Almost exactly 13 months ago, before civil rights groups sued Harris County over its bail system, 46-year-old Patrick Brown was booked into the Harris County jail, accused of stealing a guitar. He could not afford the $3,000 bail to buy his way out. And, as for the vast majority of misdemeanor defendants in Harris County, a bail hearing officer denied him a personal bond — even though Brown had no violent criminal history.
Less than a day later, he was beaten to death in a holding cell.
It is without a doubt that Brown’s case is the most tragic representation of the inherent inequality of a bail system allowing defendants with money to go free within hours of their arrest while those without languish in jail until trial — possibly losing their jobs, their homes, their scholarships and, in rare cases, their lives.
But after a federal judge’s landmark ruling on Friday, it is possible, if the ruling stands, that this practice may be coming to an end in Harris County once and for all.
The scathing, 193-page ruling issued by Chief U.S. District Judge Lee H. Rosenthal finds that Harris County’s bail system violates the constitutional rights of poor, misdemeanor defendants. For many in the criminal justice community, that has been clear for decades — yet until now has "escaped any real scrutiny" from federal courts, said lead plaintiffs' attorney Alec Karakatsanis of Civil Rights Corps.
On Friday, Rosenthal granted the plaintiffs a preliminary injunction and ordered sweeping changes to the misdemeanor bail system, ensuring that no low-level poor person will be stuck in jail just because he or she can’t pay to get out. Under the preliminary injunction — which temporarily blocks Harris County's current system — Rosenthal has ordered that all misdemeanor defendants be released on a personal bond within 24 hours after their arrest, if they haven’t already bailed out, and if they aren’t subject to other holds.
Harris County District Attorney Kim Ogg, who has long supported bail reform, called the ruling a “watershed moment in Harris County criminal-justice history.”
“[Poor people] have faced detention, sometimes for months, in maximum-security facilities such as the Harris County Jail, when in some instances, their offenses don’t even warrant jail time upon conviction,” Ogg said. “We welcome this ruling and will comply fully with it.”
Rosenthal granted class-action status to all indigent misdemeanor defendants, represented by the Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godrey, which all worked pro bono. The county, meanwhile, has spent more than $2 million in taxpayer dollars hiring three private law firms on the case. That includes a recently hired appellate attorney, Charles Cooper — at one time Donald Trump's frontrunner for solicitor general — who will assist the county in deciding whether to appeal Rosenthal's ruling.
In making the case against Harris County, Rosenthal didn’t just dismantle the entire foundation of secured money bail — that is, forcing people to pay some arbitrary sum before being released from jail. She also dismantled the baseless defenses Harris County officials have used to justify the system for decades, at one point saying county policymakers are “apparently unaware of important facts about the bail-bond system in Harris County.”
What follows is a close look at Rosenthal’s most compelling findings.
1. “In Harris County, secured money bail is not just a de facto pretrial detention order; it is literally a pretrial detention order.” — Judge Rosenthal, page 94
This statement encompasses the basis of Rosenthal’s ruling. It’s key to note that in no way is Rosenthal saying that money bail for misdemeanor defendants is illegal in general. The problem in Harris County is how judges impose it. Mainly, Rosenthal found: They don’t consider people’s ability to pay, as the Constitution requires.
Harris County Chief Public Defender Alex Bunin said that this specific finding — and the 193 pages supporting it— is what makes Rosenthal’s ruling historic. For what appears to be the first time, he said, a federal judge has ruled that imposing too-high bail amounts on poor, low-level defendants — without considering whether they can pay it — amounts to a detention order for those people, which is illegal. As Rosenthal notes, since the 13th century, bail has only been legal because it is supposed to be a mechanism for people’s release — not an excuse to continue detaining them.
“The principles that she’s using are not new,” Bunin said, “but no one has ever decided a contested class-action case based on how a bail schedule is applied to misdemeanor cases.”
Rosenthal pointed to data showing that bail hearing officers stuck to the bail schedule in 88.9 percent of misdemeanor cases from 2015 through January 2017 as evidence that they can't possibly be making case-by-case considerations in setting bail. During that time, 40 percent of misdemeanor defendants remained incarcerated until their cases were disposed, and only 9.7 percent were released on personal bonds.
