In less than two months since Harris County was sued over its bail system that keeps poor people imprisoned before they have been convicted of a crime, the county has spent $170,000 defending it. And that's only as of July 15, the most recent bill the Houston Press was able to request.
It's a substantial sum of taxpayer dollars that attorneys, criminal justice advocates and some lawmakers say should instead go toward reforming the bail system and developing better diversion policies to keep non-violent offenders out of the crowded Harris County Jail. Instead, though, advocates fear the county's expenses while defending the system in federal court are only going to grow tenfold — even 16-fold, if the 16 county judges, added as defendants for their role in creating the county's bail policies, each retain their own private lawyers. Most likely all paid for by taxpayers.
Right now, the county pays the current outside lawyers, from the Houston firm Gardere Wynne Sewell, between $260 and $610 per hour, totaling $2,215 per hour if all of them are working at once, according to the county attorney's office.
"The fact that the county is spending countless taxpayer dollars to pay outside lawyers to evade reforming an unconstitutional and immoral practice of keeping people locked up simply because they are poor and can't afford bail — while at the same time refusing to invest in representation for the poor at bail hearings — is as disturbing as it is ironic,” State Senator Rodney Ellis wrote to us in an email.
The national group Equal Justice Under Law sued the county on May 19, arguing that its adherence to a strict bail schedule — which assigns bail amounts based solely on the crime the suspect is accused of committing and on their prior convictions — is unconstitutional. That's because judges and magistrates routinely fail to consider people's ability to pay as required by the Constitution, the group argues.
The trickle-down effect of that alleged failure can be severely life-altering: As the Houston Press reported last month, one man lost his car, his job and almost his home after refusing to plead guilty to a misdemeanor charge prosecutors ultimately dismissed. He was unable to afford to pay a $3,500 bail for the more than two months he spent incarcerated, and was not even present at his own bail hearing to exercise his right to ask for a lower amount — something multiple county officials have told the Press is kosher in the system. In April, sources said Patrick Brown was recommended for a personal bond after being charged with stealing a guitar — but instead the magistrate assigned him the $3,000 bail according to that convenient chart, an amount Brown, too, could not afford. He was beaten to death in a holding cell less than 24 hours later.
"At what point are we going to stop? The system is working: It's been designed to keep oppressed people even more oppressed," said Tarsha Jackson, Texas Organizing Project's Harris County director. "We need to stop criminalizing poverty and bring humanity into the criminal justice system."
Given that Equal Justice has filed 17 similar lawsuits in other jurisdictions across the country (albeit much smaller ones) and has never lost, Jackson says she has no doubt that Harris County will lose, too. Echoing Ellis, she said she would rather see hundreds of thousands of dollars spent on things like giving people attorneys at bail hearings, who would be able to advocate for poor defendants and ask magistrates for a personal bond or lower bail. According to a Harris County Public Defender's Office memo obtained through a public information request, the reform would cost $438,000 a year, at $50 an hour for each attorney.
County criminal justice officials have not necessarily refused to do it, as Ellis stated. But what they have done, for more than a year, is slowly drag on discussions about whether or not bail reform would work. (Fun fact, for comparison's sake: The country of Tunisia has already passed laws granting all defendants access to lawyers at police stations, before they even get to a probable cause hearing, as the Huffington Post reported last week.) Judges, who originally voiced skepticism about the reform, are expected to finally present a proposal next month, though it is unclear what a timeline for implementation would look like from then on.
Still, that's only one step forward. Many, including the state Legislature, are calling for total reform of the bail system altogether, something Ellis and others hope can be accomplished through mediation and continued reforms instead of continued, expensive litigation.
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We asked a University of Houston law professor emeritus and attorney, Robert Schuwerk, about the ethics of continuing to pay thousands of dollars in taxpayer money to defend a system very few, beyond bail bondsmen, support. While he said it is not terribly uncommon for the county pay outside counsel at substantially high rates for a high-profile case such as this one, Schuwerk said if everyone is pushing for reform anyway, the attorneys' wiser decision would be to suggest settling. (Robert Soard with the county attorney's office said it is a possibility, but lawyers are preparing to argue a motion to dismiss the lawsuit in November.)
“The thing is, that, under the ethics rules, [Harris County] can reject that advice," Schuwerk said. "They can say, 'We think this lawsuit is foolishness. We've got a wonderful system, we really like the way things work now, and we don't want to give that up. So we want you to go in there and move heaven and earth to preserve what we have.' And as long as what the clients want is not illegal, the lawyers have to follow the directions.”
Schuwerk declined to comment on whether he believes Harris County's bail system is illegal. But he did say that back in the 1970s he worked on bail reform in Chicago's Cook County, exploring the very same problems that exist here.
“I'm sitting here thinking, that's like 45 years ago," Shuwerk said, "and people had already jumped on these kinds of issues—that we were detaining a whole bunch of people that would best be released on a [personal bond]. The fact that we're having the same conversation 45 years later goes to show we aren't exactly racing ahead with reform.”