Project ORANGE JUMPSUIT

:
Evaluation of Effects of Pretrial Status on Case Disposition of Harris County Felony & Misdemeanor A/B Defendants
(Work in Progress Report #1 draft August 30, 2013)
by

Gerald R. Wheeler Ph.D., Gerald Fry, Attorney at Law
Preface
The concept of similar defendants being treated comparatively in their criminal proceeding is referred to as “evenhandedness.” One illegitimate factor cited by legal scholars was pretrial custody (Stephen Demuth; Darrell Steffensmeier Impact of Gender and Race-Ethnicity in the Pretrial Release Process American Statistical Assoc, 2004 National Science Foundation Arlington, VA, 22230; Cassia Spohn Offender Race and Case Outcomes Doc 184774 U.S. Dept. of Justice 11/2/2000). While it may not always influence a conviction outcome, the preponderance of research findings directly links pretrial detention status to harsh sentences. The degree to which the legalistic courthouse culture violates “evenhandedness” is unprecedented in Harris County, Texas (2012-2013 Policy Paper Evidence-Based Pretrial Release, Conference of State Court Administrators); the best example of state of the art laissez faire criminal justice model in a major metropolitan jurisdiction. Where any court watcher will observe that most of the faces of prisoners dressed in bright orange jumpsuits chained together standing before a judge are relatively young, black or brown. But regardless of age, ethnicity or color of skin of over ninety thousand people annually arrested, what generally determines the defendants’ fate is his or her economic status. If the accused is unable to afford financial bail, he or she will quickly learn, in Harris County, the punishment is weeks or months of pretrial incarceration with the strong likelihood of pleading guilty for more time behind bars than their bond counterparts. The following report presents preliminary findings of ongoing evaluation of Harris County pretrial justice system initiated in 2012 by a practicing criminal defense attorney and award winning criminal justice researcher. The purpose of the study is to analyze what happens to over six thousand scientifically randomly selected defendants charged with a felony and misdemeanor A/B offense. Specifically, the project aims to answer five major questions: first (1) to what degree does socio-economic status affect pretrial release status (“detained” versus “bond”) of statistically equivalent defendants? Second (2) to what degree does pretrial release status and days of pretrial incarceration impact conviction of statistically equivalent defendants? Third (3) to what degree does pretrial release status and days of pretrial incarceration affect sentence of statistically equivalent defendants? Four (4) to what degree does type of bail affect pretrial misconduct? Five (5) to what degree does type of legal representation affect pretrial release status, days of pretrial incarceration, conviction and sentence of statistically equivalent defendants?

STUDY SAMPLE & RESEARCH METHODOLOGY
Study Sample: The study sample consists of 3,238 (27%) scientifically randomly selected felony defendants from total felony (11,860) database and 3,320 (14 %) of total misdemeanor A/B database (23,309) provided by Harris County District Attorney. The database contains two Excel spreadsheet listing felony and misdemeanor A/B defendants charged with an offense in order of date filed beginning January 1, 2012 through April 30, 2012 and processed in 22 Harris County District Courts trying criminal cases and 15 County Criminal Courts at Law. Random selection of respective study populations was completed by Dr. Rodney Hissong, Associate Professor, University of Texas – Arlington, Department of Urban Affairs, using IBM/SPSS software. This report is based on 93% of competed study cases. Longitudinal Research Design: Study sample subjects will be tracked from date of charge for three years post disposition by accessing Harris County District Clerk’s online justice information system. Variables include: defendants’ county assigned identification SPN and case Number, assigned court, name, Race/Ethnicity, age, sex, charge, type of legal representation, charge, conviction history, bail set, type of bond, pretrial release status, pretrial jail days, bond forfeiture, bond revocation, fugitive status, case processing time, disposition and recidivism.

SETTING: COURTHOUSE CULTURE DISCRIMINATES AGAINST INDIGENT DEFENDANTS

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According to Harris County Pretrial Services 2012 Annual Report, “there were a total of 90,169 arrests in 2012. Felony offenses accounted for 36% of arrests and misdemeanor for 64%.” Charged with a jail-able crime, defendants find themselves captive in a fast-pace legal-courthouse culture governed by four powerful interest groups in order of influence: (1) “Law and Order” Judiciary; (2) Commercial Bail Bond Monopoly ; (3) Reform Prosecutor (2008-2012); (4) Assembly-line Indigent legal defense. “Law and Order” Judiciary. The most important actors, yet mostly removed from the public eye, are the trial judges of Harris County. Made up of predominately conservative republicans philosophically opposed to “personal bond” release (PTR), the elected 22 District Criminal and 15 County Criminal Courts-of- Law judges approve their respective “preset” financial bond schedule according to the seriousness or nature of crime and criminal history of arrestee. Unless a heinous crime dictates “no bond,” the judges’ bail schedule is interpreted and set by an assistant district attorney (ADA) within hours of arrest. Harris County’s “direct filing system,” elaborated upon in the next section, allows defendants with the financial resources to post a total “cash” bond refundable by the county upon completion of case--less nominal transaction fee. Arrestee also has the option to obtain the services of a surety bondsman that charges 10 % fee of set bond. “Cash” bonds are rare. According to the Harris County District Clerk, only 195 (1.1%) of 17021 total posted felony bonds, and 2997 (7.5%) of total 39983 misdemeanor bonds represented “cash” bonds in 2012. A defendant unable to post a financial type bond is held in custody or booked in county jail until his or her case is reviewed by a magistrate or assigned judge. The magistrate has the authority to grant a “personal bond” (PTR) that requires no financial security subject to forfeiture if defendant fails to appear in court. If PTR is denied by magistrate, the assigned trial judge may grant PTR, lower or raise bond, accept a plea, or continue detaining defendant. Unlike “cash” or “surety” bond, court procedure dictates a “PTR” bond must be directly approved and signed by the magistrate or trial judge granting it. “The phenomena of Missing Hispanics.” Upon documenting the variable “Ethnicity” in the D.A’s and District Clerk’s database, Project Orange Jumpsuit staff discovered the following discrepancy: of the total (781) felony study sample with Spanish surnames, 414 (53%) were coded “null” (missing). Among total 873 misdemeanor study sample with Spanish surnames, 546 defendants (65%) were coded “null” (missing). This pattern of miscoding “Ethnicity” of arrestees with Hispanic surnames was found in the total DA’s four month database (35,159) from which the sample cases were selected. County officials readily acknowledged this code discrepancy, attributing “nulls” to “Hispanic” being defined as “ethnicity” rather than “race.” Only “Race :” White, Black, Asian, American Indian, Pacific Islander is entered by law enforcement (LE) charging officer in the computer screen called DIMS (District Attorney Information System). These entry omissions are carried over to District Clerk’s databases employed by other county criminal justice agencies. “The fight over open records.” Project Orange Jumpsuit assumed missing Race/Ethnicity data on study cases could be retrieved from Pretrial Services internal records if we provided SPN of sample subjects contained in D.A. database. Access was denied by Pretrial Services Director Carol Oeller and subsequently denied on appeal by the Board of District Judges. They maintain that Pretrial Services operates as arm of the court and is governed by Sec. 17.42 of the Code of Criminal Procedure Rule 12.5(a), (f) and (k) that “exempt the requested information from disclosure” under the Public Information Act. Why does this matter? Classifying pretrial services records “confidential” preclude researchers gathering vital data on defendants’ employment status, risk assessment score, education, marital status, and income. Notwithstanding the above imposed unprecedented constraints, Project researchers gleaned relevant data from other county departments that responded favorably to our open records requests. In this regard, we surmised that defendants in our study sample that qualified for “indigent legal defense” and represented by court-appointed lawyers or public defenders were financially disadvantaged. We also used Spanish Surname as a proxy for Hispanic Race/Ethnicity. Harris County’s Capitalistic Justice Model: The Bondsmen Monopoly. According the Harris County District Clerk, surety bondsmen posted 53,812 felony and misdemeanor A/B bonds in 2012 with a sum set value $334,745,445.00. This figure translates into $33.5 million in standard non-refundable fees collected by 89

