For Decades, Harris County’s Bail System Trapped the Poor. Is that Finally Changing?
In the general-population jail pod where 59-year-old Gilbert Cruz was incarcerated for 70 days, there was a chess set.
He played every day, staying on the other inmates’ good sides by teaching them where to move their rooks and knights. He was the oldest of 26 guys, quarantined together for more than two months, after Cruz’s bunkmate was diagnosed with shingles. The men could not go to the cafeteria for meals, to the chapel to pray, to the rec room to exercise. But they could play chess; they could fight over the TV and fight each other in the back of the pod, where cameras and guards could not see them.
Finally, on the 70th day of his pre-trial detention, Cruz went home after a judge dismissed his case.
The Navy veteran had been arrested on May 13, 2016, and charged with interfering with the duties of a public servant, a misdemeanor. While demanding that a Harris County deputy remove an evicted neighbor who had overstayed her welcome on his couch, Cruz refused to go outside so the deputy could interview her. Claiming Cruz was “moving his arms up and down aggressively,” the deputy instead threw Cruz outside, clocked him in the face with his gun (according to witnesses) and arrested him. (The deputy said in the offense report that he used his fist.)
On Cruz’s first trip to court, more than two months earlier, he was offered a plea deal — but, maintaining his innocence, Cruz said he refused to plead guilty. His bail was set at $3,500.
“I just could not figure out why I couldn’t get a PR bond,” Cruz said, referring to the personal recognizance bond that allows defendants to be released without putting any cash upfront, also called a personal bond or unsecured bond.
Six days after Cruz was arrested, a group of civil rights lawyers had the same question for Harris County, posed with a little more punch: They accused the county of operating an unconstitutional bail system in a federal lawsuit.
The county’s decades of abysmal personal bond release rates had caught up with it — just as its criminal justice officials appeared ready to finally change the system. Instead the plaintiffs aired the county’s dirty laundry, kicking off a year of debate in federal court over whether Harris County’s bail system unfairly punishes poor people while allowing those with money to buy their liberty.
Gilbert Cruz, 59, was at risk of losing his veterans’ assistance housing while he remained behind bars for 70 days.
The named plaintiffs included Maranda O’Donnell, a 22-year-old single mom living on a friend’s couch at the time of her arrest, for driving with an invalid license; Robert Ford, charged with stealing toiletries and light fixtures from a Walmart; and Loetha McGruder, also a 22-year-old single mother of two kids, one with Down syndrome, who relied on federal benefits to take care of him. She was charged with failure to identify to a police officer. All three were denied release on a personal bond by bail hearing officers.
The Washington, D.C.-based Civil Rights Corps, the Texas Fair Defense Project and the Houston law firm Susman Godfrey represented these plaintiffs, and eventually all indigent misdemeanor defendants, on a pro bono basis.
“When we came down and saw the routinized cattle calls of arrestees,” said attorney Elizabeth Rossi, of Civil Rights Corps, “it just became very clear that if we could tackle what was going on in Harris County, it would stand a chance of sending a really strong message to jurisdictions all over the country.”
On April 28 U.S. Chief District Judge Lee H. Rosenthal ruled the county’s bail system unconstitutional. In a 193-page opinion, she found that Harris County’s stringent adherence to a bail schedule, with virtually no inquiry into someone’s ability to pay the bail amount, violated poor defendants’ rights to equal protection and due process. She ordered Harris County to immediately start releasing all misdemeanor defendants within 24 hours of arrest (people who are also charged with felonies, violate a protective order or are subject to other warrants are not eligible). Bail can only be set within a defendant’s financial means, and if the defendant can’t afford any bail, he is required to be released on a personal bond with the bail amount attached. That way, if the person failed to appear for court, he would still be liable for the money, just like a person released on secured money bail.
The order went into effect on June 6, after the U.S. Fifth Circuit Court of Appeals denied the county’s emergency motion to block Rosenthal’s preliminary injunction order while fighting the ruling.
