The False Promise of Bail Reform in Dallas County: Debate Continues While People Languish in Jail

For five days, 47-year-old Shannon Daves sat in solitary confinement in a Dallas County jail because she couldn’t afford to pay $500 bail. Daves, who is unemployed and homeless, was isolated because she is transgender — allegedly to protect her from the jail’s general population. She faces a misdemeanor property theft charge.

She and five other indigent plaintiffs are at the center of a lawsuit filed Jan. 21 against Dallas County, challenging a cash bail system that leaves low-income defendants no choice but to wait in jail for their court dates.

“Except for the attorneys representing me … I am not allowed to talk to anyone,” Daves wrote in her affidavit. “I cannot afford to buy my release from jail … I feel that because I am transgender they have allowed me to fall through the cracks.”

Daves and her co-plaintiffs allege that they were never asked by a judge whether or not they could afford to pay their set bond amounts, which range from $500 to $50,000. The lawsuit, filed by Civil Rights Corp, The Texas Fair Defense Project, the ACLU of Texas, and the national ACLU, argues that the county routinely assigns bail to defendants facing misdemeanor and felony charges without first assessing individuals’ ability to pay, violating their constitutional rights.

The complaint calls for an end to the county’s “wealth-based post-arrest detention scheme,” asking the court to consider defendants’ ability to pay and to weigh alternatives to detention, reforms that other advocates around the country are also demanding.

Last Tuesday, Faith in Texas, a faith-based social justice organization, and the Texas Organizing Project Education Fund joined as plaintiffs in the lawsuit. In an amendment to the original suit, these groups note that they have been barred by the Dallas County Sheriff from attending court proceedings at which bail amounts are set, which they consider a First Amendment violation. They asked that the hearings be made open to the public.

“To Sit in Jail is to Lose Hope”

Brittany White, an organizer with Faith in Texas, understands the pain of waiting behind bars, unable to pay bail. Before spending five years in an Alabama prison on a marijuana trafficking offense, White sat in jail for six weeks without bond. After she lost at trial, she spent nine more weeks in county jail, waiting to be sent to prison.

“To sit in jail is to lose hope — to lose your home, your car, your job,” said White. She and her colleagues bailed out two of the plaintiffs in the lawsuit, including Daves, and provided assistance to others.

“Our mission was just to give them a meal, and get them home safely so they didn’t get released in the middle of the night without a way home,” said White. “What we weren’t prepared for is some people didn’t have homes to go to.”

“I’ve been incarcerated, but never incarcerated poor,” White continued. “I always had someone who would accept my phone call, buy my hygiene products, write me letters … I never came out of jail wondering ‘Where am I going to go.’ But I am not the norm.”

The norm described by White — the incarceration of the poor, who can’t afford bail, much less a roof over their heads when they get out — is at the core of this lawsuit. Across the country, the work done for years by organizers like White, as well as firms like the Civil Rights Corps, is slowly catching on and catalyzing change.

In Dallas, local officials recognize that the bail system is problematic. In a conversation with In Justice Today, Dallas County Judge Clay Jenkins expressed frustration with the current state of the county’s bail system, which he described as both unfair and a waste of money.

“It makes no sense that a person of affluence who is accused of a violent crime may be able to bond out within hours of arrest, but a person who is homeless and charged with trespassing or vagrancy, or a single mom who failed to pay her parking tickets, should be incarcerated for days and be taken away from their family,” he said. “We spend tens of millions of dollars a year incarcerating poor people.”

The Dallas lawsuit comes after a similar class action suit filed in Harris County, Texas in May 2016. In April 2017, a federal judge ruled in favor of the plaintiffs in the Harris County case, and ordered the county to release misdemeanor defendants who couldn’t pay their bail within 24 hours of their arrest. The ruling is now on appeal before the Fifth Circuit.

“We’ve Been Doing This for Years”

Judge Jenkins is one of several key players in Dallas’s criminal justice system — including probation department officials, presiding judges, and the county’s head public defender — who have been meeting for two years to hash out a better approach to bail. But advocates say that progress is uneven, as the lawsuit shows, and the process has been far too slow.

County Commissioner John Price Wiley told In Justice Today he was disappointed by the Dallas groups’ decision to sue. I feel “very good about the kind of collaborative [reforms] we’ve put into place,” he said. “We didn’t just start doing this because ACLU showed up on the scene down in Harris County. We’ve been doing this for years.”

The county did adopt a pretrial services division in 2015, which manages various forms of supervision for people released on bond, and signed off on an agreement allowing certain defendants facing low-level charges to have their cases dismissed if they repeatedly return to court every 60 to 90 days over a period of months, while participating in a diversion program.

This alternative to jailing low-level defendants aims to allow them to go about their lives and maintain jobs and community ties while dealing with their cases.

On Tuesday, county commissioners met with two opposing parties: A bail bondsman, and the director of the University of Houston’s Criminal Justice Institute, to discuss the way forward, the Dallas Observer reports.

Richardson, the public defender, acknowledges that some gains have been made. Dallas County has “so many specialty diversion court programs, and that’s a good thing,” she said. But in practice, she explained, many of the classes and diversion programs have associated fees that must be paid to the District Attorney’s office and to the probation office — making them inaccessible to her clients, who, like the plaintiffs in the lawsuit, are indigent. A county drug diversion program, for instance, costs participants more than $1,000.