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bondsmen licensees operating in Harris County. According to their official website, 61 (69%) of 89 licensees are affiliated with 16 insurance corporations, some of which employ professional lobbyists. Historically, commercial bondsmen fight any efforts to expand release on personal recognizance (PTR). Off the record, individual judges volunteered that their worst nightmare is a bondsman’s or political rival waving a copy of a personal (PTR) bond absconder rearrested for a violent crime, signed by the incumbent judge. Whereas, no such political repercussion or negative media coverage follow the assigned judge of defendant rearrested while released on surety bail. This is because an elected trial judge is conveniently one step removed from money-based preset bond schedule triggered by ADA. Low PTR approvals indicate trial judges proscribe magistrates from granting most personal bond applications. According to Harris County Pretrial Services 2012 statistical report, District courts PTR bond approval range was 4-53, for a court average 25, median 20, and upper quartile 36; County Courts at Law PTR bond range was 185-337, average 304, median 298, and upper quartile 326. In YR 2012 magistrates granted 74 (12%) of 614 total felony personal bonds, and 4034 (47%) of 8596 misdemeanor PTR bonds. Noting defendants can have more than one bond, measured by defendants, the number of Harris County defendants actually released on personal bond in YR 2012 were extremely low: 356 felony (1.1%) of 31,232 total arrests, and 4,157 misdemeanor (7.2%) of total 57,524 arrests. This compares to 25% personal bond pretrial release rate reported in the most recent national survey of 75 urban jurisdictions (Thomas H. Cohen and T. Kyckelhahn Felony Defendants in Large Urban Counties, 2006, Washington, D.C. U.S. Dept. of Justice, Bureau of Justice Statistics). Roots of Bail Reform. Lest we forget, Harris County Pretrial Services was mandated in Federal Court Order issued by Federal Judge Carl Bue Jr. in late 1975 to remedy inhuman conditions stemming from overcrowded jail and salvage a mostly small volunteer alternative (PTR) non-financial bail program politically under siege by surety bondsmen. By far the most significant single factor influencing the agency’s lack of success was the organized effort of commercial bail bondsmen to sabotage the agency…the bondsmen pressed their attack on County officials to take steps to weaken the agency. (Alberti v. Sheriff, 406 F. Supp. 646 H.D. Tex. 1975) Meanwhile, except during the short-lived period (1977-90) new jail construction and Federal Judge oversight, commercial bond industry keeps its stranglehold on the scales of justice. Notwithstanding recent short (2008-12) tenure of reform prosecutor Patricia Lykos who changed prosecution of cocaine trace cases from felony to misdemeanor, and the county establishing the Office of Criminal Justice Coordination to track daily Jail population, the Harris County jail average daily pretrial detention rate remains as immutable (66%) as the bondsmen’s lucrative monopoly in pretrial release. In full disclosure, Gerald R. Wheeler Ph.D. Co-Principal Investigator, Project Orange Jumpsuit implemented the Federal Court Order 1977-83 as Director. Strong District Attorney Role: Who Benefits from Speedy Justice? Courthouse regulars acknowledge that Harris County bail polices inherently discriminate against the poor. But they argue this unfairness is mitigated by the “speed of justice” facilitated by the county’s “direct filing” system. According to Carol Oeller, Director Harris County Pretrial Services, “law enforcement (LE) files charges online.” Then “assistant district attorney (ADA) reviews reports submitted by LE. If ADA accepts charges, District Clerk assigns (randomly) court and case number.” At this stage, the ADA sets the bond amount according to the preset bail schedule adopted by the judges. “A defendant can make bond regardless of where the defendant is –Pasadena, Baytown, HPD, Sheriff’s Dept. substation. Also, an initial court date is set for the assigned court: misdemeanor cases get a setting seven days out (but not on a weekend), felonies get a setting for the next business day (Friday/Saturday arrest go to Monday, Sunday/Monday to Tuesday).” Oeller adds, “HC strives to have defendants who do not make bond in front of a magistrate….within 12 hours of arrest for a probable cause. “ Thus, “speedy-justice” primarily benefits defendants with the financial resources to post bond and conversely, punishes the detained. Proponents of direct filing

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system and the judges’ restrictive bail policy also vociferously deny that “bond” defendants have more favorable outcomes than their “detained” counterparts. The following research findings present strong evidence to the contrary. Assembly-line Justice. The county auditor reports that as many as 400 “solo-practitioners” court-appointed attorneys vie for $36-40 million indigent legal defense funded by County Commissioners. Public criticism over lack of client advocacy exemplified in over reliance of brief holding tank conferences, few jail contacts, lack of investigators, high detention rates, individual annual fee collection as high as $400,000, all contributed to the Commissioners establishing a Public Defender Office in 2011 with $8 million in state grants and county funds. Presently, a small fledging program, only a fraction of the indigent defendants are assigned a public defender. Without openness and transparency of Pretrial Services and access to criminal records it is impossible to determine if laws governing bail, sentences and related court policy violate citizens fundamental rights to access to fair and equal justice. Does bail policy discriminate against people of color and the poor?

THE ORANGE JUMPSUIT EFFECT
The central hypothesis of this investigation is that the color of jumpsuit worn by detainee in criminal court proceedings is more important factor in determining case outcome than the offense charge, criminal history, type of legal representation and color of defendant’s skin. According to research* recently reported by the Public Policy Research Institute Texas A&M University, “the benefits of pre-trial release are apparent.” Statistically identical defendants who make bond experience:      86% fewer pretrial jail days 333% better chance of getting deferred adjudication 30% better chance of having all charges dismissed 24% less chance of being found guilty, and 54% fewer jail days sentence

* Wichita County Public Defender Office An Evaluation of Case Processing, Client Outcomes, and Costs (October 2012)

TWO SYSTEMS OF JUSTICE: THE FELONY SCALES
FH-I Hypothesis: Blacks and Hispanics defendants are more likely detained than other statistically identical defendants. TABLE 1 below shows that people of color particularly Blacks are overrepresented in the felony and misdemeanor defendant study populations compared to U.S. Census data on Harris County. TABLE 1 RACE/ETHNICITY DISTRIBUTION, ORANGE JUMPSUIT FELONY STUDY SAMPLE, HARRIS COUNTY PRETRIAL SERVICES 2011 ANNUAL REPORT, U.S. 2010 CENSUS Report Orange Jumpsuit sample Felony Hispanic White 26.2 % 23.9% Misdemeanor 26.3 32.2 Pretrial Services Felony** 29.7 % 18.6% 26% 45% Harris County Census*

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Black  

48.5%

39.5

49.8%

23%

* U.S. Census Age 18 or older **Pretrial Services Misdemeanor interview data incomplete because defendants refuse interview or make bond before book-in.

Given previous research findings report people of color are disproportionately represented among the poor and more likely arrested for crimes than Whites, one speculates that White defendants have better access to financial resources and a money-based bail system than their minority counterparts (The Economist, August 24, 2013). Using Spanish Surnames (26.2 %) as a proxy for defendants with Spanish surnames coded “nulls,” or missing, the percentage of Hispanics in Project Orange Jumpsuit study felony sample was nearly identical with 2010 U.S. Census of Harris County population age 18 or older (26%). As expected, felony White study population was significantly underrepresented (23.9%) compared in U.S. Census to (45.0 %). Blacks in Harris County Census (23%) were found significantly overrepresented in both the study (48.5%) population and Pretrial Service’s 2012 Annual Report (49.2%). As hypothesized, TABLE F-2 shows among felony defendants, people of color (Black: 64%; Hispanic: 58%) have higher detention rates than White (53%). TABLE F-2 RACE/ETHNICITY DISTRIBUTION BY PRETRIAL STATUS TOTAL STUDY FELONY POPULATION* RACE/ETHNICITY DETAINED N BLACK HISPANIC OTHER WHITE TOTAL 1000 449 14 447 1910 % 64% 58% 35% 53% BOND N 557 314 26 388 1285 % 35% 40% 65% 46% TOTAL N 1557 763 40 835 3195 % 100% 100% 100% 100%