Rosenthal’s findings painted a bleak picture of the county’s criminal justice system, one in which roughly 100 people charged with misdemeanors remained in jail every day solely because they were too poor to bond out. One in which bail hearing officers awarded personal bonds to only 9 percent of people charged with misdemeanors.
County judges, however, have maintained that this is all changing, that its reforms set to take effect next month will once and for all ensure that no poor person is kept in jail for inability to pay.
Those reforms include giving everyone an attorney at bail hearings to fight for their release or a lower bail amount — a reform that few jurisdictions have carried out on a large scale — and implementing a new objective risk-assessment tool, used to help hearing officers decide who deserves a personal bond and who is a flight risk or may commit a new crime while out on bond. County attorneys have argued that the lawsuit has detracted from and all but derailed these reforms, and that they do not need a court order to truly change the system.
But history — and Rosenthal — say otherwise. And as legal costs to fight the lawsuit surpass $3.5 million in taxpayer money, the county’s staunch defense of the lawsuit seems to contradict its commitment to change. County officials vary widely in their opinions on Rosenthal’s order, with Harris County District Attorney Kim Ogg, Sheriff Ed Gonzalez and Harris County Commissioner Rodney Ellis supporting it, and all but one judge — Judge Darrell Jordan, who already gives all misdemeanor defendants personal bonds — opposing it.
Settlement talks have repeatedly failed, as the parties can’t seem to agree how far the reforms must go. Despite the county’s steps forward, the plaintiffs argue it still has sought to hold onto a discriminatory money bail system, one they say doesn’t make us one bit safer while it wrecks the lives of misdemeanor defendants and clogs up our jails on the taxpayer dime.
In the case of Gilbert Cruz — who had a new job, a car and a home at the time of his arrest — he is still not done paying.
She was driving a firetruck-red 1993 Ford Thunderbird.
Dr. Elizabeth Peavy, a 34-year-old well-liked Houston dentist who offered her services to the poor for free, had pulled into a Kwik Stop on Bissonnet to fill up with gas. She had just gone inside for a snack when, as she returned to her car, Tony Tyrone Dixon approached her with a gun. He wanted the Thunderbird. And he got it, after shooting Peavy four times, dragging her body out of the driver’s seat onto the concrete and speeding away.
It was 1994. The 17-year-old mentally disabled teenager, with IQ scores between 40 and 67, was supposed to be at a residential-care facility where nurses could look after him. At the time of the murder, he was out on a personal bond for a burglary he was charged with the previous fall. It was a judge’s worst nightmare: Instead of returning to court on his own recognizance, Dixon was returning to court in shackles, with a grieving family in the gallery.
Carol Oeller, former director of Harris County Pretrial Services, said the infamous murder created an instant chilling effect on personal bonds. Bail bondsmen and conservative think tanks took out ads in the Houston Chronicle describing personal bonds and Pretrial Services as a waste of taxpayer money, used to let dangerous criminals out for free. “Today, an Accused Criminal Walking the Streets Will Commit a Crime,” the American Legislative Exchange Council wrote in one June 1994 ad. “And YOU Paid for Their Freedom.”
It was the beginning of the end for personal bonds in Harris County.
One month after Peavy’s murder, bail bondsmen sued Pretrial Services, accusing the agency of falsifying data to make the agency appear more effective than it really was. In spite of the murder, 1994 was — and still is — the county’s peak year for the number of personal bonds issued: Fourteen percent of people arrested, or 8,754 defendants, were released on their good word. “I guess they saw a threat to their livelihood,” Oeller said of the bondsmen. “We were accused of falsifying information to put them out of business, so they felt that the department was affecting their bottom line and that we were lying to do it.”
