This week the Harris County Sheriff's Office announced it has been forced to ship about 100 inmates to other jails because the county lockup is approaching maximum capacity, an unfortunate reminder of the jail's overcrowded heydays.

The Harris County jail has battled overcrowding since at least 2007, when then Sheriff Tommy Thomas had to ship hundreds of inmates to Louisiana jails. By the time Adrian Garcia took over as sheriff a couple years later, population at the jail had soared to 11,500 inmates. Over time, however, that number started to go down, thanks in part to the previous Harris County District Attorney's decision to stop filing state-jail felony cases against people suspected of having trace amounts of drugs (like a junkie with a crack pipe) and diversion programs for the mentally ill and some low-level DWI defendants.

While the jail still dealt with periodic overcrowding (last year state officials rejected Garcia's request to expand the jail's capacity to create some “flexibility”), the county hasn't had to outsource inmates to other jails since 2012.

That is, until this week. With the jail at 95 percent of its 9,400-bed capacity, Harris County Sheriff Ron Hickman announced yesterday that he's transferred approximately 100 inmates to the Jefferson County jail. Those inmates, Hickman said, have already been sentenced to prison time in a Texas Department of Criminal Justice prison, but had yet to be picked up by state prison officials.

Advocates who want to safely lower the local jail population have long focused those who cycle in and out of lockup because of untreated mental illness. With nearly a third of its inmates on medication for some type of mental illness, the Harris County jail has become the largest mental health provider in the state of Texas.

But the other side of that same coin is pretrial detention, or, put another way, defendants who have been accused but not convicted of crimes. When you're arrested in Harris County and charged with a crime, you're given a court date and a bond amount, which typically falls within a preset range, depending on the offense. If you're able to fork over the whole amount in cash, you'll be out on bail while your case is pending. If you make your court dates, the county will give you that money back, minus a small administrative fee.

Those who can't pony up the cash have to go through a bondsman, who charges you a fee (typically somewhere around 10 percent of the bond amount) that you'll never get back. The bondsman then promises to pay the county if you skip out on your court date.

And then there's a third option. If a judge determines you're not a flight risk, you might get lucky and receive what's called a personal recognizance bond, or PR bond, meaning you'll be released from jail without financial obligation while your case makes its way through the courts. This is the mechanism most likely to help poor defendants accused of drug, petty or nonviolent crimes.

Compared to other large Texas jails, Harris County has one of the highest rates of pre-trial, legally innocent defendants in lockup. According to jail population reports from the Texas Commission on Jail Standards, about 57 percent of defendants in Bexar and Tarrant county jails haven't been convicted of a crime. In Harris County that number is 70 percent (Dallas County, meanwhile, has an even higher pre-trial detention rate of about 74 percent).

Critics say that's because of local judges who set bail too high or refuse to hand out PR bonds, something Sheriff Hickman even acknowledged this week, telling the Houston Chronicle, “In large part, the jail population is controlled by the courts, who determine which offenders will be released pending adjudication and which will be detained until trial.”

Whether a defendant is incarcerated or out on bond doesn't just affect the local jail population. A growing body of research shows being locked up pretrial can have an enormous bearing on how your case plays out.

On the local level, Gerald Wheeler, former director of Harris County pretrial services, and Houston attorney Gerald Fry have studied the cases of some 6,500 defendants charged in Harris County between January 2012 and June 2013, comparing cases and sentencing outcomes for defendants who could and couldn't afford bond. Their preliminary findings underscore what criminal justice reformers have long feared – that bonding policy has created a two-tiered justice system, favoring those who can afford to pay for their freedom pretrial.

According to the latest findings in their project, which they've dubbed “Project Orange Jumpsuit,” defendants locked up pretrial in Harris County are less likely to get deferred adjudication or probation than those who get out on bond. Locked up defendants are also about half as likely to have their charges dismissed as those who got out pretrial. And detained defendants face tougher sentences if convicted than their bonded counterparts. And while most other major cities hand out PR bonds to about a quarter of defendants, according to Project Orange Jumpsuit, PR bonding is almost non-existent in Harris County. In 2012, local judges gave PR bonds to only 1 percent of felony cases and just 7 percent of misdemeanor arrests.

To see what kind of system this creates, just consider the recent flood of drug-crime exonerations in Harris County. Starting last summer, local prosecutors sent letters to hundreds of defendants who took plea deals on misdemeanor and felony drug possession cases, informing them lab tests failed to turn up evidence of any controlled substance. At the time, the Harris County Public Defender's Office told us they'd seen hundreds of such cases stretching as far back as 2004.

Just think about that for a moment. Over the past decade, in just one county, hundreds of people were convicted who either had no drugs at all or were carrying such miniscule amounts that forensic lab testing couldn't even prove they had drugs. According to the National Registry of Exonerations, at least 47 of those defendants were officially exonerated over the past year. It's unclear how many of those cases could ever be made right – the DA's office sent many of those no-controlled substance letters to local homeless shelters, and given how old some of the convictions are, it's likely many defendants have since left the county or state.

Which begs the question: Why would you plead guilty to a drug crime when you don't have drugs? Some of these defendants probably thought they had drugs when they didn't. But others, even if they knew they were innocent, might have had criminal records and couldn't post their high bail, so they took a plea bargain and a drug conviction to get out of jail quickly, rather than staying locked up and fighting their case.

Here's what assistant public defender Nicolas Hughes, who has handled a lot of these cases, told us last year:



"A lot of the times the client is indigent, and the client's in jail, and they can't afford the bond. So if you're sitting there in jail and they're making you a take-it-or-leave-it offer, some people might find that hard to turn down. … I can tell you I've had some cases where people have categorically denied that they had drugs, or at least that's what they told me. But I understand that there's a lot of pressure. Even a good trial lawyer could say, 'Look I believe you, but it's gonna have to go to trial, and it's going to take this amount of time to get there, and we're going to have to test the controlled substance and that's going to take time.' Sometimes you abandon the principle to get home to your family."



The DA's office, which worked closely with public defenders to try to address these drug-less drug convictions, has since taken steps to make sure those types of cases don't happen in the future (like, for instance, making sure lab testing is done before defendants take plea deals in drug cases). Still, that does little to address the perverse incentives facing defendants who can't bond out. And it does little to change the current reality – that richer defendants who can afford to bail themselves out will have a much easier ride through the justice system than poorer defendants who can't scrounge up enough money to pay a bondsman and face little chance of scoring a PR bond from a Harris County judge.

And in the meantime, legally innocent people will continue to clog the jail.

