Texas A&M University researchers will help oversee a landmark bail reform agreement in Harris County that levels the playing field for thousands of people arrested on misdemeanor charges.
Dottie Carmichael and George Naufal of the Public Policy Research Institute will serve as investigators on a team monitoring the implementation of Harris County’s seven-year consent decree that releases the majority of misdemeanor arrestees without requiring them to pay bail. This comes after a federal judge ruled that the county’s pretrial system discriminated against poor misdemeanor defendants. Carmichael said it could become a model for bail reform across the country.
The Texas A&M researchers are part of a team recently selected by a federal judge to oversee the agreement.
Brandon L. Garrett, a Duke University professor of law and director of the Duke Center for Science and Justice, will lead the team as independent monitor. Sandra Guerra Thompson, professor of law and director of the Criminal Justice Institute at the University of Houston Law Center, will serve as deputy monitor. They were appointed by Chief Judge Lee Rosenthal of the U.S. District Court of the Southern District of Texas.
Carmichael said Garrett is a prominent scholar of criminal justice outcomes, evidence and constitutional rights, while Guerra Thompson has built her career studying criminal justice reform issues and has been an influential voice for change Texas. This is a special opportunity for PPRI to work with well-respected and nationally credible partners on a historic project, Carmichael said.
“PPRI can also bridge what’s happening in Houston to larger efforts statewide,” Carmichael said. “This collaboration is an extension of our past work bringing evidence-based information to bear on indigent defense and on bail reform at the state level.”
In Texas, nearly everyone has the right to get out of jail before trial. Most people are required to pay a non-refundable percentage, usually 10 percent, of a secured money bail amount to a bail bond company, which fronts the cost of getting them released before trial.
The issue, Carmichael says, is that cash bail generally affords wealthy people the option of getting out of jail before trial, while keeping poor people behind bars.
“It matters because if you’re stuck in jail, you have every incentive to plead guilty, even if you’re innocent, if you’re really poor, because you may lose your job,” Carmichael said. “Unnecessary jail time is costly to low-income people, especially.”
She said setting bail without regard to a defendant’s ability to pay also violates the U.S. Constitution’s due process clause, and it violates the equal protection clause by favoring the wealthy over the poor.
The cash bail system is also costly to people required to pay bonding companies hundreds or even thousands of dollars for release, even when they make all of their court appearances and stay out of trouble. As a result, money bail systems transfer millions of dollars from the poorest communities to private companies.
But in Harris Country, now most of those charged with a misdemeanor are being released automatically on personal bonds without a hearing (with exceptions).
This rule calling for the quick release of defendants is the result of a three-year legal battle that started in 2016 when a group of indigent misdemeanor defendants sued Harris County for keeping them in jail because they couldn’t afford cash bail.
A federal judge signed off on the legal settlement in November. The court found “mass violations of the U.S. Constitution that affected tens of thousands of people.” Granting prompt release on unsecured bond for defendants accused of most misdemeanors was among the bail reforms instituted after the ruling. For people accused of offenses such as domestic violence, assault, terroristic threat or driving while intoxicated, conditions of release are determined in an individualized hearing with counsel, and the judge can consider pretrial detention.
“What’s happening in Houston, which is a nationally relevant jurisdiction, has importance in crafting national policy around the future of bail in other counties and states around the country,” Carmichael said.
Carmichael and Naufal will help monitor the agreement by first learning about remedial efforts already underway in Harris County, including the presence of defense attorneys at bail hearings and new pretrial services designed to reduce barriers to court appearances.
The monitoring team will meet with judges, public defenders, prosecutors, criminal justice administrators and other stakeholders to get their perspectives.
“Then we’ll identify what data is available to help us understand the costs and benefits of these reforms,” Carmichael said. “We hope to demonstrate that with thought and planning, the quality- and values-related objectives expressed in the court decision can be met efficiently.”
Carmichael said PPRI looks forward to working alongside the experts from Duke Law and the University of Houston Law Center on monitoring the Harris County agreement, which she describes as a testing ground for “better, more effective ways of doing things.”
The monitoring will examine transparency; accountability; permanency; the protection of constitutional rights; racial, ethnic and socioeconomic fairness; public safety and effective law enforcement; maximizing liberty; cost and process efficiency; and demonstrated effectiveness.
Garrett, the Duke University professor leading the project, will focus on research and policy aspects, and Guerra Thompson, the deputy monitor, will oversee outreach and engagement efforts including a community working group consisting of people representing diverse constituencies affected by the bail system.
“Sandy Thompson and I are so fortunate to be collaborating with a diverse team of collaborators at Duke and at Texas A&M, which will include experts in analysis of pretrial data, qualitative and quantitative methods, the economics of crime, indigent defense best practices, wrongful convictions, and behavioral health,” Garrett said.
Carmichael said this project aligns with PPRI’s previous research on criminal justice and indigent defense. Her study regarding right to counsel at bail hearings was cited in Justice David Souter’s majority opinion in the U.S. Supreme Court case of Rothgery v. Gillespie County, which guarantees the right to counsel at all critical stages of criminal proceedings, which courts have held includes bail hearings. A 2017 study co-authored with Naufal, “Liberty and Justice: Pretrial Practices in Texas,” examined costs of implementing pretrial reform initiatives.
Established by the Texas Legislature in 1983 at Texas A&M, PPRI is a leading interdisciplinary government and social policy research organization that designs scientific projects that predict and evaluate the effectiveness of local, state, regional, national and international programs and initiatives.