While partial or full fee waivers are available to poor clients in theory, the documentation required to verify a person’s financial status often makes it difficult for Richardson’s clients to actually obtain a waiver. If an individual is transient, for example, they can’t provide proof of address. Richardson recently reviewed data from the probation office documenting waiver applications and found the majority were not accepted.

“It’s been my experience with past clients who got kicked out, they’ll say they got kicked out because they failed a report or drug test, but the real issue is that person wasn’t paying,” she said.

Advocates hope the lawsuit will tip the scales away from endless debate and spur the county into action. “While they’re trying to figure out what are the best next steps are, there are people lying in bed in jail for days,” said White, the organizer with Faith in Texas. “Their lives are deteriorating around them.”

If We Don’t Have Bail…Then What?

Even if Dallas judges were more careful in assessing who could and could not afford bail, they’d still have another problem to work out: Who should be released pending trial and who should be held? Some cities and states have drastically reduced their use of cash bail, replacing their money-based system nearly wholesale with a “risk-based system,” one in which judges can order that a person be confined pretrial — with no possibility of paying their way out — if they are deemed to have a high likelihood of absconding or committing another crime.

Central to the conversations taking place among stakeholders in Dallas County is how judges should decide who should remain in jail. Some jurisdictions rely on what are called “risk assessments” to help make that determination. The data used by these tools varies, but might include prior criminal offenses, social support systems, or past troubles with school or work. That information, often gathered by a pretrial officer, is presented to a judge to inform their decision-making. The goal, proponents of these tools say, is to move away from a system that depends on a person’s ability to pay, to a system based on actual risk.

Last year, Dallas began using such a tool, called the Ohio Risk Assessment System, in cases involving mentally ill defendants facing misdemeanor charges. The county now wants to use a risk assessment tool for all pretrial detention decisions, but needs to decide which one. It could implement the Ohio Risk Assessment System, or a tool developed by the Arnold Foundation, which is currently used in at least 38 other jurisdictions.

Richardson, the public defender, prefers the Arnold tool, because unlike the Ohio tool, it doesn’t require the defendant to be interviewed by a pretrial officer — a conversation that increases the odds of an interviewee unintentionally incriminating him- or herself.

“Even though they say that [the pretrial officer] tells them not to talk about their case, sometimes they start saying stuff, and that information is definitely going to be recorded and could be used against them later,” says Richardson.

After deliberating for months over which tool to adopt, the county spent more than $100,000 to hire an outside consulting firm to help make the call. But Richardson says the firm eventually stated that “either one would be fine,” leaving the county without a final decision. On top of that, Richardson says, some county officials are concerned about the potential costs of bail reform. The introduction of either tool could result in more people being supervised in the community rather than in jail, requiring the county to hire dozens of pretrial officers.

The potential for the vast increase in state supervision of low-income defendants is also a concern for Elizabeth Rossi, a lead attorney with Civil Rights Corps, who filed the Dallas County lawsuit — but for a different reason. “We don’t consider it a win for impoverished people and people of color to simply be transferred from a system of mass incarceration to a system of mass surveillance,” she said.

The success of these tools to actually reduce the number of people in jail pretrial, Rossi notes, “depends on who wields it, and what the person or entity’s goal is.” Ultimately, risk assessments have “limited utility,” she said, and should be used in tandem with other resources to determine who should be detained.

“Nibbling Around the Edges”

Even when a new assessment tool is chosen, as it was in Harris County following the 2016 lawsuit (the Arnold Foundation’s tool), Jay Jenkins of the Houston-based Texas Criminal Justice Coalition cautions that this kind of software isn’t a fix-all.

“If nothing else, the Harris County litigation showed us that a new risk assessment tool is not meaningful or sufficient enough to address underlying legal and constitutional deficiencies in their bail system,” says Jenkins. “It’s still nibbling around the edges.”

Rossi agrees. “Pretrial assessment tools are not a panacea,” she said. In a criminal justice system replete with “racism and classism,” she explained, risk assessment tools often rely on data that reflects those biases, exacerbating the disparate treatment of low-income people of color.

In Harris County, Rossi says, despite the use of a risk assessment tool, many defendants who pose little danger to society are still inappropriately detained pretrial. Moreover, the county does little in the way of offering social services for people who allegedly pose a high “risk” of failure to appear on their court dates.

For example, risk assessment tools might determine that someone is at a high risk of not appearing in court, but that risk could be the result of homelessness, a job with unpredictable hours, or not having a car. Those risks could be relieved by the court, negating the need for detention — but that doesn’t always happen in practice.

“You might have a very high risk of not appearing if you live in a tent in the woods outside of Harris County,” Rossi said. “But that risk is easily mitigated if somebody can provide you with transportation to get to court.”

Dallas County Judge Jenkins acknowledges the risks of blindly adopting a tool that could replicate problems already present in the local justice system. “We’ve got to guard against that happening here — that’s why we are spending money to bring people through to talk to us about our options,” Jenkins told In Justice Today. “A risk assessment tool is one way of doing it, but I’m open to discussing other ways to do it.”

But Jenkins, like other Dallas County officials, is quick to point out the gains he feels the county has already made.

“We approved millions of dollars in new positions for pretrial officers to help the judges,” says Jenkins. “We are putting our money where our mouth is.”