Every day, more than 100 people remain in the Harris County Jail because they can’t pay a bondsman even 10 percent of their bail amount.
2. County judges are defending a secured money bail system without any proof that it’s more effective than releasing people on personal bonds.
As it turns out, there isn’t any credible research the county could point to proving that people have more incentive to show up for court if forced to pay a monetary sum upfront, compared to if they are released on a personal bond. Because in both cases, if the person fails to show up, he or she is still on the hook for the full bail amount. What difference does it really make, then, if the person must first pay a non-refundable, 10 percent premium of the bail amount to a bondsman in order to get out?
Rosenthal found, based on available research, that the answer is slim to none. In one of the most compelling passages of the ruling, she rebuked county officials for holding fast to their belief about the effectiveness of their money bail system without having the evidence to back it up.
“The court finds and concludes that the Harris County policymakers... have no adequate or reasonable basis for their belief that for misdemeanor defendants, release on secured money bail provides incentives for, or produces, better pretrial behavior than release on [personal bonds]. The policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial." (page 81)
The county paid an expert, who had some ties to the American Bail Coalition, more than $13,000 to try to prove a secured money bail system was the more effective system — but Judge Rosenthal called his research “critically flawed” and said his conclusions are “not entitled to any weight.”
In perhaps their flimsiest argument, lawyers for Harris County also claimed that family and friends who can post bond on behalf of a poor defendant — calling them “co-indemnitors" — provide more incentive for people to appear in court. Rosenthal rejected that argument in this one sentence: “On that basis, the homeless and the friendless are denied release on personal bond because they lack co-indemnitors.”
3. The county's current bail reforms won't stop the county from violating poor people's rights.
The county was hit with this lawsuit just as it was unveiling reforms to the bail system — and therefore argued that the lawsuit should be dismissed or delayed because the reforms address all the plaintiffs' concerns. The plaintiffs, and Judge Rosenthal, disagreed.
The reforms are, without a doubt, commendable. Starting in July, defendants will have public defenders representing them at bail hearings to advocate for personal bonds. A new, objective risk assessment tool will help bail hearing officers decide who should be released on a personal bond and who poses a flight risk. And for the first time in roughly 40 years, the county is revising the bail schedule itself.
But as Rosenthal noted, because the county's system will still revolve around upfront secured money bail, none of these reforms guarantee that the rights of poor people will be protected.
This is why: On a regular basis, Rosenthal notes, hearing officers and county judges are well aware that people charged with crimes of poverty — petty theft, trespassing, begging — are assigned bails that are obviously out of reach, resulting in their automatic detention. The judges know there is an "unwritten custom" to deny all homeless people personal bonds because of a perceived risk that they'll not come to court. They know that hearing officers deviate from the bail schedule only 10 percent of the time and that, for whatever reason, they ignore Pretrial Services recommendations for personal bonds two-thirds of the time.
And yet, "The County Judges testified that they could change these customs and practices legislatively in their Rules of Court, but that they choose not to."
That is exactly why county officials such as County Judge Darrell Jordan and Sheriff Ed Gonzalez — the only defendants who actually support the plaintiffs — and County Commissioner Rodney Ellis believe that without a federal court's intervention, true change will not occur.
Chief Public Defender Bunin said he is hopeful that the county at least gives Rosenthal's ordered changes — requiring all eligible defendants to be released within 24 hours of arrest — a chance. She was in no position, Bunin said, to take the county at its word that all the reforms, though commendable, would resolve the plaintiffs' constitutional concerns. "She had to do something to make sure that the principles would be honored," he said. "Her solution is very simple and fair, in that poor people don’t have to put money up front if they don’t have it."
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For too many in the Harris County criminal justice community, this solution has been self-evident for years.
For Patrick Brown, it would have been lifesaving.
Read the full ruling below; find more of Rosenthal's most compelling excerpts in our April 28 story.