The lawsuit—O'Donnell v. Harris County—was filed in an effort to force Harris County to change long-standing bail bond practices that plaintiffs said were unconstitutional, including detaining pretrial arrestees who were unable to afford bail. A federal judge found Harris County's bail bond practices unconstitutional in 2017, declaring them in violation of the Constitution's due process and equal protection clauses.
The same judge, U.S. District Judge Lee Rosenthal, gave final approval Nov. 21 to a settlement that had been reached between Harris County and the plaintiffs in July. Harris County initially fought the lawsuit, but the county dropped the fight and began settlement talks earlier this year after a wave of Democratic judges were elected into office following the 2018 elections.
"For too long, residents in Harris County have been taken advantage of by a broken, unfair and unconstitutional bail system," said Harris County Judge Lina Hidalgo, who supported the settlement, in a statement. "We do not have to choose between protecting the constitutional rights of defendants and protecting public safety. In fact, by reforming our broken bail system, we are taking a step toward rebuilding trust between our system of justice and the residents it serves."
Under the settlement, Harris County will grant personal bonds for roughly 85% of misdemeanor arrestees with exceptions for several offenses, such as domestic violence and assault. The settlement also requires the county to implement programs to improve court appearance rates, which could include helping defendants with transportation, childcare and mental health problems.
During the July meeting at which the Harris County Commissioners Court approved the settlement by a vote of 3-2, officials said the overall cost of the settlement to the county could range from $59 million-$97 million.
Critics of the settlement have argued that it presents a danger to public safety and does not do enough to ensure arrestees will show up for their court dates after being released on bond. In approving the settlement, Rosenthal wrote that no bail system is perfect, and the need for Harris County to make its system compliant with the Constitution was at the center of the decision.
"No [bail bond] system can guarantee that all those accused of misdemeanors who are released on personal bonds—rich or poor—will appear for hearings or trial, or that they will commit no crimes on release," Rosenthal wrote. "No system can guarantee that all those accused of misdemeanors who are detained pending trial—rich or poor—should have been detained. But Harris County, which operates the third-largest jail system in the country, can stop systematically depriving indigent misdemeanor defendants of their constitutionally protected rights by detaining them simply because they cannot afford to post money bail."
The final approval came a little less than one month after a fairness hearing where critics of the settlement were able to make their cases for why it should not be approved.
Critics included Harris County District Attorney Kim Ogg, who filed an amicus brief in which she noted the number of open misdemeanor cases in Harris County increased by 59% from Jan. 1, 2018, to late October 2019, which she attributed to misdemeanor defendants not showing up to court. The settlement decree would make it harder for the district attorney's office to prosecute cases. Ogg said she supports bail bond reform overall, but took issue with key parts of the settlement decree.
Plaintiffs argued that cases moving more slowly was evidence that defendants were no longer being coerced into pleading guilty, an argument Rosenthal said she found persuasive.
Other critics—including Precinct 3 Commissioner Steve Radack, Precinct 4 Commissioner Jack Cagle and several law enforcement organizations—argued the settlement presents a danger to public safety, pointing to examples of defendants committing crimes while out on bail. Rosenthal wrote anecdotes could not be used to refute the court's findings or stand in the way of the Constitutional issues that needed to be addressed.
Radack spoke about bail bond reform, among other topics, at a Nov. 19 luncheon hosted by the Cy-Fair Houston Chamber of Commerce. He said the settlement does not require the county to extend the same assistance to victims of crime as it does arrestees.
"There are far, far less criminals than victims," he said. "People are getting away with crime. They are not being punished."
However, Hidalgo said the guilty will still be held accountable under the new system.
"The guilty will still be held accountable for their actions, but the accused won't have their lives, livelihoods, and families torn apart because they are too poor to buy their freedom," she said.
Moving forward, Harris County will be required to hire a court-appointed monitor who will oversee the implementation of programs laid out in the settlement for a seven-year period.
