project orange jumpsuit

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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 isunprecedented 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 postdisposition by accessing Harris County District Clerks 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 trialjudges 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, thejudges bail schedule is interpreted and set by an

assistant district attorney (ADA) within hours of arrest. Harris Countys 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.

Thephenomena of Missing Hispanics. Upon documenting the variable Ethnicity in the D.As and District

Clerks database, Project Orange Jumpsuitstaff 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 ofarrestees with Hispanic surnames was found in the total DAs 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 Clerks databasesemployed by other county criminal justice agencies.

The fight over open records.Project Orange Jumpsuitassumed 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 departmentsthat 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 Countys 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 bondsmans 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 whilereleased 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 totalfelonypersonal 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 agencys

lack of success was the organized effort of commercial bail bondsmen

to sabotage the agencythe 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 bondsmens

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 countys direct filing system. According to Carol Oeller, Director Harris

County Pretrial Services, law enforcement (LE) files charges online. Thenassistant 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 isPasadena, Baytown, HPD, Sheriffs 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 ofinvestigators, 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 defendants 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 Pretrial Services Harris County Census*

Felony Misdemeanor Felony**

Hispanic 26.2 % 26.3 29.7 % 26%

White 23.9% 32.2 18.6% 45%


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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 Jumpsuitstudy 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 Services 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 BOND TOTAL

N % N % N %

BLACK 1000 64% 557 35% 1557 100%

HISPANIC 449 58% 314 40% 763 100%

OTHER 14 35% 26 65% 40 100%

WHITE 447 53% 388 46% 835 100%

TOTAL 1910 1285 3195

*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 >20000 NO BOND

BLACK 40% 50% 44% 75% 54% 100%

HISPANIC 35% 35% 43% 67% 67% 100%

OTHER 20% 0% 25% 50% 33% 100%

WHITE 27% 40% 46% 64% 56% 100%

TOTAL N= 429 468 455 739 642 462

GRAND TOTAL n=3195

*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 non-

financial 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 BOND FORTFEITURE REVOCATION FUGITIVE

N % N % N % N %

CASH 6 .5 1 16.7 0 0 1 16.7


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PERSONAL BD 46 3.6 1 2.2 3 6.7 1 2.2

SURETY 1233 95.9 96 7.7 120 9.7 14 1.1

TOTAL 1285 100% 98 7.6% 123 9.6 16 1.2%

*As of June, 2013; excludes 9 non-arrest charged felony defendants that absconded (fugitives never madebond 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 $Bail bail type offense class

Sale drug 10,000 Surety F2

Poss drug 5,000 Surety FS

Sale drug 20,000 Surety F1

Poss drug 50,000 Surety F3

Burg Bd 2,000 PTR FS

Theft 10,000 Surety FS

Robbery 35,000 Surety F1

Poss drug 2,500 Surety F

Aslt-Murd 10,000 Surety F3

Burg Hab 50,000 Surety F2

Poss drug 10,000 Surety F3

False statement 1,000 Cash F

Theft 15,000 Surety FS

Fail com sex 10,000 Surety F3

Burg Hab 10,000 Surety F2

Forgery 6,000 Surety FS

B. Felony non-arrest Fugitives by charge, bail set and offenses class

CHARGE $BAIL CLASS

Fail reg sex off 5,000 FS

Sex abuse child 30,000 F1

Indec w child 90,000 F2

Theft 2,000 FS

Agg sex child no bond F1


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Assault 10,000 F2

Murder/mans no bond F1

Credit Card 15,000 FS

Indec w child 30,000 F2

Preliminary findings ofProject Orange Jumpsuitreject the null Hypothesis that type of bail have no relationship topretrial 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 Yorks 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% ofdetain 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 Range Average Median Top Quartile

0 Prior Felony Conviction

Detained n=624 2- 429 days 68 days 33 days 101

Bond n=724 0-272 days 8 days 2 days 4

1 or more Prior Felony Conviction

Detained n=1197 1-429 68 days 38 99

Bond n=418 0-257 15 days 3 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 afunction 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 ofdetained defendants compared to their

bond counterparts. In this casethe 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 DRUGSNO PRIOR

FELONY CONVICTION (N=385)

