Advancing Social and Racial Justice through Bail Reform

Advancing Social and Racial Justice through Bail Reform

I, Loetha Shanta McGruder, am a 22-yearold woman. I was arrested on May 19, 2016, for a misdemeanor in Jacinto, Texas. I was taken to the Harris County Jail early on Friday morning, May 20. A sheriff’s deputy told me that my bond was $5,000, and that if I could post the bond I would be released. I can’t afford to pay. I saw a judge on a TV screen who said he found probable cause and told me my bail is $5,000. I was told my court date would be on Monday, May 23. I knew that because I cannot afford to pay that amount, I would have to stay in jail until then. I was never asked if I could afford my bail. I have two children, one is 4 years old and another who is almost ten months old. My older child has Downs syndrome along with other medical needs. I am pregnant. I am going to apply for Medicaid so I can get an OB/GYN. I am indigent. I have no money or savings. My only sources of income are disability payments and child support. The disability payments are to help support my son with Downs syndrome. I have no job. I am going to apply for food stamps. I live with my boyfriend. We share household expenses. When I find work, I contribute what I can.1 In 2016, Loetha Shanta McGruder, like thousands of others in Harris County that year, suddenly found herself locked up in the Harris County Jail, the third largest jail in the country, solely because she was too broke to make bail. For a nonrefundable fee (10% of the bond amount—$500 in McGruder’s case), commercial bondsmen regularly arrange to release people of means within a few hours. This convenient option was unavailable for a poor person like McGruder.

McGruder joined with Maranda ODonnell and other plaintiffs to challenge the Harris County misdemeanor bail system in federal court. Harris County’s bail system, like those in many other jurisdictions in Texas and around the country, allowed people with money to walk out of jail within a few hours, with minimal disruption to their lives. For people with means, an arrest did not usually result in losing their jobs or leaving children unattended, and the trauma and danger of time spent in jail was minimal. But for a poor person, an arrest for a minor crime could have devastating effects. Those effects are heightened post-COVID, when jails have become some of the nation’s largest epicenters of the pandemic.

We write to describe the ODonnell class action litigation and the resulting Consent Decree. From our perspective as the court-appointed monitors in the case, we can report that Harris County’s bail practices have fundamentally changed for the better and continue to improve—but also that much work remains to be done. The ODonnell Consent Decree has the potential to set a national model for pretrial reform in advancing social and racial justice while promoting public safety.

the Misdemeanor Bail reform lawsuit in Harris County In 2016, ODonnell and other plaintiffs brought a federal class action against Harris County and moved for a preliminary injunction to end the practices that unfairly kept the poor locked up. On a typical night, 500 people arrested for misdemeanors were detained in the Harris

County Jail.2 Between 2009 and 2015, 55 people who could not afford bail died in Harris County Jail while awaiting trial.3 It bears mentioning that these people were not in jail serving a sentence after being convicted of a crime—they were merely awaiting their day in court and thus presumed innocent.

At the time the lawsuit was filed, arrestees in Harris County appeared before magistrates without the assistance of attorneys to speak on their behalf. Nor were they allowed to speak in their own defense. They were not informed of their rights. In hearings that typically lasted only a minute or two, magistrates almost invariably set bail amounts according to a fixed bail schedule without regard to a person’s ability to pay.4 Poor people like McGruder languished in the Harris County Jail, at exorbitant taxpayer expense. They were not jailed because they presented a danger to society or a risk of flight. The only difference between people like McGruder and those who walked out of jail was the ability to pay.

Needlessly locking up the poor has another bad consequence for the community: Studies show that holding a lowrisk person in jail, even for just a day or two, significantly increases the likelihood of her committing another crime after release.5 Low-risk people become more likely to commit future crimes if we lock them up than if we release them. Moreover, poor people in jail face the choice of agreeing to plead guilty as a means of getting out sooner or staying in a jail cell for weeks or months awaiting a trial date. Not surprisingly, studies show pretrial detainees were less likely to have their cases dismissed and more likely to plead guilty and be sentenced to a jail term as compared to similar defendants who got out of jail pretrial.6

