When you get booked into jail in Harris County, you have the opportunity to leave nearly as soon as you arrive. That’s thanks to the bail schedule that’s been in place since 1979—a set of bail amounts automatically assigned to a defendant based on the alleged crime. This way, you don't need to wait in jail for up to 24 hours before a judge or magistrate sets the bail, and you can stroll on out so you don't miss work.
Which is great—but only for those who can actually cough up the cash.
For those who can't, they might end up sitting in jail awaiting trial solely because they are poor, thanks to the bail schedule. And in Harris County, according to some experts, there's a risk that this may be happening often.
While magistrates and judges are required by law to consider a person’s ability to pay bail and the circumstances of their case—not just what they’ve been charged with—the numbers show that rarely do Harris County magistrates or judges choose to lower a person’s bond or stray from the bail schedule period. “As opposed to looking at the individual and saying what the proper bail should be given their life situation, they look at a chart,” said Sarah Guidry, director of the law school at Texas Southern University who has been studying economic and racial disparity in bail for the past two years. “And if defendants cannot make the bail according to the chart, then they stand the possibility of losing their employment and destabilizing their household.”
According to numbers from Pretrial Services' 2014 annual report, magistrates—who are the first to see a defendant in probable cause hearings—deviate from the bail schedule in misdemeanor cases just 16.7 percent of the time, but only lower bail 5.7 percent of the time; for felonies, bail is lowered in 8.3 percent of cases. Then, when the case goes before a judge in court the next day, according to data from the district clerk’s office, judges appear to be modifying bails the magistrates set less than 6 percent of the time for felonies—and lower bail less than 1 percent of the time.
Judges the Houston Press spoke with said these numbers seemed off, and that they felt discretion was being used more regularly (though none of the three could give a rough estimate of how often they lower bonds on a weekly or monthly basis). In fact, that judges and magistrates are allowed to use discretion is the only reason bail schedules are legal.
Since January 2015, nine cities across the country have been sued in federal court for their too-strict use of a bail schedule and slim-to-none consideration of a person’s individual circumstances; six of those have resulted in cities overhauling their bail system. The first suit was filed against the City of Clanton, Alabama, by a woman named Christy Varden, an unemployed mother who couldn’t pay the $2,000 bail for four counts of shoplifting at Wal-Mart. So she stayed in jail. Equal Justice Under Law, a civil rights organization aiming to end the money bail system altogether, represented her in the case, which achieved national attention after the U.S. Department of Justice filed a statement of interest and denounced bail schedules based solely on arrest charges as unconstitutional practices. Varden won the case—and Clanton got rid of the bail schedule altogether, routinely allowing those charged with misdemeanors to go free without paying, and ensuring that inmates saw judges at least within 48 hours.
It's unclear whether Harris County might be open to such a lawsuit. While judges clearly aren't deviating from the bail schedule very often, it's impossible to get inside their heads—maybe they really think the bail schedule is almost always appropriate for someone's case. The question isn't just whether judges are listening, but whether defendants get the opportunity to argue that they can't afford bail in the first place, says Andrea Marsh, founder of the Texas Fair Defense Project and director of the University of Texas' pro-bono law program.
“At that magistrate hearing, do individuals have an opportunity to present their financial circumstances and have that considered?" Marsh said. "Are magistrates even looking at that?”
Our request for comment from a magistrate was not returned.
Marsh said that, if magistrates aren’t looking at that, then the best way to make sure that they do is to get defense attorneys to start representing defendants in those initial probable cause hearings, something that the Harris County Public Defenders Office has pushed as well. Because all too often, Marsh said, defendants themselves are not aware that a fair bail is a constitutional right, that there are in fact alternatives to sitting in jail for being poor.