While ordinary taxpayers have been busy going about their business bail “reformers” with powerful backers have brought financial ruin upon the judicial system in New Jersey, pushed through a bill in California (SB 10) that grants so much power to judges that even the ACLU has come out against it and created hundreds of thousands of new fugitives nationwide. To that last point there are many ways that attempts to eliminate the bondsman has created new fugitives and Harris County, Texas recently become acquainted with a particularly odious one.
Common sense has been fighting an uphill battle in Texas against bail reformers for several years. Those anti-bail lobbyists, many of them from out of state, have been working overtime to try and dismantle a bail system that has worked for the people of Texas since the days of Sam Houston.
In 2017 US District Judge Lee Rosenthal - tired of seeing bail reform efforts rebuffed in the Texas State house - decided to take matters into her own hands and ordered that the Harris County Sheriff release virtually everyone they were holding on misdemeanor offenses. Her stated reason was that bail, in her opinion, was unfair to poor people.
Now to most folks who live in Boise or Pittsburgh or Miami Beach this may not seem like a big deal. After all, vast parts of Texas are open prairie where cattle outnumber humans. So if a few cowpokes are released from county while awaiting a court date for riding their horse under the influence it’s no big deal. Right? Wrong.
You see Harris County is the most populous county in Texas and the 3rd most populous in the United States. More than 4 million people live there. So ordering the Harris County Sheriff to essentially release all people being held on misdemeanor charges created chaos in the Texas judicial system. In the months after Judge Rosenthal signed the order thousands and thousands of people were released without bail and given a date to appear in court.
In addition, at about the same time, Harris County began using a computer algorithm to try and assess flight risk among defendants and this only added to the chaos. On the one hand you had judges using the algorithm determining someone should be held without bail. And on the other hand you had the Sheriff who was under court order to release all defendants.
In the aftermath of Rosenthal’s order Harris County became the most recent locale to learn a very painful lesson: that when you release people without giving them any financial incentive to appear on their court date, they don’t appear. In fact, a full 45% of those released by Judge Rosenthal did not appear in court to face the charges against them. Which means they then became fugitives from justice. And, of course, the Harris County Sheriff’s Office simply doesn’t have the resources to track down this flood of new fugitives.
After Judge Rosenthal issued her decree in 2017 the county went to the 5th Circuit Court of Appeals to try and have the order overturned. In 2018 the 5th Circuit ruled that Judge Rosenthal had exceeded her authority by issuing the order. In their ruling they determined that there is no constitutional right to affordable bail. Only that if bail is granted it cannot be excessive (in accordance with the 8th Amendment to the US Constitution).
That may seem like the end of the line for this sad tale. But in reality it was only the beginning. Because after the 5th circuit overturned Judge Rosenthal’s order the 16 county judges in Harris County then instituted their own type of reform by which they began releasing 85% of all those being held in the county on misdemeanor charges.
So, although the 5th circuit tried to restore order to the situation in Harris County the local judges then threw open the barn doors once again. The new practice is currently facing a court challenge from Texas bail bonding companies and others intent on restoring order. But it’s likely the whole mess will churn slowly through the courts for many years.
The judicial shenanigans in Texas are just one more example of the dangers of bail reform. They also bring into focus the two-headed monster facing those intent on saving bail bonds in Colorado: legislators who may adopt bail algorithms they don’t understand, and activist judges who take it upon themselves to try and bring down the bail system from within.
With bail reformers constantly trying to chip away at the resolve of Colorado legislators and the threat of judicial overreach ever-present can Harris County-style chaos be far away for Jefferson County, Arapahoe County, or Denver County?
While most bondsmen would agree that the bail system in the US could use a few tweaks for the most part it has worked incredibly well for centuries. Most people who are being held these days because they’re unable to make bail are not, in fact, innocent victims of a corrupt system. They are repeat offenders whose bail has been set deliberately high by judges, or they are individuals with a history of jumping bail or they are being held without bail due to the severity of the charges against them. The sooner the narrative gets back to its factual foundations the better off everyone will be.