Harris County judges unveil drastic new plan for releasing defendants on no-cash bail

Alec Karakatsanis, who led a class action lawsuit against the county on behalf of indigent defendants challenging the county's cash bond system, listens to a press conference regarding new bail reforms for the county at Texas Southern University in Houston, Thursday, Jan. 17, 2019. The new rule allows qualifying misdemeanor arrestees to be released on a personal bond rather than a cash bond. less Alec Karakatsanis, who led a class action lawsuit against the county on behalf of indigent defendants challenging the county's cash bond system, listens to a press conference regarding new bail reforms for the ... more Photo: Mark Mulligan, Houston Chronicle / Staff Photographer Photo: Mark Mulligan, Houston Chronicle / Staff Photographer Image 1 of / 12 Caption Close Harris County judges unveil drastic new plan for releasing defendants on no-cash bail 1 / 12 Back to Gallery

The new slate of Democratic judges have approved comprehensive revisions to Harris County’s bail system that could clear the way for thousands of people, regardless of income, to avoid spending time in jail while awaiting trial on minor offenses.

The county judges plan to present their new court protocol to a federal judge, in a joint request with the sheriff, the county and poor defendants, in a historic class action over bail practices, asking that she implement the revised system as a foundation for a settlement.

The civil rights lawsuit accused the county of holding indigent clients in jail for days because they couldn’t afford costly bonds.

Under the new administrative rule, 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds, according to the county’s pretrial services division. People arrested for bond violations, repeat drunken driving and family violence are the only exceptions. These defendants must appear before a magistrate or judge within 48 hours, at which time they may also qualify for personal recognizance bonds.

THE MORNING REPORT: Start your day strong with the top stories from HoustonChronicle.com

“What it means is that no one will be in jail because they cannot afford to get out,” said Court at Law Judge Darrell Jordan, the presiding judge, who has been on the bench since 2017. “This is a history making moment for civil rights not only in Harris County but for the U.S., because as the third-largest county in America, which is larger than 26 states, what we do here will be watched by all and can be emulated or replicated by all.”

Sheriff Ed Gonzalez expressed his support, saying the change would improve criminal justice all around.

“I have steadfastly supported bail reform, as long as it can be implemented in a way to enhance public safety,” Gonzalez said. “Violent offenders who pose a legitimate risk to our community belong in jail and deserve bail amounts and other restrictions that put safety first.”

“Today, however, too many jail beds are occupied by nonviolent people who can be safely released to return home to support their families while they await trial,” said the sheriff, who is also a defendant in the bail case, although he does not oppose the lawsuit.

District Attorney Kim Ogg said she welcomed the outcome.

“The millions of dollars squandered fighting bail reform should have been used to implement a bail system that was both fair to the accused and protected the public safety,” Ogg said. “Now we can do that, but the success of bail reform will depend on appropriate funding across the board.”

Jordan and several of his 15 newly elected court at law colleagues unveiled the new bail protocol Thursday at a news conference in the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University, where most of the new judges attended law school.

“It’s a big day for Harris County,” said attorney Allan Van Fleet, who represents the county judges in federal court. “It will make Harris County safer and more equal and provide more efficient processing of people accused of misdemeanors.”

Jordan and four fellow judges announced the bail revisions along with Harris County Judge Lina Hidalgo, Precinct 1 Commissioner Rodney Ellis and Pretrial Services Director Kelvin Banks. They said the new bail rule was crafted with input from the sheriff, the DA and the lawyers for the indigent defendants.

“Fundamentally, the steps you all are taking are about making sure we’re an example of innovation, an example of fairness, an example of a safe system, instead of an example of what not to do, and it’s incumbent upon us to make sure this is done right,” Hidalgo said.

The newly elected county leader spoke about Chief U.S. District Judge Lee H. Rosenthal’s opinion in the federal April 2017 injunction, which cited research that found when courts hold poor people in pretrial detention, people lose their jobs and the judges effectively create recidivists.

