By JAMES PINKERTON and LAUREN CARUBA
HOUSTON (AP) — Tung Nguyen survived a harrowing maritime escape from Vietnam, only to become trapped in the Harris County Jail.
Neighbors had called police one Valentine’s Day when they heard Nguyen, 83, arguing with his wife of 60 years, Muon Vo. He was arrested and charged with aggravated assault for allegedly threatening her with a knife.
Suffering from mental illness and heart disease, Nguyen never got out of jail. His family was unable to raise the $40,000 bail set in his case even as they pleaded for his release to a mental facility or home.
The frail, failing fisherman who spoke only Vietnamese was ensnared in a Harris County criminal justice system that warehouses far too many defendants awaiting adjudication thanks to a rigid bail system that a diverse mix of county officials, lawyers, legal experts and legislators say most likely violates both state law and the U.S. Constitution by failing to make meaningful individual assessments of risk and ability to pay.
“The numbers clearly tell the story: More than three-fourths of the people in Harris County Jail haven’t been convicted of crime, and the majority of them are sitting in jail simply because they can’t afford to get out — not because they’re a threat to public safety,” state Sen. Rodney Ellis, D-Houston, told the Houston Chronicle. “This means the indigent are more likely to be kept in jail pretrial, lose their jobs, affect their family lives, and receive harsher sentences solely because of their income status.”
Harris County locks up more people pretrial than most other large counties utilizing a standardized schedule that sets bond amounts for specific crimes. Magistrates makes bond decisions based almost entirely on charges filed and prior convictions in hearings via video linkup at which few questions are asked and defendants have no attorneys — a process the county’s public defender has described as potentially illegal in an upcoming law journal article.
The magistrate’s bond decisions are almost never altered by the county’s elected district court judges, who reduced bonds in less than 1 percent of cases, court bond data from 2014—15 shows.
Judges can, if they choose, grant personal bonds to defendants in which bail fees are waived in exchange for a promise to appear. But in 2014, they granted personal bonds to about 1 percent of felony offenders and only 9 percent of misdemeanor offenders, county statistics show.
Once jailed, no mechanism exists to automatically alert elected judges even when an inmate falls severely ill or already has served more time pretrial than the punishment for the alleged crime, Harris County judges said.
In August 2009, after the U.S. Department of Justice found civil rights abuses at the Harris County Jail, a consulting firm hired by the county urged judges to increase the use of personal bonds to reduce crowding in the jail complex, then bursting with more than 11,000 inmates. More than six years later, jail population has decreased, but the proportion of inmates awaiting trial has grown, from 54 percent in August 2009 to 76 percent in November 2015.
Some judges defended their tough bond schedule, explaining that many defendants are repeat offenders or require high bail to guarantee court appearances and protect the public. But in a $2 million proposal the county is preparing to submit to the Chicago-based MacArthur Foundation, judges and attorneys alike have called for reforms. In interviews, many agreed the pretrial system is broken and the jail is regularly clogged with too many mentally ill and low-risk offenders arrested for crimes like smoking pot and trespassing.
Ultimately, the system most punishes the poorest and sickest defendants, defense attorneys and some legislators say.
Fifty-five inmates died in the jail while awaiting adjudication since 2009. Eight were too ill to appear at initial bail hearings. One was Nguyen.
For most people arrested in Harris County — around 84,500 last year alone — first contact with a court official comes via video in the first floor of a nondescript brick building at 49 San Jacinto Street, near the main jail complex. During hearings in November and December, inmates in orange jumpsuits and street clothes filed into a dingy room filled with rows of wooden benches. First, a video played explaining defendants’ rights. Then, a hearing was held to determine if there was probable cause for detention and bail was set.
Magistrates don’t actually meet defendants, who are jailed across the street. Instead, faces appear on a screen. Few questions are asked. Some hearings last less than a minute.
County pretrial employees pre-interview most defendants, and those reports are available to magistrates via computer. Their questionnaires are meant to help determine who merits release and who presents a risk. The form includes information about health history and disabilities. But it’s been criticized as outdated: It penalizes male defendants and those who don’t own a car, lack land lines at home or live with parents. It’s unclear whether magistrates review responses.
Harris County Public Defender Alex Bunin, a former federal public defender with experience in three other states, has questioned whether the practice of setting bail for defendants without defense attorneys present could survive a legal challenge in an article he wrote for an upcoming American Bar Association magazine.
In September, a U.S. District Court in Alabama approved a lawsuit settlement that struck down a similar schedule-based bond system. A review of that decision prompted Bunin to write about flaws in the process used in Harris County and other court systems.
“The poor suffer because their inability to pay money is not addressed. Persons of color are disproportionately affected. All suffer when their individual circumstances are not considered,” Bunin wrote.
The pending MacArthur proposal includes support for revamping pretrial procedures to include lawyers and expanding options to divert the mentally ill from jail as well as other reforms.
Locating alternative placements — particularly for the mentally ill or others who need treatment — remains a serious interrelated problem, Bunin said.
