The judge’s response lays bare the absurd premise of those who offer a handful of anecdotes as reason enough to oppose a systemic reform.
U.S. District Judge Lee Rosenthal gave preliminary approval last week to a settlement that restructures the bail system and provides for the pretrial release of most people charged with misdemeanors in Texas’s Harris County, the nation’s third most populous county and home of Houston. And she did it over the objections of Harris County District Attorney Kim Ogg.
Rosenthal offered a stern rebuke of Ogg’s bid to stop the settlement by reviving the Willie Horton strategy, so named because of an ad that George Bush’s allies ran during the 1988 presidential campaign to portray Massachusetts Governor Michael Dukakis as soft on crime. The commercial focused on a single individual’s crime, which it blamed on Massachusetts’s furlough policies.
Detractors of any given criminal justice reform have long banked on the expectation that a single instance of a crime, if traced to that reform, will spark more backlash than any of its positive repercussions will draw praise. The mythical status acquired by the Willie Horton ad cemented that expectation. As John Pfaff, a law professor at Fordham University, wrote in 2017, reform foes “will always be able to point to a shocking crime” that provides them “with a concise, emotionally powerful attack,” and “people will always fear that some act of recidivism is lurking just ahead” no matter “the benefits of keeping more people out of prison.”
The strategy remains frequently employed, enabled by sensationalist media coverage that fuels a cycle of always-tougher-on-crime politics.
Houston has been the site of this pattern this year. But this time Rosenthal provided a blueprint to counter the hype.
In 2017, Rosenthal struck down Harris County’s pretrial approach to people charged with misdemeanors. She found that the county’s systematic reliance on cash bail meant that it was effectively detaining people for being poor, and that this was unconstitutional “wealth-based discrimination.” The county’s misdemeanor judges initially fought this ruling, but voters swept them away in the 2018 midterms and replaced them with a slate of judges who backed Rosenthal.
This paved the way for officials to reach a settlement this summer to expand the use of personal recognizance bonds, with which people are released pretrial without financial conditions. (This settlement only applies to misdemeanor-level charges, not to higher-level felony offenses.) It also allocates funding for services like child care to help people meet their court dates.
The settlement formalizes changes that the county’s new misdemeanor judges adopted earlier this year. Since January, 85 percent of the people charged with a misdemeanor are automatically eligible for no-cash bond; others may also be eligible after a hearing as well.
But this change also supplied the opponents of reform with a gigantic pool of cases from which to cherry-pick. There are, after all, tens of thousands of misdemeanor cases filed in Harris County each year.
And so it is that, with the clock ticking to a final settlement and with the 2018 elections lost, the opponents turned to the Willie Horton approach. Josh Bruegger, the police chief of Pasadena (the county’s second-largest city, southeast of Houston), devoted eight paragraphs of a Houston Chronicle opinion piece to a man who allegedly committed an armed robbery after being released on personal recognizance. “It’s these dangerous revolving-door practices that unnecessarily put our citizens and our law enforcement officers’ lives in jeopardy,” he wrote.
Ogg, the county’s chief prosecutor, followed suit last month. She had seemed initially supportive of the reform, but she unexpectedly announced her opposition in August, faulting it for being too lenient. “There’s just no fairness in it for victims, for cops, or for prosecutors,” she told Houston Public Media last week. She warned that “we see judges right now letting dangerous misdemeanor offenders out—domestic violence abusers, pimps, people who stalk folks, DWI offenders—and we see those individuals go out and commit additional crimes.”
Ogg also filed a legal brief in August objecting to the settlement. As evidence of “unreasonable judicial discretion,” the brief devotes an entire section (pages 17 to 20) to detailing the stories of five individuals who were all charged this year for an offense they committed while released from jail pretrial.
Rosenthal’s order granting preliminary approval for the settlement directly rebuts this argumentative strategy. “Several amici cite cases of misdemeanor defendants committing crimes while on bond as evidence that the decree endangers public safety and should be rejected,” writes Rosenthal, who then cites pages 17 to 20 of Ogg’s brief. She continues:
These anecdotes do not undermine the record or the court’s findings of fact and conclusions of law. No pretrial bail system can prevent every defendant who is released on money bail or personal bond from committing an offense or failing to appear. The amici’s argument is essentially an argument for incarcerating every arrestee and defendant until trial or other disposition. … The amici’s hindsight disagreements with individual case outcomes have no bearing on whether the decree is a fair, reasonable, and adequate remedy for the constitutional violations that the record shows prevailed in Harris County.
Here Rosenthal, who was herself appointed to the federal bench by George Bush in 1992, lays bare the absurd premise of those who offer a handful of anecdotes as reason enough to oppose a systemic reform, as if in so doing they have shifted the burden of proof onto the proponents of reform.
But that burden has long been met by the tremendous personal, economic, and legal harm that befalls those who cannot afford to buy their freedom, as well as their families. In Harris County, as elsewhere, people detained pretrial have disproportionately been people of color.
Justifying the pre-emptive incarceration of thousands who are not yet convicted of a crime because some fraction of them would commit an offense if released is a pernicious logic that has no bounds. As Rosenthal writes, it is at its core “essentially an argument for incarcerating every arrestee and defendant until trial or other disposition.”
It is rooted in the untenable suggestion that a penal system that allows a single case of recidivism is too lenient.
Against that suggestion, it is almost beside the point to cite the studies that show the public safety risks of using cash bail, and belie the link between bail reform and increased crime.
“When people seek to cultivate fear in our culture by presenting isolated incidents, we have to ask: what do they really tell us?” Premal Dharia, the director of the Defender Impact Initiative, told me about Ogg’s brief and Rosenthal’s response. “Such stories about isolated incidents will not help us make meaningful decisions about what is best and safest for our communities, and they don’t account for other kinds of harm, such as the devastation pretrial detention wreaks on countless people’s lives. The evidence—which is what we should all be relying upon—is clear that our system of over-incarceration is destructive … and does not make us safer.”
This tactic is ingrained in the country’s conversations on criminal justice. But amid a turning tide in the politics of mass incarceration—with some prosecutors challenging the narrative that public safety requires harsh policies, and candidates competing over who is the most committed to reform—Rosenthal’s response is a reminder to not let that tactic go unchallenged, however routine it may feel.