*excludes 43 not booked, no bond made or 0 bond set To better explain the effects of Race/Ethnicity, a better test of the hypothesis controls for legal attributes. It is important to note that the amount of set bail reflects the seriousness of charge and prior convictions. Forthcoming multivariate analysis later this year will be more revealing. TABLE F-3 shows detention rates of felony defendants by six bail range categories ranging from the lowest ($2,000 or less) set for defendants generally having “no prior felony conviction history” and charged with non-violate felony crimes, to highest bail set categories i.e., >$20000, and “no bail” set. In the lowest bond category ($2000 or less) the highest pretrial detention rates are found among Blacks (40%), followed by Hispanics (35%), Other (20%) and White (27%) defendants. This pattern holds in four of five bail categories. Blacks have the highest detained rates in three of five bail range categories. Whites have the highest detention rate (45%) in the $5001-10000 bail category range, but the variations among Race/Ethnicity are slight. TABLE F-3 PERCENT FILONY DETAINED BY RACE/ETHNICITY & $BAIL CATEGORY TOTAL POPULATION*

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$BAIL $2000 or less $2001-5000 $5001-10000 10001-20000 BLACK HISPANIC OTHER WHITE 40% 35% 20% 27% 50% 35% 0% 40% 468 n=3195 44% 43% 25% 46% 455 75% 67% 50% 64% 739

>20000 54% 67% 33% 56% 642

NO BOND 100% 100% 100% 100% 462

TOTAL N= 429 GRAND TOTAL

*excludes 43 not booked, no bond made

PRETRIAL MISCONDUCT IS A MYTH
FH-II Hypothesis: Type of pretrial release i.e., surety bond, cash bail, personal bond is not associated with Pretrial misconduct: bond forfeiture, revocation, surrender, re-arrest, fugitive status. For-profit bondsmen argue that their clients have a better compliance record than those released on personal recognizance (PTR) or nonfinancial bail. According to them, defendants granted “get out of jail free card” constitute a threat to public safety because they have no financial incentive to show up in court. Bondsmen also contend that they have a greater incentive to retrieve an absconder than public servants because the latter have “no skin in the game.” Judges order some PTR and financial bail defendants to report to Harris County Community Supervision and Corrections Department (HCCSCD) for the purpose of drug monitoring and other special conditions. At this stage of analysis, of the total (3,238) felony study sample 1,285 (40%) made some type of bond. Of these, 1,233 (96%) fell in the surety bond category (see TABLE F-4 below). Only 16 (1.2%) of the total bond defendants absconded or escaped prosecution. There is little evidence to support the argument that nonfinancial bail (PTR) defendants pose a greater risk to public safety than defendants released on financial bail (cash, surety). In regards to bond forfeiture, only 1 (2.2%) of total 46 personal bond defendants forfeited bail by missing court appearance. This compared to 96 (7.7%) of 1233 surety bond defendants. The highest bond forfeiture rate (16.7%) fell in the cash bond category, but only six defendants opted for cash bail. To date, little differences are found comparing personal bond defendants (2.2%) with surety (1.1%) that absconded or escaped prosecution. Surety bond defendants have a higher revocation rate (9.7%) than the person bond group (6.7%). TABLE F-4 HARRIS COUNTY FELONY PRETRIAL MISCONDUCT DISTRIBUTION BY BAIL TYPE* TYPE COUNT N CASH 6 % .5 BOND FORTFEITURE N 1 % 16.7 REVOCATION N 0 FUGITIVE % 0 N 1 % 16.7

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PERSONAL BD SURETY TOTAL

46 1233 1285

3.6 95.9 100%

1 96 98

2.2 7.7 7.6%

3 120 123

6.7 9.7 9.6

1 14 16

2.2 1.1 1.2%

*As of June, 2013; excludes 9 non-arrest charged felony defendants that absconded (fugitives never made bond or booked in jail); Includes open cases

Profile of Absconders
FH-III Hypothesis:There is no relationship between Charge, Bond Set and Fugitive status. TABLE F-5A shows surety bond defendants absconded on bonds set from as low as $2,000 to high as $50,000. Two defendants were charged with violent crimes. Six were charged with drug offenses. This profile contrasts with 9 fugitive defendants (see TABLE F-5B) never arrested or posted bond subject to active warrants; six are charged with violent crimes with high bonds on “no bond” set. TABLE F-5 DISTRIBUTION OF FELONY FUGITIVES BY CHARGE, BOND SET, BAIL TYPE AND OF FELONY ABSCONDERS. A. Felony Fugitive defendants by Charge, bail set, bail type and offense class Charge Sale drug Poss drug Sale drug Poss drug Burg Bd Theft Robbery Poss drug Aslt-Murd Burg Hab Poss drug False statement Theft Fail com sex Burg Hab Forgery $Bail 10,000 5,000 20,000 50,000 2,000 10,000 35,000 2,500 10,000 50,000 10,000 1,000 15,000 10,000 10,000 6,000 bail type Surety Surety Surety Surety PTR Surety Surety Surety Surety Surety Surety Cash Surety Surety Surety Surety offense class F2 FS F1 F3 FS FS F1 F F3 F2 F3 F FS F3 F2 FS

B. Felony non-arrest Fugitives by charge, bail set and offenses class CHARGE Fail reg sex off Sex abuse child Indec w child Theft Agg sex child $BAIL 5,000 30,000 90,000 2,000 no bond CLASS FS F1 F2 FS F1

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Assault Murder/mans Credit Card Indec w child

10,000 no bond 15,000 30,000

F2 F1 FS F2

Preliminary findings of Project Orange Jumpsuit reject the null Hypothesis that type of bail have no relationship to pretrial misconduct of felony defendants. “Surety” bond defendants have higher bond forfeiture and revocation rates than personal bond defendants. However, little differences in absconder rates were found between financial and non-financial bail cases. Of the total felony study population (3238) charged and tracked from 12 to 18 months, only 25, less than 1% (.8%) escaped prosecution. Thus, given these findings there is a strong case for expanding non-financial bail for defendants charged with non-violent crimes and classified “low” to “moderate risk” by Pretrial Services Risk Assessment Instrument.

DETAINED DEFENDANTS: DOUBLE PUNISHMENT
“the bail system was stacked against the accused of minor crimes, keeping them in jail at great personal hardship and weakening their resolve in plea negotiations.”
New York’s Chief Judge Jonathan Lippman 2012 Annual State of the Judiciary in Albany,

Detention versus Bond: A Perspective. In our view and others, the scales of justice are weighted heavily against the detained. First, we will show the stark differences in duration of Harris County pretrial jail days between “bond” and” detained” disposed defendants. These variations are best illustrated in four statistical measures: range, average, median and upper quartile (Q3) days reported below. The Top Quartile figure is the value of the variable (days detained)-- arrayed from the lowest to highest number of days detained — which three quarters of cases are located. TABLE 6 shows that “detain” felony defendants with no prior felony conviction have a range from a low-- 2 days to high-- 376 pretrial days. This compares to 0-272 range for “bond” group. The disparity between “bond” and “detain” better illustrated in the average, median and top quartile values. For example, the median value (33 days) shows that 50% of “detain” defendants with no prior felony conviction were incarcerated over a month, compared to only 2 median days for “bond” group. Upper quartiles values show that 25% of “Detained” felony defendants with no prior felony conviction were held in jail awaiting trial 101 or more days compare only 4 days or longer for “Bond” group with no priors. TABLE F-6 STATISICAL SUMMARY: “DETAINED” vs BOND n=2963 HARRIS COUNTY FELONY DISPOSED DEFENDANTS* Detained Days 0 Prior Felony Conviction Detained n=624 Bond n=724 2- 429 days 0-272 days 68 days 8 days 33 days 2 days 101 4 Range Average Median Top Quartile

1 or more Prior Felony Conviction Detained n=1197 Bond n=418 1-429 0-257 68 days 15 days 38 3 99 11

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Grand Total n=2963

0-429

45 days

6

61

*excludes 35 disposed defendants not booked, no bond made FH-IV Hypothesis:Pretrial “detained” defendants have a higher rate of conviction than statistically identical “bond” defendants. Severity of criminal sanction is a function of pretrial release status. Preliminary analysis of Harris County felony defendants (N=385) charged with drug possession with no prior felony conviction (see TABLE F-7), illustrates the influence of pretrial release status on disposition outcome. This category of charge was focused on because “possession of drugs” ranks first among felony charge categories, and controlling for prior felony history allows for a fair comparison between “detained” and “bond” sub-groups in outcome. The data below shows a pattern of less favorable outcome of “detained” defendants compared to their “bond” counterparts. In this case the “detained” categories are associated with higher rates of jail sanctions, lower dismissal/no bills and deferred adjudication rates.

