To Harris County criminal court Judge Darrell Jordan, Harris County's bail system is like a leaking tub.
Testifying this week before U.S. District Judge Lee H. Rosenthal in a lawsuit accusing the county's bail system of being unconstitutional, Jordan offered a bleak picture of how the county's money bail system favors the wealthy and punishes the poor.
Every day, Jordan said, hearing officers set bail for poor people charged with misdemeanors at amounts they can't afford, keeping them stuck in jail and at risk of losing their jobs or homes. Since at least 2015, well before Harris County was sued, criminal justice officials have been promising reforms, finally set to go into effect this July. Yet Jordan does not believe they will change much.
Meanwhile, he said, every day, more and more people's lives could be derailed because they can't make a $3,000 bond on a trespassing charge.
"It's like recognizing your tub is leaking and saying, 'let's wait six months to fix it," Jordan said during the third day of testimony. "If you want it fixed, you fix it today. These people shouldn't have to suffer while they wait for the county [to implement new tools]. The tub is still leaking."
Harris County just might be forced to patch it up immediately should Judge Rosenthal to grant the plaintiffs a preliminary injunction, which would be a historic decision that could have lasting effects on the American bail system. If granted, the injunction would likely block Harris County magistrates and judges from setting unaffordable bail for misdemeanor defendants who are not a threat to public safety, and it would force judges to come up with a different way to release low-level people pending trial.
The lawsuit was filed in May 2016 by the national group Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godfrey on behalf of all indigent misdemeanor defendants. Three days into the injunction hearing, the case has revolved around this key question: Why, for decades, has how much money a person possesses been the main factor determining their liberty or detention pending trial? Here's a breakdown of how the arguments are playing out in court.
The County's Defense (or in other words, the county's reforms)
Harris County appears to have done little to convincingly defend the current bail system other than by touting how the reforms will soon change it. And surely, the changes the county plans to make are good ones.
Starting July 1, bail hearing officers will rely on a new, objective risk-assessment tool to help decide whether someone should get a personal bond or stay in jail, whether because he is a flight risk or seems likely to commit a new crime. Currently, factors like whether defendants have a landline phone, a car, steady employment and a permanent address — in other words: whether defendants are poor — are all used against defendants as hearing officers determine their risk level. The county says all that riffraff is going away soon.
At the bail hearings, starting July 1, defendants will also have defense attorneys to advocate for their best interests — perhaps for a personal bond or lower bond. Currently, defendants basically aren't allowed to even talk during these bail hearings. Again: Not for long, the county says.
Yet the plaintiffs, who are thrilled about the reforms too, say the reforms will not stop judges from jailing poor people pretrial just because they are poor. That's because the hearing officers or judges are by no means required to follow recommendations for personal bonds. Currently, they ignore personal bond recommendations roughly 50 percent of the time, attorneys said in court. And so at the end of the day, the plaintiffs can't trust that hearing officers will really change their habits — that is, routinely setting unaffordable bonds, plaintiffs argue.
The Case for Public Safety
This is perhaps the most nuanced argument on the books — because both sides make the case in different ways.
In the county's view, money bail can be used to keep dangerous people in jail — those people shouldn't just be released willy-nilly on a personal bond or "affordable bond" with no consideration for the victim or public, county attorneys say. But in the plaintiffs' view, money bail is pointless when it comes to public safety, because even if the most dangerous person in the world has money, he could get out of jail faster than a poor person caught shoplifting $13 worth of toiletries from Walmart.
Sheriff Ed Gonzalez, who is a defendant in the lawsuit but testified in support of the plaintiffs, championed this argument during his testimony. Beyond protecting public safety outside of the jail, the sheriff also testified about safety inside of it — mainly to say that jail can be unsafe, no matter the safety protocols. As we reported in the past, nearly 200 people have died in the Harris County Jail over the past ten years. Citing various deaths and the possibility that inmates who bring in viruses could spread them, Gonzalez said people charged with low-level misdemeanors do not need to be exposed to these dangers. Especially when he has such limited bed space and a limited budget.
Here's how John E. O'Neill, a private attorney hired to defend the county, profoundly responded to Gonzalez's comments about jail deaths: People also die outside of the jail.
Apparently, according to the county, you have relatively equal chance of dying in some freak accident or car crash as you do dying in a jail cell. So it's fine for people to sit in there. "I just don't believe man is immortal wherever we are," O'Neill said.
But how is a system without money bail even possible anyway?
It is, actually. The plaintiffs are not asking the county to ditch money bail — but they did bring in a judge from Washington, D.C., to assure Harris County that the sky did not fall when the District of Columbia stopped making people pay to get out of jail. Including people charged with felonies.
Judge Truman Morrison told the court that 98 to 99 percent of all people charged with misdemeanors were released on their own recognizance pending trial. The majority, 75 percent, had to comply with various conditions, like curfews or GPS monitors, but 25 percent just gave their word that they would return to court. All in all, 90 percent of people came back to court and did not commit a new offense while they were released — and that statistic includes people charged with felonies. (Those accused in extremely serious crimes, or who posed immediate danger to the public or the victim, remained detained; Truman said such cases were nearly unheard of for misdemeanors.)
"We all realized it was folly to think money would help with public safety and returning to court," Truman said, describing how judges ultimately switched to a non-financial system after a change in the law forced them to rethink the system.
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The county's main argument against D.C.'s unique system: A Washington Post series in which the outgoing police chief describes the D.C. criminal justice system as "broken." The problem: The series was mostly focused on repeat offenders committing new crimes after convictions, not before (with at least one exception).
Apparently in attempt to strengthen the argument, O'Neill said "some misdemeanors can lead to more serious felonies," as if getting in a bar fight were a gateway drug for murder.
Judge Rosenthal, calling the comment a slippery slope, stopped him while he was ahead.
As of January 31, the county's defense of this lawsuit has now cost county taxpayers $1.2 million.