In the mug shot taken when Tung Nguyen first arrived at the jail on Valentine’s Day 2009, he grimaces and slumps to one side, a medical clinic badge pinned to his shirt. He was initially denied bond in his absence, though District Court Judge Maria Jackson eventually approved a reduction to $40,000. This would have required the family to pay a non-refundable fee of $4,000 to a bondsman — 10 percent is standard — and then come up with collateral to cover the full debt, risking a car, house or other valuables. Nguyen’s family never could meet those terms. Jackson said in a recent interview that she could find no record that she’d been asked to release him on a personal bond.
Over the next two months, Nguyen was declared mentally ill and found incompetent to stand trial. Defendants found incompetent are supposed to be released from jail and transferred to some type of rehabilitative setting. But Nguyen remained jailed as his court-appointed defense attorney debated with a prosecutor about placement at a mental health facility or with a family friend.
Nguyen was barely eating and cycling in and out of the hospital for recurrent pneumonia, according to a forensic investigator’s report. He appeared at his April 24, 2009, court setting in a wheelchair, and then was absent on May 5 because he’d been hospitalized, a letter in the court file shows.
Vo said she could never understood why her husband of six decades could not just come home.
The county’s tough bond practices lead to tougher sentences and a higher conviction rate for those who are jailed compared to those who can post bond, according to a review of 6,000 local cases by former Harris County Pretrial Services Director Gerald Wheeler. The studies, a collaboration between Wheeler, a defense attorney and a University of Texas researcher, are dubbed Project Orange Jumpsuit and show defendants with similar criminal histories who could not post bond received harsher punishments for crimes like drug possession than those who faced the same charges but bailed out.
“You have two completely different justice systems,” Wheeler said. “One for the rich and one for the poor.”
About half of those accused of crimes in recent years used commercial bondsmen to secure release. From 2012 to 2014, more than $1 billion in bonds was posted, according to data supplied by Wheeler, generating about $100 million in commissions for the industry, whose work is overseen by a committee of county officials, including judges.
Michael Kubosh, a Houston City Council member and bondsman, says each day defendants released on bond are saving the county about $700,000 in housing costs.
But even Kubosh described the bail schedule as “faulty” because defendants can serve more time pretrial than the average punishment and because drug defendants and financial criminals are required to post higher bonds than those accused of violent acts.
“If you kill your spouse, you can get a bond for $50,000. If you have a bale of marijuana, it’s an $80,000 bond and you haven’t killed anyone. And what if you have a couple kilos of cocaine? It’s over $200,000,” Kubosh said.
Kubosh said elected judges are reluctant to approve personal bonds because they fear criticism for approving a bond for a defendant who is released and commits a violent crime.
“They have to run for office, and they’re political animals,” he said.
The Chronicle found dozens of offenders were jailed in the last five years despite serious illnesses or conditions, including being severely diabetic, HIV positive or so elderly that even a short jail stay proved life-threatening.
Defense lawyers can ask for personal bonds or bonds to be lowered based on hardships, errors, medical problems or other factors, but they need to present evidence and identify an alternative placement. Judges say such requests are uncommon.
“It’s kind of dismissed — it’s a pervasive institutional attitude that inmates’ health problems are not taken seriously — or you’re criminally accused so who cares if you are sick,” said Shawna Reagin, a former judge who said she was not informed about life-threatening health problems two inmates in her court faced before they died in custody.
District Judge Mike McSpadden defended the county’s schedule-driven bond decisions. But he and other judges have argued that too many low-level drug offenders are being prosecuted. The jail population could be cut dramatically if the district attorney’s office used its discretion to prosecute low-level drug cases as misdemeanors instead of felonies. When a previous DA took that approach, the jail population plunged, he recalled.
The district attorney’s office in October 2014 established its First Chance Intervention Program, which allows first-time offenders detained with less than 2 ounces of marijuana to enroll in drug counseling and avoid jail. The program has enrolled nearly 2,300 offenders, with a 67 percent completion rate. But many low-level offenders don’t qualify.
In a recent interview in the Nguyens’ South Houston home, Nguyen’s wife sat on an evergreen couch in a living room decorated with a crucifix and framed photos of her husband, their six children and grandchildren. Vo said she visited Nguyen in jail and in the hospital during the months he was in custody.
“We tried. We begged. I tried to get him out,” she said. “In the hospital, I also asked, ‘Now that he’s sick, can he come home?’ And (the doctor) said no.”
On June 1, 2009, Nguyen was rushed to the emergency room in respiratory distress. Over the next three days, he coded five times before succumbing to MRSA pneumonia, a deadly antibiotic-resistant staph infection. Because the disease is highly contagious, Vo watched his last moments from behind a window.
At 78, Vo remains muscular from a lifetime of working alongside her husband, cleaning red snapper and other catches. She married Vo as a teenager, and much of their life together was spent on a boat. Every Sunday, after church services, she still visits him — at the cemetery.
“I stop by to see him,” she said, “every week.”(end)
This story has been edited down for space.