Project ORANGE JUMPSUIT:
Effects of Pretrial Status and Days Detained on Case Outcome of
Harris County Felony & Misdemeanor A/B Defendants
By (September 2014)

Gerald R. Wheeler Ph.D., Gerald Fry, Attorney at Law

PREFACE
The concept of similar defendants being treated comparatively in their criminal proceedings is
referred to as “evenhandedness.” 1 One illegitimate factor cited by legal scholars was pretrial
custody. In August, 2014, The Sentencing Project reported, “inequality …reverberates within the
justice system, with dire consequences for poor people. Far too often, the quality of justice one
receives is not based on the rights enshrined in our constitution, but rather how much justice
one can afford i.e., the ability to pay bail to secure pretrial release ..”2 The degree pretrial justice
process violates “evenhandedness” is reflected in case outcome studies of statistically
comparable “bond” versus “detained” defendants. The preponderance of evidence-based
research demonstrates significant racial and ethnic disparities in arrest, in charging, in bail and
sentencing.3 In this instance, Harris County, Texas’s largest criminal court jurisdiction, provides
an ideal setting to test the Orange Jumpsuit Hypotheses: the color of standard uniform of
“detained” inmate, as opposed to street clothes of accused free on bail, dictates defendant’s
fate more than any other legal or extralegal attribute. Harris County is ideal setting because the
courthouse culture is dominated by the politically powerful commercial bond industry,
assembly-line prosecution, judges and county commissioners opposed to bail reform, namelyrelease on personal recognizance, as well as adversarial indigent legal defense system.

HOUSTON: TINDERBOX WAITING FOR A SPARK
The common denominator in deadly urban riots in the 60’s and recent civil protests is police
misconduct. Watts: a cop arrested an “intoxicated” motorist; Detroit: police raid an unlicensed
bar; Newark: cab driver arrested and assaulted for tail-gating; Los Angeles: after a jury
acquitted cops that severely injured Rodney King; Ferguson MO: white cop shoots unarmed
black youth. Is Houston immune from violent protest? Is there any vulnerable area in the
nation’s fourth largest metropolitan area? In September, 2014, Houston Chronicle reported
Page | 1

between 2008 and 2012, “grand juries refused to indict officers in every one” of 121 officer
civilian shootings.”4 Perhaps a spark will ignite in the county’s largest jail. A jail ranked 3 rd in
inmate to inmate sexual violence by U.S. Depart of Justice in national survey of 350 jails.5 It
may happen by citizens awakening to the economic and social costs of massive incarceration of
the poor, especially people of color, by the county’s two tier justice system. A system best
described as a tinderbox legally fashioned and fueled by passive community leaders, selfserving elected rulers and allied profiteers embodied in the Harris County Bail Bond Board. In
September, 2013, Houston Chronicle Sunday Editorial, citing Project Orange Jumpsuit’s(POJ) 6
called Harris County justice, “JAIL HELL-Poor defendants who can’t make bail pay the price.
The system’s culture needs to change.”7 Sadly, as evidenced in Harris County’s for-profit bail’s
deep roots, and POJ’s updated findings reported below, the courthouse culture relentlessly tilts
the scales of justice against the most vulnerable people. Notwithstanding Houston’s falling
crime, the prevailing surety bond monopoly and its discriminatory effects have never been
stronger.
PATH TO DETENTION IN HARRIS COUNTY
Commercial Bail Cartel. On December 16, 1975, Federal Judge Carl Bue Jr. issued a ninety (90)
page Court Memorandum and Opinion (Alberti v. Sheriff, 406 F. Supp.646 (H.D. Tex. 1975) 8
directed at remedying the overcrowding condition of the (Harris) county jail, and upgrading the
County’s struggling Pretrial release Agency, a program seen by the Federal Court as an integral
mechanism to help reduce the jail population. The role of the bondmen in undermining the
agency was also described in detail.
By far the most significant single factor influencing the agency’s
lack of success was the organized effort of commercial bail bondmen
to sabotage the agency . . . the bondsmen pressed their attack on county
officials to take steps to weaken the agency.
According to American Surety Company, “Texas is the only state in the country requiring the use
of a county Bail Bond Board system to issue licenses for the purpose of writing bail” 9 (italics
added). Bail Bond laws fall under TX Article 2372; and Sec 1704.152(b)(1)-(2). There are two
types of bondsman: “independent” and “corporation.” Independent licensed bondsman fall
under TX Statutes OC/10/1704.203 (e), He or she must deposit a minimum $50,000 cash, CD, or
property as collateral with the County treasury and 10% of face of total posted bonds beyond
the minimum. For example, $50,000 security deposit allows independent bondsman to post
$500,000 in surety bonds, $100,000 deposit $1 million in bonds. Bondsmen affiliated with
national insurance corporations have the advantage of insurance company employed lobbyists
promoting favorable surety bond legislation. Thousands of defendants lack the financial
resources to post full cash bail or pay 10% fees to bondsmen. According to Harris County Bail
Bond Board’s (HCBBB) March 21, 2014 website it oversees 94 licensees,10 68% affiliated with
national insurance corporations. The board regulates a highly profitable business monopoly
that annually collects $35 million in estimated fees from overwhelmingly “captive” clients that
Page | 2

are arrested, prosecuted and detained then monitored by the county’s computerized
management information system utilized by bondsmen all at public expense(see Table 1).
TABLE 1-YEAR 2012 HARRIS COUNTY BAIL BOND DISTRIBUTION* BY TYPE, SET SUM VALUE

