With a stalled court system, some Texas jails are dangerously overcrowded in the pandemic

The pandemic has stalled much of the Texas criminal justice system. State prisons stopped accepting new inmates for several months last year, and most counties have not held a single criminal jury trial since last March.

But while many defendants are stuck in a county lockup waiting for a repeatedly delayed court date, crime still occurs and police continue to make arrests. The result: Numerous county jails are running out of room.

"There are quite a few counties that are having to contend with population issues," said Brandon Wood, executive director of the Texas Commission on Jail Standards. “All along we knew that the speed at which the courts were operating would eventually create another issue, and it’s starting to have that impact.”

As the coronavirus continues to kill thousands across the state, overcrowding in Texas jails has spurred alarm in several counties. A lack of space has prevented some jail officials from safely distancing inmates — most of whom have not been convicted of a crime — or quarantining new arrivals who may have been exposed to the virus.

Jails mostly house those who are legally presumed innocent or are serving short sentences, and they tend to have a rapid turnover rate. With fewer inmates moving into the courts to either be acquitted and set free or found guilty and sent to prison, officials in some counties are scrambling to keep their populations below maximum capacity even if arrests are down.

With a lack of beds at its oft-packed jail already, Hidalgo County has resorted to housing hundreds of inmates in neighboring counties or at a nearby private, federal lockup. In the state’s most populous county, Harris County, the sheriff has pleaded for help from a federal judge to make room at the “bursting” jail in Houston, where six inmates and two employees have died from COVID-19.

“Something must be done to reduce the population,” the sheriff’s office wrote to the court, saying releases initiated at the county-level have been too slow.

“New inmates who test positive have no place to quarantine because the surveillance tank is full and the general population is gridlocked,” the sheriff’s office said.

Not every county is struggling with its jail population. Overall, the number of people in Texas county jails is about the same as it was a year ago. And the large metropolitan counties of Dallas and Travis had more than a thousand open beds in their lockups this month, according to the jail commission.

Both counties have noted that their judges, prosecutors and defense attorneys work collaboratively to reduce the jail populations safely as the virus threatens the health of inmates, staff and the surrounding communities.

Dallas County Commissioner John Wiley Price said policies enacted before the pandemic help to keep their numbers low. He cited bond reduction hearings for inmates that are mandated under an earlier federal court ruling and the district attorney’s policy not to prosecute some low-level crimes and push other defendants toward diversion or treatment programs. But judges have also adapted to holding virtual hearings with the inmate still at the jail, he said, and are implementing more “aggressive” conditions of release, like GPS ankle monitoring.

“The first rule is public safety. Can an individual be released from custody and not be a quote danger to the public?” Price said.

“Everybody we can release from custody, we’re releasing,” he said.

The effort to release more people from jail before their trial, however, is often met with strong opposition in Texas. As some counties sought to reduce the numbers in their disease-prone jails shortly after the coronavirus first swept through the state, Gov. Greg Abbott signed an emergency order restricting the release of inmates accused or previously convicted of violent crimes if they can’t pay bail. Similar defendants with cash can still walk free.

In Harris County, where the sheriff has asked a federal court for help with a crowding jail, civil rights attorneys argued that judges aren’t reviewing cases to see if people who have long sat in jail could safely be released. District Attorney Kim Ogg this month opposed lowering bail for almost all the defendants the sheriff’s office noted may be eligible for release since they were being held in jail on low-cost bonds but still couldn’t pay.

And nine Republican state lawmakers from the Houston area urged the federal court to deny the sheriff’s request to release some felony defendants. They argued, as Abbott has, that the release of more people before trial will lead to more crime in a time when homicides are up in Texas cities.

“The current revolving door at the Harris County courthouse is alarming,” the lawmakers wrote.

Last year, a Harris County study found that releasing more people accused of misdemeanors from jail with no or reduced bail amounts did not increase how often the defendants were arrested for new crimes. Though the bail battle has been prominent in Texas and the country for years, the pandemic has brought a new urgency to the issue of pretrial jail release.

“We do not want to convert pretrial detention into a death sentence,” U.S. District Judge Lee Rosenthal said at a hearing on Harris County’s jail last week.

Hidalgo County Sheriff Eddie Guerra said his jail is often overcrowded, and he has tried to expand the jail capacity for years. The pandemic has exacerbated the problem, with nearly 400 county inmates currently housed in a private federal jail or in other counties. Still, the courts have to look to reduce bond amounts or somehow make some space, he said.

“My staff [is] talking with the district attorney’s office and the judges saying, ‘Can we reduce the bond for this individual so we can make room for another individual?’” Guerra said. “Because we’re … having to compete with other county jails for bed spaces.”

With the Nueces County Jail in Corpus Christi about 90% full, bond reduction hearings have become one of the courts’ most common on Zoom video conferences, said State District Judge Inna Klein. She noted that in terms of releasing people who can’t afford to pay bail, “a lot of times our hands are tied” by Abbott’s order.

The county hopes to jump-start the criminal justice system next month by holding its first criminal jury trial since last March. That is, if local health authorities deem the coronavirus case counts would allow for a safe proceeding.

“The combination of the grand juries continuing to meet and indict new cases, and the police agencies of course continuing to make arrests and the jury trials as of right now being stalled ... definitely creates this huge bottleneck,” Klein said. “The bottom line is we do need to restart the judicial process.”