Researchers Think Harris County's Bail System Is Unconstitutional

Just months after Harris County was sued for jailing poor people who can’t afford bail, a group of law scholars from the University of Pennsylvania has swooped in and published a study that documents just how bad the problem is. And it’s bad enough that the researchers concluded Harris County’s bail system appears to be unconstitutional, since the poor endure overwhelmingly more negative consequences than the wealthy for the same crimes.

Looking at more than 380,000 misdemeanor cases from 2008 to 2013 (which is nearly all of them), the researchers found that if you’re detained before trial because you can’t make bail, you are 25 percent more likely to be convicted than somebody who could afford to buy his or her release. You are 43 percent more likely to be sentenced to jail time rather than probation, for example, and if you do get sentenced to jail, your sentence is generally nine days longer — or double — than that of a person who bailed out.

And as we’ve written about many times in the past, even a short stay in jail can cause you to lose your job, college scholarship or even your home. It’s why the findings in this study, said Paul Heaton, senior fellow at Penn’s law school, should be troubling to “anyone who cares about fairness in Harris County courts.”

Heaton said the group chose Harris County for the study both because of its large jail population — the third-highest in the nation — and because it has a money bail system, which is common among many counties in the United States. Harris County relies heavily on the bail schedule to set a person’s bail, which allows people to move through the court system swiftly and efficiently. But this leaves judges and magistrates little time to consider a person’s individual circumstances and ability to afford bail, as required by the Constitution, Heaton said.

“It’s efficient in the sense that you can get a large number of cases running through the factory — but is it sufficiently individualized to meet constitutional muster?” Heaton said. “That’s a real question. In this quest for efficiency, we sacrifice due process for individuals who just don’t have the means to afford even small amounts of bail.”

The researchers also sought some clarity as to why those detained pretrial are so much more likely to be convicted. They found the huge difference was mostly due to the much higher rate of guilty pleas among pretrial detainees: They take plea deals at a 25 percent higher rate than a person who bailed out. It makes sense, the study notes: People who have been stuck in jail awaiting trial are probably much more likely to want to go back to their families, jobs and lives than those who had been free all along.

And that’s a large part of the reason the Harris County District Attorney’s Office currently has 298 wrongful drug convictions as far back as 2004 sitting on its plate: Itching to get out of jail, many of those innocent people pleaded guilty to drug possession — only for lab results to come back weeks or months later testing negative for drugs.

What was the most troubling finding to Heaton, however, was that people detained pretrial are more likely to be charged with more crimes in the future. According to the findings, pretrial detention was linked to 30 percent more felonies and 20 percent more misdemeanors 18 months after those people were let out of jail.

It’s a finding that challenges the conventional basis for jailing people at all, Heaton said.

“It’s a particularly important pattern, given one of the reasons for detaining someone in the first place is public safety,” Heaton said. “You don’t want someone accused of a crime to potentially, while they're waiting for trial, commit other offenses. But what this finding demonstrates is that, in fact, detaining people might be worse for public safety than letting them go, because in the near term, while they won’t be a threat to the public while they’re detained, afterward, they end up committing more crimes.”

Harris County does have reforms on the way — such as a pilot program offering defense attorneys to people at bail hearings to advocate for a lower bail or personal bond, District Attorney Devon Anderson told us earlier this year. It also has a new risk assessment tool, used to determine whether judges can trust that, if they let you go, you will return for trial and not commit new crimes. Harris County judges said in May they think this will lead to more personal bonds. Only 7 percent of people are lucky enough to get a personal bond each year — which Heaton said was unusual compared to the rate in other counties. If judges really were to start giving pretrial bonds at a  much higher rate,  he said, a lot of these problems might be solved.

Until then, though, Heaton says he believes the system violates the Equal Protection Clause of the Constitution, given that poor people endure worse consequences than wealthy people just because they can't pay for that golden ticket out the door on day one.

Heaton and his colleagues’ conclusions echo the arguments made in the lawsuit filed against the county in May by the national group Equal Justice Under The Law. The organization has sued 17 counties over their money bail systems that punish the poor, has won eight times — and has so far never lost. The group argues that at bail hearings in Harris County, magistrates almost never consider a person’s ability to pay and would prefer to set bail according to the amount listed on their convenient chart, which they say is unconstitutional. (Their suit cites similar research from former Harris County Pretrial Services director Gerald Wheeler that, surprise, reached the same conclusion; see his findings here.)

Equal Justice Under The Law filed its lawsuit days after a 22-year-old mother was pulled over while on the way to pick up her daughter from her mom’s house. She was hauled off to jail for driving with an invalid license and was unable to pay even 10 percent of her $2,500 bond. So instead she waited in jail, hoping her new job as a waitress would still be there for her when she got out.

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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn