Darrell Jordan, who presides over Harris County’s Criminal Court No. 16, wanted to reform a system that for decades relied on unconstitutional wealth-based detention.
By Matt Keyser
National Partnership for Pretrial Justice
Published: Jan. 25, 2022
Before he was ever elected judge, Darrell Jordan understood the harsh reality of how the Harris County criminal justice system worked.
As a defense attorney in the nation’s third-largest county, he witnessed the harms of judges using expensive money bail to jail people based on their inability to pay.
After his election to Harris County Criminal Court at Law No. 16 in 2016, Jordan worked to craft new policies that would address the unconstitutional practices that plagued the county’s 16 misdemeanor courtrooms.
At first, he worked alone, serving as the only pro-reform judge at a time when New York-based Civil Rights Corps was suing Harris County for wealth-based detention. Jordan went as far to testify in federal court about the harmful practices that had been carried out for decades, a move he readily admits didn’t win him any favors with his Republican colleagues who favored the old system.
But when Democrats swept the local judicial races in 2020, Jordan had the backing to implement new policies that relied less on wealth-based detention and focused more on the presumption of innocence and release. The policies he helped implement were the foundation for a landmark settlement that has reshaped Harris County’s bail system.
We spoke with Jordan about his efforts to reform an outdated system and how those reforms are reshaping wealth-based detention in Harris County.
This interview has been edited for length and clarity.
NPPJ: Before we get into bail reform in Harris County, tell us more about your journey from a defense attorney to a presiding judge.
Darrell Jordan: I got a license to practice law in 2006, but I’ve been in the Army for just over 20 years. I’m currently serving as a prosecutor for the 36th Infantry Division and just recently finished a deployment to the Middle East. I became a judge because—let me put it this way: I felt a lot of things could be done better. And that’s been my goal since I’ve been in on the bench is to be consistent and, to the best of my ability, do things the right way according to the law.
NPPJ: What did you see that you felt could have been done better?
DJ: The key thing that [U.S. District Court] Judge [Lee] Rosenthal found in the federal courts was the violation of due process. And due process is basically defined as notice on the right to be heard. If somebody is going to take your freedom away, you deserve to have notice that on a specific day there’s going to be a hearing to determine your future.
Not only are you required to have notice, but you’re required to have an opportunity to be heard. There are videos all over the internet that show when people in Harris County were being arrested, they were taken in front of a judge and told to be quiet and don’t say anything. They did not have representation and they weren’t allowed to speak for themselves. And then at that time, a bail amount would be set.
There are examples where the judge says, “Do you understand what I’m saying?” And the person says, “Yeah.” And the judge says, “I need a yes or no, do you understand?” And the woman says, “Yeah.” And then the judge doubled her bond for that reason.
And, of course, there were other things. If I had a court date that was set to begin at 9 and, say, I couldn’t find parking and I walk in at 9:05, and because my last name starts with an ‘A’ and the judge is doing roll call and is on ‘J,’ then my bond will be revoked and will be doubled or tripled. I saw those types of stories all of the time.
NPPJ: So this system is happening for years, which you’re seeing first hand as a defense attorney, how did that shape your views now that you’re a judge?
DJ: When I was a new lawyer, I had been talking to my mentor and told him, “The laws XYZ apply here.” And he tells me that’s not how the law works in a certain court. That made me wonder why the law is different depending on which court you go to. He told me, “That’s just the way the system works. You have to get to know the judge, get to know their personalities, and how they interpret the law.” I didn’t agree with that type of system.
NPPJ: Right. The law should remain consistent regardless of who the presiding judge is.
DJ: Yes, the law should be the law.
NPPJ: You were a big influence in changing the bail system in Harris County even before a federal ruling declaring the county’s bail practices unconstitutional. Why did you get involved?
DJ: When Alec Karakatsanis and Civil Rights Corps sued Harris County, there were 16 Republican judges, and all of their election cycles fell on gubernatorial years. Because my court, Court 16, was a new bench, we had to have an election on the next available date, which happened to be a presidential election. And I won. After a month or two on the bench, I went to federal court and testified about our practices in Harris County as it relates to bail and basically told on all the other judges and their practices. That made for a pretty rough two years until the next election, and all the Republican judges lost that election. Once the new Democratic judges took over, I became the presiding judge of Harris County courts, and we were able to implement some new policies that became the foundation of the settlement of the bail lawsuit.
The new rules made things uniform because now we had a set of rules. Once we came up with our policies and put them in place, then basically everybody was copying what I had been doing for the past two years.