The bondsmen lost the lawsuit, but the damage to Pretrial Services’ reputation was significant. Making things worse, in 1995 federal court oversight of the county’s criminal justice system ended after 20 years of litigation. In Alberti v. Sheriff, a group of inmates sued the county in the 1970s over the jail’s terrible overcrowding problem — 70 percent of inmates were pretrial detainees — and its inhumane conditions. And they won. The federal judge’s order and ensuing oversight led to sweeping changes within the Harris County Pretrial Services department and the county’s crumbling jail system. With the end of the federal court’s oversight in ’95, Harris County was entrusted with continuing the pretrial reforms ignited by Alberti.
Instead, the jail population boomed and personal bond rates plummeted for the next 20 years, down more than 50 percent from 1994 to 2013, when just 4 percent of defendants, or 3,900 of 88,000 arrestees, were released on their own recognizance. Rates did not begin to creep back up until 2016, which, incidentally, was the year Harris County was sued in federal court again.
Today, current and former judges can provide only lukewarm explanations as to why, for more than 20 years, the county remained resistant to bail reform, handing out personal bonds like winning lottery tickets. The status quo simply never changed, despite multiple reports scrutinizing Harris County’s pretrial system, with findings and recommendations mirroring Rosenthal’s.
Presiding County Court at Law Judge Paula Goodhart, who joined the bench in 2010, and former state district judge Caprice Cosper said it was a matter of tunnel vision: As judges, they said they were focused less on trends and more on the individual person standing before them.
“Everybody was operating in silos,” Cosper said, “and everyone was barely keeping their heads above water doing the work.”
That’s largely because in the mid-2000s judges’ dockets had ballooned with thousands upon thousands of low-level drug cases and “trace cases,” involving just a minuscule amount of controlled substances such as cocaine. But the machine-like efficiency of Harris County’s criminal justice system and the one-size-fits-all approach to setting bail had serious consequences during this period.
More than 300 people were wrongfully convicted of drug possession.
Rather than wait for the lab’s drug test results to come back proving their innocence, defendants incarcerated before trial instead pleaded guilty to get out of jail, presumably because they couldn’t afford to bail out. Harris County District Attorney Kim Ogg, who was a defense attorney at the time, called it a “plea mill.”
“It started with the bail system; that’s exactly why it happened,” she said. “It’s a perfect storm, but it’s pretty predictable — and that’s what drives me crazy about the bail system historically, from my perspective, is that what’s predictable is preventable.”
Throughout the 2016 campaign season, Kim Ogg ran on a platform of both bail reform and drug reform — campaign promises she has not broken.
And that’s the approach Ogg has taken since assuming office this year. She has not only directed prosecutors to stop opposing personal bonds, as historically has been the norm. She’s directed her rank and file to instead recommend them, making personal bonds the presumptive form of release for all misdemeanors.
“Our first mission at the DA’s office is public safety,” she said. “But if our public perceives that people are treated unequally — and they know that’s not fair; that’s inherently unfair — then they won’t participate in the system, because they won’t trust it.”
When Gilbert Cruz returned to his apartment the day he was released from jail, there was an eviction notice taped to his door.
His car was missing from the parking lot. His new job with the U.S. Census Bureau was long gone. And his credit had crumbled. While he languished in jail, his Infiniti car had been repossessed and had sold under value at auction, sending debt collectors after him for the lofty sum of $15,000. He salvaged his subsidized, veterans’ assistance housing only after rushing to the grocery store to take out a money order to pay the missed rent, using Social Security disability checks — for his PTSD — deposited directly into his account while he was away. In short, Cruz’s life was in shambles.
“I’m ruined right now,” said Cruz, who is still unemployed, and who has since filed a wrongful arrest lawsuit against the county. “I can’t do anything. I don’t have no vehicle. I’ve scrambled from month to month, groceries, everything, all on my disability check. I just want to be made whole and get back to my life.” He pauses to take a breath. “I apologize. It takes a toll on me every time I think about all this stuff again.”
Cruz is a walking example of the destabilizing effects that pretrial detention can have on people’s lives. For decades, criminal justice researchers have been well aware of these consequences anecdotally — but only in the past several years have they empirically shown the greater consequences pretrial detention has on society overall: more crime.
