By Brandon L. Garrett, JD, Monitor, et al.

The ODonnell Consent Decree

• Misdemeanor Bail Reform: In Harris County, secured money bonds are no longer required for most misdemeanor cases under the court rule adopted as part of the ODonnell v. Harris County settlement. Most people arrested for misdemeanors are released promptly without a hearing.

• Bail Options Unchanged for Cases with Public Safety Concerns: People charged with misdemeanors that potentially present public safety risks (e.g., repeat DWIs, family violence, prior bond violations or outstanding warrants) are not automatically released. A hearing officer makes a bail decision, usually following a hearing at which magistrates have the traditional options to require financial bonds, protective orders, pretrial supervision requirements, or other release conditions.

• Better Bail Hearings: Defense attorneys continue to represent people at bail hearings, as required by Rule 9 and the Consent Decree. Before 2017, people arrested in Harris County usually had no defense attorney at these hearings. Judges also must give greater attention to more rigorous bail requirements.

Major Consent Decree Accomplishments:

• Court Appearance: The County is currently implementing an approved plan to make use of the budget allocation to improve court appearance. The County is now piloting a new website, https://myharriscountycase.com, where people can readily look up information about upcoming appearances in their cases.

• Data: Much of the relevant information about the misdemeanor bail process is now available in an automated report. We have continued work to provide feedback on Harris County’s public data portal. We now have improved data regarding persons flagged as homeless or with mental health assessment requests, as well as data concerning pretrial supervision conditions, and report these new analyses in this report.

• Training: The Deason Criminal Justice Reform Center at the SMU Dedman School of Law conducted trainings in 2023, which resume in early 2024.

• Indigent Defense: The County is continuing to develop plans in response to the National Association for Public Defense (NAPD) evaluation of Harris County’s misdemeanor indigent defense systems. We hope the County will implement a plan for the earlier appointment of counsel.

Ongoing Work by the Monitor Team:

• Data Development: We analyzed data prepared by Harris County and provided continual feedback on data development in regular meetings concerning the assembly and validation of data regarding misdemeanor cases.

• Community Work Group: We convened quarterly meetings of our Community Work Group, to share our work and solicit input from our diverse community stakeholders. Members share their perspectives for the “Community Viewpoints” column found in our reports.

• Regular Meetings: We held regular meetings with the parties and Harris County stakeholders, including weekly calls, monthly meetings with both judges and hearing officers, and periodic calls with public defenders and prosecutors. Our next public meetings will be held in-person on April 18, 2024.

• Feedback: We provided feedback to the parties on several improvements to the hearing process, the designed and implemented training, and the assessment work regarding holistic defense services and nonappearance. o Review of Violations: We are extremely grateful for the work that has begun to build an improved system to permit all County actors to review potential Rule 9 violations and prevent delays and errors in case processing.

Our Findings:

• Data Analysis: Our updated findings largely confirm what we reported in our first six reports. The bail reforms under the ODonnell Consent Decree have saved Harris County and residents many millions of dollars, improved the lives of tens of thousands of persons arrested for misdemeanors, and these large-scale changes have produced no increase in new offenses by persons arrested for misdemeanors.

  • Overall, the work suggests that repeat offending by persons arrested for misdemeanors has remained stable in recent years.

  • The numbers of persons arrested for misdemeanors have declined since 2015.

  • The numbers of those arrested for misdemeanors who had new charges filed within one year have also declined.

• The analyses conducted show:

• Misdemeanor Case and Defendant Characteristics

• The number of misdemeanor arrestees has declined by more than 15 percent between 2015 (N=49,359) and 2023 (N=41,177).

• The count has been slightly increasing since 2020, which marked the beginning of the Covid-19 pandemic period.

Durham, NC: Duke University, 2024. 107p.

By  Joshua Page, Victoria Piehowski, Joe Soss

  Among the institutions that link criminal justice and inequality in the United States, commercial bail remains one of the most important yet least understood. Each year, the bail industry extracts millions of dollars from lower-income Americans, disproportionately draining resources from poor communities of color. We draw on ethnographic research to explore how the bail system operates as a predatory social process, arguing that gender interacts with class and race to structure resource extraction in this field. Poor women of color are especially subject to bail predation because they are seen within the larger social organization of care as bearing primary responsibility for defendants. Gendered care work and emotional labor are thus central to the field’s logic of practice and to bail industry profits.

RSF: The Russell Sage Foundation Journal of the Social Sciences 5(1): 150–72  

By Lauren Nickolls

This Library briefing paper provides an overview of police powers to release suspects from custody under investigation and on pre-charge bail. It also discusses the two major reforms that pre-charge bail has undergone in the last decade, first in 2017 and then in 2022.   When the police have arrested and detained a suspect but do not have the evidence to charge them, the suspect must be released. They can be released either on pre-charge bail (also known as police bail), “under investigation” (RUI) or with “no further action”.  

London: UK Parliament, House of Commons Library, 2023. 36p.

By Sandra G. Mayson 

ABSTRACT An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice. This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and normative ambiguity in the concept of “unaffordable” bail. It explains in practical terms what it would entail for a court system to treat unaffordable bail as a detention order. One hurdle is that both legal and policy standards for pretrial detention are currently in flux. Recognizing unaffordable bail as a detention order foregrounds the question of when pretrial detention is justified. This is the key question the bail reform movement must now confront.  

