The situation is so dire, according to one jail insider, that the county lock-up may soon have to begin turning away arrestees. With more than 1,000 beds still offline since the storm, the jail is already more than 200 inmates over capacity and 280 have already been shipped off to other counties.
“We’re at a pretty critical point right now with the jail population and it’s the residual effects of Harvey’s impacts on Harris County’s criminal justice system,” said Harris County Sheriff’s Office spokesman Jason Spencer. “Inmates aren’t coming in any faster or at any higher rate than pre-storm, but they’re staying longer and it’s particularly on the felony level.”
The lack of a regular criminal courthouse after flooding inundated the Harris County Criminal Justice Center during the storm has sparked bloated dockets and wreaked havoc on trial schedules. But some attribute the jail backlog to a variety of other factors, including judges’ reluctance to use personal release bonds and prosecutors’ charging decisions.
The sheriff’s office is now preparing to formally request a variance to put in 192 portable beds, even as the county works to reopen some floors of the courthouse in the coming weeks.
“Asking for a variance is a very serious matter that I’ve opposed in the past,” said state Sen. John Whitmire, D-Houston. “I understand some hardships brought on by the storm but it’s my job to ask tough questions: Is it really because of Harvey or is it because of other issues such as a very broken bail bond system?”
Setting priorities
Despite the recent uptick in inmates, the Harris County jail population has been trending downward for years. In early 2011, there were more than 10,000 prisoners in the jail’s custody. When Sheriff Ed Gonzalez took office in January 2017, there were 9,004.
In the months that followed, the district attorney’s decision not to prosecute low-level marijuana cases and the effects of bail reform helped drive the population down to 8,070 when the storm hit. The downturn in arrests during Harvey and its immediate aftermath sent the population to its lowest number in years: 7,710 in November.
But the storm also took offline a number of beds. The county lost 928 bunks when the jail at 1307 Baker flooded; more than seven months later, only one pod is usable in the building and some of the former housing areas are still in use as makeshift courtrooms, Spencer said. Another 144 beds are offline at 711 N. San Jacinto.
Pre-storm, the jail’s authorized capacity was 10,014. Now, it’s 8,942.
But with 9,171 inmates in custody as of March 28, some worry that the county may have to start prioritizing which arrestees to detain.
“Hopefully we will not be releasing dangerous criminals out in the public because of overcrowding,” said David Cuevas, president of the Harris County Deputies Organization.
‘A chronic problem’
In addition to knocking out bedspace, Harvey also rendered the county’s 20-story criminal courthouse unusable. In the meantime, court dockets are spread out among the jail basement and the civil, juvenile and family courthouses.
“It's definitely affecting those who want a trial,” said Tucker Graves, president of the Harris County Criminal Lawyers Association. “With limited courtroom space, it means limited trials.”
It’s not just defense lawyers and jailers spotting the problem.
“Jail overcrowding has been a chronic problem in Harris County, made far worse by Hurricane Harvey,” said District Attorney Kim Ogg, whose prosecutors are also scattered throughout a number of buildings.
Much of the increase may be attributable to a spike in the number of felony pretrial detainees. Two months after the storm, 4,664 of the jail’s 7,710 inmates were awaiting trial on felony charges. But by the end of March, the jail population had increased by 1,461, and felony pretrial detainees increased by 906, Spencer said.
But chalking up the housing crunch to the storm is “not completely false but it’s not the real truth,” said defense attorney Patrick McCann, who laid the blame on local judges.
“The real truth is that they are still reluctant to set PR bonds on the majority of their case load, which is partly due to political pressure from the bondsman and partly due to their own cowardice.”
Harris County is under a federal court order to provide no-cash bail for qualified misdemeanor defendants who had been held, sometimes for months, while awaiting trial because they didn’t have the funds to get out. Chief U.S. District Lee H. Rosenthal said the county’s system was unconstitutional and unfair to indigent defendants.
Whether the order produced a sharp drop in misdemeanor jail inmates has been in dispute, with conflicting numbers. The 5th U.S. Circuit Court of Appeals largely upheld Rosenthal’s order but has yet to rule on a narrow issue that has tied up a final ruling.
Some attorneys attributed the growing jail backlog to shifts in prosecution.
“The district attorney’s office has been a little schizophrenic on what their policies are for cases,” said defense lawyer Murray Newman. “In the days immediately after Harvey they were doing great.”
Since then, though, that’s changed, Newman said.
Jackie Carpenter, an assistant public defender, said she’s also seen a shift in recent months.
“They’re basically not offering good deals anymore,” she said. “If you want to move cases you have to offer something fairly good to get there.”
But the district attorney’s office denied those claims.
“There has been no change in our policies on filing motions related to sentencing,” Ogg said. Instead, she pointed to the misdemeanor marijuana diversion program and the Reintegration Court for felony drug offenders as positive points of impact.
“We have consistently been part of the solution,” she said. “What has caused the jail population to explode is the inability of our courts to effectively try jail inmates’ cases and — absent effective docket control by the judiciary, along with major changes in their scheduling system — jail overcrowding cannot be overcome.”
Looking Ahead
The current solution — outsourcing inmates — is a costly proposition with a price tag of up to $65 per inmate per day, which is why the jail is looking for alternatives.
“We have been having regular, productive meetings with county leaders to identify solutions to the jail overcrowding caused by the major damage Harvey inflicted on our criminal justice facilities,” Spencer said. “Everyone recognizes that we all have skin in this situation, and that ensuring public safety is what matters most. That said, the clock is ticking and we need to see a plan soon.”
There’s some hope in sight. The sheriff’s office anticipates reopening the 144 beds at the 711 N. San Jacinto location by the end of the week.
And Commissioner Steve Radack, who chairs the Criminal Justice Coordinating Council, said that courtrooms on the upper floors of the Harris County Criminal Justice Center could be back in business in coming weeks.
“You could conceivably see some of these things opening within 90 days,” he said. “We’re trying to get courtrooms ready, trying to find places to have the trials and hopefully we’ll start seeing some relief soon.”
In the meantime, the jail is pulling together its variance request, which could head to a vote at the May 3 meeting of the state’s Commission on Jail Standards.
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