Harris County officials agreed Tuesday to settle a federal lawsuit over how it sets bail for criminal defendants, a case Commissioner Rodney Ellis said was “as big as Brown v. Board of Education.”
The vote by the commissioners court in Texas’ most populous county marks a notable step to ending the yearslong litigation over its bail practices, which were deemed unconstitutional in federal courts. Judges have held that the county’s pretrial system discriminated against poor misdemeanor defendants, and although changes have been in the works for years and a new wave of Democratic judges dramatically altered bail practices in January, the lawsuit remains open.
With a lengthy and detailed settlement proposal — which still needs approval from the federal judge in the case — county officials are hoping to become a model for bail reform across the country. The settlement, which was estimated to cost up to $97 million, solidified the local judges’ new policy of automatic, no-cash pretrial release for about 85% of low-level defendants. It also added additional legal and social services for poor arrestees and help for getting them to their court dates.
“The easiest way to think about this whole settlement is like you have an old house and it burns down,” said Harris County Criminal Court Judge Darrell Jordan, a Democrat. “Do you build the house with the same 1960s-type setup? Or do you build now a hurricane-proof house, a house that’s really energy efficient, fully automated?”
Although plaintiffs’ attorneys noted Harris County’s landmark settlement proposal as being the first case to put America's cash bail system on trial in federal court, it’s unclear how, if at all, it will influence other bail lawsuits in Texas.
“Anytime one county settles, it could possibly provide a roadmap for another county, but I can’t say that it will,” said Dallas County District Attorney John Creuzot, whose county’s bail practices have also been slammed by a federal judge. “The landscape of this lawsuit is different.”
A big piece of that is because Dallas’ lawsuit, like another in Harris and one in Galveston, targets bail practices not only for misdemeanor defendants, but for felony cases, too.
Bail is a legal mechanism to ensure that people charged with crimes show up to their court hearings. The most common type is money bail, where judicial officers set a bond amount, based on the alleged crime, that an arrestee must pay in order to be released from jail before trial. Defendants can pay the court the full amount, which is refundable if they show up to all their court hearings. Or they can pay a nonrefundable percentage of it — usually about 10% — to a bail bonds company that fronts the total cost of getting them released before their trial.
In recent years, civil rights lawyers and criminal justice reform advocates have targeted the cash bail system. Counties and states have turned away from bail systems reliant on cash and moved toward release decisions based on a defendant’s evaluated risk of posing a danger to society or skipping court. And lawsuits have popped up across the nation, arguing the cash-based system is unconstitutional when a poor person can be stuck in jail before trial while a similar defendant with cash gets to walk free.
Multiple bail lawsuits are active in Texas, though Harris’ was the first and has drawn nationwide attention because of the scale of its impact. Officials in Harris County, home to Houston, arrested more than 46,000 people on misdemeanor charges last year.
The Harris County lawsuit was filed in 2016 by several plaintiffs who were jailed for days on low-level offenses, like driving with an invalid license or shoplifting, because they could not afford to pay for their release. The next year, a federal judge slammed its bail practices, calling them unconstitutional and ordering the release of almost all misdemeanor defendants from jail within 24 hours of arrest, regardless of their ability to pay. The appellate court later walked back that ruling and called instead for bail hearings within two days of arrest where defendants can argue for lower or no-cash bonds.
The county also took on its own reforms, including implementation of a new risk-assessment tool that weighs how likely a defendant is to commit another crime or avoid court if released from jail before trial. Such tools have raised concerns for taking into account some criminal history that may exacerbate already-existing racial disparities in the criminal justice system.
Then in 2018, county voters swapped an almost fully Republican group of misdemeanor judges with all Democrats. In January, they drastically changed county policies to qualify 85% of misdemeanor defendants for automatic jail release on no-cash bonds — where defendants promise to arrive at court or they could later have to pay. Only those arrested for violating bonds, repeat drunken driving or some family violence offenses would need to first appear before a magistrate before release decisions could be made.
The settlement proposal going before the federal judge includes this policy, but it goes further as well. In 51 pages, it details allowing for things like more indigent defense services, access to social workers and improving a system to ensure people get to their court hearings. The courts would also create an “open-hours court,” to be held once a week, where in some cases, those who miss their hearings could go within a week of their court dates with no consequences.
A study would also be conducted and practices implemented to minimize financial-based reasons why people miss their court hearings, like a lack of transportation or child care, or strict work schedules. The settlement, in the form of a federal consent decree, would also put the county under a court monitor for seven years.
County commissioners approved the proposal on a 3-2 vote Tuesday, with the two Republican officials expressing concerns about the reach of the settlement. Commissioner Jack Cagle said he wanted more judicial discretion and less of a financial burden on the county for defendant services, and he argued for more funds for crime victims.
“We are neglecting the civil rights of people who are victims in the community,” Cagle said at the meeting before the vote. “If we are going to go far in this criminal justice reform, we need to make sure that we maintain the balance.”
The bail bonds industry, which is funded through those fees defendants pay to be released from jail, also strongly opposed the settlement.
“This settlement ... specifically requires judges to inform defendants that they cannot set a bail that a defendant cannot afford,” said Ken Good, an attorney on the board of the Professional Bondsmen of Texas, at the hearing. “The only persons who will remain in jail would be those that are unconstitutionally preventatively detained.”
But despite opposition from the Republican commissioners and the bail bonds industry, the proposal moved through as expected — with celebration from reform advocates.
Those involved in other lawsuits across the state were watching.
“I’ve been studying very closely what’s happening in Harris County, and I think that it’s a step in the right direction and something that we should ... modify or use as a blueprint for felony cases,” said State District Court Judge Brandon Birmingham, a Democrat and defendant in Dallas’ lawsuit. He was especially interested in the idea of an open-hours court.
Adding felonies to the lawsuit against bail practices in Dallas brought a new complication, however. The judges work for the state, not the county, and are being represented by the Texas attorney general’s office, which claims they have no jurisdiction over early bail decisions. County officials, who are largely Democratic, have said the attorney general’s office, run by Republican Ken Paxton, has stalled settlement talks and reform efforts.
“The fact that felony judges are part of the lawsuit complicates resolution,” said Dallas County Judge Clay Jenkins, a Democrat. “The AG office’s public positions on criminal justice reform and bail reform are not the same as the Commissioners Court or most of our elected judges.”
The attorney general’s office did not immediately respond to a request for comment.
In a court filing last month, Texas Solicitor General Kyle Hawkins wrote that the Dallas lawsuit goes too far by including felony judges. He said bail decisions are set by county judicial officers before felony judges assume jurisdiction over criminal matters.
“Despite tens of thousands of words spilled in this case so far, [the plaintiff] has yet to articulate just what she expects the felony judges to do, going forward, to remedy her alleged harm,” Hawkins wrote.
But things appear to be moving toward resolution. Two district judges, including Birmingham, recently began conducting their own bail hearings every morning and hired a lawyer to represent them instead of the attorney general. Jenkins and Creuzot confirmed that the parties are now headed to mediation to hopefully come up with a settlement proposal or consent decree.
“We do have an agreement to mediate, so I am hopeful,” Creuzot said, noting there is no set date for discussion yet. “Maybe [Harris County] has an impact; maybe it doesn’t.”
Correction: An earlier version of this story misstated the frequency of potential "open-hours" courts in Harris County. Such courts would be once a week.