All over the country, national pretrial detention has increased more than 125 percent since 1990. Much of the ensuing research sought to understand not only what caused this shift, but also its damaging effects.
“There was a sense that maybe we weren’t incarcerating the right people pretrial — not necessarily too many, but not the right people,” said Dr. Marie VanNostrand, a leading pretrial justice researcher.
In 2013 VanNostrand and the Laura and John Arnold Foundation released a study, called “The Hidden Costs of Pretrial Detention,” that examined tens of thousands of cases in Kentucky jails. The key finding: Low-risk defendants who were jailed just two to three days after their arrest were 40 percent more likely to be re-arrested before trial, compared to similarly situated defendants charged with identical crimes, but released within 24 hours of arrest. If they were held eight to 14 days, they were 51 percent more likely to commit another crime within the next two years.
For years, people with money have been able to bail out through a bondsman within hours of their arrest, while those without may have sat in jail until trial.
In 2016 it was Harris County’s turn: Researchers from the University of Pennsylvania found that people detained before trial were 25 percent more likely to be convicted than somebody who had the privilege to fight his or her case while out on bond. Pretrial detainees were 43 percent more likely to be sentenced to jail time rather than probation — and if they were sentenced, their sentence was generally nine days longer than, or double, that of a person who was released.
“Throughout the country, we are in many instances releasing the highest-risk defendants primarily due to their ability to pay, and we are detaining many low-risk defendants due primarily to their inability to pay,” VanNostrand said. “Now we’re learning that this is increasing recidivism and doing harm to public safety. Once these studies started coming out, people then had evidence for what they internally suspected and probably knew — but now they really had something to begin to leverage change.”
Judges Cosper and Goodhart said that these emerging studies are what swayed officials to begin the reforms. Efforts began well before the lawsuit, in 2015, when the county applied for the highly sought-after MacArthur Grant, awarded to select jurisdictions committed to reducing their jail populations through diversion programs, bail reform, and addressing racial and ethnic disparities, among other things. In early 2016, Harris County won the $2 million grant, with an additional $3.4 million match from the county. And around the same time, it hired VanNostrand to help implement the Arnold Foundation’s objective risk-assessment tool, now lauded as the best in the country.
“When the Arnold Foundation came to us at that first meeting, in looking around the room, we were all ready for a change,” Goodhart said. “It was about rethinking criminal justice, and thinking about it in an evidence-based, risk-based way.”
Predicting whether a defendant will fail to appear in court or commit another crime while released on bond is tricky. Harris County currently uses a tool that critics say is outdated and too often allows defendants’ socioeconomic status or poverty to unfairly influence their risk scores. Defendants lose points for not having a job, not living in a stable family structure or at a stable address, not having a car, not having a landline phone, and even for being male. Cosper said judges have “little to no faith” in this tool anymore.
By contrast, the Arnold tool purports to be gender- and race-neutral, eliminating factors like employment and even what neighborhood people live in that might introduce bias into the risk score. It’s based exclusively on past failure-to-appear history, whether people have a criminal record, and whether the current or any past charge is violent. It then generates two risk scores: one for failure to appear and one for committing another crime if released — which is why the tool is seen as most effective: The distinction, VanNostrand says, allows judges to more accurately decide which conditions of release are appropriate for individual defendants, such as GPS monitors or protective orders.
Under the Arnold tool, county officials intend to release all low-risk people on personal bonds with limited or no conditions. That leaves moderate- and high-risk defendants at issue: What happens if they don’t get a personal bond and are too poor to bail out? What happens if the bail still functions as a de facto detention order for those people, while a person with means, found to be equally “high-risk,” can go free?
“The reforms are great for what they are, but they simply don’t address the most fundamental part of what our lawsuit was about,” said Neal Manne, attorney with Susman Godfrey. “It seemed to be as if the county’s argument during trial was, we’re doing some good things, so please ignore the really terrible things they had also been doing.”