TABLEF- 7 DISPOSITION (Bond vs. Detained) FELONY DEFENDANTS CHARGED WITH POSS OF DRUGS –NO PRIOR FELONY CONVICTION (N=385) BOND TYPE DISM/NO BILL n DETAINED* (n=180) BOND** (n=205) *includes 2 no bill; **includes 11 no bill, 1 acquittal; excludes 1 no bond/not booked 52 25% 118 58% 1 .4% 21 10% 7 3% 5 2% 35 % 19% DEFERRED n 64 % 36% PROBATION n 0 % 0 HCJ n % ST JAIL n 14 % 8% TDC n %

55 31 %

12 7%

RACIAL DISPARITY IN PRETRIAL JAIL DAYS
FH-V Hypothesis: People of Color are more likely detained longer than White Felony Defendants regardless of Prior felony conviction history A dimension of racial disparity ignored in research is “duration” in pretrial jail days. Heretofore, the preliminary data show people of color are at disadvantage in an institutionalized money-base bail system. This raises the question: to what extent does Race/Ethnicity of “detained” defendants affect length of stay awaiting trial? Given prior conviction status, are White defendants “detained” a shorter time than people of color? How do group compare at the other extreme such as 90 days or longer length of stay detained awaiting trial? TABLE F-8 compares percentage detained in four “Range Days” duration categories: “0,” “0-2,” “0-3,” and “90429,” days, by Race/Ethnicity and Prior Felony conviction history. This analysis enables the reader to compare group outcomes of lower and upper extreme ranges of duration.

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“0 jail-Days:” Defined as not booked in Harris Jail pending case completion, shows Blacks with “0 prior” have higher percent detained (8.5%) than Blacks “with priors” (3.0%). Whites in “0” jail-day range category fare significantly better in both “0 prior” (15.4 %) and “priors” (6.6%) than Blacks or Hispanics. “0-2 Days:” Comparing 2 jail-days or less outcomes among Racial/Ethnic groups with “no prior” conviction, Hispanics fare best (41.4%), and Blacks rank lowest or least favorable (31.8%). However, given “prior” conviction history, the data show lack of variation in percentage duration among Racial /Ethnic groups. Thus, given prior felony conviction history, Race/Ethnicity is not a factor in “0-2 jail-days” duration. “0-3 Days:” Adding I cumulative day of detention the pattern is similar. Whites with “0 prior” fare best (53.6%), slightly higher than Hispanics (51.3%). Whereas, Blacks with no prior, fall below half (46.6%) detained 3 days or less. “90-429 Days:” For felony defendants detained ninety days or longer Whites have the lowest percent regardless of prior conviction history (0 prior=11%; prior=18.6%). The least favored group, regardless of prior conviction history, is Hispanic. Over eighteen percent (18.3%) with no prior felony are detained 90 days or longer compared to their Black counterparts (13.1%). Given prior conviction, Hispanics and Blacks are similar (22.7% vs. 22.2%). These data indicate that disparities in pretrial detention days generally reflect Whites advantage of access to financial bail compared to people of color especially Blacks. Proportionately more Whites avoid detention altogether, are more likely released within a few days, and least likely face long term detention. As expected, prior conviction history increases duration of all groups. Finally, Hispanics generally have more favorable outcomes in jail-days duration than Blacks. Disposition Outcome of Longest Detained “Dismissed” Felony Defendants. Of 2998 disposed felony defendants, 458 (15%) were detained over 100 pretrial jail days. In regards to case disposition of this “over 100 pretrial days” group, 45 defendants (10%) were dismissed, 48 (10%) given deferred adjudication or probation. Seventy percent (n=315) of the 100-day detained group were sentenced to State Jail or TDC. Among seven dismissed defendants’-detained over 300 days— the longest incarceration was 428 days. Fifty-six “detained” “dismissed” defendants were incarcerated 150 or more days; 45 of this group (80%) were people of color. TABLE F-8 DISTRIBUTION OF JAIL DAYS BY RACE/ETHNICITY AND PRIOR CONVICTION STATUS DISPOSED FELONY STUDY POPULATION (N=2998) (Range Days detained) PERCENT Race/Ethnicity 0 Days 0 Prior Black Hispanic White Other Prior 0-2 Days 0 Prior 31.8% 41.4% 39.3% 46.2% Prior 20.8% 20.1% 19.3% 12.5% 0-3 Days 0 Prior 46.6% 51.3% 53.6% 61.5 Prior 32.2% 30.6% 32.2% 37.5% 90-429 Days 0 Prior Prior 13.1% 22.2% 18.3% 22.7% 11.0% 18.6% 3.8% 25.0%

(n= 493) 8.5% (n=960) 3.0% (n=415) 12.5% (n=313) 4.1% (n=435) 15.4% (n=348) 6.6% (n=26) 11.5% (n=8) --

Total N=2998

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FH-VI Hypothesis: Taking Into Account Bail $ set Category, Defendants who make “bond” have a more favorable disposition outcome than their “detained” counterparts. The preset bond schedule established by the collective Harris County felony judges is based are the seriousness of charge and criminal history. Analyzing the effects of pretrial release status (“bond” vs. “detained”) of comparable bond set $ categories on disposition outcome is a valid measure of the power of incarceration versus freedom awaiting trial. TABLE F-9 shows a pattern consistent with the hypothesis within six bond $ set categories ranging from lowest ($2000 or less) to (greater than $20,000). Cases of comparable “detained” defendants are less likely dismissed or deferred and more likely sentenced to incarceration than their “bond” counterparts . TABLE F-9 PRETRIAL RELEASE STATUS (BAIL VS, DETAINED), BAIL AMOUNT SET CATEGORY BY DISPOSITION OUTCOME (percent) OF 2998 RANDOMLY SELECTED HARRIS COUNTY FELONY DEFENDANTS CHARGED JANUARY 1, 2012 THROUGH APRIL 30, 2012 $ 2000 OR LESS Detained (n=145) Bond (n=275)
Nobond/not booked n=8

DISM* DEF ADJ PROB. 16% 49% 0% 28% 56% 1%
75% 25% 0%

HCJ 21% 9%
0%

STJ 13% 5%
0%

TDC 0% 1%
0%

M Incomp 1% 0%
0%

$2001-5000 Detained (n=201) Bond (n=253)
Nobond/not booked n=4

16% 32%
75%

27% 37%
25%

2% 5%
0%

25% 15%
0%

23% 8%
0%

7% 4%
0%

0% 0%
0%

$5001-10000 Detained (n=198) Bond (n=223)
Nobond/not booked n=4

13% 25%
50%

28% 33%
25%

4% 16%
0%

7% 9%
0%

21% 4%
0%

27% 13%
25%

.5% 0%
0%

$10001-20000 Detained (n=524) Bond (n=196)
Nobond/not booked n=3

11% 21%
33%

5% 22%
33%

1% 4%
0%

15% 14%
0%

52% 17%
33%

16% 21%
0%

0% 1%
0%

>$20000 Detained (n=327) Bond (n=195)
Nobond/not booked n=8

14% 32%
75%

14% 24%
13%

2% 3%
0%

18% 3%
0%

13% 5%
0%

38% 33%
12%

1% 0%
0%

NO BOND (n=434)
Nobond/not booked n=8

14%
88%

10%
12%

0%
0%

7%
0%

12%
0%

55%
0%

1%
0%

*includes no bill, acquittal

11

FH-VII Hypothesis: Taking into account pretrial release status “detained” versus “bond”, People of Color will not have less favorable disposition outcomes than White statistically equivalent defendants Defining “conviction” as combined rate of deferred adjudication, probation, Harris County Jail (HCJ), State Jail (STJ), Texas Department of Correction (TDC), TABLE F-10 below shows defendants charged with possession of drugs with no prior felony conviction, Hispanics have the highest conviction rate (84%) compared to Blacks (73%), Whites (74%) and Other (80%). People of color are more likely sentenced to incarceration. The highest Harris County jail sentence rate is associated with Hispanic (37%). However State Jail sentence of “White” and “Black” Race/Ethnicity categories are identical (7%). Blacks have the highest rate (7%) sentenced to TDC compared to Whites and Hispanics (3%). Note, the majority (52%) of whites received deferred adjudication which is traditionally considered a favorable outcome. TABLE F-10 DISPOSITION BY RACE/ETHNICITY of 386 FELONY DEFENDANTS CHARGED WITH DRUG POSSESSION-NO PRIOR FELONY CONVICTIONS *

