A criminal prosecution typically begins with an arrest, and whether or not a defendant must remain in jail while they await trial depends on whether a judge or magistrate sets bail. This happens at a bail hearing shortly after the arrest. The Eighth Amendment to the U.S. Constitution prohibits excessive bail, and the Sixth Amendment guarantees the right to counsel in criminal cases. The state must provide counsel to indigent defendants, but not every indigent defendant in Texas gets a lawyer at their bail hearing. In Houston, the state’s largest city and second-largest metropolitan area, judges and other county officials have been accused of improperly denying defendants’ right to counsel, resulting in massive numbers of people charged with minor, nonviolent offenses remaining incarcerated because they cannot afford bail.
According to a report in the Houston Chronicle from early 2016, bail hearings in Harris County consist of arrestees appearing before a magistrate, who is actually in a different room and communicates with the inmate via television monitors. A prosecutor attends the hearings, but defense attorneys are not provided for indigent defendants. The magistrate reportedly sets bail based on a set of guidelines that look at the charge and the individual’s criminal record, but not factors like the person’s health or family responsibilities. Inmates who cannot afford attorneys are left on their own to argue against a prosecutor for lower bail.
The Harris County Public Defender has harshly criticized this system, stating that “an adversarial system cannot function when only one side shows up.” Even prosecutors have reportedly agreed to seek reforms that give more—or some—consideration to the constitutional rights of indigent defendants during bail hearings. Many judges, however, have opposed reform efforts, with one district judge reportedly saying that providing public defenders at bail hearings is not necessary because the bail hearing is not a “critical stage” of the case. Considering that the bail hearing determines whether or not a person can return to their life while the case proceeds, before the state has met its burden of proving guilt beyond a reasonable doubt, it certainly seems like a critical stage for most people.