Moving Away From ‘Jail for Everybody’

On Jan. 7, less than a week after 15 new misdemeanor judges took the bench in Harris County, Texas, criminal courts, the judges withdrew their predecessors’ appeal of a class-action lawsuit targeting the county’s bail practices for violating poor people’s civil rights.

The move represents a major reversal. The prior judges had spent more than $9 million pushing back against reforms mandated by U.S. District Judge Lee Rosenthal, who found that the county was violating the constitutional rights of low-income people accused of minor crimes by jailing them simply because they couldn’t afford bail. Not only do such jail stays disrupt jobs and destabilize families, critics have noted, they can actually put lives at risk. Rosenthal ordered nearly all poor defendants released within 24 hours of their arrest.

In February 2018, the Fifth Circuit largely upheld Judge Rosenthal’s decision, but struck the 24-hour release mandate. Her new, scaled-back mandates were being appealed by 14 of the 16 misdemeanor court judges, before 15 of them lost their seats in the Democratic sweep of Harris County’s down-ballot races in November.

Last week, the new judges dropped the appeal, vowing to work together to implement sweeping reforms, which could include a 48-hour period to determine conditions for bail and a new work schedule for judges that would allow defendants to be seen on weekends and holidays, according to Judge Darrell Jordan, the one Harris County misdemeanor judge who was not up for re-election last November and one of only two sitting judges who supported the bail lawsuit.

Jordan won his seat on the bench in 2016 after campaigning on bail reform. His new colleagues have voted him presiding judge, and they are quickly getting to work changing local rules and crafting a settlement with the plaintiffs. The Appeal spoke with Judge Jordan about the election that dramatically reshaped the bench and the future of bail reform in Harris County.

After November’s election, you went from being one of two judges to support the bail reform lawsuit to having a full slate of 16 Democratic judges who support bail reform. What does that shift mean for the misdemeanor courts of Harris County?

Since the new judges were sworn in on Jan. 1, the appeal has been officially dismissed, there are no more million-dollar lawyers, and we’re working with the plaintiffs, the [district attorney], and the sheriff. We have a status update in front of Judge Rosenthal on Feb. 1 and it is our goal to have this case settled by then and walk in with a settlement.

When there’s a leak and there’s only two people trying to fix the leak, you may be leaving something out. When you have 16 people coming together, it’s so much better when you’re all focused on the same thing, instead of fighting.

When you repeatedly have courts telling you this [bail] process is wrong and violates due process protections, you’d think you would want to change it. But my prior co-workers would have to admit they were wrong, that for all these years they’ve been doing something wrong, that was unconstitutional. These new judges, they don’t have this extra baggage—they can just say, “This is the law, and this is what we should be doing.”

How do you feel about having more women of color now on the bench after November’s election? Do you think their race influences their perspective on bail reform?

It’s good that we have diversity, but you know, I always tell people color really doesn’t affect the way you think about things. For instance, Clarence Thomas and the head of [Housing and Urban Development] right now. … Still, as people of color, you’re more aware—most people of color have experienced some type of racism, so when you get in a situation where the Fifth Circuit Court of Appeals, one of the most conservative in the country, says these practices are discriminatory, that’s nothing that you want to be a part of. The actual research shows that Blacks and browns suffer disproportionately in the current bail system. So for you to be a part of that group and not want to do everything you can, it doesn’t really make sense.

I know it’s still early, but do you anticipate changes in the way the misdemeanor courtrooms will be run?

It’s just an overall mindset change. For years, centuries, the common practice has been to jail people first, ask questions later. But especially on our level, the people we deal with, a lot of them have mental health issues—you may have a 17-, 18-year-old kid stealing a video game. Is the right thing to do to lock up a kid for that, take them out of school, then perhaps they leave school and never finish?

A lot of people with felonies start with misdemeanors. So why don’t you try to help them at that level?

Judge Darrell Jordan Harris County

We are trying to get them on a better track. Some people might hear that line of thinking and say that’s not what the criminal justice system is for. But are you for rehabilitation or for punishment? I submit that our focus now is rehabilitation at the misdemeanor level. A lot of people with felonies start with misdemeanors. So why don’t you try to help them at that level? … We have to look at the criminal justice system and find a better way other than just saying, “Jail for everybody.”

Are there any potential problems with having so many new judges?

No, because we’re not operating in isolation. We talk constantly. We’re meeting a lot and we’re socializing with each other. We have people practicing law for six or seven years, and some practicing for 40 years—a full range of life and legal experience. We have open communication between all of us. As a judge, you never stop learning and the law is constantly changing, so there’s always questions.

Since it’s very rare to have this much turnover, we got with the court administrator and got a judicial consultant [a retired former judge]. He’s in now for at least the first 90 days, just floating around in case people have questions. Being judge is not a position to learn on the job—you make a few mistakes, you ruin a few lives. We didn’t want a situation like that.

District Attorney Kim Ogg has been criticized for pursuing high bail on misdemeanor offenses like marijuana possession. Do you think the change in the judges’ position will affect how her office operates?

I don’t know what’s happening behind closed doors.  The ADAs [assistant district attorneys] in my court know my stance so I don’t see those requests.

[The DA’s office is] a party to what we’re doing right now, they were on the conference call today as well. … We’re expecting at least 85 percent of people will be out on PR [personal recognizance] bond. Very, very few people will be posting a bond.

Are you confident now that misdemeanor defendants will not be held in jail solely because they can’t afford bail?

One thousand percent. If that’s happening, that’s because we’re allowing it and we’re strongly against it, so I don’t see that happening.

What now stands in the way of bail reform?

Right now, the biggest pitfall would be not adopting tried-and-true best practices. We can’t go and try reinventing the wheel, saying, “Let’s try this and try that.” We have to adopt policies and procedures that have worked in other jurisdictions that we know will work. We are the third-largest county in America, and this is not the time to experiment. Some things we put in place might not have been tried at this scale, but we don’t want to stray off the best-practices model.

By March, the system should be completely different.

Judge Darrell Jordan Harris County

The plaintiffs have gone through the process countless times and they have all the experts, so as we are crafting a settlement, they are bringing the best practices. We all know that what happens here, people are going to be looking at it. We are trying to get it right.

What specific best practices are you looking to implement?

All those things we’re ironing out now. Before there was a thinking of, secured release could only be done with money. So what we’re going to be doing is securing people’s return through conditions—through drug testing, leg monitors, reminder phone calls.

Are there other inequities in the court system you’re hoping to tackle? What’s next after bail reform?

Managed assigned counsel. That’s a system where judges are removed from appointing lawyers. I believe that lawyers will have lower caseloads as it relates to appointed work, which in theory should allow them to spend more time with each client.

By March, the system should be completely different—our work hours, our bond system, the court-appointed lawyer system, it will be a completely different look. Completely different.

This interview has been edited for length and clarity.