Race/Ethn Dism N Black Hispanic White Other %

Def Adj N % 57 47 53 42 68 52 5 50

Prob N % 0 0

HCJ N % 13 11

STJ N 9 2 9 1 % 7 2 7 10

TDC N 9 4 4 0 % 7 3 3 0

NoBill N % 2 2 8 2 2 6

Acquittal Total N 0 1 0 0 % N 0 121 1 125 0 130 0 10

31 26 17 14 25 20 1 10

0 0 46 37 1 1 15 11 0 0 2 20

1 10

*percent bold italicized
However when controlling for pretrial release status (see TABLE F-11) “detained” versus “bond,” racial disparities in dismissals, deferred, TDC, and HCJ dispositions are mixed “within” “detained” or “bond” subgroup. For example Blacks have higher “dismissal rate (22%) than Whites (18%) as well as lower Harris County Jail (HCJ) rate (15% vs. 18%) than Whites. But Blacks also have 2% lower St. Jail (10%) rate than Whites (12%). ‘Bond” case outcomes show more favorable-- deferred, no bill dispositions-- and slightly lower incarceration rates for Whites. Comparing Race/Ethnicity and disposition outcomes controlling for pretrial status supports the central hypothesis that variation in disposition rates unfavorable to people of color is more a function of pretrial release status than Race/ethnicity. For ample, 15.25% of “detained” Blacks were sentenced to HCJ compared to 6.45% of those on “bond.” Twelve percent of “detained” Whites were sentenced to state jail compared to only 3.75% of “bond.” With few exceptions, disparities in outcomes are driven by pretrial status.
TABLE F-11 DISPOSITION DISTRIBUTION BY RACE AND PRETRIAL STATUS (N=386) OF POSS DRUG FELONY DEFENDANTS WITH NO PRIOR FELONY CONVICTIION

felony priors DAYS DETAINED DATE DISPOSED Offense

0 (Multiple Items) (Multiple Items) POSS DRUG

12

Count of Offense
Row Labels Detained=180 BLACK OTHER WHITE Bond= 205 BLACK OTHER WHITE n=62 n=7 n=80 HISPANIC n=56 n=59 n=3 n=50 HISPANIC n=68

Column Labels
AQUITTAL 0.00% 0.00% 0.00% 0.00% 0.00% 0.49% 0.00% 1.79% 0.00% 0.00% 0.00% 0.00% 0.26% DEFERRED 35.56% 40.68% 25.00% 33.33% 44.00% 57.56% 53.23% 62.50% 57.14% 57.50% 100.00% 100.00% 47.41% DISMISSED 18.33% 22.03% 14.71% 33.33% 18.00% 20.00% 29.03% 12.50% 0.00% 20.00% 0.00% 0.00% 19.17% HCJ 30.56% 15.25% 54.41% 0.00% 18.00% 10.24% 6.45% 16.07% 28.57% 7.50% 0.00% 0.00% 19.69% NO BILL 1.11% 1.69% 0.00% 0.00% 2.00% 5.37% 1.61% 3.57% 14.29% 8.75% 0.00% 0.00% 3.37% PROBATION 0.00% 0.00% 0.00% 0.00% 0.00% 0.49% 0.00% 0.00% 0.00% 1.25% 0.00% 0.00% 0.26% STJ 7.78% 10.17% 1.47% 33.33% 12.00% 3.41% 4.84% 1.79% 0.00% 3.75% 0.00% 0.00% 5.44% TDC 6.67% 10.17% 4.41% 0.00% 6.00% 2.44% 4.84% 1.79% 0.00% 1.25% 0.00% 0.00% 4.40%

NOT BOOKED=1 HISPANIC n=1

Grand Total 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% 100.00%

Grand total n=386:

1

183

74

76

13

1

21

17

Analysis of theft, assault/ murder offenses show the same pattern rejecting the argument that Race/Ethnicity affect outcome when controlling for pretrial release, underscoring the Orange Jumpsuit effect in case outcome.

INDIGENT FARE BETTER REPRESENTED BY PUBLIC DEFENDER
FH-VIII Hypothesis: Disposed Felony Defendants represented by Public Defenders are more likely to make bond than defendants represented by court-appointed counsel Sixty-one (61%; n=1833) of the total (2998) disposed felony defendant study population qualify for indigent legal defense (see TABLE F-12 below). Of this subpopulation, public defenders represent only 159 (8%), compared to 1674 (92%) provided a court-appointed attorney. Sixteen percent (16%) of court-appointed defendants made bond compared to 27% represented by public defenders. While these findings support the hypothesis that public defenders have more defendants released on bail than court-appointed attorneys, variations in bond rates among types of attorneys may be attributable to legal factors reflected in higher set bonds and or more serious charges. Given public defenders or court-appointed counsel are not present at an indigent defendant’s first court appearance held by a magistrate, perhaps public defenders are more likely to advocate for pretrial release at first review by the trial or assigned court where most personal bond for felony defendant are approved. As expected, the vast majority (75%) of defendants represented by retained attorneys are released on bail. We note that nearly half (49%) of defendant unrepresented by legal defense made bond. Forthcoming multivariate analysis next year will better explain these outcomes.

TABLE F-12 BAIL VS. DETAINED BY TYPE OF ATTORNEY FELONY DISPOSED STUDY POPULATION (N=2998) Bail status Ct Appt N % Hired N % Public Def N % Unknown N % Total N %

13

Detained Bond

1398 268
8

83% 16%
1%

246 749
5

25% 75%
.4%

114 44
1

72% 27%
1%

63 81
21

38% 49%
13%

1821 1142
35

61% 38%
1%

Nobond not booked

Total

1674

(56%)

1000

(33%)

159

(5%)

165

(6%)

2998

(100%)

FH-IX Hypothesis: Type of attorney will not affect conviction or Felony sentence outcomes taking into account pretrial release status. TABLE F-13 data demonstrates the bias of pretrial detention in both conviction and incarceration rates of total disposed felony defendant study population. With the exception of “Unknown” type of attorney defined as “no documented attorney of record, “bond” defendants have a more favorable outcome than “detained.” The lowest conviction rate (30%) was found among “detained” defendants without legal representation- “unknown.” The lowest incarceration rate (17%) was also associated with “unknown” type of attorney. This outcome goes against the hypothesis and may be attributable to legal factors such as comparatively weak cases, disposed by the magistrate or trial court within days of arrest. Among “Bond” defendants public defenders have the lowest conviction rate (59%), compared to court- appointed (78%), hired (72%) and unknown (67%). Overall, variation in conviction and incarceration rates among conventional attorney types is more evident on “bond” subpopulations than “detained.” Future analysis will examine the legal/extralegal factors affecting outcome of defendants unrepresented by legal defense. TABLE F-13 CONVICTION & INCARCERATION RATES BY TYPE OF ATTORNEY & BOND STATUS N= 2963 DISPOSED FELONY DEFENDANTS* Attorney type CONVICTION DETAIN BOND N=1821 N=1142 89% 87% 30% 87% 78% 72% 67% 59% STJ/TDC DETAIN BOND N=1821 N=1142 54% 59% 17% 56% 24% 19% 17% 18%

Ct-appt Hired Unknown Public Defender

*EXCLUDES 35 NOT BOOKED DISPOSED DEFENDANTS (31 DISMISSED, DEFER ADJ, NO BILL; 2 TDC; 2 STJ )

