After a final hearing set for Oct. 28, a landmark settlement in Harris County could make bail reforms permanent and set the stage for similar changes across the country, including in Dallas, where a lawsuit is challenging bail for felony cases.
“It’s a huge change in how we do things. It’s hard to underestimate how dramatic this is,” said University of Houston law professor Sandra Thompson, who studies criminal justice reform. “You’re really talking about something affecting the vast majority of cases—thousands of people every year.”
In a preliminary ruling issued Sept. 5, Lee Rosenthal, the chief district judge of the U.S. District Court of the Southern District of Texas, affirmed the settlement and consent decree despite objections filed by District Attorney Kim Ogg, the Harris County Domestic Violence Coordinating Council and the Harris County Bondsmen Association. The fairness hearing Oct. 28 at the federal courthouse, 515 Rusk St., will be the last chance for the judge to weigh in on concerns.
While supporters hail the settlement as a watershed moment, opponents cite public safety concerns, conflicts with state law and the financial burden on taxpayers.
“It’s not very fair to victims,” Precinct 4 Commissioner Jack Cagle said.
The settlement will maintain reforms from 2017 that require the county to release misdemeanor defendants prior to trial as well as implement other initiatives. Misdemeanors include crimes such as drug possession, trespassing, theft and driving while intoxicated.
The reforms are already having a measurable effect: From 2015-18, the total number of misdemeanor and felony defendants released on personal bond jumped 371% and is continuing to grow this year, according to a report by Harris County Pretrial Services.
Under personal bonds, an arrestee does not have to post bail on the promise that they will appear in court.
Meanwhile, bail bond businesses are feeling the effects.
“We’re very barely hanging on, waiting to see what happens,” said Carolyn Campbell, the owner of Capital Bail Bonds, which has operated on Houston Avenue for over 30 years. She said business is down by 90% since the reforms began taking effect. “It’ll put most of us out of business for sure.”
Coming to a settlement
Three individuals charged with misdemeanors filed a lawsuit against Harris County in 2016, alleging it unfairly jailed misdemeanor defendants who could not afford bail.
The case came on the heels of a University of Pennsylvania study published that year, which analyzed over 380,000 misdemeanor cases in Harris County and found those who were detained pretrial were more likely to commit crimes later than those who were not.
In 2017, Rosenthal declared the county’s bail system unconstitutional. That same year, Harris County changed its bail practices to grant personal bonds for most misdemeanor arrestees, a policy known as Local Rule 9.
Prior to the reform, judges set bail according to the type of offense and other factors, such as prior convictions and how likely the defendant might commit new crimes. These bail levels could mean that someone with money could be released, while those in poverty remained in jail awaiting trial.
The rule change applies only to misdemeanors and excludes domestic violence, assault or second offenses for driving while intoxicated, and certain other offenses. It also excludes crimes committed after pretrial release.
Ogg and Cagle argued Local Rule 9 addresses the concerns in the original lawsuit and that the settlement—which requires the county to offer defendants rides to court and implement a text message system reminding them of their court dates—is unnecessary.
“The district attorney has no objection to a settlement approved by this court requiring and monitoring the continued enforcement of that rule,” Ogg wrote in her amicus brief, or written concern sent to court, filed Aug. 22. “The proposed settlement seeks relief far beyond the scope of the original controversy, however.”
In his preliminary ruling, Rosenthal also reminded all parties involved that any portion of the decree could be adjusted after it is implemented.
“Current or future officeholders may move to modify or terminate the decree … if they think changes in circumstances warrant this relief,” Rosenthal wrote.
Day in court
Prior to the reform, poor arrestees would sometimes plead guilty to be released earlier—and face a criminal record, Thompson said, because they could neither post bail by paying the full amount nor by securing a bond, which usually entails paying a bonds company 10% of the bail on the promise that the arrestee will later appear in court.
That financial leverage meant there was a very high likelihood the arrestee would appear, said John McCluskey, the owner of Action Bail Bonds on Congress Avenue and a former president of the Professional Bondsmen of Texas.
“When we issue a bond, we get co-signers, friends, relatives—when you don’t show up, that’s who we start calling to track them down and make sure they show up in court,” he said. In his 35 years in the bond business, he said only around 1.5% of bonds sold resulted in a case in which the person could not be located. “The problem is, the county won’t have that leverage.”
The reform creates a new challenge: getting arrestees to appear in court without a bond as an incentive.
“You’re talking about releasing a lot of people who would otherwise sit in jail and would of course meet their court date,” Thompson said. But being in jail could render multiple “punishments” on an arrestee before a verdict is even reached, such as loss of employment, she said. “That sort of thing can really mess up a person’s life.”
In 2018, about 22% of misdemeanor defendants had their bonds revoked because of failure to appear for court, according to a Harris County Pretrial Services annual report. That figure was more than double the rate in 2014.
New measures in the settlement include open court hours—so if a defendant misses their scheduled appearance, they can show up during certain times to have their case processed. Another measure will allow defendants to waive their right to appear and allow a lawyer to speak on their behalf.
Both would allow people who cannot afford to take multiple days off to avoid legal penalties, Thompson said.
The decree requires the county to spend $250,000 per year in services to help arrestees make their court dates and to commit to a study to better understand the reasons dates are missed. After the study, the county must then spend $850,000 on solutions each year.
Meanwhile, bail reform could also alleviate overcrowding at the Harris County Jail, which houses more than 8,000 inmates on any given day, said Darryl Coleman, the chief of Harris County’s criminal justice command. According to data from the Texas Commission on Jail Standards, the average monthly number of people held in the Harris County Jail pretrial for misdemeanors dropped by about 40% from 2016-19.
Changes across the criminal justice system could take years to realize, said Precinct 1 Commissioner Rodney Ellis, who likened it to Brown v. Board of Education, the landmark 1954 Supreme Court civil rights case that led to racial integration of public schools.
“It took decades … maybe a century to put this system in place that has been ruled unconstitutional,” Ellis said at the July 30 Commissioners Court meeting. “We needed to make sure we were thoughtful in what we do to change it because you cannot dismantle a system like this overnight.”
Shawn Arrajj, Eva Vigh and Vanessa Holt contributed to this report.