The unfairness of the Harris County misdemeanor bail practices also exacerbated racial disparities in the Harris County jail population. As the Federal District Court noted, a 2011 study showed that in Harris County, 70 percent of white misdemeanor defendants obtained early pretrial release from detention, but only 52 percent of Latino misdemeanor defendants and 45 percent of African-American misdemeanor defendants did so.7

While convictions for non-violent drug offenses have driven mass incarceration in federal and state prisons, the money bail system has driven it in county jails, wasting taxpayer dollars to lock up the poor, and, disproportionately, racial minorities, for no reason other than their inability to pay. The district court relied on a comprehensive set of factual findings in concluding that “Harris County’s [bail] policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution.”8

the ODonnell Consent decree After three years of litigation, the parties reached a settlement resulting in a landmark Consent Decree, which was approved on November 21, 2019.9 The ODonnell Consent Decree sets forth a blueprint for creating a constitutional and transparent pretrial system to protect the due process and equal protection rights of misdemeanor arrestees. Its terms envision transformative and lasting change.

First, the Consent Decree incorporates the new Amended Local Rule 9 of the Harris County Criminal Courts at Law, which rescinded the secured money bail schedule, and provides for a new set of procedures. Effective since February 16, 2019, preceding the Consent Decree, Amended Local Rule 9 requires prompt release of misdemeanor arrestees except those arrested for six carve-out categories of offenses such as offenses allegedly committed while out on bond or community supervision, DWI second offenses, and family violence offenses. 10

Persons arrested for misdemeanors that do not fall within the list of carveout offenses must be promptly released under General Order Bonds which do not require a monetary payment. Persons arrested for misdemeanors on the carve-out list must promptly receive a hearing before a magistrate. For these arrestees, pretrial conditions, including financial con-

ditions, may be set, but only if supported by clear and convincing evidence. Public defenders attend the hearings to represent all misdemeanor defendants. These attorneys meet with each arrestee before the hearing and gather other information to use in each person’s defense.

Second, the Consent Decree introduces many improvements in the handling of misdemeanor cases. It offers muchneeded flexibility and clarity in scheduling court appearances for misdemeanor defendants, providing options for waiving or rescheduling appearances. Court forms have been translated into Spanish and other languages for the first time, which will more effectively inform arrestees of their rights and responsibilities. Further, a new court date notification system will provide text and voice messages and emails in English, Spanish, Chinese, and Vietnamese. A study will also examine the causes of nonappearance and possible remedies to address those causes. Plans are in place to provide training on the Consent Decree policies. Another county project aims to improve the standards for effective representation in indigent defense.

Third, the Consent Decree provides transparency through the collection and dissemination of data. County officials will make available robust data, including decisions regarding misdemeanor pretrial release and detention, demographic and socioeconomic information of arrestees, and prior data dating back to 2009.11 County officials will also hold public meetings and issue reports on the status of Consent Decree implementation, which will be published online every 60 days.12

Finally, the Consent Decree calls for a Monitor, with a set of responsibilities to evaluate compliance with the Consent Decree and to approve a range of decisions to be made as the Consent Decree is implemented. On March 3, 2020, we were honored to be appointed to serve as Monitors for the Consent Decree. report to the Court as we oversee and support Harris County officials implementing a new pretrial justice system that restores the public’s trust, safeguards constitutional rights, and accomplishes the twin aims of bail: to keep the community safe and promote the integrity of judicial proceedings by preventing defendants from fleeing justice. As the Consent Decree states, it “is intended to create and enforce constitutional and transparent pretrial practices and systems that protect due process rights and equal protection rights of misdemeanor arrestees.”13Despite the crisis posed by COVID-19, remarkable progress has already been made on account of the adoption of Amended Local Rule 9 and the Consent Decree. We have seen a dramatic increase in the proportion of misdemeanor arrestees released promptly (on the same day or next day) without any secured financial conditions. The share jumped from approximately 66 percent in 2016 to nearly 80 percent in 2019. In 2015, more than 10 percent of misdemeanor defendants were detained for more than 14 days, but that figure dropped to less than six percent in 2019. Prior to the implementation of Rule 9 in 2019, most misdemeanor cases did not involve a personal or general order bond. After Rule 9’s adoption, the vast bulk of misdemeanor arrestees (more than 70 percent of the cases in 2019 and 2020) gain pre-trial release under personal or general order bonds, which require no secured financial payment.