ORANGE JUMPSUIT EFFECT: THE MISDEMEANOR SCALES
MH-I Hypotheses I: Blacks and Hispanics defendants are more likely detained than other statistically identical defendants. In Harris county pretrial release status is determined by defendant’s access to financial resources. According to Harris County 2012 Annual Report only 4,157 (7.2%) of 57,524 misdemeanor A/B defendants were granted personal bond. These figures represent the lowest personal bond PTR or release on recognizance (ROR) rates

14

for jail-able misdemeanor crimes among urban metropolitan jurisdictions in the nation. How do people of color fare in access to pretrial release compared to white counterparts? TABLE M-1 shows that people of color (Black: 48%; Hispanic: 39%) have higher detention rates than White (33%) or other (22%). TABLE M-1 RACE/ETHNICITY DISTRIBUTION BY PRETRIAL STATUS MISDEMEANOR STUDY POPULATION RACE/ETHNICITY BOND N BLACK WHITE OTHER HISPANIC TOTAL 666 702 52 515 1935 % 51% 66% 78% 59% 58% DETAINED N 622 349 15 342 1328 % 47% 33% 22% 39% 40% NOT BOOKED N 25 18 0 14 57 % 2% 2% 0% 2% 2% 1313 1069 67 871 3320 TOTAL

To better explain the effects of Race/Ethnicity, a better test of the hypothesis controls for legal attributes. TABLE M-2 shows outcome of defendants by bail categories ranging from the lowest ($500 or less) general set for defendants having “no prior conviction history” charged with a non -violate offense to highest bail set categories i.e., >$10000, including 2 “no bail” set cases. In the lowest bond category ($500 or less) the highest pretrial detention rates are found among Hispanics (19%), followed by Blacks (17%) White (12%) and Other (7%) defendants. This pattern holds in most bail categories. Blacks or Hispanics have the highest detained rates in all six bail categories. Whites rank second in pretrial detention in the higher bond categories range such as $2000 to -9999. TABLE M-2 PERCENT DETAINED BY RACE/ETHNICITY & $BAIL CATEGORY TOTAL POPULATION *(3263) $BAIL $500 or less $501-1999 BLACK HISPANIC OTHER WHITE Grand Tot 17% 19% 7% 12% 15% 33% 34% 21% 20% 29% $2000 48% 32% 0% 40% 41% $2001-4999 57% 41% 40% 50% 50% $5000-9999 68% 59% 44% 65% 65% >10000 64% 67% 33% 51% 61%

GRAND TOTAL 3263* excludes 57 not booked defendants

PRETRIAL MISCONDUCT IS A MYTH

15

MH-II Hypothesis: Type of pretrial release i.e., surety bond, cash bail, personal bond is not associated with Pretrial misconduct: bond forfeiture, revocation, surrender, re-arrest, fugitive status. For-profit bondsmen argue that their clients have a better compliance record than those released on personal recognizance or nonfinancial bail. According to them, defendants granted “get out of jail free card” constitutes a threat to public safety because of greater risk of flight and criminal activity. Bondsmen also contend that they have a greater incentive to retrieve an absconder than public servants because of financial liability. Judges order some financial bail defendants to report to Harris County Community Supervision and Corrections Department for the purpose of drug monitoring and other special conditions. At this stage of analysis, of the total (3,320 misdemeanor study sample 1,935 (58%) made some type of bond. Of these, 1,593 (82%) fell in the surety bond category (see TABLE M-3 below). This compares to 5.5% and 12.1% of bond defendants released on cash and personal bond respectively. Only 35 (2%) to date of total bond defendants absconded or escaped prosecution. In regards to bond forfeiture, 16 (7%) of total 235 personal bond defendants forfeited bail, compared to 176 (11%) of 1593 surety bond defendants. The highest bond revocation rate (11%) fell in the personal bond category. This may be attributable to positive drug test or other violations of conditions of bail. Cash bond has the highest (4) fugitive rate, while no difference is seen between personal bond (2%) and surety bond defendant (2%) fugitive rates.
TABLE M-3 HARRIS COUNTY MISDEMEANOR PRETRIAL MISCONDUCT DISTRIBUTION BY BAIL TYPE* TYPE COUNT N CASH PERSONAL BD SURETY TOTAL 107 235 1593 1935 Percent 6% 12% 82% 100% BOND FORTFEITURE N 7 16 176 199 Percent 7% 7% 11% 10% REVOCATION N 4 25 89 118 Percent 4% 11% 6% 6% FUGITIVE N 4 4 27 35 Percent 4% 2% 2% 2%

Profile of Misdemeanor Absconders
MH-III Hypothesis:There is no relationship between Charge, Bond Set and Fugitive status. TABLE M-4 shows of the 35 total bond defendants that absconded almost half (45%) are charged with DWI and Theft for bonds that range from a low $500 for DWI to high $5000. The highest bonds ($5000-15000) were set for drugs. Only one defendant was charged with violent crime.
TABEL M-4 MISDEMEANOR ABSCONDER DISTRIBUTION BY CHARGE, $BOND and Bond Type Charge DWI Theft Fail to Stop give info DWLS $Bond 500-3000 500-5000 2000-5000 500-5000 Surety 6 5 3 5 1 2 Personal Bond Cash 2 1

16

Drugs Evade Arrest Assault Family Member Other

5000-15000 5000 5000 500-1000

4 1 1 2

1

1

The above profile contrasts with 53 total fugitive defendants (see TABLE M-5 below) that were never arrested or posted bond and subject to active warrants. Among this subgroup “theft by check” represents 38% of non -arrest absconders and violent type crimes (“family assault” and “against person”) together makeup a fifth of the fugitives.
TABEL M- 5 NON-ARREST MISDEMEANOR ABSCONDER DISTRIBUTION BY CHARGE and $BOND Offense Theft by Check Theft/Fraud Family Assault Against Property Other Misdemeanor Against Public Adm Public Order & Indecency Against Person Drug Offenses DWI/DUI Total Frequency 20 9 10 4 3 2 2 1 1 1 53 $Bond $500-1000 $500-4000 $500- 50,000, no bond $1500-5000 $500-5000 5000 $35000 2000 $500 500

Preliminary findings of Project Orange Jumpsuit supports the null Hypothesis that type of bail of misdemeanor defendants has no relationship to pretrial misconduct. While Surety bond defendants have higher bond forfeiture rate than personal bond defendants, the latter have twice the revocation rate. Little differences in absconder rates were found between financial and non-financial bail cases. Of the total misdemeanor study sample charged (3320) and tracked from 12 to 18 months, 88, less than 3% (2.6%) escaped prosecution to date. Moreover only 12 absconders fell in the violent charge category. Thus, given these findings there is a strong case for expanding nonfinancial bail for defendants charged with non-violent crimes and classified “low” to “moderate risk” by Pretrial Services Risk Assessment Instrument.

DETAINED DEFENDANTS: DOUBLE PUNISHMENT
Detention vs. Bond: A Perspective. The scales of justice are weighted heavily against the detained. First, we will show the stark differences in duration of Harris County pretrial jail days between” bond” and” detained” disposed defendants. These variations are best illustrated in four statistical measures: range, average, median and upper

17

quartile (Q3) days reported below. The Top Quartile figure is the value of the variable (days detained)-- arrayed in an Excel spreadsheet from the lowest to highest number of days detained— the cell in which three quarters of cases are located. TABLE M-6 below shows that “detain” misdemeanor defendants with no prior conviction have a pretrial days range from a low-- 1 day to high-- 394. This compares to 0-25 pretrial days range for “bond” counterparts. The disparity between “bond” and “detain” is better illustrated comparing the average, median and top quartile values. For example, the median value (3 days) shows that 50% of “detain” defendants were incarcerated three times longer (3 days) than “bond” group (1 day). Duration of pretrial jail days of the top quartile groups: “detain” (6 days) vs. “bond” (2 days) doubles in the respective subgroups. As expected, defendants with prior conviction have highest “average” detention days (13 days) and top quartile value (9 days). TABLE M-6 STATISICAL SUMMARY: “DETAINED” vs BOND n=3077 HARRIS COUNTY MISDEMEANOR DISPOSED DEFENDANTS* Detained Days 0 Prior Conviction Detained n=369 Bond n=992 1- 394 days 0-25 days 9 days 1 days 3 days 1 days 6 2 Range Average Median Top Quartile

