After a landmark bail settlement in 2019, a federal bail monitor has also found recidivism rates have been flat and racial disparities have narrowed.
By Matt Keyser
National Partnership for Pretrial Justice
March 21, 2022
In the two years since Harris County reached a landmark settlement on misdemeanor bail reform, a picture of the impacts of those reforms is becoming abundantly clear.
Recidivism rates have been flat. Racial disparities have narrowed. And, as two years’ worth of data show, numbers of misdemeanor cases in Harris County are steadily declining.
The result, says Brandon Garrett, a professor of law at Duke University School of Law, is “we are seeing fewer people in the misdemeanor system and also fewer people coming back into the system.”
Harris County agreed to a bail reform settlement in 2019 — in the ODonnell Consent Decree — after a federal judge ruled the county’s misdemeanor bail system unconstitutional under the Due Process and Equal Protection Clauses, including because it overtly relied on wealth-based detention. Under the prior system, thousands of people were detained in jail simply because they were unable to afford cash bail.
The decree changed the county’s approach away from reliance on cash bail schedules, which set recommended bail amounts based on the offense, and toward a requirement of prompt release for people charged with most misdemeanor offenses, combined with more robust hearings for a select set of more serious types of misdemeanor cases. As part of the settlement, a federal monitor was established to track the reforms and release public reports for seven years.
“The consent decree reflects a deep commitment by the county. It is such a far reaching and comprehensive model for reform,” Garrett said.
We spoke with Garrett, who serves as the lead federal monitor, about the county’s shrinking misdemeanor cases, how the ODonnell decree has reduced racial disparities in pretrial release, and the media’s role in portraying — and sometimes misunderstanding — bail reform.
This interview has been edited for length and clarity.
NPPJ: This is the bail monitors’ fourth report. What are some of the noteworthy findings you all have discovered so far?
Brandon Garrett: Many of our most recent findings are consistent with what we have described in our earlier reports. This has been such an eventful and complicated time period due to the pandemic and its effects on courts and people’s lives. The simplest piece of information that we share in our report is that the misdemeanor space in Harris County has been steadily shrinking for some time.
We’ve seen a decline in the number of misdemeanor arrests each year, for the most part. There was a downturn during the pandemic and a slight upturn in 2021 [the number of misdemeanor cases in Harris County has declined nearly 20 percent since 2015 — from 62,000 cases to 49,000 cases each year].
Overall, we are seeing fewer people in the misdemeanor system and also fewer people coming back into the system. We have seen a decline in the number of people not just arrested for misdemeanors, but also people who are rearrested for misdemeanors. That is positive. We have seen consistently across our reports, based on the district court data, that there has been no change in rates and there has been a decline in numbers.
One new feature in this report is that we have much deeper information about the costs involved in the misdemeanor system in Harris County. We describe that there are significant average cost savings under the decree, particularly because of reductions in some of the county’s costs regarding arrests, pretrial screenings and such. The county is saving many millions of dollars, though these are cost estimates and don’t reflect items in the budget. It may be that there are fewer resources being used by the misdemeanor system, but the savings may have been absorbed by other parts of the criminal system.
NPPJ: In addition to a presumption of release for most misdemeanor offenses, now all misdemeanor bail hearings include a public defender, which wasn’t the case before. How has that impacted the system?
BG: In our role, we watch videos of bail hearings all of the time. And you can see just how much more context comes out in the bail hearings because there is a public defender there and because the hearing officers are carefully examining the evidence. That context really helps to shed light on the balance of both public safety and fairness. Often, the public defender is the one who has had a chance to learn more about the person and their family or financial situation. They may have more time to look into issues that pretrial services raised during their screening. That provides a real opportunity to inform the question whether there is or is not clear and convincing evidence supporting a decision to impose a secured bond, or whether conditions attached to release are the least restrictive.
NPPJ: How has pretrial supervision changed in misdemeanor cases?
BG: The reality is very few people charged with misdemeanors in Harris County are in jail at this point — unless the conduct is particularly severe or there is another reason, such as a companion felony case or a hold from another jurisdiction.
For those who are released, there is much better awareness of the range of options available to both support and supervise a person if and when they are released into the community. The county has been carefully rethinking pretrial services and what conditions are appropriate and can set a person up for success. There’s also a real concern that, especially in misdemeanor cases involving individuals unlikely to reoffend or miss court dates, that over-supervision can harm the chances of success by interfering with someone’s ability to live and work because they have to constantly report downtown to pretrial services. There are also real concerns with the dramatic expense to the county for conditions like GPS monitoring if it is not really not necessary.
There’s further work that we are doing looking at people who are members of vulnerable populations. So many people who come into the misdemeanor system and keep coming back do not have a home or have been identified as having mental health needs. We should think about the repeat contact of such individuals very differently. Detaining a person who is homeless is not going to change the situation for that person. Detaining a person who has severe mental illness isn’t a long-term solution, either.
NPPJ: The report also notes how the consent decree has reduced racial discrimination in the system. How so?
