It’s a Landmark Texas Law Case Putting a Stop to Debtors Jail for those Who Cannot Afford Bail for Misdemeanors in Texas Courts but the Final Order is Pending…

Harris County reaches landmark settlement over ‘unconstitutional’ bail system

A long-awaited settlement in Harris County’s historic bail lawsuit won tentative approval Friday from all parties, setting up a possible end to a contentious system that kept poor people behind bars on low-level charges while those with money could walk free.

The agreement — if approved by a federal judge and county officials — would formally adopt the judge’s findings and modernize the way local officials handle bail hearings for the steady stream of people arrested every day on misdemeanors.

Key reforms in the lengthy consent decree include revised judicial protocol, access to more public defense services, open court hours for defendants to clear or prevent warrants, as well as text reminders about hearings and a bail education program for officials and the public. The county will have a court-appointed monitor for seven years to oversee implementation.

The county also would agree to pay about $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit. An additional $2.1 million in legal fees has been waived by the Susman Godfrey firm.

Commissioner Rodney Ellis, who has championed bail and criminal justice reform for decades, called the agreement one of the highlights of his career.

“It’s a major civil rights victory that will have national implications,” Ellis said. “This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”

The deal could provide a road map for other jurisdictions around the country to rethink their bail systems amid widespread overcrowding and a nationwide push for criminal justice reform.

Commissioners Court is set to vote Tuesday on the proposed deal. Chief U.S. District Judge Lee H. Rosenthal could then consider approving it after a hearing Aug. 21.

Criminal Court at Law Judge Darrell Jordan, who took a leadership role in crafting the new plan, said the decision heralds a new day for defendants who often languish in custody.

“Today is a monumental day in Harris County,” said Jordan, the presiding misdemeanor judge. “I’m proud to say in Harris County, Texas, no one will ever sit in jail prior to a conviction because they are poor.”

County Judge Lina Hidalgo said settling the bail case was a priority for her administration.

“It still has to get through court, but I’m really glad at least we have an agreement,” Hidalgo said. “It’s transformational.”

Precinct 3 Commissioner Steve Radack, however, panned the settlement proposal. He said the previous Republican-led Commissioners Court had been prepared to settle the case on narrower terms. He said the Democrats who swept all the judicial and countywide posts in the 2018 election pitched unnecessarily expensive reforms.

“They decided to take advantage of a political situation at the expense of the taxpayer,” Radack said.

Fellow Republican Jack Cagle, who represents Precinct 4, said the deal includes unneeded “bells and whistles” and fails to consider the needs of crime victims.

‘Irreparable harm’

The federal lawsuit was filed in 2016 on behalf of three people, including 23-year-old Maranda Lynn ODonnell, who spent two days in jail because she couldn’t pay $2,500 bail after an arrest for driving with a suspended license.

If approved, the agreement would apply to all poor people in the county arrested on misdemeanors. A separate federal case over the county’s bail process for felony defendants is pending and likely headed to negotiation this fall.

Rosenthal issued a landmark opinion on April 28, 2017, in ODonnell v. Harris County that halted a bail system she deemed unconstitutional and discriminatory against indigents.

The judge concluded the county’s longstanding practice of detaining people who were jailed simply because they couldn’t post bail caused “irreparable harm.”

The evidence, she wrote, showed “tens of thousands of constitutional violations,” of due process and equal protection. The county was detaining 40 percent of people arrested on misdemeanors because they couldn’t come up with bail money.

At the time, bail hearings typically lasted one or two minutes and defendants were told not to talk. More than half the people jailed were stuck more than 48 hours before court appearances, and 13 percent waited more than 96 hours. Poor people who couldn’t make bail frequently pleaded guilty regardless of their guilt instead of disrupting their lives and families by remaining locked up.

The judge lauded a study of Harris County that found people detained before trial were 23 percent more likely to be convicted than those who were not. They were also 43 percent more likely to be sentenced to prison, and more likely to commit another crime.

Money bail also exacerbated racial disparities in pretrial detention, the judge wrote.

LANDMARK RULING: Federal judge: Harris Co. bail system unfair to poor, low-level defendants

From the outset the case stoked discord among county officials with the conservative majority in executive and judicial posts opting for a vigorous defense of court practices. The quickly mounting legal costs included payment for 45 lawyers and 23 paralegals billing more than 22,000 hours — the equivalent of 916 full days of work.