1 or more Prior Conviction Detained n=950 Bond n= 766 1-389 0-242 0-394 13 days 3 days 6 days 3 days 2 2 9 2 3

Grand Total n=3088**

*Excludes 11 disposed cases not booked/no bond made **Includes 11 disposed cases not booked/no bond made

HOW DO PEOPLE OF COLOR FARE IN PRETRIAL DETENTION DAYS AND CASE OUTCOME?
MH-IV Hypothesis: Taking into account Pretrial detention status, Race/Ethnicity has no effect in number of days detained. The analysis supports the hypothesis that people of color are more likely detained than their white counterparts because of lack of financial resources. However, the effects of Race/Ethnicity on duration of days “detained” of those who make “bond” versus those too poor to post financial bail and denied release on personal bond by trial court is relatively unexplored in research. We speculate that given “detained” status—due to defendant’s inability to post financial bail, his or her race or ethnicity is not relevant to number of incarceration days awaiting trial. To test this hypothesis, we examined range, mean, median and upper quartile of 1361 disposed misdemeanor defendants with no prior conviction by pretrial release status (“Detained” vs. “Bond”) and Ra ce/Ethnicity. TABLE M-7 illustrates the legal/courthouse culture effect of money bail on pretrial release status and duration of jail days of respective groups. The difference in “average” pretrial jail days between “detained” versus “bond defendants” is significant within given Race/Ethnicity category. For example, given no prior conviction, “detained” Whites average 11 pretrial days compared to only 1 average pretrial jail day for Whites on “Bond.” The disparities

18

in “mean”, “median” and “upper quartile” between “detained” and “bond” for respective Hispanic and Black subgroups are straight forward as well. That is, longer stays is associated with “detained” subgroups. However, controlling for pretrial status (“Detained” vs. “Bond”) and Race/Ethnicity, v alues in mean, median and upper quartile jail days within given Race/Ethnicity subgroup, the variations are mixed or minimal. This is particularly evident in “median” “detained” (3 days) versus “bond” (1 day) for both Black and White subgroups. Also, while Hispanic category has the highest upper “detained” quartile value (10 Days), meaning 25% of Hispanics are detained 10 days or longer, Blacks have the lowest Q3 value (4 days) and Whites fall in between (8 days). This pattern demonstrate that the racial effect on duration of pretrial jail days of defendants with no prior convictions in less pronounce or less significant “within” “detained” subpopulation and “within” “bond” subpopulation or when pretrial release status is taken into account. Comparing extreme outer “ranges,” Whites fare better in less jail days or shorter stay. For example, “detained” “Whites “ longest duration is 123 days. This compares to 199 for “detained” Blacks and 156 for “detained” Hispanics. The same pattern favors White “bond” subgroup (13 days), almost half the length of stay or pretrial jail days as Blacks (23 days) and Hispanics (25 days) subgroups. Analysis of racial disparity in pretrial jail duration of the total misdemeanor study sample found that a quarter (25%) of disposed White defendants were not detained awaiting trial. This compares to 13.6 % for Hispanics and 13.2% for Blacks. At the other extreme of longer duration (30 days or longer), Whites have the lowest percent (3.4%), Blacks ranks the highest (5.2%), followed by Hispanics (5.0%) and Other (4.7%). Thus, in regards to Hypothesis MH-IV, the findings indicate the racial disparity in duration of pretrial jail days is partially supported with the following qualification: Whites are more likely to circumvent pretrial detention than people of color, and if detained, experience less days of incarceration. The next section will examine the relationship of pretrial status to disposition. Do bond defendants have an advantage over comparable detained defendants at disposition stage? TABLE M-7 STATISICAL SUMMARY OF PRETRIAL JAIL DAYS OF 1361 DISPOSED MISDEMEANOR DEFENDANTS WITH NO PRIOR CONVICTION BY RACE/ETHNICITY AND PRETRIAL RELEASE STATUS BLACK Detained Bond N 111 308 range 1-199 0-23 mean 7 2 median 3 1 Q3 4 2

HISPANIC Detained Bond WHITE Detained Bond OTHER Detained 4 2-18 6 19 2 3 113 402 2-123 0-13 11 1 3 1 8 2 141 244 1-156 0-25 10 2 3 2 10 2

Bond

38

0-9

1

1

2

MH-V Hypotheses There is wide disparities in jail sentence rates in “detained” versus “bond” defendants: (a)“Detained” Defendants are more likely sentenced to Jail than their “Bond” counterparts. (b) Race/ Ethnicity is not a significant factor in Jail sentence rates controlling for offense and pretrial release status.
Financial status is not insignificant for the poor arrested in Harris County for alleged minor crimes. Fifteen percent (n=133) of misdemeanor study population with bonds set for $500 or less (n=873) were detained awaiting trial. However, in a jurisdiction governed by a preset money-based bail system and a judiciary philosophically opposed to personal bond release (PTR), one’s race or ethnicity does not intervene in pretrial release decision and county’s issuance of Orange Jumpsuit to the poor. Whites unable to pay the bondsman’s fee are subject to the same fate as people of color detained. To assess the impact of Race/Ethnicity on case outcome taking into account pretrial release status and prior conviction history, we examined Harris County Jail sentence rates of defendants (n=1577) convicted of “Drugs,” “DWI/DUI,” and “Theft/fraud” offenses (See TABLES M-8, M-9 below); charges that represent the majority (52%) of 15 misdemeanor offense categories. TABLE M-8 HARRIS COUNTY JAIL SENTENCE RATES OF DETAINED (N=570) MISDEMEANOR DEFENDANTS BY OFFENSE, PRIOR CONVICTION HISTORY, AND RACE/ETHNICITY Detained HCJ Rate n=570 Race/Ethnicity Theft 0 Prior N Black Hispanic Other White Total 13 12 % 69% 92% Priors N 60 23 1 43 127 % 90% 91% 100% 95% Drug offense 0 Prior N 31 7 % 94% 86% Priors N % DWI/DUI 0 Prior N 0 % Priors N 17 38 0 17 72 % 100% 97% 88%

122 91% 40 2 33 197 83% 100% 85%

54 96% 0 12 66 75%

2 100% 25 52 76%

1 100% 17 56 76%

DISPARITY IN DETENTION. The above findings support the hypothesis that Race/Ethnicity is irrelevant in jail sentence disposition of “detained” “theft” and “drug” misdemeanor defendants. But given DWI/D UI charge, “detained” Whites have more favorable disposition observed in lower jail sentence rates (75%; 88%) regardless of prior conviction history, compared to Blacks (100%) and Hispanics (96%; 97%). Blacks charged with “theft,” regardless of prior conviction history, have the lowest percent sentenced to Harris County jail (69%; 90%) or most favorable disposition outcome compared to Hispanics (92%; 91%) and Whites (76%; 91%). Among “drug” defendants “without prior” conviction, Whites have the most favorable outcome (76%) compared to 86% and 94% for Hispanics and Blacks respectively. However, the converse is

20

true for White drug offenders “with prior” (85%) compared to Hispanics (83%). Black drug offenders “with priors” have the least favorable (91%) disposition outcome. BOND DISPARITY. The jail rate disposition pattern changes for “bond” defendants -- who appear in court in street clothes-- rather than an Orange Jumpsuit. First, in most offense categories, except DWI/DUI offenders with prior conviction, those on “bond” have a significant lower percent sentenced to jail than similar “detained” groups. For example, 94% and 91% of “detained” Black drug offenders are sentenced to jail, versus 39% and 70% for “bond” Blacks with no prior and prior respectively. But in contrast to the mixed racial effect in jail rates in most of the “detained” population, among “bond,” subgroups, Whites have the lowest percent sentence to jail in all three offense categories regardless of prior conviction history, compared to “bond” Black and Hispanics. However, these disparities in jail rate are slight. TABLE M-9 Harris County Jail Sentence Rates by Offense, Prior Conviction Status, Race/Ethnicity: Bond (n= 1007) Misdemeanor Defendants Bond HCJ Rate n=1007 Race/Ethnicity Theft 0 Prior N Black Hispanic Other White Total 65 33 7 74 179 % 35% 33% 14% 24% Priors N 34 19 0 28 81 % 59% 68% 50% Drug offense 0 Prior N 87 43 7 89 226 % 39% 44% 14% 36% Priors N 90 41 1 43 175 % 70% 77% 100% 67% DWI/DUI 0 Prior N % N 22 68 2 49 141 Priors % 100% 97% 0% 37%