BOND TYPE
N

OFFENSE

BOND SET AMOUNT
$

CASH

SURETY

PTR **

TOTAL

CASH

SURETY

FELONY

195

16,826

661

17,682

$1,854,500.00

$239,815,466.00

MISDEMEANOR

2997

36,986

4,608

44,591

$2,664,366.00

$94,929,979.00

TOTAL
3,192
53,812
5,269
62,273
$4,518,866.00 $334,745,445.00
*Figures reflect bonds, not defendants; Harris County District Clerk; **Harris County Pretrial Services
No public records document the fees charged to defendants and collected by bondsmen. If we
apply rumored (10%) standard fee to official total sum value of posted surety bonds reported
by Harris County District Clerk’s office ($334.7 million) shown in TABE 1, an estimated $34.4
total million fees was collected for 53,812 surety bonds processed in YR 2012. However, in view
of the fact that the standard fee reported for $500 bond is $125, and 7,489 surety bonds fell in
this category in 2012, estimated annual bondsmen fees approach $35million.
Profit & Loss: Ultimate Business Model. Theoretically, a bondsman’s financial liability is equal
to the face value of posted bond of defendant/client that forfeits bail by failing to appear at
scheduled court setting or absconding. “Cash” bond held by county will be forfeited for failure
to appear or escaping prosecution. Personal bonds (PTR) forfeitures are rarely collected from
defendants. Bondsmen strongly argue this point, contending that personal bond defendants
are greater risk of flight and threat to public safety than their clients because PTR defendants
have “no skin in the game” and are poorly supervised by public servants.
Pretrial Misconduct Differences. National research findings including POJ’s misconduct
analysis go against bondsmen’s argument. POJ felony PTR cases had lower forfeiture (2%) and
revocation (5%) rates than Surety (7%) and (9%). Among disposed misdemeanor bond cases,
PTR had higher revocation rate (10%) than Surety (6%) but the converse is true in bond
forfeiture rates, i.e. Surety=10%; PTR=4%. However, in view PTR cases only represented 8% of
total bond cases, no significant comparative statistical differences can be concluded. It must be
noted that at this juncture, only 7(0.5%): PTR=1; Cash=1; Surety=5, of 1258 felony bond
defendants are classified as “fugitive” (see Appendix Tables 3, 3a, 4, 4a). Among misdemeanors
bond defendants, 24(1.2%) are fugitives (PTR=3; Cash=5; Surety=16). Pretrial Release programs
that use validated risk assessment instruments as criteria for bail and supervision level versus
solely financial status of accused, does not inherently discriminate against the poor and is
consistent with our democratic values of fair and equal justice and constitutional right to bail.

Page | 3

In terms of profit versus loss, District Clerk’s office reported surety bondsmen paid (loss) only
$2.2 million (7%) of estimated total collected fees (profit) in liability judgments for 3,263
forfeiture cases that represent only 6% of total (53,812) posted surety bonds in 2012 (see
TABLE 2). Unexplained, is the disparity Harris County Assistant District Attorney Kathleen
Braddock’s reported between combined figure (5,787) in felony and misdemeanor A/B bond
forfeiture cases her office filed in the same period and the number (3,263) of paid judgments
reported by the District Clerk’s office. 11 Although the District Attorney’s office has a
representative on the Harris County Bail Bond Board (HCBBB), its Bond Forfeiture Division
cannot provide a record of the number of bond forfeiture cases filed by type of bond.
Braddock’s figure (5,787) includes “cash,” “surety” and “PTR” cases; 5,787 of 62,273 total
posted bonds translates into 9% bond forfeiture rate. According to the District Attorney Bond
Forfeiture Operations Manual, “in order to provide the bondsmen with an opportunity to
recapture the defendant and place the defendant in custody in Harris County our office will
offer a grace period” of ten (10) months after the date of forfeiture for a felony case and four
(4) months for a misdemeanor case “prior to seeking a final judgment.”12 In terms of financial
risk of captive clientele, Harris County is a Bondsmen’s paradise.
TABLE 2-FELONY & MISDEMEANOR SURETY BOND FOREITURE FEE JUDGEMENT COLLECTED YR 2012*

SURETY BONDS
OFFENSE

COUNT

PAID

AVG

FELONY
MISDEMEANOR

802
2461

1,086,559.38
1,117,511.38

1,355
454

TOTAL

3263

$ 2,204,070.76

$ 675.47

*Figures reflect bonds, not defendants; Harris County District Clerk
The degree of hostility toward bail reform and HCBBB’s bias against indigent citizen’s right to
bail and presumption of innocence until proven guilty is illustrated in the recent adjourning
statement of its chairman Honorable Michael Fields, an elected County Criminal Court-at- Law
misdemeanor judge following the authors’ presentation of POJ’s salient findings. “…the folks
who work in the bail bond industry …are doing a valuable service for the citizens of Harris
county. Their show-up rate is higher than pretrial release bonds. There is one sure fire-way to
stay out of jail and that is not commit a crime. If you do then you’re going to have to post a
bond.“ 13
Initial Bail Hearing. The HCBBB and its judicial allies formulate bail policies and procedures that
generate and maintain an optimal pool of ‘‘captive” clients to extract millions of dollars in
bondsmen fees. Some of these fees are contributed to elected officials that support the bond
industry. Defendants held in custody downtown or substation will be reviewed by a magistrate
within 24-48 hours via monitor or physical court appearance. Magistrates are given their bail
guidelines by trial judges opposed to personal bond release. POJ’s analysis of felony and
misdemeanors dispose cases found that 7.5% and 19.3 % respectively were not booked in the
Page | 4

county jail. Most of these defendants were arrested and made bond before court review. A few
(non-arrest) were charged but never taken into custody. HCBBB’s influence reached down to
indigent legal defense. Off the record, court-appointed attorneys who dare advocate PTR (ROR)
for a detained defendant are threatened with being taken out of rotation. Court-appointed
attorneys and public defenders are not present at the initial magistrate court hearing. Pretrial
Services staff complete risk assessment interview reports 24/7 on 90% of detainees.
Inexplicably, this report is classified by judges and only accessible to attorney of record that
rarely retrieves it because of judges’ well established bias against granting PTR bond.
Indigent Legal Defense. The county allocated $40 million in 2012-13 for indigent legal defense,
of which $5-6 million supports The Public Defender Program (PD). Most detained indigent
defendants are represented by court-appointed attorneys at initial review at trial court.
Statistically, PD’s are relegated to detained misdemeanor mental health and complex detained
felony cases. Neither type of indigent legal defense representation impact pretrial release.
According to 2012 Harris County Pretrial Services Annual Report,14 of 32,645 Felony arrests,
21,473 (66%) were detained. Bail defendants (11,172; 34%) fell in three categories: Surety:
10,690 (96 %), Cash: (1%), PTR: 356 (3%). Among 57,523 Misdemeanor A/B arrests, 25,699
(45%) were detained. Bail defendants (31,824; 55%) include Surety: 25,179 (79%); Cash: 2,498
(8%) and PTR: 4,157 (13%). The PD Director offers no valid explanation to these investigators
why a PD is not assigned to magistrate hearings. The PD Director is a member of the county’s
monthly Jail Coordinating Council chaired by long standing Precinct 1 County Commissioner El
Franco Lee. The council is charged of reviewing jail population trends and exploring outsourcing
cell options to stem jail overcrowding. The topic of bail reform is taboo.
Intractable Pretrial Detention Population. Regardless of fall in Harris County daily average total
jail population from August, 2009 (11,296) to July 2014 (8,698) the number of detainees
remained relatively stable 6,151 to 6,056. 15 The detainee population rate jumped from 55% in
August, 2009, to 70% in July 2014. Notwithstanding calls for reform and expanding pretrial
release via personal bonds (PTR), and the county starting a Public Defender Pilot Program in
2011, PTR release declined to an historic low since Pretrial Services program was mandated by
Federal Court Order in 1976.16 According to Harris County Pretrial Services 2013 Annual report,
among felony arrests, only 0.7% (234/32,642) were granted PTR compared to 1% in 2012.17
Misdemeanors fell from 7% to 6.6% (3,677/55,324). How to we explain the intractability in detention
population and its direct relationship to massive incarceration? Indeed, the HCBBB Chairman, and

other elected members that support the multimillion dollar commercial bond industry know
that the Commissioners Court will appropriate $millions of taxpayers’ funds to outsource cells
to another county or state for sentenced county inmates should a spike in jail population
exceed the 9,406 housing capacity. In previous years 2010-2011 the county fathers allocated
$31 million for outsourcing cells to manage overflow that raised the eyebrows of the U.S.
Department of justice and Texas Commission on Jail Standards.18
HIGH ECONOMIC AND SOCIAL COST OF MASSIVE INCARCERATION
$845 Orange Jumpsuit. According to Harris County Sheriff department’s spokesman Alan
Bernstein, the county’s jails annual operating budget is $180 million plus $47 million for medical
Page | 5

services. Asked cost per inmate book-in, he reported: “healthy/day costs- $45 plus one time
booking and release of about $800.”19 Applied to 109,395 YR 2012 total book-ins, one time 1day book-in and release formula translates into $93million tax dollars. One can appreciate the
importance of evaluating gatekeeping (admission) factors that drive first-time/recycle book-ins,
affect pretrial detention duration, and post adjudication cell utilization of sentenced county
offenders, pending TDC transfers, probation revocations and parole violators etc.
Analysis of monthly “average daily jail population reports,” reveal the majority of county
inmates consistently fall in the pretrial detainee category. Pretrial population rates range
between low-6,151 (55%) of 11,295 total population - August-2009, to high-6,056 (70%) of
8,698-July -2014.20 The July 2014 monthly report shows misdemeanor detainees (473)
represent only 8% of total pretrial detainees (6,056) and 5.4% of total population (8,698) in
Harris County Sheriff’s custody. These data may give the false impression that misdemeanor
detainees account for a fraction of total jail operations cost. Ironically, analysis of YR 2012
misdemeanor book-ins (84,763) suggest otherwise. Also, far more individuals are arrested on
misdemeanor (57,524) than felony charges (32,645).21
Race/Ethnicity Disparity in Pretrial Detention. POJ’s preliminary findings of study sample
demonstrate pretrial and post adjudication incarceration cost are driven by Harris County’s
policy of processing nearly all arrestees into jail, coupled with detaining nearly all indigent
population routinely denied PTR. Taking into account gravity of charge, bail category or
conviction history, POJ found people of color were disproportionately detained, compared to
their white counterparts. For example, in the lowest felony bond group ($2000 or less) 45% of
Blacks and 39 % of Hispanics were detained at date of disposition compared to 34% of whites.
This pattern was observed in four of five bond categories. Among misdemeanors population,
whites had the lowest detention rate of 17% in the lowest bond ($500) subpopulation
compared to 26% and 27% for Blacks and Hispanics. Among highest (>$10,000) subgroup
Hispanics fared worst- 71% detained at disposition, in contrast to 67% for Blacks and 54% for
whites.
Fastest Justice in the West. Most judges are obsessed with managing their court dockets.
Harris County’s streamline filing system, facilitated by preset bail schedule and restrictive bail of
indigent defendants is a godsend to “efficient” court management. Set bail values guidelines
reflect gravity of crime and prior offense conviction. For example, the lowest misdemeanor
bond for first Possession of Marijuana and DWI offense is $500. The lowest felony first offense
POSS CS PG 1 <1G bond is $2000. The “direct filing system,” allows prosecutor to review the
charge, interpret and set bail according to guidelines established by judiciary within hours
defendant is taken into custody. At this juncture, pretrial release entails paying bondman a
nonrefundable fee based on ten percent of the face value of the bond. Bondsmen accept Visa,
mobile bank transfer, installment payment and property as collateral. The second option of
defendant in custody is to have a friend or significant other deposit a “cash” bond with the
county for the full face of the set bond. This fee is refundable at completion of case unless
conditions of bail are violated. An alternative for-profit cash bond model is available in three
Texas counties (Franklin, Calhoun and Brazos) and 40 other states, subject to agreement
Page | 6

executed by the County Judge (see www.govpaynet.com). It processes cash bail, fines & court
costs for a lower client fee via credit/debit and mobile fund transfers by third parties. This
model circumvents jail book-in and expedites release from detention.
BOND VS. DETAINED: TWO WORLDS
“Duration” of detention days. This variable is defined as average days held in pretrial custody
from date charged to date disposed taking into account “in” and “out” of jail (recycle) if bond
was revoked and remade. For example, a defendant may be initially detained, make bond for
several days, then rearrested and revoked but no new bond; this case’s pretrial status category
at disposition is “detained.” As hypothesized, POJ found misdemeanor disposed population
had significantly shorter average days detained awaiting trial regardless of pretrial release
status (M “bond”=1.8 days; “detained”=13 days), than felony : “bond”=11 days; “detained” 82
days (see Tables 3,3a,4,4a).
Case Processing Time. POJ’s analysis of “case age” and outcome of disposed “bond” vs.
“detained” cases illustrate two worlds. Median processing days of felony “bond” vs. “detained”
cases was 149 days and 56 days respectively. “Bond” cases averaged 180 days compared to
100 for “detained.” Median Misdemeanor disparity was more pronounced. Fifty percent of
“bond” cases were processed within 115 days or less, compared to 5 days or less for “detained”
defendants. “Bond” cases averaged 161 days compared to 13 average days for “detained”
group.
TABLE 3 – FELONY DISPOSED “DETAINED” POJ POP.: DAYS DETAINED & COST BY BOND CATEGORY

BOND CATEGORY
2000 or less
2001-5000
5001-10000
10001-20000
> 20000
NO BOND
TOTAL

TOT POP

FELONY
DETAINED
SUM OF DAYS

AVERAGE DAYS

EST. COST OF DETENTION

164
227
227
552
397
444

2,709
8,814
14,727
26,602
58,690
53,971

16.5
38.8
64.9
48.2
147.8
121.6

148,995
484,770
809,985
1,463,110
3,227,950
2,968,405

2011

165,513

82.3

$9,103,215.00

TABLE 3a –FELONY DISPOSED “BOND” POJ POP.: DAYS DETAINED & COST BY BOND CATEGORY

BOND CATEGORY

TOT POP

FELONY
ON BOND
SUM OF DAYS

AVERAGE DAYS

EST. COST OF DETENTION

2000 or less
2001-5000

254
236

696
1,050

2.7
4.4

38,280
57,750

5001-10000
10001-20000
> 20000

212
172
219
1093

2,041
2,601
5,683
12,071

9.6
15.1
25.9
11.0

112,255
143,055
312,565

TOTAL

Page | 7

$663,905.00

TABLE 4 – MISD. DISPOSED “DETAINED” POJ POP.: DAYS DETAINED & COST BY BOND CATEGORY

BOND CATEGORY
<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND

TOTAL

TOT POP
179
259
92
250
631
106
2

1,519

MISDEMEANOR
DETAINED
SUM OF DAYS
AVERAGE DAYS
1,591
2,295
844
1,868
10,412
3,122
4

8.9
8.9
9.2
7.5
16.5
29.5
2.0

20,136

13.3

EST. COST OF DETENTION
87,505
126,225
46,420
102,740
572,660
171,710
220

$1,107,480.00

TABLE 4a – MISD. DISPOSED “BOND” STUDY POP.: DAYS DETAINED & COST BY BOND CATEGORY

BOND CATEGORY

TOT POP

MISDEMEANOR
ON BOND
SUM OF DAYS
AVERAGE DAYS

EST. COST OF DETENTION

<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999

639
461
99
192
257

696
653
179
401
817

1.1
1.4
1.8
2.1
3.2

38,280
35,915
9,845
22,055
44,935

>= 10,000
NO BOND

59
-

373
-

6.3
-

20,515
-

1,707

3,119

1.8

TOTAL

$171,545.00

Impact of Bail vs. Detain in Post Adjudication incarceration. Because “defendant” is the unit
of analysis, POJ used accumulative set bond value and most serious charge where applicable.
POJ’s tracking analysis of all study cases found nearly all (93%) felony and 81% of misdemeanor
arrests were book-in Harris County jails regardless of risk of flight, or danger to public safety.
Analysis of study cases (see Appendix Tables 3,3a, 4, 4a) found that majority of booked
misdemeanor defendants made bond within 1 to 2 days. The average days detained of disposed
$500 bond misdemeanor “bond” defendants was 1 day; $2000 bond misdemeanor “bond”
cases averaged 2 detained days. Felony $2000 bond category “bond” study subpopulation
averaged 3 days detained at date of disposition. Emphasizing that bond category is a function of
gravity of crime and conviction history, felony defendants with $2000 set bond should have
similar level of charge and case outcomes. For example, in the lowest felony bond category
$2000, jail sentence of “bond” cases was 11%, in contrast to 37% for “detained” counterparts
(see Appendix Tables 5a & 6a, 7). A detailed analysis of case outcome of five bond categories
encompassing 98% total study population, found a consistent pattern of disparity in case
outcome whereby statistically equivalent “detained” cases had significant higher conviction and
jail sentence rates than their “bond” equivalents.