Under Rule 9, Harris County judges are releasing more people pretrial than in the past, and this has proven to be a benefit for public safety. The rule has significantly reduced the length of pre-trial detention and dramatically reduced the reliance on secured bonds, meaning that far more defendants are returned to the community. Yet the rate of recidivism has remained largely stable over the last few years.

Rule 9 has also reduced racial disparities. In 2015 and 2016, for example, the share of Black arrestees who gained their freedom was considerably lower than white arrestees.14 This disparity was almost entirely eliminated following adoption of Rule 9 in early 2019.

In short, the fundamental transformation of Harris County’s misdemeanor bail system has begun, and it is already reaping benefits in equalizing the playing field for the poor, reducing racial disparities, and improving public safety. Nevertheless, much remains to be done. We look forward to working with county officials as they strive to implement innovative and effective approaches to pretrial justice.

Brandon L. Garrett, , the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, and Director of the Center for Science and Justice, serves as the Monitor for the ODonnell Consent Decree. Sandra Guerra Thompson, the Newell Blakely Chair and Director of the Criminal Justice Institute at the University of Houston Law Center, serves as Deputy Monitor.

For more information, see https://sites.law. duke.edu/odonnellmonitor/.

endnotes

1. The First Amended Class Action Complaint, Ex. 2,

ODonnell v. Harris Cty., Tex., No. 16-cv-1414 (S.D.

Tex. Sept. 1, 2016), ECF No. 54. 2. First Amended Class Action Complaint at 2, ODonnell v. Harris Cty., Tex., No. 16-cv-1414 (S.D. Tex.

Sept. 1, 2016), ECF No. 54. 3. Id. 4. ODonnell v. Harris Cty., Tex., 251 F. Supp. 3d 1052, 1100–01 (S.D. Tex. Apr. 28, 2017). 5. CHRISTOPHER T. LOWENKAMP, ET AL., THE

HIDDEN COSTS OF PRETRIAL DETENTION,

ARNOLD FOUND. 11 (2013), available at https:// craftmediabucket.s3.amazonaws.com/uploads/

PDFs/LJAF_Report_hidden-costs_FNL.pdf. 6. Prior research in Harris County has found that for similarly situated individuals, those detained for misdemeanors pretrial were “25% more likely to be convicted and 43% more likely to be sentenced to jail.” Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN.

L. REV. 711, 717 (2017). 7. ODonnell, 251 F. Supp. 3d at 1122. 8. Id. at 1060. 9. See Consent Decree, ODonnell v. Harris Cty., Tex.,

No. 16-cv-01414 (S.D. Tex. Nov. 21, 2019), ECF No. 708, available at https://www.clearinghouse.net/ chDocs/public/CJ-TX-0010-0025.pdf. 10. Memorandum and Opinion at 6–7, ODonnell v. Harris Cty., Tex., No. 16-cv-01414 (S.D. Tex. Nov. 21, 2019), ECF No. 707; see also HARRIS CTY. CRIM.

CT. AT LAW, R. OF CT. 9 (am. Apr. 22, 2020), http:// ccl.hctx.net/attorneys/rules/Rules.pdf. 11. Consent Decree, supra note 9, ¶¶ 83–85. 12. Id. ¶¶ 87–88. 13. Id. ¶ 2. 14. See Heaton et al, supra note 6, at 736.

Equal Access Champions

The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers.

large firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP

Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company

Mid-size firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley & Lardner LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP

Boutique firm Champions Abraham, Watkins, Nichols, Sorrels,

Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP

small firm Champions Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP Rapp & Krock, PC Shortt & Nguyen, P.C. Squire Patton Boggs (US) LLP Trahan Kornegay Payne, LLP

individual Champions Law Office of Peter J. Bennett Law Office of Travis A. Bryan I, PLLC Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices McGarvey PLLC Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Pilgrim Law Office Law Office of Robert E. Price The Reece Law Firm, PLLC Law Office of Cindi L. Rickman, J.D. Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Trey Yates Law