No, bail reform didn’t lead to a ‘let-them-all-out’ system
In 2019, Harris County officials settled a class action lawsuit that addressed the misuse of bail in Houston, which is the fourth-largest city in the United States. Since then, more people accused of low-level misdemeanor offenses have been released without bail while pending trial, safeguarding the presumption of innocence and mitigating the harmful impacts of unnec- essary pretrial incarceration.
According to a new report from the independent court monitor established to ensure adherence to the terms of the settlement, these reforms have been a resounding public safety success: Houston is altogether safer, with fewer people being arrested for misdemeanor offenses than before the reforms went into effect. Fewer people are being jailed pretrial, too, which is a good thing because jail is known to be criminogenic – meaning, simply exposing someone to jail increases their likelihood of being arrested in the future due to the destabilizing impact of pretrial detention on individuals' lives. Spared from the inhumane conditions inside jail, more Houstonians can maintain their jobs, pay their bills, stay in their homes, and care for their children.
Contrary to critics' claims, the Harris County reforms have not created a free-wheeling, “let-them-all-out” system. The new rules allow for accountability and preserve judges' ability to detain people when there is reason to. The changes are practical, in-line with the law, and good public policy. In contrast, the costly and ineffective policies of the past three decades have systematically violated due process rights and excessively relied on jails to address issues of public health and poverty, creating a revolving door of incarceration that exacerbates rather than solves underlying root causes.
Until this settlement, the county had relied on bail schedules – pre-set bail amounts based solely on charge that a person must pay in order to be released. After someone was arrested, they met with a magistrate, who – in hearings that often lasted only seconds – would consult with a list of offenses as if reading from a restaurant menu and set bail based on a predetermined amount. There was no consideration as to whether someone had money or not or whether they were dangerous. Magistrates, who weren't necessarily judges, would just look at the offense and set the corresponding price tag. Often, these amounts were unaffordable, leading to the unnecessary incarceration of tens of thousands who pose no public safety threat.
The folly of such a process is evident. The U.S. Constitution explicitly prohibits the use of excessive bail. That's because bail is intended to incentivize safe return to court – it's not a mechanism of detention for the poor. The judge ruled that in Houston, the all-too-brief hearings violated this critical due process protection and discriminated against the poor. In a well-functioning pretrial system, after arrest, safety, not wealth, should determine who goes to jail while pending trial and who gets released.
Bail reform has been a resounding success around the country. Researchers with the Harry Frank Guggenheim Foundation examined nearly a dozen jurisdictions where bail reform occurred and found those places remained just as safe as before reforms took place. Similar research exists in New Jersey, New York, and Illinois. Additionally, at The Bail Project, our work lends further evidence in support of reform: our nearly 30,000 clients have returned to 91% of their court dates without any of their own money on the line, laying waste to the idea that bail is a necessary incentive to ensure people return to court.
Houston is the latest to demonstrate that it's possible to have a well-functioning pretrial system that respects the presumption of innocence and reduces pretrial incarceration by limiting the use of cash bail, while still ensuring that our communities are safe and that accountability remains in the justice system.
Manzano is Deputy Director of Policy at The Bail Project, a national non-profit that advances policy changes at the local, state, and national levels through the provision of free bail assistance and pretrial support to thousands of low-income people every year.