Banks said the new plan represented a seismic shift, but his agency is up to the task with the new processing center in place.

Releasing the vast majority of misdemeanor offenders will save the county money. It costs $80 a day to hold someone in jail, whereas pretrial release costs 83 cents per day, he said. Helping people make it to court is vital, he said, and with the massive surge in pretrial clients, the division will be using smartphone apps, web-based apps and a kiosk to help defendants make their court dates and make sure they have the support they need.

Jordan, who presides over misdemeanor court, said the goal of all the parties working toward a settlement in the federal lawsuit is to create a “cite-and-release” system for misdemeanors similar to the court citations traffic officers issue for moving violations. The obstacle right now is coming up with a system for scheduling court appearances at the time of an arrest.

The county has spent about $9 million on outside lawyers defending itself against the 2016 lawsuit, brought by two civil rights groups and a local law firm on behalf of indigent defendants. Rosenthal ruled in 2017 that the county’s policy of jailing only people who couldn’t come up with bail money amounted to “wealth-based detention,” in violation of the due process and equal protection clauses in the Constitution.

Fourteen Republicans on the prior panel of judges strongly opposed the lawsuit and argued that dismantling their system would diminish judicial discretion and create a public safety threat. County Court at Law Judge Mike Fields, who lost in the Democratic sweep, sided with the indigent defendants along with Jordan, the only other African-American on the bench at the time.

Despite the loss of his bench, Fields — who was not at the press conference — applauded the current judges for their new system, which he said was a prime example of transforming campaign promises into practical policy.

“Reimagining our criminal justice system isn’t a Democrat issue or a Republican issue; it’s a human rights issue,” Fields said. “To make reform a reality, our system and the way we do things has to change. These judges are creating that change.”

Judge Toria J. Finch, representing Court at Law No. 9, noted at the news conference that people keep telling the new judges that the atmosphere in the courts has changed. What the new judges are consciously attempting to do, she said, is restore the public’s faith in the judiciary.

“Once that spreads, people will understand that when they come to court they’re coming before a judiciary that will temper judgment with mercy, with compassion and with dignity,” Finch said. “We’re not saying we’re going to neglect the safety of our communities, but we want to make sure that we cultivate an atmosphere that people feel they will be judged solely on the merits of what their case is and not how much money they make, where they come from, what their sexual orientation is — because we understand that every time we do something in court it has lifelong lasting effects.”

Jordan, who has taken a leadership role in reforming bail practices, agreed that the courthouse is a different place. He testified at a 2017 federal injunction hearing that different judges and magistrates had effectively delivered different outcomes for defendants with the same criminal backgrounds depending on how much bail they could pay.

“I never thought this day would get here, based on the work environment I was in before,” Jordan said. “Words can’t express how excited I am about the work the new judges have done and the reality that this lawsuit is coming to an end in a way that addresses all the constitutional concerns I’ve been fighting for the past two years.”

Meanwhile, a similar case in Galveston continues to move through federal court. On Jan. 10, U.S. District Judge George Hanks Jr. upheld Magistrate Judge Andrew Edison’s denial of Galveston County’s motion to dismiss a lawsuit challenging the county’s cash bail system.

The Galveston lawsuit, filed last April on behalf of a man who could not afford to post $20,000 bail on a felony drug possession charge, accuses county officials of operating an arbitrary, two-tiered system of justice based on wealth. The system violates the constitutional rights to counsel, to due process and to equal protection under the law, the suit alleges.

In addition to agreeing that the case should continue, Hanks found that District Attorney Jack Roady, who controls the county’s bail schedule, was liable for his role in perpetuating a wealth-based detention system.

Nick Powell contributed to this report.

gabrielle.banks@chron.com

twitter.com/GabMoBanks

NEWS WHEN YOU NEED IT: Text CHRON to 77453 to receive breaking news alerts by text message | Sign up for breaking news alerts delivered to your email here.