BOND TYPE DISM/NO BILL DEFERRED PROBATION HCJ ST JAIL TDC

n % n % n % n % n % n %

DETAINED* 35 19% 64 36% 0 0 55 31 % 14 8% 12 7%

(n=180)

BOND** 52 25% 118 58% 1 .4% 21 10% 7 3% 5 2%

(n=205)

*includes 2 no bill; **includes 11 no bill, 1 acquittal; excludes 1 no bond/not booked

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? Givenprior 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 90-

429, 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 bookedin Harris Jail pending case completion, shows Blacks with 0 prior have

higher percent detained (8.5%) than Blacks with priors (3.0%). Whites in 0jail-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 priorfelony 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 detentionaltogether, 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 0-2 Days 0-3 Days 90-429 Days

0 Prior Prior 0 Prior Prior 0 Prior Prior 0 Prior Prior

Black (n= 493) 8.5% (n=960) 3.0% 31.8% 20.8% 46.6% 32.2% 13.1% 22.2%

Hispanic (n=415) 12.5% (n=313) 4.1% 41.4% 20.1% 51.3% 30.6% 18.3% 22.7%

White (n=435) 15.4% (n=348) 6.6% 39.3% 19.3% 53.6% 32.2% 11.0% 18.6%

Other (n=26) 11.5% (n=8) -- 46.2% 12.5% 61.5 37.5% 3.8% 25.0%

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 theirdetainedcounterparts.

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 DISM* DEF ADJ PROB. HCJ STJ TDC M Incomp

Detained (n=145) 16% 49% 0% 21% 13% 0% 1%

Bond (n=275) 28% 56% 1% 9% 5% 1% 0%Nobond/not booked n=8 75% 25% 0% 0% 0% 0% 0%

$2001-5000

Detained (n=201) 16% 27% 2% 25% 23% 7% 0%


$5001-10000

Detained (n=198) 13% 28% 4% 7% 21% 27% .5%


$10001-20000

Detained (n=524) 11% 5% 1% 15% 52% 16% 0%


>$20000

Detained (n=327) 14% 14% 2% 18% 13% 38% 1%


NO BOND (n=434) 14% 10% 0% 7% 12% 55% 1%

Nobond/not booked n=8 88% 12% 0% 0% 0% 0% 0%

*includes no bill, acquittal


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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 jailsentence rate is associated with Hispanic (37%). However State Jail sentence ofWhite 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 Def Adj Prob HCJ STJ TDC NoBill Acquittal Total

N % N % N % N % N % N % N % N % N

Black 31 26 57 47 0 0 13 11 9 7 9 7 2 2 0 0 121

Hispanic 17 14 53 42 0 0 46 37 2 2 4 3 2 2 1 1 125

White 25 20 68 52 1 1 15 11 9 7 4 3 8 6 0 0 130

Other 1 10 5 50 0 0 2 20 1 10 0 0 1 10 0 0 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 withindetained or bond subgroup. For exampleBlacks 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% ofdetained 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 0

DAYS

DETAINED (Multiple Items)

DATE

DISPOSED (Multiple Items)

Offense POSS DRUG


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Count of

Offense Column Labels

Row Labels AQUITTAL DEFERRED DISMISSED HCJ NO BILL PROBATION STJ TDC

Gran

Tota

Detained=180 0.00% 35.56% 18.33% 30.56% 1.11% 0.00% 7.78% 6.67% 100

BLACK n=59 0.00% 40.68% 22.03% 15.25% 1.69% 0.00% 10.17% 10.17% 100HISPANIC n=68 0.00% 25.00% 14.71% 54.41% 0.00% 0.00% 1.47% 4.41% 100

