When Harris County District Attorney Kim Ogg walked onto the stage of Texas Southern University’s auditorium Aug. 25, emphatic boos from several audience members set the scene for a two-hour panel on the county and country’s approach to bail reform.
The back-and-forth of the panel typified the discussion in recent years around Harris County’s bail practices. At the felony level, the county has operated and continues to operate under a cash bail system. But cash bail for misdemeanors was the subject of scrutiny in 2017 after U.S. District Judge Lee Rosenthal found the county’s policy of using cash bail to hold people in jail while they awaited trial in violation of the U.S. Constitution.
Elizabeth Rossi represented the plaintiffs in that class-action lawsuit, including Maranda Lynn ODonnell—a single mother who was arrested for driving with an invalid license and held in jail for three days after being unable to pay a $2,500 cash bond.
“The crux of our claims [was] that it’s a really big deal to take away a person’s freedom,” Rossi, the director of strategic initiatives at Civil Rights Corps, a D.C.-based nonprofit challenging injustices in the legal system, told Community Impact.
While the lawsuit was underway, the 2018 midterm elections flipped the county’s misdemeanor court judges from entirely Republican to entirely Democrat, with some new judges holding progressive positions on unsecured bonds and low bonds, according to Mark Jones, a political science professor at Rice University.
The newly elected Democratic cohort settled the lawsuit, culminating in the November 2019 ODonnell Consent Decree that eliminated cash bail for most misdemeanor arrestees. Now, with elections nearing for 15 out of 16 Harris County Criminal Courts at Law—which hear Class A and Class B misdemeanor cases—Jones said the debate over the effectiveness of the county’s reforms could spill into campaigns for all judicial races, including those for the district courts, which handle felonies.
“You’re definitely going to see the Republican judicial candidates as a group use the idea of criminals out on bail ... and particularly criminals out on [personal recognizance] bonds as one of their principal campaign messages,” Jones said.
Path to the ODonnell decree
When ODonnell v. Harris County was first filed in May 2016, it named the county, then-Sheriff Ron Hickman and five hearing officers—those responsible for setting bail for misdemeanor arrestees—as defendants, but an amended complaint from August 2016 added the 16 Republican misdemeanor judges, 15 of whom were elected in 2014.
Dan Spjut, a Republican and former judge of Criminal Court at Law No. 10 in 2016 who lost his seat in 2018 and is running to be reinstated, said he believes the lawsuit was “nonsense.” Spjut’s Democratic opponent Juanita Jackson could not be reached for comment.
“The system that we were operating under was not perfect by any means, ... but there was never anybody in jail in my court on a misdemeanor,” Spjut said.
However, Rosenthal wrote in her 193-page opinion from April 2017 that the court concluded more than 100 people were detained in the county jail each day who would have been released if they could have afforded their cash bail.
The judge put an emergency stop on the county’s misdemeanor cash bail system through a preliminary injunction, which was the focus of a study released Aug. 30 by the University of Pennsylvania Carey Law School’s policy hub, the Quattrone Center for the Fair Administration of Justice.
The center analyzed over 55,000 misdemeanor and state jail felony cases filed in 2017 pre- and post-injunction to measure its impact. Paul Heaton, the academic director of the Quattrone Center, said he believes the injunction was “largely successful,” reducing conviction rates by 9% and pleas by 15% from the period of 2017 prior to the injunction in April to the remainder of 2017 after the injunction, along with a 6% decline in new cases over three years.
Heaton said he spoke with misdemeanor judges at the time and believes they did not think they were causing harm.
“[The misdemeanor judges] were following what had been done in the past, and their training and their gut instincts. [Data and analysis] can be helpful ... to recognize places where that experience or instinct could lead us astray,” he said.
Following the injunction, the judges who won in 2018 amended the county’s misdemeanor bail policies and settled the ODonnell case in November 2019, ushering in the ODonnell Consent Decree. The decree releases most misdemeanor arrestees on personal recognizance bonds—meaning they promise to return to court without paying a cash deposit—and requires those ineligible for such bonds receive representation from a public defender and a hearing within 48 hours of their arrest.
Duke University law professor Brandon Garrett is the court-appointed monitor to oversee the implementation of the decree. His fifth report released Sept. 3 showed the share of cases resulting in a conviction dropped to 23% in 2020 from 59% in 2015 with the outcome of 18% of 2020 cases still undetermined.
Jason Spencer, Harris County Sheriff’s Office spokesperson, said Sheriff Ed Gonzalez was in favor of the reform, which Spencer said has helped manage the jail population and left more space for people charged with serious felonies.
“If misdemeanor bail reform hadn't happened, it's reasonable to assume [our current crowding condition] would be much worse than it is now,” Spencer said.
Clash over bail reform
Heaton said he worries some conflate misdemeanor and felony bail reform—the latter of which has not yet occurred in Harris County.
Ken W. Good, an attorney who represents bail bond agents, spoke at the Aug. 25 TSU bail reform panel and said he believes “misdemeanors [are] the training ground today for tomorrow’s felonies.” But Heaton said this is not borne out by the evidence from his center’s study.
A Sept. 14 news release from Crime Stoppers, a nonprofit organization dedicated to reducing crime in communities, stated the organization supports misdemeanor bail reform. Andy Kahan, director of the victim services and advocacy program for Crime Stoppers, said he believes ODonnell has affected how judges set bonds for felonies.
“The numbers certainly bear it out that the district court judges are basically taking the ODonnell decision without being under a federal order [and] transposing it onto defendants charged with felonies,” Kahan said, although he added Crime Stoppers only began tracking such data in 2018.
District Attorney's Office spokesperson Dane Schiller said in a statement to Community Impact he believes no one should sit in jail simply because they are poor, but a September 2021 report from Ogg's office shared the same sentiment as Kahan.
"'Bail reform' has not been confined to misdemeanors, but has been implemented, in practice, for felony defendants at every level," Ogg said in the report.
Meanwhile, Alexandra del Moral Mealer, the Republican opponent of County Judge Lina Hidalgo, filed an amicus curiae brief Jan. 25 to dismiss a separate Harris County case dealing with felony bail reform, Russell v. Harris County. In a statement to Community Impact, Mealer said she would file a motion to dissolve the ODonnell Consent Decree on her first day in office if elected.
According to Jones, candidates for judicial elections are virtually unknown to the public and said voters will choose candidates almost exclusively based on party.
“It's just the nature of judicial elections in a large jurisdiction like Harris County where we have about 100 races on the ballot,” Jones said. “The judicial elections devolve into a generic partisan battle with whichever party has the narrow advantage almost always sweeping every one of the seats.”
However, it is not yet clear how a change in the makeup of the courts could have an effect on ODonnell.
David Fleischer, who is running for re-election as the Criminal Court at Law No. 5 judge, said he does not know what would happen to the ODonnell Consent Decree if Republican judges win their elections. His opponent, Republican Elizabeth Buss, did not respond to requests for comment.
“It does scare me though," Fleischer said. "We put in a lot of work [to show] that any fear that someone might have had about bail reform is just nonsensical in the misdemeanor arena.”
Good said a new misdemeanor judge could choose not to follow the decree. But Garrett said it takes extreme circumstances to reopen a settled case, and Rossi said in a statement that such an attempt would be baseless legally.
Although Heaton did not comment on whether ODonnell could be changed, he said it is important to give some time and attention to the judicial races.
“One of the lessons is the decisions of those judges, and whether or not they're willing to implement reforms, like the ODonnell reforms,” Heaton said. “I think it's valuable for people to be very thoughtful when they're making these decisions and recognize that those judges can be pretty important in what happens.”