When it comes down to it, Manne said, there is still nothing to guarantee bail hearing officers will follow the tool’s recommendations for personal bonds. According to 2015 and 2016 data, they had been ignoring the
recommendations about 67 percent of the time, which affects around 9,000 misdemeanor defendants a year.
A deputy explains to defendants how probable cause court works: Defendants must step inside a red box, face a judge staring at them on the TV, and hear the allegations against them. They generally are not allowed to talk, until the hearing officer asks whether they need a court-appointed attorney.
The campaign against the American money bail system is fairly recent, with public outcry only mounting in light of the most dramatic tragedies.
It began in New York with Kalief Browder, who killed himself not long after spending three years awaiting trial on Rikers Island: He had remained behind bars on $3,000 bail, wrongfully accused of stealing a backpack. Then there was Sandra Bland, whom authorities say they found hanging in her Waller County jail cell: She was kept inside on a $500 bail for failure to use a turn signal.
The following year, in Harris County, there was Patrick Brown — yet his case has evaded the same type of outcry that ignited demand for change elsewhere. There was no lawsuit, no legislation. Brown was murdered, less than one day after being denied release on personal bond.
Brown had been arrested and charged with misdemeanor theft on the evening of April 3, 2016, after police found a stolen guitar in his storage unit, along with antique cheese plates and a suitcase also believed to be stolen.
At the time of his arrest, friends say, Brown was making ends meet as a commercial debt collector in Katy, but court records suggest the 44-year-old may have been hard up. In February a judge found Brown indigent after he could not gather the funds to hire a lawyer to defend him on charges of driving with an invalid license, and she ordered that the Department of Public Safety waive the surcharges on his license suspension.
In both cases, Brown was denied a personal bond despite having no violent history or failures to appear — and despite the fact that, according to sources the Houston Press spoke with at the time, Pretrial Services recommended him for release on the theft case. Instead, his bond was set at $3,000. Less than a day later, shortly after 12:30 a.m. on April 5, Brown was beaten to death in a holding cell.
His attacker, a repeat felon now sentenced to 25 years for the murder — which apparently stemmed from an argument — was on his way out of jail after posting $10,000 bail.
“It just makes you sick,” said Brown’s childhood friend Aaron Abrams, who grew up with Brown in Casper, Wyoming. “Where were his rights?”
Had Judge Rosenthal’s order been in effect at the time of Brown’s arrest, it is highly possible that Brown wouldn’t have died in jail.
Harris County Sheriff Ed Gonzalez told the Press his office was prepared to do whatever it took to implement Judge Rosenthal’s order, ensuring misdemeanor defendants eligible for release weren’t held longer than 24 hours. Despite being a defendant in the lawsuit, Gonzalez actually filed a brief in support of the plaintiffs. It’s rooted in one basic belief: Money does not make people safer. Or, as Judge Darrell Jordan put it, “During income tax return time, does that mean there’s a whole bunch of safe people?”
“At the end of the day, this is what’s very hard to answer: If it was an assault, if I’m poor and I can’t pay [bail], I’m stuck in jail,” Gonzalez said. “They don’t want to let me out — okay. But all of a sudden if I can pay it, the threat goes away? That’s where it’s illogical. That’s where it does become about whether you have the means to pay.”
Although Sheriff Ed Gonzalez is a defendant in the lawsuit, he has repeatedly voiced his support for the plaintiffs and has been ready to implement Judge Rosenthal’s order since it came down.
For county judges, the problem arises with repeat offenders. Cosper and Goodhart (who maintained she was not directly discussing Rosenthal’s order) said they were most concerned about what they called “the revolving door of release,” in which defendants released on a personal bond could get picked up on another crime or on a warrant for failure to appear and, if they’re poor, would simply be re-released on another personal bond. This, judges have argued, “compromises public safety” and, as Cosper put it, “creates a culture of non-accountability” for bond violators. “Conditions are only as meaningful as the accountability that goes with them,” Cosper said.
