Bail Reform and Backlash: Litigation, Legislation, and Experimentation

In the last decade in the United States, the issue of bail reform has emerged as a politically charged issue leading to legislative changes, civil rights lawsuits, and experimentation in local policy.^[1] This Symposium shines a light on the misdemeanor bail reform in Harris County (Houston), Texas, brought about as a result of federal court litigation in ODonnell v. Harris County.^[2] The reforms began to take shape with a preliminary injunction entered by U.S. District Judge Lee H. Rosenthal in May 2017. In that decision, Judge Rosenthal reached the conclusion that imposing cash bail as a condition for release infringes on the liberty interests of a poor person, like the named plaintiff Maranda ODonnell, a single working-class mother arrested on a warrant for a suspended license.^[3] ODonnell was held in jail without a meaningful hearing for nearly three days, unable to pay the $2,500 bail imposed on her pursuant to a fixed bail schedule, whereas a person with the financial means would have been released within a few hours.^[4] These facts presented a clear violation of her right to equal protection of the law.^[5]

Judge Rosenthal’s decision prompted an impactful change in the local court rule that prohibited the use of cash bail for most misdemeanor cases.^[6] Under ODonnell’s reforms, only the few misdemeanor cases that present genuine public safety risks may result in the imposition of cash bail, while the vast majority of people must be released without the need to pay cash.^[7] This rule change represented a paradigm shift in how bail works in the third-largest county in the country.^[8] Where, beforehand, the vast majority of people had been required to pay for their release (regardless of their inability to pay or the trivial nature of their alleged transgression), after ODonnell, most people are freed without requiring them to pay for their release using cash bail.^[9]

This civil rights litigation culminated in a Consent Decree, agreed by the parties and entered by the court in 2019, that outlined a quite comprehensive reform plan for changes beyond bail reform.^[10] The county agreed to invest in numerous other programmatic improvements, constituting the largest scale and farthest-reaching constitutional remedies in a misdemeanor bail system in the country.^[11] Since 2020, we have served Judge Rosenthal as monitors to supervise the county’s progress under the Consent Decree and have detailed the accomplishments and ongoing projects in a series of articles and reports.^[12]

Despite the usual finality of consent decrees in civil rights lawsuits, recent motions to intervene and to vacate by the state attorney general have returned the case to Judge Rosenthal’s courtroom, and presumably, at some later point, it will return to the Fifth Circuit Court of Appeals as well.^[13] Whether that litigation or further work between the parties results in changes to these large-scale improvements to the misdemeanor systems remains to be seen.

At a time when lawmakers and local leaders have reconsidered cash bail practices, they have often pointed to the work in Harris County, Texas.^[14] Detractors focus on the rights of victims and typically point to the rare cases in which individuals released on bail have injured or killed another. Indeed, some jurisdictions, including Texas, have increased reliance on cash bail^[15] and pretrial detention without bail,^[16] and others use fixed cash bail schedules.^[17] On the other hand, scholars have studied the data and made empirical arguments about the benefits of pretrial release, including studies based on the data in Harris County.^[18] And scholars have made new constitutional arguments about the legality of pretrial detention.^[19] Meanwhile, judicial rulings have been mixed, with some courts quite skeptical of claims that pretrial detention schemes relying on cash bail raise constitutional concerns or are judicially cognizable at all.^[20] Bail reform lies at a crossroads, as contested as ever.

I. The Symposium Contributions

This Symposium brings together leading scholars who lend their own perspectives to the work done in Harris County. We begin with Professor Kellen Funk, who, in Uncomfortably Reminiscent: Odonnell v. Harris County in History and Memory,^[21] relies on historical records from Reconstruction to illuminate Congress’s vision of federalism in enacting the Civil Rights Act of 1871 and § 1983. His article provides a fascinating account based on original historical work, examining a trove of correspondence of the Assistant Commissioner of the Freedmen’s Bureau, an agency with hundreds of agents dispatched by Congress to the former Confederate states during Reconstruction. The Freedmen’s Bureau agents were given broad authority to oversee, regulate, and even displace state courts in both civil and criminal actions, as necessary to provide equal justice for freedmen against continuing southern outrages.

