Concerns raised over new Harris County bail system

HOUSTON – Some county leaders and officials with the Harris County Sheriff’s Office are raising concerns about new bail procedures implemented as the result of a federal court order. The order comes as the county is in the midst of fighting a lawsuit that argues Harris County’s bail system is unconstitutional.

“To get justice costs money; it's not free,” said Gilbert Cruz.

Cruz spent two months in jail because he couldn't afford bail on a misdemeanor charge of interfering with the duties of a public servant. Cruz refused to plead guilty to the charge and accept a deal that would have secured his release sooner.

“I did nothing wrong,” said Cruz.

Cruz was exonerated. The charge against him was dismissed due to insufficient evidence. By the time he was released from jail, however, he had lost his job, his car had been repossessed and his credit rating had been shredded.

“They don't even say they made a mistake. All they say is, ‘You can go.’ But what about my loss of employment? What about my car I lost?” said Cruz.

Cruz is an example of what many justice reform advocates have claimed is an unfair system of bail that punishes the poor.

“Bail exists not to detain people because they're poor, but to assure their appearance at trial,” said KPRC legal analyst Brian Wice. “Defendants should not be warehoused prior to trial in misdemeanor cases simply because they can’t afford bail.”

That premise is the foundation of a federal lawsuit filed against several Harris County judges, hearing officers and the Sheriff's Office. The lawsuit argues poor people get stuck in jail because they can't pay bail and people with money get released. Harris County Commissioner Rodney Ellis argues that violates the equal protection and due process clauses of the Constitution, and he supports the lawsuit.

“The system in Harris County has been in place far too long with far too many problems,” said Ellis. “The time is for us to do the right thing and do it now.”

The county is fighting the lawsuit, but in the meantime a federal court judge issued an order forcing the county to make changes now.

The judge's order requires the Sheriff Office to release those charged with misdemeanors within 24 hours of their arrest, regardless of whether they can afford bail. The only exceptions are those wanted in other jurisdictions, by immigration officials, on a mental health hold or those held as part of a family violence protection procedure.

Since the judge's order took effect, many misdemeanor defendants are being released on unsecured bonds. This means a defendant does not have to pay any money or hire a bail bondsman in order to be released. But those released on an unsecured bond are still required to comply with all conditions of their release and can be sued for the full amount of bail if they fail to show up for court.

According to records obtained by Channel 2 Investigates from the Harris County Office of Court Management, the failure rate for unsecured bonds was nearly 30 percent since the implementation of the judge’s order. The failure rate was just over 9 percent for cash bonds,just over 8 percent for personal bonds and nearly 5 percent for surety bonds.

“Does that number concern you?” asked Channel 2 Investigator Robert Arnold.

“Absolutely, it concerns me,” said Maj. Greg Summerlin, with the Harris County Sheriff’s Office.

Summerlin said the intention of the judge’s order is understandable. It is the implementation of the order that is causing concerns.

“The devil is in the details,” said Summerlin.

Summerlin said one of his concerns is the Sheriff’s Office does not have the ability to verify whether a defendant is telling the truth about their financial status within the 24-hour deadline established by the judge’s order. Each defendant is required to fill out an affidavit, under penalty of perjury, that lists their assets, salary, monthly expenses and the amount of money they can put toward their bail within 24 hours of their arrest.

“When the Sheriff’s Office gets that piece of paper, you have no way to really verify what they’re saying is the truth within that 24-hour time period,” asked Arnold.

“Given the volume, no sir, we don’t,” said Summerlin.

Summerlin said that window gets smaller when defendants arrested by other agencies are transferred to the custody of the Sheriff’s Office anywhere from 12 to 16 hours after their arrest. Summerlin said the judge’s order also states that even if a defendant could eventually gather enough money to post bond, if they can’t gather the funds within 24 hours of their arrest, the Sheriff’s Office must release them on an unsecured bond.

One example of this concern was raised before Commissioners Court and involved a man named Christopher Worley. Court records show he was charged with DWI and a $2,500 bond was set by a hearing officer. On an affidavit filed with the court, Worley listed a salary of $6,000 a month, $23,000 in savings and more than $500 in cash on his person. But, since Worley stated the most he could pay toward his bail was $500, he was released on an unsecured bond. Summerlin said, in that case, the Sheriff’s Office couldn’t verify whether Worley had access to all his funds prior to the 24-hour window expiring so it had no choice but to release him on an unsecured bond.

