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Eager to resolve a federal civil rights lawsuit, Texas' most populous county over the past two years has stopped requiring most people accused of low-level crimes from putting up cash to get out of jail on bond.
Tens of thousands of people accused of misdemeanors not involving some specific circumstances, like domestic abuse or previous bond violations, have been freed without cost while awaiting trial.
Letting them out does not appear to increase the chances they will be arrested for new crimes, according to researchers who have been tracking changes made to the Harris County misdemeanor bail system. In fact, the percentage of defendants arrested for new crimes within a year of their original arrest went down after the county changed its bail practices.
The findings were detailed in a report filed Wednesday by independent monitors hired to keep an eye on changes Harris County made to settle a civil rights lawsuit after a federal court found that its cash bail requirements unconstitutionally discriminated against poor people. A similar lawsuit involving bail practices in felony cases is ongoing.
“The importance of these reforms goes far beyond just the fact that we don’t see more people committing misdemeanors because of these bail reforms,” said Brandon Garrett, a law professor at Duke University and lead monitor of the court settlement. “In terms of the tens of thousands of people that now have their freedom ... those are huge benefits for the community.”
But while the researchers say lower rearrest rates signify success for the county's bail reform, Houston Republicans are seeking to walk back the reform efforts at the state level with legislation that would make Texas pretrial release practices more reliant on cash bail.
State Sen. Paul Bettencourt filed legislation in January that would require defendants to pay cash before being released from jail if they are arrested while out of jail on a no-cost bond, and it would set a minimum $10,000 bond for defendants accused of multiple felonies. On Friday, state Sen. Joan Huffman filed a bill to ban no-cost release from jail for a much wider swath of defendants, including those accused of low-level drug possession. The bill was deemed a priority by the lieutenant governor.
Bettencourt and Huffman have criticized Harris County judges for releasing most people on no-cost personal recognizance, or PR, bonds. Gov. Greg Abbott, who has also deemed bail changes a legislative priority, has already restricted who can get out of jail during the pandemic without posting cash up front.
"I am fully committed to passing legislation that will create substantial changes to our state's broken bail system by ceasing the release of dangerous criminals back into our communities,” Huffman said in a statement Tuesday.
In both Harris and Dallas County, federal courts have previously ruled that the counties’ widespread practice of requiring preset cash bail amounts without taking an individual's situation into account was unconstitutional. Under a cash bail system, a poor person, accused but not yet found guilty of a crime, can be stuck in jail awaiting trial for months while another defendant facing similar charges walks free within hours if they have access to cash.
Bail experts and other lawmakers argued the new proposals will raise similar constitutional problems. Though Huffman’s bill would require a bail review hearing for those who say they can’t afford their bail within two days — as federal courts have required — Kellen Funk, an expert on American bail and pretrial detention, said the ban on cashless release would still result in people wrongfully being detained.
“You could not more perfectly design a bill at this point to ensure that indigent, racial minorities are locked up in Texas at disproportionate rates,” said Funk, an associate professor at Columbia Law School. “It simply remains to be seen if there are enough votes in the Legislature to check it or if the courts will have to step in.”
Huffman said in her statement that her bill was “crafted to safeguard constitutional rights, while also ensuring public safety.”
“I look forward to working with all interested parties across the state to continue to perfect the bill, while simultaneously maintaining its constitutionality," she said.
The latest push to keep more people in jail is in part tied to an increase in homicides and aggravated assaults in 2020 in Texas cities and nationwide. In Houston, a city that saw more than 400 homicides last year, police officials and local Republicans have argued courts are letting people out of jail too often and quickly, pointing to high-profile murders committed while suspects were out on bonds.
But the court monitors and county researchers said there is no indication the local crime trend is linked to the county’s bail reforms, which so far have only focused on misdemeanor cases. The court report noted that homicides have surged across the state and country, regardless of bail systems. Experts have theorized the rise in homicides is tied to the pandemic and changes in policing tactics and perception after anti-police brutality protests rocked the nation last summer.
Harris County’s Justice Administration Department reported last month that while bail reform took place between 2017 and the beginning of 2019 in Harris County, homicides did not begin increasing until 2020.
“Other policy initiatives — not renewed reliance on cash bail — will be required to halt the increase in violence,” a memo to county commissioners said.
Wednesday’s federal report, analyzing Harris County's pretrial system a year after the court settlement, found that people are spending significantly less time in jail while accused — but legally presumed innocent — of low-level crimes. In the small share of misdemeanor cases where money is required for release, the bail amounts are being set much lower after longer, individual hearings. And racial inequities in bond releases have narrowed.
However, judges did revoke or fail a defendant’s bond more often after a federal judge ordered the sheriff to release almost all misdemeanor defendants from jail within 24 hours of arrest in 2017, according to the findings. Critics of bail reform efforts and the bail bonds industry — which is dependent on cash bail systems — have often pointed to less people showing up to court as an argument against bail reform efforts.
But the bond failure rate dropped again in 2019, after the county implemented its new bail rules for automatic release of most, but not all misdemeanor defendants. Those accused of certain crimes, like domestic violence, or who have previously violated their bond conditions must first go before a court official for bail determination.
“People want to come to court, and the vast majority of people do,” said Harris County Criminal Court Judge Franklin Bynum. “A lot of times when people haven’t been to court … it’s because they are living in poverty. They don’t have a phone, they don’t have support.”
Still, Houston law enforcement officials and Republican lawmakers have pointed to the rise in some violent crime when promoting legislation that would keep more people in jail unless they had access to cash.
Houston Police Officers’ Union President Doug Griffith, who said he had not yet read Huffman’s bill when asked about specific language, said law enforcement would welcome any bill to hold judges accountable for their release decisions.
Mostly, he is upset at felony judges, Griffith said, though he argued some people accused of violent misdemeanors — who don’t qualify for automatic release under Harris County’s bail reform — are getting out too easily as well and then going on to commit violent crimes.
“I don’t think anyone wants low-level offenders to be kept in jail just because they’re poor, but if you have a repeat offender who continues to get arrested time and time again … you have to do something to curtail that,” he said.
Huffman’s bill would also prohibit many of the automatic, no-cash release bonds that the court report shows are not tied to an increase in new criminal activity.
Aside from prohibiting no-cost release for those accused of possessing more than four grams of a controlled substance, some of the groups that would not be allowed to go free unless they had money under her bill are already tied to poverty. For example, it would forbid release from jail without payment for anyone who was arrested for any other crime while out of jail on bond. The Harris County court monitor report said homeless people were twice as likely to be arrested while out on bond than other defendants.
The bill would also disallow no-cost release for people who within the last two years had missed any court date while on a cashless release. Studies have reported that willful flight is rarely the reason for missed court appearances, with more common reasons being a lack of transportation, child care, conflicting work schedules, or simply forgetting.
The bill would also limit the spending by charitable groups that pay poor people’s bail. Such groups became a target of the bail bonds industry after gaining popularity following mass arrests of anti-police brutality and racial justice protesters last summer.
State Sen. John Whitmire, a Houston Democrat who has long worked on bail reform efforts at the Texas Capitol, said his goal ultimately is to get Texas counties out of costly and losing legal fights in federal court.
“Quite frankly, and all due respect to Huffman’s bill, it leans very heavily in favor of the bail bonds [industry] and it’ll keep us in federal court,” he said.