Harris County Commissioners voted 3-2 to settle a landmark lawsuit that has been ongoing since 2016. In 2017, a federal judge—Judge Lee Rosenthal, Chief District Judge of the U.S. District Court of the Southern District of Texas—declared the county's system unconstitutional, finding the practice of jailing people for not being able to afford bail to violate guarantees of due process and equal protection.
The settlement seeks to make permanent policy changes that went into effect in February, county officials said. Those policies, put into effect after a new slate of judges were elected in 2018, allow automatic, no-cash pre-trial release to roughly 85 percent of those arrested for misdemeanors. The settlement still needs to go back to Judge Rosenthal for final approval, which could be given at an Aug. 21 hearing.
Precinct 1 Commissioner Rodney Ellis hailed the agreement as a historical moment for Harris County, likening it to Brown v. Board of Education, the landmark civil rights case that led to the integration of public schools.
"It took decades … maybe a century to put this system in place that has been ruled unconstitutional, and we needed to make sure we were thoughtful in what we do to change it because you cannot dismantle a system like this overnight," Ellis said at the July 30 meeting.
Under the agreement, money bail is no longer required for pretrial release for misdemeanor arrestees with several exceptions, including people who are arrested for domestic violence, a second arrest for driving while intoxicated and people who are charged with a new offense while on release. People detained for those reasons are required to attend a hearing before a judicial officer who will consider each case on an individual basis before setting bond or releasing a detainee on a personal bond.
Public speakers at the July 30 meeting included a number of residents who had been through the bail bond process and testified on how being held in jail pretrial affected their lives, including missing time at work and not being able to take care of children. Franklin Bynum, County Judge at Law with County Criminal Court No. 8, also spoke on his experience working at Harris County's Public Defenders Office.
"People are free to go home to their families, to not miss a pickup from school, not miss a rent check ... not have their lives spiral more into chaos," he said of how the reforms affect people at the individual level.
Court appearance rates, legal representation
The agreement also requires the county to take on a number of initiatives aimed at improving court appearance rates and legal representation at bail hearings. Specific mandates include requiring the county to implement a text message system to remind defendants about their court dates and conduct a study into the reasons people miss court dates.
Prior to the completion of the study, the county must allocate $250,000 per year to programs that help indigent defendants meet their court dates. After the study, the county must spend $850,000 per year on those programs, which could include programs to help with transportation, childcare and mental health problems, depending on the study's results.
Elizabeth Rossi, a senior attorney with Civil Rights Corps—the Washington D.C.-based nonprofit that, along with three indigent Harris County defendants, led the legal challenge against Harris County's bail system—said these reforms are designed to give defendants "the opportunity to meaningfully fight their case."
"Evidence shows that virtually no one is actually fleeing prosecution," Rossi said of people who miss their court dates. "People are missing court for really mundane reasons—they couldn’t secure childcare, they didn’t have a ride or they just forgot. The consent decree requires those ... less restrictive alternatives to make sure those folks who just need some assistance to make their court dates actually get it."
The consent decree also requires county officials to work with Civil Right Corps to select a person to serve as a monitor for a seven-year period to make sure the county is complying with new policies and the policies are working as intended, Rossi said.
"The monitor, the data and the community meetings are absolutely essential to the success of the new system," she said. "These systems are so incredibly entrenched and they backslide so quickly. Even a document that is detailed and specific and addresses many of the aspects of the system can only go so far if there isn’t vigorous oversight."
Costs and concerns
Precinct 3 Commissioner Steve Radack and Precinct 4 Commissioner Jack Cagle both opposed the resolution. Among his reasons for doing so, Cagle said he had concerns about the implications on public safety and concerns about giving power to a federal judge to shape policy in Harris County.
"At the core of the system you need to have [local] judges to review every case to decide who are the ones who are at risk to hurt somebody," Cagle said at the July 30 meeting. "A local judge needs to be making that decision case by case and not a sheriff or a federal judge."
Cagle also said the reforms could create a system where the civil rights of crime victims are neglected if a potentially dangerous person is released back out into the streets.
Ellis said there is no evidence that the cash bail system increases public safety, citing an analysis of pretrial detention in Harris County from 2008-13 that found detaining individuals pretrial makes them more likely to commit crimes later on.
Radack said the agreement should have involved more public input, criticizing it as the product of a small group of people working in confidentiality. Cagle also raised concerns about the cost of the reforms, which are largely unknown but could range from $59 million-$97 million based on conservative estimates from the county budget office. Budget Officer Bill Jackson said any department affected by the reforms would have to present on the resources needed in future budget hearings.
County Judge Lina Hidalgo, who made criminal justice reform a major part of her campaign before being elected in November, said cost should not deter the county from pursuing reform. In a statement, she said the reforms being pursued by Harris County can serve as a model across the U.S.
"This settlement is smart," Hidalgo said. "It ensures that we are spending our resources on real public safety, rather than filling our jail with people who are only there because they’re poor. Today marks a proud moment on our path toward justice.”