Back then, I had a real elementary understanding of the proper procedures of bail reform. I don’t like using the term bail reform. What I like saying is constitutional bail. The old system was unconstitutional bail and the system we have now is constitutional bail. And my understanding of constitutional bail is a person shouldn’t be jailed because they are poor.
NPPJ: And as data has shown, when a person is detained pretrial it harms their daily lives with loss of employment or housing, and it increases the chances they’ll have future involvement with the legal system.
DJ: When it comes to bail, the data shows us there was a system for people with money and how they were treated, and another system for people without money and how they were suffering.
That’s what troubles me when people try to make bail a safety issue. Why is bail only a safety issue when it comes to poor people? Why is it that a person with money with the exact same profile—I don’t care if it’s murder, armed robbery, or stealing bubblegum—why is it that if you have money to pay your bail amount that you are safe and a better person?
NPPJ: Under a push by Gov. Greg Abbott, Texas lawmakers passed new bail laws this legislative session—what they called bail reform and what others have called bail rollbacks. How have those changes affected your court in Harris County?
DJ: Well, because we’re under a federal consent decree, we stick to that. So we haven’t seen any changes to our system. And I think lawmakers made sure to craft the laws in such a way so they wouldn’t touch that decree. I think the way they tried to frame it was by saying the new laws were for felonies and they won’t affect misdemeanors.
NPPJ: So between that federal decree and the changes you helped implement, what changes are you seeing in the Harris County’s bail system?
DJ: When a person comes to my courtroom, I want to know how long they stayed in jail. I always ask, “Did you ever change your clothes?” If they changed their clothes, I know they were put in housing [in jail]. Because of the changes, very few people in misdemeanor cases are placed in housing. Instead, they’re processed through the system.
It’s not perfect. Even if you walk in jail and you have your money, it’s still going to take about 24 hours to get out of jail. What we did was set up carve outs. If it’s your first driving while intoxicated or if it’s a low-level theft case, then you’re going to be released. Now, if you have an assault or it’s your second DWI, then you have to stay and talk to a magistrate, who will assess conditions for your release.
NPPJ: Are you finding that those who are released are having a successful pretrial release?
DJ: I think things are going great. There are dozens of articles written about how the system and the outcomes are successful. When you hear people complaining about the system, they’re really talking about the felony system and they’re just using the term bail reform generally. There has only been one bail reform in Harris County, and that’s the misdemeanor system.
NPPJ: It seems so much coverage about bond reform in the media is negative. It’s always stories focusing on the few outlier cases and not the thousands of others where people are released and have successful pretrial outcomes.
DJ: I’ve never seen a news article that says, “Judge grants bail as required by the Constitution.” I’ve never seen an article where it says, “Judge sets unconstitutional $5 million bail.” I’ve never see a news story that says, “Judges are powerless.”
The way the Texas laws are written, if I get released pretrial, I can go home, drink margaritas, drive drunk, get arrested, and keep doing that for the next 10 days, and do it over and over, and there’s no way in the law to detain me. There’s no way I can be held with no bond in misdemeanor court.
The law isn’t set up for us to do what the media portrays that we have the authority or ability to do. Those are all problems with the system, but, of course, nobody really looks at that.
NPPJ: What else is not being talked about the bail system that you think is important?
DJ: We’ve been brainwashed to believe if you pay a certain amount of money, then automatically you’re a better person — you’re a safe person. It’s been proven over and over again this isn’t true. In New Jersey, they passed sweeping bail reform. In Kentucky, too. In blue and red states that are doing away with wealth-based detention because once you assess that amount to release, you’re saying that person is okay to be free. Everyone with any common sense knows money doesn’t make you a better person.
Say you were charged with murder, your bond has been $5,000. So if you had $5,000, you went home. Are you safe now? Is the community safer? Go ask the family who lost a loved one what makes them feel safer. The answer is going to be no amount—they should remain in jail.
But we have laws. We aren’t in the Wild Wild West. You can’t go just do whatever you want. We have rules. And even when society doesn’t emotionally agree with the rules, we as judges have to follow the rules. Otherwise, what’s the purpose?
I lived in the Middle East for the past year, and I was able to see different systems. We went to Saudi Arabia and they showed us this place called the “Chop Chop Square” where the moral police would take you if you violated the rules and they would chop off a limb.
We say we don’t want to live in a country like that. But when we talk about the constitutional rights that are afforded to us, sometimes people want to cut corners when they think there’s a bad person on the other end. And we can’t do that in the courts.