But the new slate of Democratic misdemeanor judges and county officials elected in November tipped the balance of power and diluted opposition to the bail reform effort. As defendants in the lawsuit, they promptly withdrew their predecessors’ appeal of the injunction and passed a judicial rule that permitted 85 percent of people arrested on misdemeanors to await trial at home.

APPEAL OVER: Newly elected misdemeanor judges drop appeal in Harris County bail lawsuit

Still, hammering out an agreement took time.

“This was not easy,” said Court at Law Judge Franklin Bynum, a reformer elected in 2018 as a Democratic socialist. “We worked hard for several months to make the strongest, most progressive bail reform in the country.”

Rich versus poor

Cash bail has come under scrutiny in recent decades as the nation’s incarcerated population became the highest in the world.

Criminal justice reformers targeted the unregulated, for-profit bail industry, which pockets billions of dollars from inmates and their families to cover bond costs often set without consideration of each individual’s means.

In theory, bail was assessed based on whether a person was likely to commit a crime, pose a danger to the community or was at risk of failing to appear in court. But in reality, judges sometimes measured other factors. Some judges in Harris County bumped up costs based on a person’s attitude or demeanor, they also routinely followed charts rather than listening to input from defendants about what they could afford.

Studies found that costly bail rates exacerbated the racial disparities in detention.

At the height of the détente, Rosenthal ruled the county’s judges were running a system of “wealth based detention,” letting people await trial at home if they could afford bail.

Jordan,the only Democrat on the bench prior to the 2018 election, said when he took office in 2017 he assumed that what his colleagues were doing was right.

“I went in and followed exactly what the others were doing: You come in late? I was doubling, tripling bonds,” he said. “Bond was a way to punish people. It’s like a whooping. ‘Go get the belt. You get three licks.’”

Then he studied the real impact of using money bail as a default and tailored his bail rulings to the people standing in front of him.

When he discussed the ODonnell case with groups in Detroit, San Diego and Chicago, Jordan recalls telling them to focus on the individual.

“We’re saying if you’re rich, you’re safe and if you’re poor, you’re dangerous,” he said. “If you translate that into the racial makeup of the defendants, for the most part what you’re saying is white people are safe and minorities are dangerous.”

Widespread support

Reaction to the announced agreement was swift.

Chief Public Defender Alex Bunin hailed the settlement proposal as a crucial step forward for how Harris County treats defendants.

A team of criminal justice reformers from Civil Rights Corps in Washington, D.C. chose Harris County specifically for the suit, which they filed jointly with the Texas Fair Defense Project in Austin and five lawyers who donated services from the Susman Godfrey firm in Houston.

The lead lawyer, attorney Alec Karakatsanis in Washington, successfully shut down a “debtors’ jail” in Montgomery, Alabama that was detaining poor people for unpaid traffic tickets. After filing bail suits elsewhere, he spent months looking for a large jurisdiction where his firm, Civil Rights Corps, could tackle bail on a broader scale. He observed hearings and met with community members before choosing Harris County.

“The thing that sealed the deal for us was that when we came to Harris County and watched the bail hearings — it was a nightmare,” he recalled. “The level of indifference to human beings and their families was stunning.”

He praised the agreement Friday.

“Every night, hundreds of thousands of human beings in the U.S. are confined to a jail cell solely because they cannot pay the money bail required for their pretrial release,” he said. “This settlement will be a watershed moment in eradicating that injustice from our society.”

Houston attorney Neal Manne said he and his firm, Susman Godfrey, were honored to donate their services over more than three years for the lawsuit.

“The settlement will make Harris County a leader in the national movement for bail reform,” he said. “This carefully crafted new misdemeanor bail system will actually enhance public safety. It is wonderful for our community that the old, cruel, unconstitutional bail system is gone forever.”

Sheriff Ed Gonzalez, another elected official who was a defendant in the case, called the deal “a win for public safety, judicial independence, fairness, and smart stewardship of tax dollars.”

“Public safety has been my North Star throughout this collaborative process,” said Gonzalez, who oversees the jail. “This proposal keeps our neighborhoods safe by giving judges and prosecutors the tools they need to lock up violent criminals.”