Republican misdemeanor judges in Houston have clung to an unconstitutional bail system. But their intransigence could cost them their seats.
Editor’s note: This story was produced in collaboration with The Appeal, a nonprofit criminal justice news outlet.
Typically, down-ballot judicial races in Texas’s largest county are sleepy affairs that attract little attention. But this year, the outcome of a dozen or so races for criminal court judge could keep thousands of Texans out of jail, and possibly even upend cash bail practices in Texas and beyond.
Harris County, which includes Houston, has been locked in a legal battle for two years over its practice of keeping people accused of minor crimes in jail if they can’t afford to pay bail. A landmark ruling by a federal judge in April 2017 found that the county’s bail system violated residents’ constitutional rights, detailing how judges ignored individuals’ ability to pay the bonds they were setting and worsened racial disparities in the criminal justice system. Chief Judge Lee Rosenthal of the Southern District Court of Texas ordered the county to release nearly all people accused of misdemeanors within 24 hours of arrest, regardless of their ability to pay bail.
Reform advocates heralded Rosenthal’s ruling as a fundamental blow to the legality of cash bail nationwide. But since then, 14 of the 16 sitting county misdemeanor judges have fought the ruling, spending more than 6 million taxpayer dollars in the appeals process.
Now, that fight has become a central issue for Democratic challengers to the judges. All 15 seats up for election are held by Republicans. Democrat Alex Salgado, a former prosecutor running against Judge Paula Goodhart, called the county’s treatment of people arrested for low-level crimes “mind-blowing.”
“People are stuck in jail and pleading [guilty] just because they can’t afford it,” he said. “That’s not how it should work.”
Salgado, a second-generation Mexican-American, is among a cohort of Democrats vying for the bench. Their party line is clear: “We in Harris County just believe in comprehensive bail reform,” said Odus Evbagharu, spokesperson for the Harris County Democratic Party. “Being poor is not a crime. Last time I checked, debtor’s prisons were illegal.”
“The judicial elections are critical to bail reform in Harris County,” said Rodney Ellis, a Democratic county commissioner. “It cannot be stressed enough that bail reform in Harris County could easily begin with the judges—they could do away with cash bail tomorrow if they chose to do so.”
Criminal court judges have tremendous power. They have the discretion to lower the pre-set bail schedule that hearing officers follow, to write policy that mandates the use of non-cash bail, and to show leniency when a person misses a hearing or is late.
The incumbent Republican judges have shown no interest in settling the suit or changing their ways. If Democrats win the judicial seats, it wouldn’t technically affect the constitutional argument around bail. The new judges could agree to a settlement, which activists and local leaders, including the district attorney and sheriff, have pushed the current judges to do.
The judges’ enthusiasm for preserving the bail system does not appear to match public opinion. Harris County District Attorney Kim Ogg and Sheriff Ed Gonzalez both ran on bail reform in 2016. The Houston Chronicle has endorsed all of the judicial challengers and recommended the removal of every incumbent judge still fighting the lawsuit. “The public needs to send a message that we will not tolerate the status quo, one that the judges have been content to live with for too long,” the editorial board wrote. “The only way to chart a path forward is to remove the current judges—root, branch and all.”
‘We do serve many masters’
The lawsuit that the 14 sitting judges have fought so hard was filed in 2016 on behalf of Maranda Lynn ODonnell, a young mother who could not afford the $2,500 bail levied against her for driving without a valid license. After a 60-second bond hearing, she spent two days in jail.
The cursory and draconian nature of bond hearings was revealed in recordings released by the Texas Organizing Project in 2016. The videos showed Harris County hearing officers setting cash bonds for homeless and mentally disabled people without considering their ability to pay, shouting down those who tried to defend themselves, and raising bond amounts to punish defendants who irritated them.
A central question in the litigation is whether the judges instruct hearing officers on how to set bail. Records have shown that the misdemeanor judges regularly told the hearing officers to reject cashless bonds. Three of the hearing officers named in the ODonnell lawsuit testified before the state judicial ethics commission that they were simply following the judges’ instructions. “We do serve many masters,” one said. The judges have insisted that the hearing officers are entirely independent.
Now, the plaintiffs are trying to learn why the county destroyed over a year’s worth of emails between judges and hearing officers that could have been evidence in the case. On Oct. 26, their lawyers submitted a letter to Judge Rosenthal asking permission to depose court and county officials about the emails, arguing that the communications could settle the question of whether judges are giving hearing officers their marching orders.
The county admitted that it had continued to automatically delete emails, despite the legal requirement to preserve evidence, but said it was simply an oversight.
“No emails have been deliberately deleted, there was a technological glitch on the judges’ side,” said Robert Soard, the assistant attorney at the county attorney’s office, which is representing the judges along with more than a dozen private attorneys. He argued they had provided sufficient evidence, as they had already turned over the emails that some of the hearing officers had printed out.
That still leaves significant gaps, according to Elizabeth Rossi, an attorney with Civil Rights Corps, a Washington, D.C.-based nonprofit that is part of the plaintiffs’ legal team.
“They have [turned over] what they printed. But who knows what they didn’t print?” she said. “We want to know more about how this happened and what was destroyed as a result.”
A hearing on the issue was set for last week, but was delayed until after Election Day once the judges’ lawyers said they had scheduling issues.
Accusations of sabotage
In addition to refusing to settle the lawsuit, the judges have tried to sabotage the new bail policies, according to the plaintiffs’ attorneys. Court officials have used misleading data to argue that the new rules are releasing more people who then fail to return for their hearings.
The two judges who support the lawsuit—the only Black judges among the 16—said their colleagues implemented a policy requiring that defendants released from jail appear in court the next day, a measure that can chiefly be understood as a “deliberate manipulation of the bond-forfeiture numbers,” Judge Darrell Jordan wrote in a declaration signed May 14. Some judges will also simply consider a bond forfeited if the person is even five minutes late to a hearing, he wrote.
The judges have sustained this prolonged and pricey legal saga because the lawsuit feels like a personal attack, said Scott Henson, policy director at Just Liberty, a Texas-based nonprofit that advocates criminal justice reform. “These guys are clinging onto the idea that they didn’t do anything wrong, they can’t understand the idea of a systemic critique,” Henson said. With progressive leaders in the sheriff’s department and district attorney’s office, the judges are a vestige of an old system. “It’s a past versus future kind of thing,” Henson said.
Voting the party line
The lawsuit’s outcome will establish the baseline constitutional requirements for bail practices, “but the judges are free to go beyond that,” said Neal Manne, an attorney on the plaintiffs’ legal team. “I think if Democrats are elected, they will say, ‘A new day is here.’”
Political observers say that the judicial elections depend on U.S. Senate candidate Beto O’Rourke inspiring Harris County Democrats to vote. The enthusiasm for O’Rourke is driving voter turnout efforts in communities that tend to stay home during midterm elections. If they do turn out, they will most likely vote for their party down the ballot.
A single party has swept Harris County judicial elections in three of the last five elections, a Rice University analysis found, mainly thanks to voters choosing a “straight ticket” option that selects every candidate from one political party.
“The O’Rourke phenomenon has been so remarkable,” said Jay Kumar Aiyer, an assistant professor of public policy at Texas Southern University. We’re seeing so much interest from young voters and minorities. If that translates to the ballot box it could spell a significant difference for the state and Harris County.”
Advocates say this is the first time bail reform is on the radar for judicial hopefuls in Harris County.
“Things need to change,” Salgado said, “and they need to change quickly.”