An effort to overhaul Harris County’s bail bond system was set into motion in July that county officials said addresses inequalities in how the system treats lower-income arrestees.
County commissioners adopted a series of policy reforms with a 3-2 vote at a July 30 meeting that also settled an ongoing lawsuit the county had been fighting since 2016. Under new policies, the vast majority of individuals arrested for misdemeanor crimes are now eligible to be released on automatic, no-cash pretrial bonds.
Precinct 1 Commissioner Rodney Ellis hailed the agreement as a historic moment for Harris County, likening it to Brown v. Board of Education, the landmark civil rights case in 1954 that led to the integration of public schools nationwide.
“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 a July 30 commissioners court meeting.
However, several commissioners representing the Cy-Fair area said they believe the reforms come with concerns about public safety. Eligibility for no-cash bonds have been extended to a range of arrestees, ranging from people arrested for gambling to criminal trespassing to low-level assault and burglary of a motor vehicle.
At an Aug. 13 meeting, Harris County Precinct 4 Commissioner Jack Cagle called on the county to do more to help victims of crime, saying that the approach to criminal justice reform needed to be more balanced.
"Our county spends millions of dollars in the realm of criminal justice, and we voted last session to add potentially another $97 million to look out for those who are arrested for committing crimes in our society,” Cagle said at the meeting. “But there is a great deficit in these reforms in that we have not been looking out for the only unwilling participant in the criminal justice system, … the victims.”
Terms of settlement
In April 2017, Lee Rosenthal, the chief district judge of the U.S. District Court of the Southern District of Texas, declared the Harris County’s bail bond 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 county initially appealed the ruling, but after a slate of Democrats were elected to judge and commissioner seats last November, the county began working with the plaintiffs in the case on a settlement.
In February, the county changed bail bond policies, resulting in around 85% of misdemeanor arrestees getting released pretrial on personal bonds.
“The agreement takes the measures that we implemented, that we have shown to work, and makes them permanent,” said Franklin Bynum, who was elected county judge at law in November, at the July 30 meeting.
The automatic no-cash bail will not be available for people arrested for certain crimes, including domestic violence or a second arrest for driving while intoxicated, according to the settlement. People detained for those reasons are required to attend a hearing before a judicial officer, who will determine bond.
The agreement also requires the county to take on initiatives to improve court appearance rates, which includes conducting a study into the reasons why people do not appear for court dates. After the study, the county must spend $850,000 per year on programs to help indigent defendants meet court dates, which could include helping with transportation, child care 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 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.”
“People are missing court for really mundane reasons—they couldn’t secure child care, they didn’t have a ride,” Rossi said. “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 settlement still needs to go back to Rosenthal for final approval. As of press time Aug. 14, a hearing has been scheduled for Aug. 21.
Jennifer Bourgeois, a professor with the Lone Star College-CyFair Criminal Justice Department and a fellow in the Houston-based Center for Justice Research at Texas Southern University, said not being able to pay bail often comes with collateral consequences.
“When you can’t post bail, you could lose your job, it could affect your children,” she said. “It’s a trickle-down effect that affects the entire household, especially if you’re the breadwinner.”
Since Rosenthal struck down Harris County’s bail system in 2017, the number of people being held in the Harris County jail pretrial for misdemeanors has dropped. Counts made on the first day of each month show an average of 465 people were being held for pretrial misdemeanors over the first six months of 2016. That number dropped to 278 over the first six months of 2019, according to data from the Texas Commission on Jail Standards.
In the month of July, roughly 125 people with Cy-Fair addresses were released on $100 bonds, according to Harris County District Clerk records.
The most common reasons for arrest included a first arrest for driving while intoxicated, thefts between $100 and $750, and driving with a suspended or invalid license. The data does not include people arrested for Class C misdemeanors, such as disorderly conduct.
Howard Henderson, founding director of the CJR, said the bail bond reforms passed in Harris County have wide-ranging effects that extend to more suburban parts of the county such as Cy-Fair.
“There is one county jail and one district attorney’s office, per county ... which highlights the need for precharge diversions,” Henderson said.
Public safety concerns
Two commissioners representing the Cy-Fair area opposed the settlement agreement at the July 30 meeting: Precinct 3 Commissioner Steve Radack and Precinct 4 Commissioner Jack Cagle. Among his reasons for doing so, Cagle said he had concerns about the implications on public safety.
“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 where the settlement agreement was discussed.
Harris County Precinct 4 Constable Mark Herman, whose precinct covers part of the Cy-Fair area, said the policy changes will not change the way officers do their jobs in his precinct and his officers are prepared for whatever the future may hold. However, he said he has noted a greater demand placed on law enforcement.
“This past year there have more suspected criminals on the streets of Harris County than there have been in my 34 years in law enforcement,” he said.
In the Cy-Fair area, roughly 190 incidents of theft from vehicles, 31 incidents of disorderly conduct and 480 incidents of assault have occurred since the start of February, according to data from the Harris County Sheriff’s Office made available through CrimeReports.
Both Ellis and Rossi said they believe there is no evidence that the cash bail system improves public safety, citing a University of Pennsylvania study that found detaining individuals pretrial could make them more likely to commit crimes later on.
The study analyzed 380,689 misdemeanor cases filed in Harris County from 2008-13, including an analysis of how likely defendants who were detained pretrial were to commit future crimes compared to defendants who were released pretrial. Of the defendants assigned cash bail of $500 or less, researchers estimated 40,000 could have been released pretrial on personal bonds instead of detained and would have been involved with 1,600 fewer felonies and 2,400 fewer misdemeanors in the 18 months post-trial as a result.
County Judge Lina Hidalgo said she believes the reforms will lead to an overall improvement in public safety.
“[The settlement] 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,” she said.