Long pretrial incarceration and our judges

In Sunday's Chronicle, there was a long story about lengthy pretrial incarceration and how some people blame the current system of court appointments for defense counsel for the indigent.
That's not true. The real blame should be placed at the feet of our elected judges and the county's bailbondsmen.
Lisa Olsen's sources seem to think a public defender system would solve this problem.
As Col. Potter in the classic television show M*A*S*H would have said, Horsehockey!
Once a criminal charge is filed, with a very few rare exceptions, the case ends in one of three ways. The defendant pleads guilty, the prosecution dismisses the case or it goes to trial.
I don't see how a public defender's office can change the possible outcomes. About the only way it could speed up the system is by pleading its clients quickly or convincing the prosecution to dismiss more cases. If it manages to do one of those things, it will reduce the number of cases set for trial, thereby reducing pretrial delay. But otherwise, it's hard to see how a public defender's office could reduce jail crowding.
The real reason most indigents sit in jail awaiting trial is simple. They're broke and can't afford to post a bond. Along with that, our judges often raise bonds or revoke them because the defendants violate conditions set on their bonds.
There is a solution to this problem. It's not novel. It's been around for 35 years. All we have to do is use it.
It's the Harris County Pre-Trial Release Agency.
In the mid-1970s, as part of a suit challenging overcrowding in the Harris County Jail, then-U.S. District Judge Carl O. Bue ordered creation of the agency. The idea was that people charged with crimes would be released on their own recognizance rather than being forced to hire bailbondsmen or sit in jail. A lot of research was done to determine what factors are good predictors of a person's likelihood to show up for trial. Every person booked into the jail is interviewed using those predictors and given a score.
The factors range from criminal history to whether they have a job and a home telephone.
It isn't a new concept. In federal court, magistrate judges routinely conduct detention hearings to determine if a person should be released pretrial or detained. If a person is ordered released, the magistrate judges set conditions and often require them to place 10 percent of a bond amount in the registry of the court. When the case is over, they get it back.
If the magistrate judge believes the person is likely to flee or be a danger to society, they stay in jail. Money or lack thereof makes little difference. Ask R. Allen Stanford, who is in federal detention because he was found to be a flight risk.
But, that's not how it works in Harris County.
If a defendant or his family can't come up with a bondman's fee -- a minimum of 10 percent of the bond -- or collateral to guarantee that a bondsman can recoup his losses if a defendant does not appear, the defendant sits in jail until his case is disposed of.
Bondsmen promise to pay Harris County the amount of the bond if a defendant does not appear in court. And, if a defendant runs, they usually are given a period of time to catch him and get him in jail. Dog the Bountyhunter on television is one of those persons who hunts absconding clients for bondsmen.
I haven't looked in a while but at one time, the failure to appear rate for defendants on bonds was about the same as that for defendants released on personal bonds. And, any comparison now might be useless because so few personal bonds are granted.
The reason is simple. Bondsmen are in the business of making bonds and collecting their fees. For every personal bond granted, there is one less potential customer for the bondsmen. So, they do what any American business does when politicians like elected judges have control over their profits.
They give campaign contributions. And, even if they don't give a lot of money to judicial campaigns, the judges know darn well that they can and will if a judge grants too many personal bonds.
So, the pre-trial release agency has been reduced to an agency that supervises people who post bonds and who have conditions of bonds imposed on them. It's the pretrial release agency that tests urine samples from defendants, ensures that they follow court-imposed curfews and follow whatever other conditions the judges set. But, those conditions only go into effect when the defendant ponies up the money for a bondsman. And, they can be imposed on personal recognizance bonds too.
If the pretrial release agency was allowed to do what Judge Bue expected, it could do a lot to reduce jail crowding, just like Judge Bue expected. That in turn would save the county a lot of money running the jail.
And, pretrial personal bonds could save the county money another way. If the defendants were required to post a percentage of the personal bond with the county, most lawyers would take an assignment on that as part of the down payment on a fee.
That in turn could mean fewer court appointed lawyers. Every dollar that goes to a bondsman is one less dollar to pay a defendant's lawyer.
In Austin, Travis County judges are aggressive in their use of pretrial personal recognizance bonds. Bondsmen are practically out-of-business there. So, they should have fewer people sitting in jail awaiting trial. The system works there, just like it works for the feds.
Using personal recognizance bonds won't empty the jail. Some defendants will be such bad risks that the judges can and should deny personal bonds. Others will be on parole and held without bond because of parole violator warrants. But a lot could be released on personal bonds to work, support their families and possibly earn enough money to pay for their own lawyers rather than having the county's taxpayers pay because the defendant is in jail where he can't work.
There are a lot of good arguments for and against a public defender system. Jail overcrowding isn't one of them.
But, our judges could do a lot to clear out the jail and save the county a lot of money if they simply used the tools at their disposal, tools that work elsewhere and which would work here.
But, that might make the bondsmen unhappy, and who would want to do that?