Judge strikes down Texas county’s bail system, calling it unfair to poor
A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution.
The judge, Lee H. Rosenthal of U.S. District Court, ordered Harris County to stop allowing people who have been arrested on misdemeanor charges to remain in jail because they cannot pay bail.
The ruling, part of a civil rights lawsuit against the county, came Friday in a case that began when a woman was arrested on a charge of driving without a license and spent more than two days in jail because she could not post $2,500 in bail.
Rosenthal wrote in the ruling, “Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.” She cited statistics showing that 40 percent of people arrested on misdemeanor charges in the county had been detained until their cases were resolved.
The order is not final; it is a temporary measure as the larger case works its way through the courts. But legal scholars and the groups that brought the case said the ruling was a victory in the movement to overhaul the bail system that has been growing around the country. Rosenthal’s order came after eight days of witness testimony and the presentation of volumes of evidence — 300 written exhibits, and 2,300 video recordings of hearings in which bail was set.
The judge wrote that the plaintiffs had “demonstrated a clear likelihood of success” on the merits of their claims against Harris County.
“I think it represents a real change in our legal system,” said Alec Karakatsanis, executive director of Civil Rights Corps, a legal nonprofit based in Washington that brought the case along with another nonprofit, the Texas Fair Defense Project, as well as the private law firm Susman Godfrey. Karakatsanis described the ruling as a “comprehensive and robust condemnation of the existing money bail system” that would reverberate beyond Texas.
Harris County is not alone in its bail procedures, but its size and prominence — Houston, the county seat, is the fourth largest city in the United States, and its county jail system is the third largest — make the ruling particularly significant, said Fred Smith Jr., an assistant professor at Berkeley Law School.
“If a judge is willing to take the time to have the hearing and put out a 193-page order, it’s sort of hard to imagine her coming out the other way down the line,” Smith said.
Christina Swarns, litigation director of the NAACP Legal Defense and Educational Fund, who had filed a brief in support of the plaintiffs, called it “a shot across the bow to other metropolitan areas.”
Robert Soard, an assistant county attorney for Harris County, said the county was reviewing the court’s decision and had not decided whether to appeal.
The practice of demanding money as bail is standard in the majority of jurisdictions in the United States. But a series of lawsuits and a growing body of research has led to questions about its efficacy and potential disparities based on race and income. In January, New Jersey dropped its money bail system for minor crimes, and Colorado is changing its bail systems. The discussion has been percolating in other states, as well.
The order issued Friday takes effect May 15. People arrested on misdemeanors charges are to be interviewed about their financial conditions for an affidavit. Those who have been deemed eligible for release at a hearing will have the option of being released within 24 hours of their arrest, regardless of whether they can afford bail.