This history then sets the backdrop against which Congress enacted the Civil Rights Act of 1871, and authorized § 1983 lawsuits like the one in ODonnell. This history lays bare the true purpose of the legislation to give federal courts the authority to hold local judges accountable for violations of the Bill of Rights, which the Fourteenth Amendment bestowed on freedmen. Further, Professor Funk describes how the text and intent of § 1983 was to reach decidedly local practices, such as the imposition of bail, that impacted federal rights.

Instead of an army of Freedmen’s Bureau agents, § 1983 envisioned an army of plaintiffs like those in ODonnell. But no sooner had the legislation been enacted than the Supreme Court obscured the meaning by adopting broad judicial immunity. Professor Funk recounts the conflicting views of federal authority through time, views that either relied upon or ignored Reconstruction history, on display most recently in the ODonnell case.

We, together with our other monitor team colleagues, contribute the second article in this symposium issue, Win-Win Misdemeanor Bail Policy: Lessons from Data on Harris County Reforms.^[22] In it, we describe our updated work, many years in the making, addressing the cost savings that have resulted from the implementations of the reforms in Harris County. We compare these cost-saving benefits of ODonnell to the findings on public safety to provide a more comprehensive cost-benefit analysis. In the end, we show that granting greater due process protections for people’s constitutional pretrial liberty interests has the counterintuitive effect of reducing costs for taxpayers and not affecting public safety. ODonnell gives true expression to the constitutional mandate that bail decisions should maximize a person’s liberty interests and strictly limit pretrial detention, and our study shows this model also reduces costs and keeps the public safe.

Next, Professor Zina Makar, in Carcerality’s Inertia,^[23] examines the consequences of pretrial detention on liberty and communities. She frames the broad equitable relief granted through ODonnell as a “corrective vision,” and a form of procedural “friction” needed to slow down the process surrounding bail, and in so doing, to better protect individuals from the institutional inertia of the carceral process. She offers other possible applications of procedural friction, such as second-look legislation, that are similarly advantageous in providing post-conviction relief from the excesses of punishment.

Finally, the symposium issue turns to Professor Sandra Mayson, who, in The Evolving Jurisprudence of Bail,^[24] describes the constitutional underpinnings of rights to liberty pretrial in the United States. Professor Mayson discusses the three waves of bail reform that have come and gone since the era of the Warren Court. Part of the landscape for reform includes § 1983 civil rights lawsuits seeking equitable relief like the one filed in ODonnell, which she calls the “high-water mark for bail reform litigation.” She chronicles legal developments in federal justiciability doctrines that have been invoked lately to limit a federal court’s authority to intervene in state bail challenges. Professor Mayson concludes by exploring the use of the Excessive Bail Clause, as well as the possibility of state constitutional claims as new fronts in civil rights bail litigation.

II. Conclusion

From the time of the adoption of the Fourteenth Amendment’s Equal Protection Clause and Reconstruction, courts have heard many complaints about the discriminatory use of bail by local courts. Indeed, it was a pressing issue at the founding, and the First Judiciary Act of 1789 addressed the broad power of federal judges to grant bail.^[25] The articles in this symposium powerfully illustrate the endemic nature, not only of the clear injustices too often seen in pretrial practices, but also of the murkiness of federal jurisdictional authority to rectify clear violations of constitutional law by state courts, and, indeed, as Professor Funk shows, the revisionism of the history itself.

Unfortunately, the question of providing a remedy for inequality in the use of bail remains as politically charged today as it was during Reconstruction. While it remains to be seen whether federal courts will continue to oversee state courts in their bail practices, as Professor Mayson suggests, other avenues, such as claims based on state constitutional protections, may provide alternatives.

In the meantime, the evidence of best practices in misdemeanor bail is clear. As we and our coauthors have shown, the rules adopted to rectify the constitutional violations found by Judge Rosenthal in ODonnell have led to overwhelming benefits both in terms of the costs to local government and affected individuals, with no change to public safety as compared to the prior cash-based system.

In the end, we can only hope that most legislators and local officials will pursue rational, evidence-based policymaking and support continued experimentation and improvement of local bail practices, especially at the misdemeanor level, where immediate cost benefits can be reaped without sacrificing public safety. ODonnell also shows that providing an avenue to audit a system’s operation can serve as a type of “friction,” to use Professor Makar’s term, and similar audits can be used to remedy other systemic failures, such as for extreme juvenile sentences.