Three Things [updated]

Three things you should read:

1. This Is Why Poor People’s Bad Decisions Make Perfect Sense [update: it's bullshit].

2. Harris County Texas: Where the Innocent Must Plead Guilty to Regain Their Liberty

3. Understanding and Working with Students and Adults from Poverty (via Scott Greenfield).

I’ve written here time and again about the problem of the working poor in Harris County’s criminal justice system:1 people who make bail are denied court-appointed counsel because they’ve made bail.

So the guy who has to get back to work to feed his family makes bail, if he can afford a hundred and fifty bucks to a bonding company, is told by the court2 either that he must sell everything he owns and come back with proof and maybe then he’ll get an appointed lawyer, or that he simply can’t have a court-appointed lawyer because he made bail.

Ability to make bail has nothing to do with ability to hire competent counsel. The money used to pay a bonding company probably didn’t come from the defendant but from his family members, whose assets are not included in determining whether he can afford counsel, and in any case it is gone, and is not available to pay for a lawyer. If a poor man sells everything he has, including his phone, to satisfy the court that he can’t afford a lawyer, the court has just created a poor man without a lawyer or a phone. When the court still says “no,” there are bottom-feeder lawyers who will extract from the poor man without a phone whatever they can and provide the pretense of a defense, creating a poor man with a criminal conviction without a phone.

Wisdom is a desirable trait for judges. Wisdom is not possible without understanding. Understanding of the plight of the working poor is observably absent in the Harris County criminal courthouse. Maybe if they read the first link above the judges would attain a little understanding.

Robb Fickman, in the second link above, digs into a problem for the poor that precedes the problem that I have described: the plea mill for those who don’t make bail. Those who suffer from being denied appointed counsel because they’ve made bail are the lucky ones who were able to (or had family who could) scrape up the money to pay a bondsman to get them out. Many people have families and jobs, but they can’t make bail.

So a guy gets arrested and, a day or two or three days later he goes to court, where a court-appointed lawyer talks to him. She has skimmed the prosecutor’s file and gotten an offer from the prosecutor, which she conveys to the defendant, along with the following: “You can plead guilty and get out of jail today, or I can reset your case for two or three weeks; maybe if you’re lucky I’ll do some actual work on it and you’ll get a better result, but otherwise you’ll have sat in jail for nothing.” So he pleads guilty and becomes a poor man with a criminal conviction. But at least he has a phone.

Fickman’s solution to this problem is for Harris County’s judges to release defendants on personal recognizance bonds—on their promise to come to court.

In federal court a defendant charged with a serious felony can be released on conditions, and if he is otherwise eligible for release “the judicial officer may not impose a financial condition that results in [his] pretrial detention….” But that’s in federal court. In state court judicial officers may impose financial conditions that result in defendants’ pretrial detention, and often do.3

Fickman calls on the fifteen misdemeanor-court judges to “begin systematically granting personal recognizance bonds to those charged with non-violent misdemeanor offenses.” This would be a good start, but it still leaves the working poor in the position of having to convince middle-class judges that they really can’t afford competent representation.

Not that the judges care much about the “competent” part of the representation. They are perfectly satisfied with low-bid pay-me-per-court-appearance lawyers willing to separate the working poor from their hard-earned money and pressure them to plead guilty when the money runs out.

(The third link above is lagniappe. To me, it is about communicating with—and cross-examining—the generationally poor. I’ll leave you, at least for now, to draw your own lessons from it.)


  1. Hyphens are important. 

  2. Either by the judge or by the court coordinator, so that the judge can have plausible deniability. Yes, Jay Karahan of Harris County Criminal Court at Law Number Eight, I’m talking about you

  3. They may not use bail as an instrument of oppression, but they often do that too. 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in Uncategorized. Bookmark the permalink.

2 Responses to Three Things [updated]

  1. Robb Fickman says:

    Mark- Great judges are rare. I know very few truly great judges. The Honorable Judge John Rainey is a great judge.

    The great judges realize the extraordinary power they have. They exercise the power with restraint. They know they can destroy a man but they don’t. They have real confidence, the kind of confidence that allows them to be honest with themselves. They are opened- minded enough to contemplate the possibility that they may be wrong. They listen and they are willing to change their course when they recognize they are wrong.

    A great judge is willing to change his mind to better effectuate justice. It’s never about the judge’s ego. For a great judge its always about doing what’s right.

    I hope among our 15 County Court judges some will strive to be great. We will see.

    Robb Fickman

  2. nidefatt says:

    As a young lawyer I was surprised to see how few cases deal with bail. Three SCOTUS opinions, 8th amendment has never been found to apply to the states, and the thing I find most bizarre- though SCOTUS requires a judge to review PC within 48 hours of arrest, and acknowledged at the time the destruction that imprisonment brings to the lives of the arrested, it never bothered to consider how long a person can be detained without bail. On the east coast some state supremes have been finding that a lawyer and a hearing on bail needs to occur at first appearances. But here.. we have the 9th circuit, who just gave the big thumbs up to arizona denying bail en masse to illegal immigrants in June. The 9th compared illegal immigrantion to capital cases. My brain hurts reading the opinion.

    Anyway, just wanted to say that the ACLU has been interested in these issues lately, at least here in Idaho. Whether current SCOTUS is a good group to talk to about the issue though, is another matter.

Leave a Reply

Your email address will not be published. Required fields are marked *

*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>