Harris County bail-reform settlement a landmark defeat of Texas bail-industry lobby

There once was a county named Harris 

Whose bail system left them embarrassed

Then judges were sued

And elections did lose

So now lo and behold they can settle this!

The bail settlement in Harris County may not be as important, when viewed through an historical lens, as Brown vs. Board of Education, despite Harris County Commissioner Rodney Ellis' grandiose declaration to that effect. But it's still a Very Big Deal, and the first domino to fall in what will ultimately conclude with a 5th Circuit (or US Supreme Court) decision governing pretrial release of criminal defendants in Texas.

Harris County judges have enacted a "new policy of automatic, no-cash pretrial release for about 85% of low-level defendants," reported the Texas Tribune. 

Art by Grits. Click to enlarge.

The settlement news warms the heart of this aging polemicist. Excessive pretrial detention in Houston was one of this blog's earliest hobby horses, presaging many of the debates which ended up resolved through federal litigation nearly a decade-and-a-half later. For example, check out a series of Grits posts on the topic rounded up in 2005 after the Harris Co. probation department began using them as training materials. Most of those critiques would remain salient until well after the just-settled litigation got serious, at which point the county began to implement more significant changes. At the time, though, there were 1,900 people sleeping on the jail floor due to overcrowding, so in a way, the issue was even more pressing back then.

Which is why it's worth recognizing that it took the federal courts to accomplish these changes that every expert who ever looked at Harris County's system had been advising for more than a decade. For whatever reason, whoever won elections, red or blue, there was never any appetite for serious bail reform through the political process. Someone had to sue, and win, to get judges to stop ordering bail for most misdemeanor defendants. (Many of the reasons for that are specific to Houston; your mileage may vary in other jurisdictions.)

Another notable point: At the commissioners court, as at the Texas Legislature, bail bondsmen found champions but could not sustain a majority after an informed debate. That's my big takeaway from those two, recent bail fights, one where reformers lost and one where they prevailed: At both the state and local level, bail bondsmen have shown they can be beaten. They had an impressive track record before this year, and the first half of 2019 may have finally demonstrated some chinks in their armor.

Here's why I disagree with Rodney Ellis that this litigation settlement is as important as Brown vs. Board of Education: While it resolves the underlying issues, it also robbed the 5th Circuit (and/or SCOTUS) of the opportunity to set a baseline that applied to all Texas, Louisiana, and Mississippi jurisdictions. Instead, the settlement terms only apply to Harris County and at most are advisory recommendations everywhere else.

So it will be some other county currently being sued - probably Dallas, I'm told by attorneys involved in the litigation - which ends up setting binding precedent for Texas courts, particularly with regard to setting bail in felony cases.

Once that happens, the Texas Legislature will be in a much better position to know what bail-reform legislation should look like when they come back in 2021.