OTHER n=3 0.00% 33.33% 33.33% 0.00% 0.00% 0.00% 33.33% 0.00% 100

WHITE n=50 0.00% 44.00% 18.00% 18.00% 2.00% 0.00% 12.00% 6.00% 100

Bond= 205 0.49% 57.56% 20.00% 10.24% 5.37% 0.49% 3.41% 2.44% 100

BLACK n=62 0.00% 53.23% 29.03% 6.45% 1.61% 0.00% 4.84% 4.84% 100

HISPANIC n=56 1.79% 62.50% 12.50% 16.07% 3.57% 0.00% 1.79% 1.79% 100

OTHER n=7 0.00% 57.14% 0.00% 28.57% 14.29% 0.00% 0.00% 0.00% 100

WHITE n=80 0.00% 57.50% 20.00% 7.50% 8.75% 1.25% 3.75% 1.25% 100

NOT BOOKED=1 0.00% 100.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 100

HISPANIC n=1 0.00% 100.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 1000.26% 47.41% 19.17% 19.69% 3.37% 0.26% 5.44% 4.40% 100

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 Jumpsuiteffect 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 defendants 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 Hired Public Def Unknown Total

N % N % N % N % N %


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Detained 1398 83% 246 25% 114 72% 63 38% 1821 61%

Bond 268 16% 749 75% 44 27% 81 49% 1142 38%

Nobond not booked 8 1% 5 .4% 1 1% 21 13% 35 1%

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 Unknowntype 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 themagistrate 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 STJ/TDC

DETAIN BOND DETAIN BOND

N=1821 N=1142 N=1821 N=1142

Ct-appt 89% 78% 54% 24%

Hired 87% 72% 59% 19%

Unknown 30% 67% 17% 17%

Public Defender 87% 59% 56% 18%

*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 defendants 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


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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 DETAINED NOT BOOKED TOTAL

N % N % N %

BLACK 666 51% 622 47% 25 2% 1313

WHITE 702 66% 349 33% 18 2% 1069

OTHER 52 78% 15 22% 0 0% 67

HISPANIC 515 59% 342 39% 14 2% 871

TOTAL 1935 58% 1328 40% 57 2% 3320

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 $2000 $2001-4999 $5000-9999 >10000

BLACK 17% 33% 48% 57% 68% 64%

HISPANIC 19% 34% 32% 41% 59% 67%

OTHER 7% 21% 0% 40% 44% 33%

WHITE 12% 20% 40% 50% 65% 51%

Grand Tot 15% 29% 41% 50% 65% 61%

GRAND TOTAL 3263* excludes 57 not booked defendants

PRETRIAL MISCONDUCT IS A MYTH


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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 BOND FORTFEITURE REVOCATION FUGITIVE

N Percent N Percent N Percent N Percent

CASH 107 6% 7 7% 4 4% 4 4%

PERSONAL BD 235 12% 16 7% 25 11% 4 2%

SURETY 1593 82% 176 11% 89 6% 27 2%

TOTAL 1935 100% 199 10% 118 6% 35 2%

Profile of Misdemeanor Absconders

MH-III Hypothesis:There is no relationship between Charge, Bond Set and Fugitive status.

TABLE M-4shows 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 $Bond Surety Personal Bond Cash

DWI 500-3000 6 2

Theft 500-5000 5 2 1

Fail to Stop give info 2000-5000 3

DWLS 500-5000 5 1


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Drugs 5000-15000 4 1

Evade Arrest 5000 1

Assault Family Member 5000 1

Other 500-1000 2 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 Frequency $Bond

Theft by Check 20 $500-1000

Theft/Fraud 9 $500-4000

Family Assault 10 $500- 50,000, no bond

Against Property 4 $1500-5000

Other Misdemeanor 3 $500-5000

Against Public Adm 2 5000

Public Order & Indecency 2 $35000

Against Person 1 2000

Drug Offenses 1 $500

DWI/DUI 1 500

Total 53

Preliminary findings ofProject Orange Jumpsuitsupports 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 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

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


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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 wereincarcerated 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 Range Average Median Top Quartile

0 Prior Conviction

Detained n=369 1- 394 days 9 days 3 days 6

Bond n=992 0-25 days 1 days 1 days 2

1 or more Prior Conviction

Detained n=950 1-389 13 days 3 days 9

Bond n= 766 0-242 3 days 2 2

Grand Total n=3088** 0-394 6 days 2 3

*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 statusdue to defendants 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 Race/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


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in mean, median and upper quartilebetween 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, values in mean, median and upper

quartile jail days within given Race/Ethnicity subgroup, the variations are mixed or minimal. This is particularly

evident in mediandetained (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 aredetained 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 detainedawaiting 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 N range mean median Q3