69 Duke L.J. 1643 (2020)  

By Min-Taec Kim

The aim of this study is to estimate the causal impact of appearing via audio-visual link (AVL) on the likelihood of being granted bail. Audio-visual link describes the video conferencing equipment to facilitate court appearances without the defendant being physically present. To estimate the impact of appearing via AVL on bail outcomes, we compare individuals who have their first court bail hearing via AVL at two NSW Correctional Centres, Amber Laurel and Surry Hills, between Jan 2018 and Feb 2020 with similar individuals over the same period. The credibility of the estimates hinge on two factors:
1) The extent to which we have observed and modelled the factors that influence the bail decision of the magistrate, and 2) The extent to which the allocation of AVL is ‘as good as random’ after controlling for all observed factors. Three statistical approaches (logistic regression, Mixed effects regression and a generalised random forest) are used to adjust for the observed differences between these two groups and estimate the causal impact of appearing via AVL.

Sydney: NSW Bureau of Crime Statistics and Research (BOCSAR), Crime and Justice Bulletin No. CJB235. 2021. 40p.

By The  U.S. Commission on Civil Rights,  Kentucky Advisory Committee

The Kentucky Advisory Committee (“Committee”) to the U.S. Commission on Civil Rights examined the pretrial detention and bail process in Kentucky. The Committee’s work focused on the impacts and uses of cash bail—that is, the money an individual must pay to secure their release from detention pretrial—in the state. As part of the inquiry, the Committee heard testimony on this topic from a diverse group of panelists during public meetings. The use of cash bail is prevalent in Kentucky courts, posing significant challenges to low-income defendants. A study by the Pegasus Institute in 2016 found that over 64,000 nonviolent, nonsexual offenders—70 percent of whom were deemed to be at low to moderate risk for reoffending prior to trial—were detained in Kentucky for an average of 109 days pretrial because they could not afford to pay their bail.1 The Committee heard several key themes throughout their inquiry which evidenced the need for cash bail reform in the state to achieve more equitable and effective public safety outcomes. These key themes included (1) the failure of Kentucky’s pretrial risk assessment tool to reduce pretrial detentions and provide reliable risk assessments; (2) the widely varied conditions of release for similarly situated defendants across the state; and (3) the negative consequences caused by unnecessary pretrial detention of low- to moderate-risk nonviolent and nonsexual alleged offenders. ….

Washington DC: USCCR, 2021. 16p.

By Ella J. Siegrist, Jenna L. Dole, Kristine Denman, Ashleigh Maus, Joel Robinson, Callie Dorsey, and Graham White

In November 2016, New Mexico voters approved a constitutional amendment altering pretrial release and bail practices for felony cases within the state. As part of a multi-phase study, this report evaluates the implementation of bail reform thus far. We primarily used information from stakeholder interviews; this was supplemented with court observations, media coverage, and legal documents. In this report, we document the current pretrial process; the way that pretrial release and detention decisions are made; the perceived impact of the amendment; reform success and areas for improvement; and recommendations for how New Mexico and other states may improve pretrial practices.

Albuquerque, NM: New Mexico Statistical Analysis Center. Institute for Social Research, 2020. 131p.

By Kristine Denman, Ella Siegrist, Joel Robinson, Ashleigh Maus, Jenna Dole

Like other jurisdictions and states across the nation, New Mexico recently reformed its bail system. In 2016, New Mexico voters passed a constitutional amendment intended to ensure that defendants are not detained solely because they are unable to post bond, while simultaneously protecting the safety of the community. The New Mexico Statistical Analysis Center has engaged in an ongoing project to assess bail reform efforts in New Mexico. The current report focuses on one aspect of bail reform: the use of preventative detention.1

Albuquerque, NM: New Mexico Statistical Analysis Center. Institute for Social Research, 2021. 50p.

By David Arnold, Will Dobbie, and Peter Hull

 We develop new quasi-experimental tools to measure racial discrimination, due to either racial bias or statistical discrimination, in the context of bail decisions. We show that the omitted variables bias in observational release rate comparisons can be purged by using the quasi-random assignment of judges to estimate average race-specific misconduct risk. We find that approximately two-thirds of the average release rate disparity between white and Black defendants in New York City is due to racial discrimination. We then develop a hierarchical marginal treatment effects model to study the drivers of discrimination, finding evidence of both racial bias and statistical discrimination. Outcome-based tests of racial bias therefore omit an important source of racial discrimination in bail decisions, and cannot be used to rule out all possible violations of U.S. anti-discrimination law.   

Chicago: University of Chicago, Becker Friedman Institute for Economics, Working Paper, 2020. 83p.

By the National Task Force on Fines, Fees, and Bail Practices

The purpose of this Guide is to provide state court leaders with detailed information on state bail reform efforts. This Guide presents case studies of six states’ recent experiences with bail and pretrial reform efforts: Arizona, California, Connecticut, Maryland, New Jersey, and Texas. These six states were selected to present a geographic and politically diverse sample, as well as a variety of approaches to reform. Key members involved in the reform efforts in each state were interviewed, including chief justices, appellate court justices, trial court judges, state court administrators, administrative offices of the courts staff, state legislators, state attorneys general, and executive-branch criminal-justice experts, among others

Fairfax, VA: The Task Force, 2020.78p.