Group Created with Sketch.

Litigation leads the way in bail reform.

In January, six people incarcerated in Dallas County, Texas, followed their Harris County (Houston) counterparts in filing suit in federal district court to challenge local bail practices.

The plaintiffs presented an argument that has won in dozens of courts across the country already—that a money bail system that results in the detention of people who are poor, while those who can afford their bail are at liberty pretrial, violates basic principles of equal protection and due process under the law.Jolie McCullogh, “Poor Inmates Sue Dallas County over Bail System Following Harris County Ruling,” Texas Tribune, January 22, 2018. For nationwide litigation see Civil Rights Corps, “Challenging the Money Bail System,” As part of the discovery process, the county released records for three days of bail hearings, which revealed that judges spent an average of just 15 seconds on each bail decision.Mirza, “In Dallas County, Bail is Set in Secret—and Often in Seconds,” 2018. On September 20, District Judge David Godbey of the Northern District of Texas issued a preliminary injunction requiring the county to take into consideration a person’s ability to pay when setting bail.Daves v. Dallas County, Texas, et al., No. 3:18-CV-0154-N (Preliminary Injunction)

In 2017, U.S. District Judge Lee Rosenthal issued a groundbreaking 193-page decision finding Harris County’s misdemeanor bail system unconstitutional.O’Donnell v. Harris County, No. H-16-1414 (S.D. Tex., 2017). She ordered the county to release people charged with misdemeanor offenses within 24 hours if they were unable to post money bail.O’Donnell v. Harris County, No. H-16-1414 (S.D. Tex., 2017). The defendants in the case appealed, and the Fifth Circuit Court of Appeals issued a stay of certain provisions in U.S. District Judge Lee Rosenthal’s order.O’Donnell v. Harris County, No. 18-20466 (5th Cir., 2018). Alvaro Ortiz, “Federal Court Allows Harris County Judges to Keep Setting Bails,” Houston Public Media, August 15, 2018. Based on the Fifth Circuit’s decision, judges are free to resume setting money bail while the appeal is resolved.O’Donnell v. Harris County, No. 18-20466 (5th Cir., 2018). Alvaro Ortiz, “Federal Court Allows Harris County Judges to Keep Setting Bails,” Houston Public Media, August 15, 2018. Despite this setback, voters expressed their support for bail reform in November by voting out the criminal judges who opposed the Harris County lawsuit and voting in a new batch of Democratic judges, including 17 new black female judges.Deanna Paul, “In Texas, 17 New Judges Bring ‘Black Girl Magic’ to Courthouses,” Washington Post, January 2, 2019. These newly-elected judges withdrew the appeal in the case.Keri Blakinger and Gabrielle Banks, “Newly Elected Misdemeanor Judges Drop Appeal in Landmark Harris County Bail Lawsuit,” Houston Chronicle, January 7, 2019.

In Alabama, a federal district judge issued a preliminary order in September prohibiting Cullman County’s bail practices and requiring that most bail-eligible people be released on unsecured bonds.Schultz et al. v. Alabama, No. 5:17-cv-00270-MHH, (N.D. Ala. Northeastern Div. September 13, 2018) (Preliminary Injunction Order). Also see Schultz et al. v. Alabama, No. 5:17-cv-00270-MHH, (N.D. Ala. Northeastern Div. September 4, 2018) (Memorandum Opinion and Order). In Colorado, municipal court judges in Aurora, Boulder, Northglenn, Golden, and Denver are making efforts to substantially reduce their use of money bail as a condition of release.Allison Sherry, “Local Judges Are Driving Bail Reforms Across Colorado,” CPR, January 23, 2018. Aurora Municipal Court Judge Shawn Day says he changed his policies as a direct result of the Harris County lawsuit.Allison Sherry, “Local Judges Are Driving Bail Reforms Across Colorado,” CPR, January 23, 2018. Presiding Judge Linda Cooke of Boulder considers the Texas litigation an “opportunity” for judges to review their policies.Allison Sherry, “Local Judges Are Driving Bail Reforms Across Colorado,” CPR, January 23, 2018. Massachusetts legislators aren’t waiting for litigation to take action: part of the state’s criminal justice reform package, signed into law in April, mandates that judges must consider a person’s ability to pay before setting money bail.See Massachusetts SB 2371 (2018).