, the state will be able to apply for federal grants to meet “important one-time implementation needs, such as information technology upgrades and ongoing quality assurance outcomes.”
Justice Center staff also plan to help state officials identify metrics and monitoring strategies to gauge the impact of new policies on crime, incarceration and recidivism.
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The speaker in the Sept. 23 event below is Rev. Dr. Harold Dean “Doc” Trulear is formerly incarcerated. His church community rallied around him to welcome him home after incarceration. He will inspire you to reach out to others returning home to avoid the high rate of re-offense, and the many barriers to successful re-entry after prison.
Prison Ministry: Forming Networks for Connection, Growth and Healing
at the First Parish Church, Unitarian Universalist
50 School Street, Bridgewater, MA
Friday, September 23, 9:30 AM – 5:00 PM
Free and open to all. Lunch included.
Let’s learn together:
- To open our hearts to the incarcerated and to their families, friends and all who are working with them
- To embrace and provide understanding to the incarcerated and members of communities working with them, whether they be congregational, academic, political or institutional
- To collaborate and learn to build networks with others supporting prisoners
- To form networks and support systems across all boundaries
First Parish is honored to host this workshop, led by Rev. Dr. Harold Dean “Doc” Trulear, in collaboration with Messiah Baptist Church of Brockton. Dr. Trulear is Associate Professor of Applied Theology at Howard University and Director of the Healing Communities Prison Ministry and Prisoner Reentry Project of the Philadelphia Leadership Foundation.
Go to the workshop registration form: http://tinyurl.com/hbjyxrx
Or email: firstname.lastname@example.org with your name and affiliated congregation or organization.
For more information, contact: