‘We’re Very Thankful’: COVID-19 Reinforces Houston Pretrial Reform Efforts

In the four years that Kelvin Banks has headed Harris County Pretrial Services in Houston, the agency has taken on reform after reform in an effort to create a more safe and equitable justice system – while also unknowingly preparing for 2020’s impending pandemic.

When COVID-19 hit the United States earlier this year, many pretrial services agencies hurried to implement changes aimed at reducing jail populations and limiting contact as cases moved through the court system. Many of these changes took the form of expanded delegated release, removing financial conditions for pretrial release, lower or no-cash bonds, eliminating failure to appear warrants, suspending custodial arrest, and increasing site and release practices.

While Harris County was already on the road to reform, Banks said that COVID-19 put additional efforts in place to release even more people from custody. 

Banks was appointed Director of Harris County Pretrial Services in October 2016. At the time, there were roughly 2,000 defendants out on supervised release while awaiting trial assigned to his department.

Fast-forward to June 2020 and that number is almost 20,000 defendants.

This 793 percent increase can be credited to many factors, Banks said.

“Litigation did play a large role in the rise in the frequency and number of pretrial releases in Harris County in the past few years, particularly the ODonnell case and the subsequent consent decree put in place in 2019,” Banks said, referencing the county’s bail reform lawsuit. “But we have also implemented a lot of local reforms as an agency that did have an effect as well, including the implementation of the Public Safety Assessment, differential levels of supervision, and some other best practices we have adopted.”

In late March, County Judge Lina Hidalgo signed a disaster relief order facilitating the release of defendants facing low-level felony charges, citing a need to “reduce and control the occupancy” of Harris County Jails in order to curb the spread of COVID-19. The order, as well as other efforts by law enforcement officials and local advocates, reduced the county’s jail population by roughly 1,500 people, according to Banks.

However, Hidalgo’s efforts were complicated by competing orders from Harris County District Courts Administrative Judge Herb Ritchie and later by Texas Gov. Greg Abbott, who issued his own statewide executive order limiting local jurisdictions’ powers to enact widespread compassionate release.

But thanks to the reforms put in place in the past few years, Banks said Pretrial Services has still been able to keep a large number of defendants out of the jails as they await trial during the pandemic.

“Unlike in some other jurisdictions, reform has been our focus for a while. So the reforms have already been in place to allow us to quickly and efficiently process people, and in many cases, we’re able to keep them out of the jails,” Banks said.

He specifically pointed to a landmark bail reform agreement approved by U.S. District Judge Lee H. Rosenthal in 2019, which allowed for 85 percent of people arrested on misdemeanors to be released on no-cash bonds.

“COVID absolutely contributed to some additional releases in Harris County, but we are very thankful to already have measures in place that allow us to keep more people than ever out of jail, and the disaster relief orders added to additional releases,” Banks said.

In July of 2017, Harris County stopped using its interview-based assessment process and adopted Arnold Ventures’ Public Safety Assessment tool, which Banks said also contributed to the dramatic increase in pretrial releases over the last few years. In 2019, the county enacted Local Rule 9, which allowed Banks’ agency to grant personal bonds for most people arrested on misdemeanor charges.

The pandemic isn’t the only disaster to put pressure on Harris County Pretrial Services. In August 2017, Hurricane Harvey dropped more than 50 inches of rain on the region. The agency was fortunate enough to have some reforms underway before the floodwaters began to rise.

“To be frank and honest, had we not implemented those reforms 30 days before Hurricane Harvey hit, our system probably would have shut down,” Banks said.

In many ways, he said Hurricane Harvey prepared his office for the challenges they are facing during this pandemic.

“When the hurricane hit, some of our courtrooms were damaged and judges had to share spaces and operate on a reduced docket, for maybe four hours a day instead of the usual eight, which caused their clearance rate to go down.”

Banks said that while no judges are sharing courtroom spaces now, they are again operating on reduced dockets to comply with social distancing rules, again increasing the length of time it takes to settle a case, as well as the length of time people stay under pretrial supervision.

“While we definitely want to see that number going up, because it suggests that people are not being incarcerated during their pretrial period, we also want their cases settled in a timely manner,” Banks said. “Harvey and the pandemic have both made that more difficult.”

Banks said staff safety is the number one challenge caused by the pandemic. Harris County Pretrial Services staff are classified as essential workers, and because of the structure of the department, working remotely is virtually impossible.

“Our work is so integrated in the pretrial releasing system that if we’re not there to fix and witness signatures, then those bonds don’t get signed and those defendants don’t get released,” Banks said.

While difficult to manage, Bank said they’ve responded by adhering to daily health screenings, ensuring personal protective equipment for staff, reducing building capacity, and requiring social distancing.

“Our biggest priority is to keep everyone – our staff, our clients, everybody – safe,” he said.

Though Banks said he is pleased by the expansion of pretrial release in Harris County, he admitted that with each added case under their supervision, there is an additional strain on his team.

“The numbers of people being released pretrial are great, but that amount of growth, in that period of time, it’s a lot of work. So, we also have to make sure we’re balanced and keeping in mind the toll that it is taking on our most valuable resource, which is our staff,” he said.

So far, Banks said five staff members have tested positive for COVID-19, resulting in a two-week shutdown of their supervision office. However, he said he is not aware of any clients who were negatively affected by that shutdown.

COVID-19 isn’t the only factor bringing the nation’s justice system under a microscope. The Black Lives Matter protests, sparked in part by the death of George Floyd, a Houston native, are also pressuring the system for reform.

While both are unquestionably devastating, Banks said as a society we are being given the chance to evaluate ourselves and decide what’s truly important and whether or not we are going to change.

“You think about the George Floyd case, the loss of his life is tragic, but as a result we are also seeing a widespread, renewed attention on the criminal justice system, particularly in law enforcement. And so, out of that situation, change is being moved forward a little bit quicker than it was before,” Banks said. “And with COVID, we believe this is an opportunity to see what is actually needed and what is not. It is an opportunity to be honest and to reset our views – like those on bail reforms and other pretrial reforms that some people reject, because it is outside their habit or norm.”

Banks said he is pleased to see that COVID has facilitated change in other agencies across the country. And he said he hopes his jurisdiction can be seen as an example of the long-term effects of some more controversial moves, like expanding no-cash bonds, which is often seen as a potential threat to public safety.

In reality, Banks said Harris County has seen a decrease in new criminal activity and a corresponding increase in public safety since enacting those reforms.

“We absolutely believe Harris County can be an example for other jurisdictions to learn from the things we’ve done well, from the things we didn’t do so great in, and everything in between,” Banks said. “We absolutely believe we’re at the forefront in our example of what pretrial reform looks like.”

While Banks said he is proud of his agency and jurisdiction for the work they’ve done over the years and during the COVID-19 pandemic, he said he knows there’s still a long way to go.

“There is always a need for continued growth, change, and development until we have a system that does not disproportionately incarcerate its citizens. We, as Americans, represent five percent of the world’s population, but we represent 25 percent of the incarcerated population,” Banks said, also noting that Black, brown and Indigenous people are disproportionately represented within the country’s incarcerated population.

“That should be enough information to make us want to change,” he said.