Worley listed a home address in Oregon and court records show he did not show up for his court date. The county forfeited his bond.

Another example KPRC discussed with the Sheriff’s Office involves Miguel Cornelio. Court records show Cornelio served time in a Texas prison for murder and federal court records show he has twice been deported from the U.S. to Mexico. After serving time in a federal prison for entering the country illegally, Cornelio was transferred to the custody of the county in June to face a DWI charge from 2015.

Summerlin said a booking officer failed to note that Cornelio indicated he was not a resident of the United States. Therefore, immigration authorities were not notified prior to him being released on an unsecured bond. Court records show Cornelio has not shown up for court and has not been found.

“Are you concerned that other people are going to catch on to the fact that all they have to do is say, ‘I can’t pay'? asked Arnold.

“I am concerned,” said Summerlin.

Summerlin said the 24-hour time frame is too short for the Sheriff’s Office to properly vet a person’s financial status or ability to pay bail before they are released. Summerlin points out the judge’s order also applies to those arrested on new misdemeanor charges while released on bond and those arrested for failing to appear in court.

“We are releasing them on unsecured bonds,” said Summerlin.

“Regardless of risk?’ asked Arnold.

“There is no risk assessment in this process. Basically, it’s, 'Do you have the financial means to pay your bond within the first 24 hours?'” said Summerlin.

Summerlin said a judge will typically raise a person’s bond if they fail to appear in court, to try to prompt compliance, but under the current order, the higher the bond, the greater the chance of being released on an unsecured bond.

“The higher the bond, the less chance they have the money to pay,” said Summerlin.

Summerlin said despite these concerns, the Sheriff’s Office has no choice but to comply with the judge’s order. When contacted by KPRC, officials with the Harris County Attorney’s Office agreed the Sheriff’s Office has no discretion in how it implements the judge’s order.

“It’s an endless cycle and my fear is somebody is going to do something really bad while they’re out there in that endless cycle,” said Harris County Judge Ed Emmett. “At some point, there has to be a stop so that people can be brought to justice.”

Harris County Commissioner Jack Cagle echoes Emmett and Summerlin’s concerns.

“This system, there are no consequences. In fact, all the incentives are for noncompliance,” said Cagle.

Both Cagle and Emmett said the county was moving toward bail reform even before the lawsuit was filed. Both said staff was added to see defendants faster and do more to consider low-risk offenders for personal bonds, which requires the person to sign an agreement that they will show up for court and comply with the conditions of their release.

Both Cagle and Emmett also said the county is implementing a new, more than $5 million risk assessment tool at the end of the month. The assessment was announced by the county more than a year ago and was designed in conjunction with the Laura and John Arnold Foundation. The Public Safety Assessment looks at nine factors when considering a person’s risk of not showing up for the court or committing another crime while on release. This tool is gender-, race-, income- and education-neutral.

Ellis, however, balks at some of his colleagues' concerns.

“The federal judge was forced to make Harris County comply with our Constitution,” said Ellis. “I think we ought to stop trying to defend the indefensible.”

Ellis also said he feels the county’s bail reform was moving “at a snail’s pace,” and questioned why $3.5 million has been spent defending the targets of the lawsuit. Ellis said he has “concerns about the way the order is being implemented,” but said the county has no one to blame but itself.

“The county had the chance to settle the lawsuit but didn’t,” said Ellis. “If everybody is saying reform is necessary, do it.”

KPRC emailed federal court Chief Judge Lee Rosenthal with some of the concerns raised by county leaders and to ask if she believed the order was being implemented as intended. An email from Rosenthal’s case manager stated the court declined to comment.

The county tried to stop the order from taking effect until the lawsuit was settled but lost that battle in court. The county has appealed the order and continues to fight the lawsuit.

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About the Author:

Award winning investigative journalist who joined KPRC 2 in July 2000. Husband and father of the Master of Disaster and Chaos Gremlin. “I don’t drink coffee to wake up, I wake up to drink coffee.”