BG: Prior to the federal consent decree, there was a marked disparity in the rate at which white and Black persons were released. As we have described, that racial disparity disappeared very quickly once Rule 9 of this consent decree was adopted. While we do not see that difference between who receives a cash bond and who is released pretrial and who is not, we do highlight that racial disparities remain. We note that a disproportionate number of Black persons are arrested for misdemeanors in Harris County, and these arrests are concentrated in a small number of neighborhoods. As part of discussions of how to improve public safety, we hope that county officials further examine why misdemeanor enforcement is so concentrated geographically and whether these racial disparities can be ameliorated.
NPPJ: A lot of people involved in the criminal justice system have recently noted how hard it is to get accurate media coverage that doesn’t perpetuate fearmongering. In Harris County specifically, a Texas Center for Justice and Equity report said that the county suffered a “misinformation campaign” surrounding misdemeanor bail reform. Given your role, I’m curious to hear your thoughts on how the media has portrayed bail reform in Harris County.
BG: There are a number of misconceptions about what bail is and what reform is. Some of these misconceptions are quite understandable: the bail system is truly complicated. We appreciate that all the more after working so closely with the Harris County system. Our findings as monitors suggest that both public safety and fairness benefit from a move away from cash bail schedules, which is what happened in the misdemeanor space in Harris County.
The ODonnell consent decree only involves misdemeanor cases, and one misconception is that bail reform may have somehow affected more serious criminal cases. However, there has been no bail reform in Harris County apart from this consent decree. There are important reasons, of course, to study what happens in more serious cases, like felonies, and we are sure that important lessons could be learned from that type of work. Our role, however, is confined to the misdemeanor system.
NPPJ: It’s like the entire bail system gets lumped into one category when there’s much more nuance involved.
BG: There is also a misconception that when someone gets out on bail that it must be because the judge ordered the person’s release. However, media accounts often refer to cases that are actually cases involving cash bail, and a person who was able to come up with the cash to pay the fee to obtain a secured cash bond. A judge may not have known that the person had the resources to pay a bail bondsperson to secure their release. Judicial officers cannot always know whether a cash bond amount will actually result in detention. It is one of many reasons that cash-based pretrial systems poorly protect public safety, in addition to their potential for great unfairness.
NPPJ: You all have been collecting this data and releasing these reports for two years now. What’s next? What other areas of the misdemeanor system do you plan to research?
BG: We are planning additional work looking at vulnerable populations — people who are homeless or have severe mental illness. There is also important implementation work to be done in response to the NAPD [National Association for Public Defense], which last year issued a really comprehensive evaluation of the misdemeanor indigent defense system. There’s more work to be done to understand court appearance rates since there is a new court appearance system and new data using the definitions under that system. We have only just begun looking at that information. The county is also completing a public data portal so that anyone can readily examine trends in the misdemeanor pretrial system. We are excited for that data portal to be completed.
NPPJ: I’m glad you mentioned court appearance, because other notable additions the consent decree implemented are things like electronic reminders for court dates. How have those impacted the system and helped people have a successful pretrial release?
BG: All of the systems put in place under the consent decree are intended to set up a person for greater likelihood of success as their case goes forward. That helps to ensure people don’t miss their court dates, which can prolong involvement in the legal system and further burden the court system. There are also supports to try to improve access to courts and during court appearance to ensure forms are translated in multiple languages so that people can understand what they’re signing.
Each of these elements of the consent decree were designed to improve the entire misdemeanor process. Bail reform is not just about the initial decision whether to detain someone or not pretrial, although obviously that is a crucial decision.
NPPJ: There’s so much focus nationwide on misdemeanor bail reform in Harris County. In what ways can other jurisdictions take what’s happening there and apply it to their own systems?
BG: Pretrial reform does not have to be complicated. Some of the simplest rules adopted under this consent decree have been very effective. Take the rule that for most misdemeanor cases, a person is entitled to release at the point of booking.
By reducing the quantity of cases going to bail hearings, the county not only provides pretrial liberty for far more people, but it also improve the quality of the bail hearings that are still conducted. You cannot have quality bail hearings while ensuring constitutional rights are being met when the system is overwhelmed by the quantity of cases.
The ODonnell consent decree also provides a whole series of protections to make sure that bail hearings are more robust, as well as supporting the misdemeanor system after the bail hearing. And that kind of holistic approach is really important. The goal is to improve the entire misdemeanor system, and if you only focus on a particular stage of the system or a particular actor, there’s concern that the system can be undermined. Those improvements do have their costs, but as we have shown, they are more than offset by cost savings.
This misdemeanor redesign affects the entire system and not just one piece of it. The pretrial system does not just involve the judicial officer, but also pretrial services, the sheriff’s office, hearing officers, judges, police, prosecutors, public defenders. And it’s really important that all of those actors’ roles are respected and empowered by bail reform.
MORE ON HARRIS COUNTY MISDEMEANOR BAIL REFORM
- How a County Judge Helped Drive Bail Reform in Texas: ‘I Didn’t Agree with That Type of System’
- How Harris County’s Successful Pretrial Reforms Suffered a Misinformation ‘Pandemic’
- Harris County’s ‘Holistic’ Approach to Public Defense Provides Support In and Out of the Courtroom
- ‘We’re Steering People Away From the Criminal Justice System’: Q&A with Harris County Sheriff Ed Gonzalez
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