24 33% 81 42% 3 97 205 33% 29%

According to Pretrial Services 9,560 defendants, nearly a fifth of total misdemeanors offenses, were charged with drug offenses including marijuana possession in 2012. Jail cost alone is measured in defendant’s lost work days, and $50 per incarceration day. The TABLE M-10 below shows the powerful effects of the Orange Jumpsuit or pretrial detention on misdemeanor defendants with no conviction history charged with possession of less than 2 ounces of marijuana or low amount of controlled substance. Many of these low level charges result in hundreds of pretrial jail days for indigent defendants who have cases dismissed, or plead guilty sentenced to time served in pretrial detention. Forthcoming analysis with calculate pretrial jail cost. TABLE M-10 DISPOSITION (Bond vs. Detained) MISDEMEANOR DEFENDANTS CHARGED WITH DRUGS –NO PRIOR CONVICTION (N=302) BOND TYPE DISM n DETAINED BOND 7 58 % 11% 24% DEFERRED n 3 85 % 5% 36% PROBATION n 0 1 % 0 .4% HCJ n 55 93 % n 84% 39% 65 237 TOTAL

21

Total

65

88

1

148

302

TABLE M-11 shows, of total 3088 disposed misdemeanor study population, 143 defendants were detained 30 days or longer. In terms of their disposition outcome, the vast majority (75%) were sentenced to Harris County jail. Yet 17% of defendants detained over 30 days had cases dismissed, and another 4% sentenced to deferred adjudication. TABLE M-11 DISPOSITION DISTRIBUTION OF DISPOSED MISDEMEANOR DEFENDANTS DETAINED 30 DAY OR LONGER

Sentence Deferred dismissed hcj stj tdc Grand Total

Count of SPN 6 25 108 2 2 143

Count of SPN2 4.20% 17.48% 75.52% 1.40% 1.40% 100.00%

Misdemeanor Defendants Detained over 60 days Disposition Outcome (N= 59) Sentence deferred dismissed hcj tdc Grand Total Count of SPN 2 15 41 1 59 Count of SPN2 3.39% 25.42% 69.49% 1.69% 100.00%

90 days or more detained Sentence Count of SPN deferred dismissed hcj tdc Grand Total Over 120 detained days Sentence Count of SPN dismissed hcj tdc Grand Total

Count of SPN2 1 10 22 1 34 2.94% 29.41% 64.71% 2.94% 100.00%

Count of SPN2 5 14 1 20 22 25.00% 70.00% 5.00% 100.00%

RACIAL DISPARITY IN OUTCOMES INDIGENT FARE BETTER REPRESENTED BY PUBLIC DEFENDER
MH-VI Hypothesis: Misdemeanor Defendants represented by Public Defenders are more likely to make bond than defendants represented by court-appointed counsel
Over half (50.7%; n=1568) of the total (3088) disposed misdemeanor study population qualify for indigent legal defense (see TABLE M-12 below). Of this indigent subpopulation, public defenders represent only 86 (5.4%), compared to 1482 (94.5%) court-appointed attorney. Only 7% of public defender defendants made bond compared to 27% represented by court-appointed defense attorneys. As expected, the vast majority (95%) of defendants represented by retained attorneys are released on bail. While these findings reject the hypothesis that public defenders have more defendants released on bail than court-appointed attorneys, variations in bond rates among types of attorneys may be attributable to legal factors reflected in higher set bonds and or more serious charges. In addition, low public defender assignment may reflect lack of acceptance of the program by trial judges and, given the limited resources of the public defender’s office, felony cases are given higher priority. We also note that detained misdemeanor defendants with mental health issues are assigned a public defender. Multivariate analysis will better explain these outcomes.

TABLE M-12 BAIL VS. DETAINED BY TYPE OF ATTORNEY OF MISDEMEANOR DISPOSED STUDY POPULATION (N=3088) Bail status Ct Appt N Detained Bond 38%
Nobond not booked

Hired % N 60 1157 % 5% 95%

Public Def N 80 6 % 93% 7%

Unknown N 100 140 % 41% 58%

Pro Se N 52 % 100

Total N

1079 403

73% 27%

1319 1758

-

-

8

73%

-

-

3

27%

-

-

11

Total

1482

(48%)

1225

(40%)

86

(3%)

243

(8%)

52

(1%) 3088

MH-VII Hypothesis: Type of attorney will not affect Misdemeanor conviction or sentence outcomes taking into account pretrial release status.
TABLE M-13 confirms the advantage of making bail in terms of avoiding a conviction. Only “bond” defendants represented by public defender fared worse in conviction outcome than their “detained” counterparts (83% vs. 73%). “Detained” defendants represented by public defender have a lower conviction rate (73%) than courtappointed (98%) or hired (95%).But inexplicably, defendants that have no attorney of record (“unknown”) fared the best in both conviction and incarceration outcomes.

23

TABLE M-13 CONVICTION & INCARCERATION RATES BY TYPE OF ATTORNEY & BOND STATUS N= 3077 DISPOSED MISDEMEANOR DEFENDANTS* Attorney type CONVICTION DETAIN BOND N=1319 N=1758 98% 95% 57% 73%
-

HCJ/STJ/TDC DETAIN BOND N=1319 N=1758 98% 95% 57% 73%
-

Ct-appt Hired Unknown Public Defender
Pro Se

80% 73% 51% 83%
69%

80% 73% 51% 83%
69%

*EXCLUDES 11 NOT BOOKED, NO BOND MADE: 4 deferred, 4 dism, 2 HCJ, 1 prob

As hypothesized, comparing variation in disposition outcomes reveal that differences are more pronounced between “bond” and “detained” pretrial release groups than within given “bond” or “detained” sub populations, underscoring the extent access to pretrial release determines what happens to defendants more than any other legal or extralegal attribute. Preliminary Conclusions. At his stage of bivariate analysis the preliminary findings reveal that variation in access to pretrial release is a function of economic status whereby the poor especially Black and Hispanic defendants are disproportionately detained by restrictive money-based bail system. Also the findings reject the argument that type of bond financial versus non- financial affect pretrial misconduct. Moreover, taking into account legal and extralegal factors, case outcomes show differences in conviction and incarceration rates are more pronounced between “bond” and “detained” defendants regardless of charge, set bond, prior convictions, Race/Ethnicity, and type of legal representation. In addition, judicial bias against personal bond (PTR) shows long duration in pretrial jail days of dismissed and “no bill” cases. Forthcoming reports will employ regressive analysis and update dispositions of open cases. Meanwhile, Project Orange Jumpsuit recommends the criminal defense attorney association, civil right organizations, judges and county officials overseeing the administration of justice process take immediate action to address the abuses, stemming from discriminatory bail system.
Policy Recommendations to Ameliorate Abuses of Harris County Restrictive Bail Policies           Lower bond schedule for non-violent charges Authorize defendant to access personal online bank account to deposit set “cash” bond via laptop and smart phone. Expand Public Defender Program so indigent detainee is represented at the first court appearance before magistrate or trial judge Automatic personal bond release of defendants classified “low,” “low moderate” risk by Pretrial Services risk assessment instrument Direct Harris County Administrative Office of the District Courts and Director of Pretrial Services comply with Public Information Act Upgrade District Attorney Intake Computer system (DIMS screen) to allow Law Enforcement to enter Defendant’s Ethnicity Assistant District Attorney verify defendant Race/Ethnicity in District Clerk’s database at time of charge and bond set Deputy Sheriff verify defendant Race/Ethnicity during Harris County jail book-in process Establish court re-reviews timelines for detained defendants Commissioners Court appoint a Blue Ribbon Committee with citizen representation to investigate the Bail Bond System We welcome questions. Contact Gerald R. Wheeler Ph.D. (281) 772 4953, email: katypoet@comcast.net

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