On top of it, Goodhart says defendants are being released well before they even go to the probable cause hearing, where conditions of release are set. For example: On a Monday morning in Goodhart’s court earlier this month, a man accused of beating his pregnant girlfriend had been released on a personal bond with no protective order in place, not until his first court appearance before Goodhart.
But that’s a largely correctable breach in the system: The Houston Police Department and Sheriff Gonzalez don’t have to release people that early, not until they’ve had their first hearing, unless that hearing doesn’t happen within 24 hours.
The real question that challenges the American money bail system, then, is this: Why would making a person re-arrested on a misdemeanor pay a bondsman a few hundred bucks for pretrial liberty be the better system? And does the “revolving door of release” not apply equally to people who continue to be arrested and have the means to bail out?
Faced with these questions, Cosper and Goodhart deferred to their appellate attorney, Chuck Cooper, a D.C. establishment lawyer who was at one time Donald Trump’s leading contender for U.S. solicitor general.
Cooper insists that secured money bail is more effective because friends or family who bail someone out — called “co-indemnitors” in legal speak — are on the line for the funds, and therefore have an incentive to make sure he or she goes to court.
“We think that the most reliable study on this does show that there is a difference in the effectiveness of secured bail in producing the desired result, which is the individual returning for their court date,” Cooper said. But that study, conducted in Dallas County by the county’s expert witness, Dr. Robert Morris, is unpublished and not yet peer-reviewed, and because of various data limitations, Rosenthal ruled it’s entitled to little weight.
By contrast, the Pretrial Justice Institute found in a more widely cited study, conducted in Colorado jails, that secured and unsecured bail are both equally effective at ensuring the defendant appears in court and doesn’t commit a new crime.
Citing this research and nearly 200 pages’ worth of other evidence, Rosenthal concluded Harris County policymakers have “no adequate or reasonable basis for their belief” that secured money bail is somehow more effective than unsecured bail, or personal bonds. It’s a finding that, if upheld in the Fifth Circuit or even the U.S. Supreme Court, could reverberate within jurisdictions across the country, many of which still rely on the “one-size-fits-all” bail schedules that brought Harris County to this very point.
But it’s also a finding that plaintiffs’ attorney Neal Manne said should not be seen as particularly historic: All it does, he said, is reinforce what the Constitution already requires.
As Rosenthal wrote in closing: “Misdemeanor arrestees are often…people ‘living on the edge at the point in their lives that intersects with getting involved in an arrest.’ In Harris County, they may be homeless. They may lack family, friends, and ‘co-indemnitors.’ Some are, no doubt, of bad reputation and present a risk of nonappearance or of new criminal activity. But they are not without constitutional rights to due process and the equal protection of the law.”
For Cruz, the only safe place is inside his apartment.
Today Gilbert Cruz is in many ways still incarcerated.
He doesn’t go out anymore, trading the confines of cinderblocks and iron bars for that of his bedroom and his living room and his kitchen. He says he is afraid of being arrested again, of going back to jail for no good reason, for making even the slightest mistake in public. “I only go out there on Thursdays, so the VA can take me to my doctor’s appointment,” says Cruz, who is diabetic and suffered a stroke several years ago. “Then I have a friend who comes to take me for groceries, then I come back to the house and sit right here.”
He holes up in front of his TV or his laptop, watching the news and taking online business classes through Grand Canyon University, which the VA pays for. He believes the college degree will help him get back to work. But for Cruz it’s somewhat of a catch-22: The skill set he hopes to put to use, as a construction analyst assessing damage, requires him to drive to job sites. To get a car, he needs both money and credit. He has neither.
So in the meantime he prefers the comfort of his apartment, where, he says, “I know nothing can happen to me.”
He says he has simply lost his trust in the system, in the rule of law, and he no longer wants to participate.
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