Bail reform should not be derailed

Photo by iStock/zimmytws

The cash bail system is outdated, discriminates against people without financial resources and fails to improve public safety. Momentum to eliminate cash bail in Harris County has been building for several years, and the campaign received a huge boost when District Attorney Kim Ogg supported a lawsuit calling the practice unconstitutional last year.

But recent local attempts to undermine reform efforts and misrepresent reality threaten to derail one of the most important changes to Houston’s criminal justice system in decades. I feel the need to set the record straight.

In May 2016, a class action civil rights lawsuit was filed challenging Harris County's unconstitutional policy of detaining more than 20,000 presumptively innocent misdemeanor arrestees prior to trial every year solely because they were too poor to pay the money bail amount — usually a few hundred dollars — required for their release. In April of this year, a federal judge agreed with the plaintiffs, blocking the county's unconstitutional policies and prohibiting it from keeping misdemeanor arrestees in its jail solely because they cannot afford money bail. The judge's ruling states that if a person is in the Harris County Jail 24 hours after arrest solely because he or she has not satisfied a secured financial condition of release, the county is required to release that person. If he or she fails to appear for court, he or she may be liable for the bail money, known as a personal bond.

The district judge's decision and order are currently on appeal before the 5th Circuit Court of Appeals, but in the meantime, the county must follow the judge’s order. To comply, after a person has been in jail for 24 hours unable to pay, the sheriff must allow their release and tell them when to come back to court.

Unfortunately, the county is pushing out the message that the new system is failing, claiming that more than 40 percent of those released because of the ruling failed to appear for court. If true, that would surely be troubling.

The problem is that the new number is woefully misleading — and quite possibly far from accurate.

According to conversations with numerous legal experts working in Harris County, many of those failing to appear received incorrect court dates — the sheriff's office frequently tells the defendant that their court date will be set seven days out. The local judges, however, are setting the court dates for the next day and then revoking people’s personal bonds when they then don't show up. Sometimes, experts report, the judges will set multiple hearings within that week, causing people who think their hearings are later to “fail to appear” three to four times without believing they must appear at all.

Local experts also report that the county is double-counting failures to appear; for example, if a person facing six different charges fails to appear for a hearing, it may be counted as six different failures to appear instead of one.

And perhaps most devastatingly, some people I spoke with reported that those released who have the greatest chance of non-appearance are not receiving any of the supervisory services provided by the county to help ensure their appearance, such as court date reminders or transportation to court — a major barrier in a city as large as Houston. This is hugely problematic. Numerous studies show that simple, cost-effective strategies such as text-message reminders, transportation and services can dramatically increase appearance rates. It is as if this group is being intentionally set up to fail.

While most of the evidence that local experts shared with me is anecdotal, it points to the need for a more thorough investigation. It is critical that we get the full story about what is going on in Harris County before we rush to judgment about what may or may not be working. Once we have reliable data, then commonsense adjustments can be made.

What is not in question is that the cash bail system that was in place for decades was antiquated, ineffective, expensive and unconstitutional. It is time we find a way to replace it.

Jessica Brand

Legal director, Fair Punishment Project, Harvard Law School