Historic bail deal OK’d in split vote
Harris County’s fix ends system said to cause ‘harm’ to poor
Harris County Commissioners Court approved a historic settlement Tuesday fixing a bail system a federal judge found unconstitutional, ushering in a new era for criminal justice in one of the country’s largest metropolitan areas.
The vote came after months of intensive negotiations between the county and lawyers for indigent misdemeanor defendants who sued over a two-tiered system that jailed people prior to trial if they couldn’t pay cash bail up front but allowed people with similar backgrounds and charges to resume their lives by awaiting trial at home.
County Judge Lina Hidalgo, who championed bail reform in her 2018 platform, said the settlement addressed a longstanding and harmful practice, citing Martin Luther King Jr.’s desire more than a half-century ago that people should be judged “not by the color of their skin but by the content of their character.”
“It’s an incredibly significant day to make a decision on one of the key civil rights issues of our time,” Hidalgo said.
The 3-2 vote split along party lines, with Republican Commissioners Jack Cagle and Steve Radack voting against the measure.
Commissioner Rodney Ellis, a vocal supporter of bail reform who lobbied the civil rights firm behind the case to sue Harris County over unfair practices, said fixing the problem was incumbent on everyone.
“It took a long time for this system to be put in place — this oppressive system has existed for decades,” Ellis said.
Ellis and Commissioner Adrian Garcia compared the new bail system to Brown v. The Board of Education, which integrated public schools when they both were children.
The settlement agreement — which still must be approved by a federal judge — installs a monitor to oversee the new bail protocol for seven years. It provides comprehensive public defense services and safeguards to help ensure defendants show up for court. And it calls for transparent data collection that will allow the county to track what’s working and what isn’t.
Under the new system, about 85 percent of people arrested on misdemeanors will be released on personal bonds and avoid pretrial detention, officials said.
Hidalgo said the county spent nearly $10 million over three years mounting a legal fight against the federal civil rights lawsuit, including appeals of Chief U.S. District Judge Lee H. Rosenthal’s ruling in 2017 that the county’s bail practices violated equal protection and due process, causing “irreparable harm” to thousands of people presumed innocent.
The bail lawsuit, filed in 2016, challenged lengthy pretrial jailing of three indigent defendants but was later expanded to a classaction.
Mixed reactions
County officials, including a Republican majority on the bench in misdemeanor courts, appealed the federal judge’s rulings twice. But the new slate of Democratic judges and county officials elected in November withdrew the federal appeal and began discussing a joint settlement.
Among a long line of citizens addressing the new plan in Commissioners Court Tuesday was 61-year-old Rosie McCutcheon, an ex-felon and grandmother from Acres Homes who said the settlement marked “a glorious and victorious day” in her life and the lives of many people like her.
Officials didn’t care that she didn’t have the money to pay bail or that she was the primary caregiver to her grandchildren, she said.
“I’ve been in the Harris County Jail and know what it’s like to be in the system that brought me there,” said McCutcheon. “I spent two weeks in jail and I have five kids depending on me. I pleaded guilty to get out and get back to my kids.”
Court at Law Judge Franklin Bynum also spoke during the public comment period in support of the deal, drawing fire from Cagle.
“Did you need Judge Rosenthal’s order to tell you how to run your court?” Cagle asked the misdemeanor judge.
“Yes,” said Bynum, who participated in weeks of negotiations. “The federal courts tell us what the federal law is especially when we are so outrageously out of compliance with it…”
Cagle, a former judge, later put forward a motion for lastminute amendments that would have drastically curtailed the content of the consent decree that 16 judges, the sheriff, county officials and plaintiffs’ lawyers had worked on for months. The commissioner wanted county judges to have more day-to-day discretion about implementing the bail plan.
Cagle also wanted to add several million dollars to fund crime victim services. But his motion drew only one supporter, Radack. During his remarks, Radack slapped the table on the dais emphatically, shouting that he thought there should have been more opportunity for public discussion. The deal seemed rushed, he said.
“This has been too confidential,” Radack said. “I think that sucks. I want to make that clear.”
Paying the bill
County officials estimated the new system will cost between $59 million and $97 million over seven years. Potential expenditures include an increased workload for staff and additional court resources, including creation of another probable cause court at the Joint Processing Center and an additional County Criminal Court at Law.
However, the budget department calculated the changes will save the county about $18,250 per year for each person who is no longer detained in jail, according to documents submitted last week to county officials.
“It is a drop in the bucket compared to the societal cost of an unconstitutional system whereby you had somebody who was forced to plead guilty because there was no other way to get out of jail, even though they were innocent — who was locked up for trespassing, for taking an eyeliner when we know they’re not a danger to society, losing their families, losing their jobs and taking up valuable space in our jail that we need for folks who are a danger to our community,” Hidalgo said.
“This is about being smart about what we do with our dollars,” she said.
Paul Simpson, chairman of the Harris County Republican Party, lambasted the decision, saying Democrats sacrificed public safety and “put criminals ahead of victims in Harris County, just to advance their radical agenda.”
“Their $97 million payment to settle a flawed bail reform lawsuit is not only fiscally irresponsible, but will keep the revolving door of justice at the courthouse spinning so more criminals can roam the streets of Harris County,” Simpson said.
On the other end of the spectrum, Scott Roberts, senior director of criminal justice campaigns at Color Of Change, a national racial justice group, said the settlement addresses welldocumented racial disparities in who gets locked up prior to trial, said
“Cash bail has for too long disproportionately harmed Black families, as thousands are confined to a jail cell solely because they cannot pay to be released before their trial begins,” Roberts said in a statement. “These individuals lose their jobs, their homes and their children, and are deprived of basic life necessities.”
The county and plaintiffs plan to submit the settlement to the federal judge this week. She set a hearing on it later this month.
Some time this fall, Civil Rights Corps and Harris County will begin addressing a challenge over inequities in the felony bail system which results in greater numbers of low income defendants being incarcerated prior to trial on costly cash bail.