Page | 8

APPENDIX
STUDY SAMPLE & RESEARCH METHODOLOGY
The following report is an update of nonprofit corporation THEMIS RESEARCH ‘s Project Orange
Jumpsuit‘s (POJ) five-year longitudinal study of 6,526 scientifically selected Harris County felony
and misdemeanor A/B defendants charged in first four months of 2012. The study population,
tracked from January 1, 2012 to mid-February, 2014 by, is representative of over ninetythousand (90,169) arrestees processed by Harris County in 2012.The study sample consists of
3,207 (27%) scientifically randomly selected felony defendants from total felony (11,860)
database and 3,319 (14 %) of total misdemeanor A/B database (23,309) provided by Harris
County District Attorney. The total database (35,169) contains two Excel spreadsheets listing
felony and misdemeanor A/B defendants charged with an offense in order of date filed
beginning January 1, 2012 through April 30, 2012 and processed in 22 Harris County District
Courts trying criminal cases and 15 County Criminal Courts at Law. Random selection of
respective study populations was completed by Dr. Rodney Hissong, Associate Professor,
University of Texas – Arlington, Department of Urban Affairs, using IBM/SPSS software. The
preliminary report is based on 98% of competed study cases.
Longitudinal Research Design: Study sample subjects will be tracked from date of charge for five
years by accessing Harris County District Clerk’s online justice information system. Variables
include: defendants’ county assigned identification SPN and case Number, assigned court, name,
Race/Ethnicity, age, sex, charge, type of legal representation, charge, conviction history, bail set,
type of bond, pretrial release status, pretrial jail days, bond forfeiture & penalties, bond
revocation, fugitive status, case processing time, disposition and recidivism.

Page | 9

Pretrial Release Race/Ethnicity Disparity. The preliminary findings of the representative sample
Felony % Detained Status at Disposition - % by Race and Bond Category

BLACK
HISP

80%

WHITE
74%

71%

70%

62%
57%
56%

56%
53%
48%
45%

44%
41%

39%
34%

* Excludes No Bonds
* Excludes Race = Other
* Excludes Status Not
Equal to Bond or Detained

2000 or less

2001-5000

5001-10000

10001-20000

> 20000

Misdemeanor % Detained Status at Disposition - % by Race and Bond Category
BLACK
HISPANIC
72%

72%

WHITE

71%

69%
67%
63%

56%

54%

53%
49%
44%

42%

26%

46%

41%

27%

27%

17%
* Excludes No Bonds
* Excludes Race =
Other
* Excludes Status Not
Equal to Bond or
Detained

<= 500

501 - 1999

2000

2001 - 4999

5000 - 9999

>= 10,000

Pretrial Misconduct: Personal Bond vs. Surety Bond. The commercial bond industry argues
that defendants released on personal bond and 10% refundable court administered pretrial
release programs applicable to federal courts and some other state jurisdictions, and
supervised by public servants, pose a higher risk to public safety measured in pretrial
misconduct than those released on surety bond monitored by for-profit bondsmen. This
hypothesis is rarely tested empirically because cohort studies comparing effects of pretrial
defendants’ legal and socio-economic attributes on misconduct and case outcome are rare.
Page | 10

Ideal controlled studies employing random assignment of statistically comparable subjects to
“interventions” i.e., PTR, government 10% deposit, in the criminal justice field is politically
impossible. In jurisdictions dominated by financial bail like Harris County, a “creaming effect”
arises in bail selection itself. Defendants with financial resources are better able to pay
bondsmen or post cash bond. This group is more likely employed, have completed high school
or have attended college. In contrast, the only bail option for the poor is release on nonfinancial bail such as personal recognizance or personal bond (PTR).
In jurisdiction where the judges are philosophically opposed to alternative bail, the poor
generally remain in jail until they plead guilty. Objective factors such as the accused’s
community ties, nature of offense charge and criminal history are ignored in the personal bond
decision making process. The objective risk scale program and supervision have been available
in Harris County since 1977 when imposed by Federal Court Order. However the program has
been relentlessly attacked by the surety bond industry threatened by competition.
While acknowledging there are pretrial release programs that are not funded to adequately
monitor PTR released defendants, Harris County is not in this category. Ironically, many judges
order surety bond defendants to be simultaneously supervised by pretrial services and
probation staff. This is called “courtesy supervision” and is funded by taxpayer.
Unfortunately, misconduct comparison among types of bond is limited by the cohort’s sample
size of PTR felony defendants. Only 43 (3.4 %) of 1244 combined disposed bond felony
defendants were released on PTR compared to 1196 (96%) surety. Notwithstanding sample
size differences, PTR felony defendants had lower forfeiture and revocation rates (See TABLES 3
& 3a). We also note that many surety bond defendants were also monitored by the probation
department as courtesy supervision cases. Among 73 defendants pending case outcome, 13
are fugitives: of these fugitives, six (6) were never arrested or made bond; one (1), was on PTR,
1 cash and 5 released on surety type bond of which 3 were courtesy.
Bondsmen’s greatest fear is employing a risk assessment instrument to evaluate pretrial release
based on objective factors like community ties, charge and criminal history as opposed to
exclusively defendants’ financial resources. Bondsmen are equally opposed to defendants using
their own credit or debit card or a business model like GOVPAYNET that employs no bondsmen
and charges clients a smaller fee and circumvents the book-in process.

