Within months, county officials anticipate that two public defenders will be present at bail hearings for those accused of misdemeanors and felonies. The vast majority of the roughly 80,000 defendants at these hearings each year does not now have legal representation, and the change means that defendants of limited means charged with a Class B misdemeanor or above will be able to have access to a lawyer when a judge sets bail.

The pilot represents a major change in the way Harris County processes those accused of crimes. The move also makes it the first county in Texas to create such a program, though one official noted that the county lags behind other major metro areas – New York City, Los Angeles and Chicago – in making attorneys available at bail hearings.

“I think it’s a huge step forward that will assure that people’s rights are protected at these hearings,” said Alexander Bunin, Harris County’s chief public defender, whose office developed the pilot program.

The attorneys would provide information on the defendants’ financial situations to hearing officers who set bail, with the goal of releasing those who cannot make bail, pose a low risk to society and have not been convicted of a crime.

With the county facing a federal lawsuit challenging its bail bond system as discriminatory and unconstitutional, the move caters to both reform advocates as well as conservative policy makers who have warily eyed the steep cost of running one of the biggest public jails in the country.

Advocates for reform have cited a litany of issues associated with pretrial detention.

Of more than 1,100 people who have died in Texas jails in the past decade, most have been pretrial detainees. One of the most widely publicized cases was that of Sandra Bland, who committed suicide in the Waller County Jail three days after she was arrested in 2015 following a traffic stop and a heated argument with a state trooper.

In Harris County, 55 people died in pretrial detention from 2009 to 2015, including defendants arrested for misdemeanors such as trespassing and driving while intoxicated. Among them was a man detained after returning his children late to his ex-wife, in violation of a civil court order, the Houston Chronicle found.

Pretrial detainees who are not released are four times as likely to receive a prison sentence, and that prison sentence is likely to be twice as long as ones for those who are not held in jail before their trial, according to the county.

“In Harris County, a big thing is the outcomes a lot of times are people choosing to plead guilty just to get out of jail,” said Jay Jenkins, project attorney for the Texas Criminal Justice Coalition.

Bills target issue

Officials at both the state and local levels have targeted the system recently.

Legislation introduced last week by state Sen. John Whitmire, D-Houston, and Rep. Andrew Murr, R-Junction, would require judges statewide to determine within 48 hours whether a defendant accused of a nonviolent crime might be eligible for a so-called personal bond based on factors such as prior criminal offenses and past failures to appear in court. Personal bonds carry a financial penalty only if a person fails to appear in court.

Harris County officials also plan to release a new risk assessment tool this year to help hearing officers evaluate when they can release defendants on personal recognizance.

Several top Harris County officials – including County Judge Ed Emmett, Sheriff Ed Gonzalez and District Attorney Kim Ogg – have also said recently that the bail system should be restructured so that it doesn’t differentiate between rich and poor defendants.

“This is a positive step forward on the long road to fixing a broken criminal justice system,” said Precinct 1 Commissioner Rodney Ellis, a former state senator who has sharply criticized the county’s bail bond system.

‘In right direction’

Emmett, a Republican, also praised the pilot program’s creation Tuesday.

“It’s going in the right direction,” he said. “This is one of those things we needed to do.”

Despite the acknowledgement of county leaders that change is needed, Harris County continues to fight a federal civil rights lawsuit alleging that its bail system violates the rights of poor people by enforcing a rigid bail schedule that does not take into account that many facing misdemeanor charges cannot make even nominal bail payments.

Ability to pay

The county maintains that it considers ability to pay when setting bail amounts.

“Today Commissioners Court approved a program that will provide legal representation at bail hearings,” said First Assistant County Attorney Robert Soard. “This is consistent with Harris County’s ongoing efforts to enhance the criminal justice system.”

Rebecca Bernhardt, executive director of the Texas Fair Defense Project and an attorney for the plaintiffs in the bail bond case, said the pilot program is a “big improvement” but that “defendants can still certainly be unlawfully detained by Harris County, in violation of due process and equal protection, as we have alleged in our case.”

Although public defenders will be present at bail hearings under the pilot program, hearing officers may not necessarily change their practices, Jenkins said.

The pilot project will include a review of its impact after six months.

The program is expected to cost more than $1 million between now and the end of February 2018. Bunin said he expects to hire six new attorneys, which will require the approval of county commissioners.

Jenkins said the pilot program will also help defendants avoid implicating themselves during bail hearings.

“When I’ve observed those hearings, I’ve seen incriminating statements being made, I’ve seen questions being asked that shouldn’t be asked without a lawyer present,” Jenkins said. “Cleaning up those loose ends at the very least is going to benefit the county.”

Bunin said the program is likely to evolve over the year, as judges, hearing officers and attorneys ease into it. The county is also building a new inmate processing center that could affect the program.

“We’re hoping that pretty soon we can report on some of the benefits of it,” Bunin said. “I really think this is the future and it will sustain.”