The Harris County Criminal Justice Center. Stephen Paulsen
Bail reform isn’t a particularly controversial plank of the broader movement to end mass incarceration. In fact, it was a Republican jurist, Texas Supreme Court Chief Justice Nathan Hecht, who in 2017 warned the GOP-dominated Legislature that strict bail policies had created an epidemic of de facto detention for poor defendants. In a speech kicking off the legislative session that year, Hecht reminded lawmakers that three out of four people jailed in Texas are accused but not convicted of a crime. Many remain in lockup because they can’t afford bail. “Though presumed innocent, they lose their jobs and families, and are more likely to re-offend,” Hecht told lawmakers. Perhaps fearful the humanitarian angle wouldn’t play in the famously tough-on-crime Legislature, Hecht then appealed to another Republican value: money. “And if all this weren’t bad enough, taxpayers must shoulder the cost—a staggering $1 billion per year.”
And yet state lawmakers have ignored the issue, forcing political and legal activists to effect change at the local level. In Harris County, one epicenter of bail reform, officials on Tuesday voted to settle a longstanding lawsuit challenging the county’s bail practices, one of several filed across Texas in recent years. Advocates for criminal justice reform say the outcome in Harris County could reverberate beyond Texas, sparking reforms elsewhere.
“This is a watershed moment for pretrial reform,” Civil Rights Corps, the advocacy group that sued Harris County, said in a prepared statement. “We believe the agreement lays the groundwork for a system that will recognize the humanity of the people who pass through it, treat them with dignity, and value their freedom.”
Harris County Commissioner (and former state Senator) Rodney Ellis in Room 3E.4, the Capitol’s unofficial “Civil Rights Room.” Kelsey Jukam
Before voting for the settlement agreement, Harris County Commissioner Rodney Ellis compared the case to the landmark civil rights lawsuit to desegregate public schools, saying, “This case is just as big as Brown v. Board of Education.”
Tuesday’s vote to settle the bail lawsuit represents a departure for Harris County officials. Elected judges and commissioners under a previous regime spent more than $9 million in taxpayer funds fighting the case, even after a Republican-appointed judge called the county’s bail system unconstitutional more than two years ago. A Democratic sweep in the 2018 midterms shifted the makeup of the county’s commissioners court and ushered in a slate of new judges, setting the stage for the agreement officials approved this week.
Among other reforms, the change formalizes a rule the county’s new misdemeanor court judges implemented shortly after taking office earlier this year, one that calls for the quick release of defendants arrested for misdemeanor offenses (exceptions include people charged with domestic violence or their second or subsequent DUI). The agreement also forces the county to study and implement ways to improve the pretrial process, such as weekly “open hours” court sessions to give anyone who’s missed an initial court appearance the chance to reschedule without fear of returning to jail.
“This case is just as big as Brown v. Board of Education.”
The consent decree also runs through all the damning findings by the federal court during the course of the bail lawsuit, reading like a warning to any future officials who might consider weakening the reforms. Evidence introduced in the case showed that money bail doesn’t impact public safety or court appearances in any meaningful way, while the consequences of sweeping pretrial detention are severe. Beyond losing a job or being separated from children, people locked up as they fight their cases are more likely to plead guilty and receive harsher sentences than defendants who can afford release on bail. In her ruling, U.S. District Judge Lee Rosenthal noted how the system encourages people to “abandon valid defenses and plead guilty to obtain faster release than if they contested their charges.” A recent raft of botched drug cases in Harris County underscores how easily such wrongful convictions can occur.
On Tuesday, Harris County’s two remaining Republican commissioners voted against the consent decree in the case, echoing a mishmash of arguments from the bail bond industry that reforms are too costly and ignore crime victims. “In this civil justice reform, we are neglecting the civil justice rights of the victim,” said Commissioner Jack Cagle. Fellow Republican Commissioner Steve Radack even pounded on the table in anger before voting against the package of reforms, claiming the settlement process was too secretive. Harris County Republican Party Chair Paul Simpson alleged the consent decree would allow criminals to “roam the streets” and accused Democrats of “sacrificing our safety and endangering the law enforcement professionals who work everyday to protect Harris County neighborhoods.” County Judge Lina Hidalgo, part of the new Democratic majority leading the court, accused Republicans of being disengaged from the settlement talks.
Ellis insists the agreement, which Rosenthal must still approve, is built to withstand future political shakeups by requiring multiple years of court monitoring and sustained investments in areas like public defense. “It took decades, maybe a century, to put this system in place that has been ruled unconstitutional,” Ellis said before voting for the agreement. “You cannot dismantle a system like this overnight.”