Page | 11

TABLE 3- FELONY DISPOSE STUDY POPULATION - PRETRIAL MISCONDUCT BY TYPE OF BOND
FELONY - DISPOSED
BOND TYPE

COUNT
N
0
1
87
1
0
89

CASH
5
PTR
43
SURETY *
1196
DETAINED
1860
NON-ARREST
30
TOTAL
3134
* Includes PTR courtesy supervision cases

MISCONDUCT
Forfeitures
%
0%
2%
7%
0%
0%
3%

Revoked
N
0
2
112
4
0
118

%
0%
5%
9%
0%
0%
4%

TABLE 3a- FELONY OPEN STUDY POPULATION - PRETRIAL MISCONDUCT BY TYPE OF BOND
FELONY - STILL OPEN
BOND TYPE

COUNT

CASH
1
PTR
4
SURETY *
36
DETAINED
26
NON-ARREST
6
TOTAL
73
* Includes PTR courtesy supervision cases

Forfeitures
N
1
1
12
0
0
14

%
100%
25%
33%
0%
0%
19%

MISCONDUCT
Revoked
N
0
2
10
0
0
12

Fugitive
%
0%
50%
28%
0%
0%
16%

N
1
1
5
0
6
13

%
100%
25%
14%
0%
100%
18%

Misdemeanor Pretrial Misconduct. TABLES 4 & 4a show surety bond disposed defendants had
over twice (10%) forfeiture rate than PTR (4%). The converse is true with respect to revocations
(6% vs, 10%). Revocation may follow re-arrest, positive drug test or violation of special
condition of bail. Among 82 misdemeanor defendants with open case, 41 (50%) are non-arrest
fugitives that never made bond. Of the total 1597 combined disposed and open misdemeanor
surety bond defendants, only 17 or 1% fell in the fugitive category. This compares to 3 (1.2%)
of 231 PTR study population. Of the total 110 cash bond subpopulation, 5(4.5%) defendants fell
in fugitive category. Given the above findings; one is hard pressed to conclude significant
differences in misconduct between surety and personal bond defendants in Harris County and
the notion that non-financial bond defendants constitute a greater risk of flight than money
based bail.

Page | 12

TABLE 4- MISDEMEANOR DISPOSED STUDY POPULATION PRETRIAL MISCONDUCT BY TYPE OF BOND
MISDEMEANOR - DISPOSED
BOND TYPE

MISCONDUCT
Forfeitures
%
4%
4%
10%
0%
0%
5%

COUNT

CASH
PTR
SURETY *
DETAINED
NON-ARREST
TOTAL
* Includes PTR courtesy supervision cases

N
4
10
162
0
0
176

104
227
1567
1328
11
3237

Revoked
N
4
22
87
0
0
113

%
4%
10%
6%
0%
0%
3%

TABLE 4a- MISDEMEANOR OPEN STUDY POPULATION PRETRIAL MISCONDUCT BY TYPE OF BOND
MISDEMEANOR - STILL OPEN
BOND TYPE
CASH
PTR
SURETY *
NON-ARREST
TOTAL

COUNT

MISCONDUCT
Revoked
N
0
2
3
0
5

Forfeitures
N
6
2
17
0
25

6
5
30
41
82

%
100%
40%
57%
0%
30%

Fugitive
N
%
5
83%
3
60%
16
53%
41
100%
65
79%

%
0%
40%
10%
0%
6%

TABLE 5- CASE OUTCOME OF FELONY “DETAINED” DEFENDANTS AT DISPOSITION
FELONY
BOND CATEGORY

DETAINED
NON CONVICTION DEFERRED

COUNT

2000 or less
2001-5000
5001-10000
10001-20000
> 20000
NO BOND

164
227
227
552
397
444

TOTAL

2011

24
32
30
55
52
60

253

PROBATION

79
63
61
29
52
43

327

HCJ

STJ

TDC

0
4
8
5
6
1

35
57
16
85
65
33

25
53
48
283
46
53

1
18
64
95
176
254

24

291

508

608

TABLE 5a-CASE OUTCOME BY PERCENT FELONY “DETAINED” DEFENDANTS AT DISPSTION

BOND CATEGORY

COUNT

FELONY
DETAINED
NON CONVICTION DEFERRED

PROBATION

HCJ

STJ

TDC

2000 or less
2001-5000
5001-10000
10001-20000
> 20000
NO BOND

100.0%
100.0%
100.0%
100.0%
100.0%
100.0%

14.6%
14.1%
13.2%
10.0%
13.1%
13.5%

48.2%
27.8%
26.9%
5.3%
13.1%
9.7%

0.0%
1.8%
3.5%
0.9%
1.5%
0.2%

21.3%
25.1%
7.0%
15.4%
16.4%
7.4%

15.2%
23.3%
21.1%
51.3%
11.6%
11.9%

0.6%
7.9%
28.2%
17.2%
44.3%
57.2%

TOTAL

100.0%

12.6%

16.3%

1.2%

14.5%

25.3%

30.2%

Page | 13

TABLE 6- CASE OUTCOME OF FELONY “BOND” DEFENDANTS AT DISPOSITION
FELONY
BOND CATEGORY

COUNT

NON CONVICTION

2000 or less
2001-5000
5001-10000
10001-20000
> 20000
NO BOND

254
236
212
172
219
-

TOTAL

1093

ON BOND
DEFERRED

76
85
55
40
81

FINE

146
85
74
43
57
0

-

337

PROBATION
2
0
0
0
0
0

405

2

HCJ

STJ

TDC

3
13
36
7
5
0

20
33
20
26
8
0

6
14
5
21
8
0

1
6
22
35
60
0

64

107

54

124

According to research recently reported by the Public Policy Research Institute Texas A&M
University, “the benefits of pre-trial release are apparent.” 9 Statistically identical defendants
who make bond experience:






