The Harris County money bail system has been historically corrupt, favoring wealth over poverty. If an arrested suspect had money, they could post bail and be released pretria, while an indigent suspect had to spend months, even years in the county jail awaiting disposition of their case because they could not afford the price of bail.


In 2016, three individuals filed a lawsuit challenging the discriminatory nature of the county’s money bail system. One of those individuals was in the county jail under a $2500 bail she could not post. Her offense, driving with suspended license.


The lawsuit became known as O’Donnell v. Harris County. The federal judge, to whom the lawsuit was assigned, Chief U.S. District Court Judge Lee H. Rosenthal, issued a sweeping decision in April 2017 that found the county’s bail system was unconstitutional because it violated both the equal protection and due process provisions of the Fourteenth Amendment to the U.S. Constitution.


In extraordinary language, Judge Rosenthal said there was ample evidence before her to show that there had been “tens of thousands of constitutional violations” under the county’s money bail system and that it created “irreparable harm” for those who could not post money bail and, therefore, had to remain in a jail throughout the pre-disposition proceedings in their cases.


County Fights Against Reform


Harris County appealed Judge Rosenthal’s ruling to the Fifth Circuit Court of Appeals. That court in February 2018 upheld most of the judge’s findings and ultimate ruling.


The appeals court specifically agreed with Judge Rosenthal that the county’s money bail system was inadequate, “even when applied to our narrower understanding of the liberty interest at stake. [Judge Rosenthal’s] factual findings (which are not clearly erroneous demonstrate that secured bail orders are imposed almost automatically on indigent arrestees. Far from demonstrating sensitivity to the indigent misdemeanor defendants’ ability to pay, Hearing Officers and County Judges almost always set a bail amount that detains the indigent. In other words, the current procedure does not sufficiently protect detainees from magistrates imposing bail as an ‘instrument of oppression’.”


Using Bail as Instrument of Oppression


Judge Rosenthal sent the case back to Harris County to develop a bail system that would be in compliance both with hers and the Fifth Circuit ruling.


What a Difference an Election Can Make


Then the 2018 mid-term elections sent all the county’s Republicans packing—most of whom had been staunch proponents of the money bail system—and gave the newly-elected Democratic judges and other county officials both the incentive and urgency to develop a bail system that is fair, equitable, and non-racist.


The Houston Chronicle reported on July 26, 2019 that a “long awaited settlement” in the O’Donnell lawsuit had been reached by all the parties involved—a settlement that would, as the newspaper said, possibly end “a contentious [bail] system that kept poor people behind bars on low-level charges while those with money could walk free.”


The bail reforms that could be implemented through the settlement, which only needs Judge Rosenthal’s approval to be fully effective, are as follows as reported by the Chronicle:


  • Revise judicial protocols in setting bail amounts;
  • Access to more public defense services;
  • Open court hours for defendants to clear or prevent warrants;
  • Text messages/notifications about court hearing dates;
  • Bail education programs for public officials and the general public;
  • Court-monitoring for seven years to assure full implementation of the agreements; and
  • The county agreed to pay an additional $4.7 million to the plaintiffs on top of the $9.1 million it spent contesting the lawsuit.


Major Civil Rights Victory


Long time criminal justice and bail reform advocate, County Commissioner Rodney Ellis, said the settlement is a “major civil rights victory that will have national implications. This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”


As would be expected, Republican officials and former judges are not happy with or about the settlement.


Old Guard Unhappy with Progress


Precinct 3 Commissioner Steve Radack said the newly-elected Democratic judges pushed for the settlement “at the expense of taxpayers” and his Republican cohort Jack Cagle, Precinct 4 Commissioner, chimed in that the settlement is filled with unnecessary “bells and whistles” while doing little to protect crime victims.


Harris County Sheriff Ed Gonzalez dismissed this sort of criticism, telling the Chronicle that the settlement is “a win for public safety, judicial independence, fairness, and smart stewardship of tax dollars. Public Safety has been my North Star throughout this collaborative process. This proposal keeps our neighborhoods safe by giving judges and prosecutors the tools they need to lock up violent criminals.”


We agree.


Fairness to indigent defendants and public safety go hand in hand.


People before profit should always be the goal in our society.  Now is the time to spread these important reforms throughout Texas and include the same guiding principles to first-time, non-violent felony defendants.