Last month, a federal judge signed off on a legal settlement that largely ends the use of cash bail in Harris County for low-level offenses, dramatically reforming Texas’s most active local criminal justice system. The decision marked the culmination of a three-year legal battle that started when a group of indigent misdemeanor defendants sued the county for keeping them locked up because they couldn’t afford bail. Houston-area judges must now release the vast majority of misdemeanor arrestees without bail—a major change in a county long known for its hang-’em-high approach to crime.
From the beginning the case attracted national attention, inspiring similar lawsuits in other jurisdictions around the country and chipping away at the constitutional basis for money bail. Pretrial release policies may seem arcane, but they’re at the heart of the current debate over criminal justice reform. Every night, around half a million legally innocent people sit in jail across the country—30,000 of them in Texas alone—not because they’ve been convicted of a crime but because they can’t afford bail.
How did the system get so screwed up, and what comes next? Let’s start with the basics.
What, exactly, is money bail?
Like most states, Texas guarantees that nearly everyone arrested for a crime has a right to get out of jail before trial if they put up a sufficient amount of money for a bail bond. If you skip town or break the law before trial, your bond will probably be revoked and a warrant issued for your rearrest. For the sake of convenience, most people pay a bail bondsman a nonrefundable premium (usually 10 percent of the total bond) rather than post the entire amount themselves. The Texas Constitution also prohibits “excessive bail,” but that’s vague enough to be nearly meaningless.
That sounds pretty straightforward. What’s the matter with the system?
In a nutshell, money bail generally allows rich, violent people to get out of jail before trial while keeping poor, nonviolent ones behind bars. Studies have shown that even a short jail stay can have a devastating impact on someone’s life, putting their job at risk and making them more likely to commit crimes in the future. Prosecutors know this and use it as leverage, often promising indigent defendants immediate release from jail if they plead guilty.
What is the legal case against money bail?
It’s pretty simple, actually. Civil Rights Corps, the national legal group that represented the plaintiffs in the Harris County case, argued that the county was violating the U.S. Constitution’s due process clause by setting bail without regard to a defendant’s ability to pay, and violating the equal protection clause by favoring the wealthy over the poor. The federal judge agreed, ruling that Harris County was committing “tens of thousands of constitutional violations” every year.
So the judge agreed with the opponents of money bail. What did Harris County say in its defense?
The county certainly didn’t go down without a fight—it spent around $9 million over the past three years defending itself against the lawsuit, arguing that money bail helps ensure that defendants show up for their court appearances and stay out of further legal trouble while awaiting trial. As for people who can’t afford money bail, the county suggested that many of them preferred being in jail since it “provides a shelter, multiple meals per day, and medical services”—an argument the judge likened to the old Confederate claim that African Americans preferred slavery to freedom because they got free housing.
Complicating the county’s case was the fact that voters kept booting out its top elected defenders in favor of pro-bail-reform candidates. In 2017, the newly elected sheriff, Ed Gonzalez, even testified in favor of the plaintiffs. “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system,” he said. In November 2018, Harris County voters kicked out nearly all the remaining antireform officials, including fifteen of the sixteen criminal court judges. Almost as soon as the new judges were sworn in, they started negotiating a settlement in which they agreed to release nearly all misdemeanor arrestees on affordable money bail—in most cases, on so-called personal bonds (also known as recognizance bonds), which require no payment unless a defendant fails to show up to court or commits a crime.
What’s been the fallout from the settlement?
According to criminal court judge Franklin Bynum, one of the proreform candidates elected last year, around 85 percent of misdemeanor arrestees are now being released automatically on personal bonds without a hearing, with most of the remainder—including people charged with a DUI or domestic violence—getting released shortly after their hearing “with appropriate conditions to ensure future court appearance and community safety.” That’s a massive change from prelawsuit Harris County, which locked up around 40 percent of misdemeanor defendants before trial. Judges have also been dismissing more cases, with “no probable cause” findings up 70 percent from 2015.
So misdemeanor bail is on life support in Harris County. What about felony bail?
Civil Rights Corps sued the county in January over its felony bail practices, noting that most of the seven thousand people locked up every night in the Harris County Jail are awaiting trial on felony offenses, many of them nonviolent drug crimes. “While misdemeanor cases last days or weeks, felony cases can last months or even years,” the group’s founder, Alec Karakatsanis, told Texas Monthly. “People are detained for that entire time [if they can’t afford bail], which is blatantly unconstitutional.” The county is currently in settlement talks with the plaintiffs to resolve the lawsuit.
How are local officials responding to the new way of doing things?
Very differently! Harris County district attorney Kim Ogg won office in 2016 on a proreform platform and participated in settlement negotiations, but ended up criticizing the final agreement as jeopardizing public safety and placing too many unfunded mandates on her office. “The biggest concern is public safety—seeing repeat offenders released on personal bonds by magistrates and judges,” she told Texas Monthly. But county judge Lina Hidalgo, the county’s top executive, said she’s pleased with how the reforms have been rolled out. “The heart of the settlement has been in place since January, and it’s been working great. We haven’t had any major issues.”
Are there any alternatives to money bail?
Yes. In fact, the U.S. is one of only a handful of countries that relies primarily on money bail to determine pretrial release, and the only country other than the Philippines with a for-profit bail bond industry. Houston police chief Art Acevedo advocates passing state legislation allowing judges to detain more categories of defendants without bail, using a public safety assessment tool like the one developed by the Laura and John Arnold Foundation. Such a bill passed the Texas House earlier this year but died in the Senate; the bipartisan House Criminal Justice Reform Caucus is currently planning strategy for the 2021 legislative session. “Decisions should be based on your public safety risk rather than how rich you are,” Acevedo said. “The problem is that in the state of Texas there are very few cases in which judges can deny bail.”
Harris County sounds like it’s making some radical reforms. What’s happening in the rest of the country?
Similar class-action lawsuits attacking the constitutionality of money bail have been filed in nineteen federal district courts across the country. Until the Supreme Court weighs in, there won’t be a single national standard, but the tide seems to be turning. New York, New Jersey, Maryland, Alaska, and many cities and counties have already enacted major bail reform. Given the bipartisan support for many of these laws, it may be only a matter of time before Texas joins the trend. As Texas Supreme Court chief justice Nathan Hecht, a Republican, put it earlier this year, “detaining someone solely because he’s poor is against the law. It violates fundamental constitutional rights. In 21st-century Texas, it ought to be unthinkable.”