86% fewer pretrial jail days
333% better chance of getting deferred adjudication
30% better chance of having all charges dismissed
24% less chance of being found guilty, and
54% fewer jail days sentence

TABLE 6a-CASE OUTCOME BY PERCENT FELONY “BOND” DEFENDANTS AT DISPOSTION

NON CONVICTION

FELONY
ON BOND
DEFERRED

2000 or less
2001-5000
5001-10000
10001-20000
> 20000
NO BOND

100.0%
100.0%
100.0%
100.0%
100.0%
0.0%

29.9%
36.0%
25.9%
23.3%
37.0%
0.0%

57.5%
36.0%
34.9%
25.0%
26.0%
0.0%

0.8%
0.0%
0.0%
0.0%
0.0%
0.0%

1.2%
5.5%
17.0%
4.1%
2.3%
0.0%

7.9%
14.0%
9.4%
15.1%
3.7%
0.0%

2.4%
5.9%
2.4%
12.2%
3.7%
0.0%

0.4%
2.5%
10.4%
20.3%
27.4%
0.0%

TOTAL

100.0%

30.8%

37.1%

0.2%

5.9%

9.8%

4.9%

11.3%

BOND CATEGORY

COUNT

FINE

PROBATION

HCJ

STJ

TDC

TABLE 7 MISDEMEANOR OUTCOME BY BOND CATEGORY ON BOND
BOND CAT
<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND
TOTAL
Page | 14

COUNT

NON-CONV

DEFERRED

PROB

FINE HCJ

639
461
99
192
257
59
0

283
161
25
38
59
13
0

133
90
18
19
24
10
0

59
52
7
32
19
2
0

1
1
0
0
0
0
0

1707

579

294

171

2

STJ

TDC

163
157
49
103
154
34
0

0
0
0
0
1
0
0

0
0
0
0
0
0
0

660

1

0

TABLE 7a MISDEMEANOR OUTCOME BY PERCENT ON BOND
BOND CAT
<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND

BOND CAT
<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND

COUNT

NONCONV

DEFERRED

PROB

FINE

HCJ

STJ

100.0%
100.0%
100.0%
100.0%
100.0%
100.0%
0.0%
100.0%

44.3%
34.9%
25.3%
19.8%
23.0%
22.0%
0.0%
33.9%

20.8%
19.5%
18.2%
9.9%
9.3%
16.9%
0.0%
17.2%

9.2%
11.3%
7.1%
16.7%
7.4%
3.4%
0.0%
10.0%

0.2%
0.2%
0.0%
0.0%
0.0%
0.0%
0.0%
0.1%

25.5%
34.1%
49.5%
53.6%
59.9%
57.6%
0.0%
38.7%

0.0%
0.0%
0.0%
0.0%
0.4%
0.0%
0.0%
0.1%

COUNT

TABLE 8 MISDEMEANOR
DETAINED
NON-CONVSTJ DEFERRED
PROB

TDC
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%

FINE

HCJ

TDC
0
0
0
0
4
0
0

179
259
92
250
631
106
2

18
22
5
17
39
8
1

14
22
2
4
14
1
0

3
1
2
3
2
2
0

0
0
1
0
0

144
214
83
226
568
95
1

1519

110

57

13

1

1331

0
0
0
0
3
0
0

4

3

Misdemeanor sample: TABLES 8 through 10a illustrate the disparities in detention and
disposition for comparable misdemeanor defendants. For example, the pretrial detention rate
for $500 bond category was 22%. The average pretrial jail days at disposition of “detained”
subpopulation was 8.9 days, representing $488 per detainee jail cost. Excluding deferred
adjudication for both “detained” and “bond” defendants, the “non-conviction” rate of
“detained” was 10.1% vs. 44.3 % for “bond” group. In addition, 80.4% of “detained” were
sentence to jail compared to 25.5% “bond” defendants in the $500 bond set category.

Page | 15

TABLE 9 DETAINED DISPOSED MISDEMEANOR DETAINED
NOBOND CAT
COUNT
CONV DEFER PROB
FINE
HCJ
STJ
<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND

