Harris County misdemeanor bail reform in spotlight as judicial election looms
The Harris County Criminal Justice Center in downtown Houston is home to all 16 criminal courts, which handle Class A and Class B misdemeanor cases. (Rachel Carlton/Community Impact)
When Harris County District Attorney Kim Ogg took the stage at Texas Southern University’s auditorium on August 25, emphatic boos from several members of the public set the stage for a two-hour panel on the county’s and nation’s approach to bail reform.
The panel’s back-and-forth has characterized discussion in recent years around Harris County’s bail practices. Crime-wise, the county has operated and continues to operate on a cash bond system. But cash bail for misdemeanors came under scrutiny in 2017 after U.S. District Judge Lee Rosenthal found the county’s policy of using cash bail to hold people pending trial. in violation of the US Constitution.
Elizabeth Rossi represented plaintiffs in this class action lawsuit, including Maranda Lynn ODonnell, a single mother who was arrested for driving with an invalid license and held in jail for three days after being unable to post $2,500 cash bond. $.
“The heart of our demands [was] that it’s a really big deal to take someone’s liberty away,” said Rossi, director of strategic initiatives for Civil Rights Corps, a DC-based nonprofit that challenges injustices in the legal system. Community impact.
While the trial was underway, the 2018 midterm elections saw the county’s correctional court judges go from all-Republican to all-Democrats, with some new judges taking progressive positions on debentures and low-income bonds. value, according to Mark Jones, professor of political science at Rice University.
The newly elected Democratic cohort settled the lawsuit, culminating in the November 2019 ODonnell Consent Executive Order that eliminated cash bail for most misdemeanor arrests. Now, with elections approaching for 15 of Harris County’s 16 criminal courts, which hear Class A and Class B misdemeanor cases, Jones said the debate over the effectiveness of the county’s reforms could turn into a campaigns for all court races, including those for district courts, which deal with crimes.
“You’re definitely going to see Republican judicial candidates as a group using the idea of bail felons…and bail felons in particular. [personal recognizance] bonds as one of their main campaign messages,” Jones said.
Path to ODonnell Decree
When ODonnell v. Harris County was first filed in May 2016, it named the county, then Sheriff Ron Hickman and five court officers — those tasked with setting bail for misdemeanor arrestees — as defendants, but an August 2016 amended complaint added the 16 Republican correctional judges, 15 of whom were elected in 2014.
Dan Spjut, a Republican and former 2016 Law No. 10 criminal court judge who lost his seat in 2018 and is running for reinstatement, said he thought the lawsuit was “nonsense”. Spjut’s Democratic opponent Juanita Jackson could not be reached for comment.
“The system we operated in was by no means perfect, … but there was never anyone in jail in my court for a misdemeanor,” Spjut said.
However, Rosenthal wrote in his 193-page April 2017 opinion that the court found that more than 100 people were being held in the county jail each day and that they would have been released if they had been able to pay their bail in cash. .
The judge urgently ended the county’s misdemeanor cash bail system through a preliminary injunction, which was the subject of a study released Aug. 30 by the Carey Law Policy Center School of the University of Pennsylvania, the Quattrone Center for the Fair Administration of Justice.
The center analyzed more than 55,000 state prison misdemeanor and felony cases filed in 2017 before and after the injunction to gauge its impact. Paul Heaton, academic director of the Quattrone Center, said he believed the injunction was “largely successful”, reducing conviction rates by 9% and pleas by 15% from the 2017 period before the injunction in April. to the rest of 2017 after the injunction, as well as a 6% drop in new cases over three years.
Heaton said he spoke with misdemeanor judges at the time and believed they did not believe they were causing harm.
“[The misdemeanor judges] followed what had been done in the past, as well as their training and their instincts. [Data and analysis] can be helpful … to recognize places where that experience or instinct might lead us astray,” he said.
Following the injunction, the judges who won in 2018 changed the county’s bail policies and settled the ODonnell case in November 2019, ushering in the ODonnell consent decree. The executive order releases most people arrested on misdemeanor charges on personal bonds — meaning they promise to return to court without posting cash bail — and requires those ineligible for such bonds to receive representation from a public defender and a hearing within 48 hours of their arrest.
Brandon Garrett, a law professor at Duke University, is the court-appointed monitor to oversee implementation of the executive order. Its fifth report released on September 3 showed the share of cases resulting in a conviction fell to 23% in 2020 from 59% in 2015, with the outcome of 18% of 2020 cases still undetermined.
Jason Spencer, spokesman for the Harris County Sheriff’s Office, said Sheriff Ed Gonzalez is in favor of the reform, which Spencer says has helped manage the prison population and provided more space for people charged with serious crimes.
“Had the misdemeanor bail reform not taken place, it is reasonable to assume [our current crowding condition] would be much worse than it is now,” Spencer said.
Clashes around bail reform
Heaton said he was concerned about misdemeanor and felony bail reform, the latter of which has yet to take place in Harris County.
Ken W. Good, an attorney who represents bail agents, spoke before the TSU Bail Reform Panel on Aug. 25 and said he believes “misdemeanors [are] today’s training ground for tomorrow’s crimes. But Heaton said that was not supported by evidence from his center’s study.
A Sept. 14 press release from Crime Stoppers, a nonprofit dedicated to reducing crime in communities, said the organization supports misdemeanor bail reform. Andy Kahan, director of victim services and advocacy program for Crime Stoppers, said he thinks ODonnell has affected how judges set bail for crimes.
“The numbers certainly show that district court judges are essentially making the ODonnell decision without being under a federal order. [and] transposing it to defendants charged with crimes,” Kahan said, though he added Crime Stoppers only started tracking that data in 2018.
Meanwhile, Alexandra del Moral Mealer, the Republican opponent of County Judge Lina Hidalgo, filed an amicus curiae brief Jan. 25 to dismiss a separate Harris County case regarding felony bail reform, Russell v. Harris County. In a statement to Community impactMealer said she would file a motion to dissolve the ODonnell consent decree on her first day in office if elected.
According to Jones, judicial candidates are virtually unknown to the public, and voters will choose candidates almost exclusively based on party.
“It’s just the nature of judicial elections in a large jurisdiction like Harris County where we have about 100 races on the ballot,” Jones said. “Judicial elections turn into a generic partisan battle with the party that has the narrow advantage almost always winning every seat.”
However, it is not yet clear how a change in the composition of the courts could affect ODonnell.
David Fleischer, who is running for re-election as a Law No. 5 Criminal Court judge, said he does not know what will happen to the ODonnell consent decree if the Republican justices win their elections. His opponent, Republican Elizabeth Buss, did not respond to requests for comment.
“It scares me though,” Fleischer said. “We put a lot of work [to show] that any fear anyone might have had about bail reform is simply absurd in the realm of torts.
Good said a new misdemeanor judge may choose not to follow the executive order. But Garrett said it takes extreme circumstances to reopen a settled case, and Rossi said in a statement that such an attempt would be legally without merit.
Although Heaton did not comment on whether ODonnell could be changed, he said it was important to devote time and attention to court races.
“One of the lessons is the decisions of these judges, and whether or not they are willing to implement reforms, like the ODonnell reforms,” Heaton said. “I think it’s helpful for people to be very thoughtful when making these decisions and recognize that these judges can be quite important in what happens.”