Detained 111 1-199 7 3 4

Bond 308 0-23 2 1 2

HISPANIC

Detained 141 1-156 10 3 10

Bond 244 0-25 2 2 2

WHITE

Detained 113 2-123 11 3 8

Bond 402 0-13 1 1 2

OTHER

Detained 4 2-18 6 2 3


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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), ones race or ethnicity does not intervene in pretrial release decision and countys

issuance ofOrange Jumpsuit to the poor. Whites unable to pay the bondsmans 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 COUNTYJAIL SENTENCE RATES OF DETAINED (N=570) MISDEMEANOR DEFENDANTS BY

OFFENSE, PRIOR CONVICTION HISTORY, AND RACE/ETHNICITY

Detained HCJ Rate n=570

Race/Ethnicity Theft Drug offense DWI/DUI

0 Prior Priors 0 Prior Priors 0 Prior Priors

N % N % N % N % N % N %

Black 13 69% 60 90% 31 94% 122 91% 0 - 17 100%

Hispanic 12 92% 23 91% 7 86% 40 83% 54 96% 38 97%

Other 2 100% 1 100% 1 100% 2 100% 0 - 0 -

White 25 76% 43 95% 17 76% 33 85% 12 75% 17 88%

Total 52 127 56 197 66 72

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/DUI

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


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true for White drug offenders with prior (85%) compared to Hispanics (83%). Blackdrug offenders with

priorshave 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 Drug offense DWI/DUI

0 Prior Priors 0 Prior Priors 0 Prior Priors

N % N % N % N % N % N %

Black 65 35% 34 59% 87 39% 90 70% 24 33% 22 100%

Hispanic 33 33% 19 68% 43 44% 41 77% 81 42% 68 97%

Other 7 14% 0 - 7 14% 1 100% 3 33% 2 0%

White 74 24% 28 50% 89 36% 43 67% 97 29% 49 37%

Total 179 81 226 175 205 141

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 defendants 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 DRUGSNO PRIOR

CONVICTION (N=302)

BOND TYPE DISM DEFERRED PROBATION HCJ TOTAL

n % n % n % n % n

DETAINED 7 11% 3 5% 0 0 55 84% 65

BOND 58 24% 85 36% 1 .4% 93 39% 237


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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 Count of SPN Count of SPN2

Deferred 6 4.20%

dismissed 25 17.48%

hcj 108 75.52%

stj 2 1.40%

tdc 2 1.40%

Grand

Total 143 100.00%

Misdemeanor Defendants Detained over 60 days Disposition

Outcome (N= 59)


deferred 2 3.39%

dismissed 15 25.42%

hcj 41 69.49%tdc 1 1.69%

Grand Total 59 100.00%

90 days or more detained


deferred 1 2.94%

dismissed 10 29.41%

hcj 22 64.71%

tdc 1 2.94%


Over 120 detained days


dismissed 5 25.00%

hcj 14 70.00%

tdc 1 5.00%



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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 defenders 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 Hired Public Def Unknown Pro Se Total N

N % N % N % N % N %

Detained 1079 73% 60 5% 80 93% 100 41% - - 1319

Bond 403 27% 1157 95% 6 7% 140 58% 52 100 1758

38%

Nobond not booked - - 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 court-

appointed (98%) or hired (95%).But inexplicably, defendants that have no attorney of record (unknown) fared

the best in both conviction and incarceration outcomes.


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TABLE M-13 CONVICTION & INCARCERATION RATES BY TYPE OF ATTORNEY & BOND STATUS N= 3077 DISPOSED

MISDEMEANOR DEFENDANTS*

Attorney type CONVICTION HCJ/STJ/TDC

DETAIN BOND DETAIN BOND

N=1319 N=1758 N=1319 N=1758

Ct-appt 98% 80% 98% 80%

Hired 95% 73% 95% 73%

Unknown 57% 51% 57% 51%

Public Defender 73% 83% 73% 83%Pro Se - 69% - 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 theadministration 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 Defendants Ethnicity Assistant District Attorney verify defendant Race/Ethnicity in District Clerks 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: [email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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