TDC

179
259
92
250
631
106
2

18
22
5
17
39
8
1

14
22
2
4
14
1
0

3
1
2
3
2
2
0

0
0
0
0
1
0
0

144
214
83
226
568
95
1

0
0
0
0
4
0
0

0
0
0
0
3
0
0

1519

110

57

13

1

1331

4

3

TABLE 9a DETAINED DISPOSED MISDEMEANOR DETAINED
NOBOND CAT
COUNT
CONV DEFER PROB
FINE
HCJ
STJ

TDC

<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND

0.0%
0.0%
0.0%
0.0%
0.5%
0.0%
0.0%

BOND
CATEGORY
<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND

Page | 16

100.0%
100.0%
100.0%
100.0%
100.0%
100.0%
100.0%

10.1%
8.5%
5.4%
6.8%
6.2%
7.5%
50.0%

7.8%
8.5%
2.2%
1.6%
2.2%
0.9%
0.0%

1.7%
0.4%
2.2%
1.2%
0.3%
1.9%
0.0%

0.0%
0.0%
0.0%
0.0%
0.2%
0.0%
0.0%

80.4%
82.6%
90.2%
90.4%
90.0%
89.6%
50.0%

0.0%
0.0%
0.0%
0.0%
0.6%
0.0%
0.0%

100.0%

7.2%

3.8%

0.9%

0.1%

87.6%

0.3% 0.2%

TABLE 10-MISDEMEANOR ON BOND
NONCOUNT
CONVICTION
DEFERRED PROBATION

FINE
ONLY

HCJ

639
461
99
192
257
59
0

283
161
25
38
59
13
0

133
90
18
19
24
10

59
52
7
32
19
2
0

1
1
0
0
0
0
0

163
157
49
103
154
34
0

1707

579

294

171

2

660

BOND
CATEGORY

HCJhcH

<= 500
501 - 1999
2000
2001 - 4999
5000 - 9999
>= 10,000
NO BOND

TABLE 10a MISDEMEANOR ON BOND
NONCOUNT
CONVICTION DEFERRED PROBATION

FINE
ONLY

100.0%
100.0%
100.0%
100.0%
100.0%
100.0%
0.0%
100.0%

0.2%
0.2%
0.0%
0.0%
0.0%
0.0%
0.0%
0.1%

44.3%
34.9%
25.3%
19.8%
23.0%
22.0%
0.0%
33.9%

20.8%
19.5%
18.2%
9.9%
9.3%
16.9%
0.0%
17.2%

9.2%
11.3%
7.1%
16.7%
7.4%
3.4%
0.0%
10.0%

GRAPH 1- AVERAGE DAYS DETAINED BY BOND CATEGORY FELONY DISPOSED DEFENDANTS

FELONY - DISPOSED
AVG. DAYS DETAINED BY BOND CATEGORY
160

148

140

122
120
100
DETAINED

80

65

60

BOND

48
39

40

26
17

20

3

4

10

15

0
2000 or less

Page | 17

2001-5000

5001-10000

10001-20000

> 20000

NO BOND

25.5%
34.1%
49.5%
53.6%
59.9%
57.6%
0.0%
38.7%

GRAPH 2- AVERAGE DAYS DETAINED BY BOND CATEGORY MISDEMEANOR DISPOSSED DEFENDANTS

MISDEMEANOR - DISPOSED
AVG. DAYS DETAINED BY BOND CATEGORY
35
29

30
25
20
17

DETAINED

15

BOND
9

10

9

9

5
1

1

7

2

6
2

3

2

0
<= 500

501 - 1999

2000

2001 - 4999 5000 - 9999

>= 10,000

NO BOND

NOTES
1.

Gerald R. Wheeler Ph.D. & Carol L. Wheeler Ph.D. “Bail Reform in the 1980s: A Response to the Critics”,
CRIMINAL LAW BULLETIN May-June 1982; Stephen Demuth;

2.

The Sentencing Project, August 28, 2014.

3.

Darrell Steffensmeier (2004) National Science Foundation; Cassia Spohn U.S. Dept. of Justice (2000);
The Sentencing Poject, (2002-2008) Washington D.C .;Traci Schlesinger Racial & Ethnic Disparity in
Pretrial Processing; Besiki Kutateladze & Nancy R. Andiloro, Prosecution and Racial Justice in New York
County 2014 U.S. Dept. of Justice; See Pretrial Justice Institute News; Laura and John Arnold Foundation
(LIAF) PRETRIAL CRIMINAL JUSTICE RESEARCH PROJECT NOV 2013, WWW.ARNOLDFOUNDATION.ORG;
Wichita County Public Defender Office An Evaluation of Case Processing, Client Outcomes, and Costs
(October 2012) WWW.TXCOURTS.GOV/TIDC or http://ppri.tamu.edu

4.

Houston Chronicle, September 5, 2014

5.

Dan Solomon, “Harris County Jail Has One of the Worst Sexual Assault Rates in the Country,” Texas
Monthly, January 13, 2014

6.

Page | 18

Gerald R. Wheeler Ph.D. & Gerald Fry Project Orange Jumpsuit Report #1 September 25, 2013

7.

See Lisa Olsen’s Article Houston Chronicle, September 5, 2014 17, 2013 “Study: Inmates who can’t
afford bond face tougher sentences’” Houston Chronicle, September 22,2013

8.

On December 16, 1975, Federal Judge Carl Bue Jr. issued a ninety (90) page Court Memorandum and
Opinion (Alberti v. Sheriff, 406 F. Supp.646 (H.D. Tex. 1975)

9.

See American Surety Bonds Texas Harris County Jail Population July 2014 Report;

10. Harris County Bail bond website March 21,2014
11. Attorney Kathleen Braddock’s June, 2014 Telephone Interview
12. Harris County District Attorney Bond Forfeiture Operations Manual.
13. Transcribed Minutes Harris County Bail Bond Board Meeting May 13, 2014
14. Harris County Pretrial Services 2012 Annual Report
15. (Alberti v. Sheriff)
16. Harris County Pretrial Services 2013 Annual Report
17. See Texas Commission on Jail Standards
18. Interview Alan Bernstein Harris County Sheriff’s Department, August 2014
19. Ibid Harris County Assistant District
20. Harris County Jail Population July 2014 Report
21. Harris County Pretrial Services 2012 Annual Report

Page | 19