CHRONICLE CALLS FOR THROWING OUT THE BABY WITH THE BATH WATER

Why we're calling for a judicial sweep in the misdemeanor courts

By The Editorial Board

Houston Chronicle
October 16, 2018

Each election cycle we determine our judicial endorsements by interviewing the candidates, researching their backgrounds, consulting with experts and coming to a conclusion about who best would be able to run a courtroom and see that justice is done. This year, however, one piece of evidence outweighed every other consideration for the Harris County criminal courts at law: Chief U.S. District Judge Lee Rosenthal’s 193-page memorandum declaring the bail system in our misdemeanor courts in violation of the Constitution’s guarantee of due process and equal protection.

The text, released in May 2017, presents an astounding and disturbing vision of aspects of our courthouse run by people who don’t know whether our bail methods work and don’t seem to care. Individual judges rely on instinct instead of objective studies to determine bail policy. Hearing officers set bail at unaffordable rates for low-level offenses because it makes them “feel better.” Politicians in charge fail to track basic statistics.

She describes a bail system that allows the dangerous yet rich to go free, while the harmless yet poor often stay in jail. For a long time, the result has been a criminal justice system that presumes pre-trial incarceration instead of freedom.

Around 75 percent of people sitting in Texas jails are simply awaiting trial. The statistic isn't much different in Harris County. This number isn’t the result of traditional “Texas tough” justice. After all, 20 years ago that number was less than 33 percent of the jail population. Something has changed, and it is time to change it back.

While some of Judge Rosenthal’s remedies have been altered by the Fifth U.S. Circuit Court of Appeals, the underlying facts remain undisturbed. Those facts are shocking to the conscience, and should be enough to convince our misdemeanor court judges to work with the plaintiffs suing the county over its unconstitutional practices and reach a settlement. That hasn’t happened. Instead, all the judges except two — one Democrat and one Republican — have spent millions in taxpayer funds fighting the case in court.

In meeting with these judges we heard plenty of reasons why they’re continuing to fight. Some said they believe the plaintiffs’ demands go too far. Others said they want to make sure judges don’t lose discretion in individual cases. A few were worried about the effect on public safety of letting people accused of misdemeanors out of jail without a cash bond. Overall they pointed to the courts’ slow but steady progress and work with the Arnold Foundation in crafting a risk-assessment tool to improve the bail system.

These excuses are not enough to justify the perpetuation of a criminal justice system that Rosenthal says has resulted in “thousands of constitutional violations” of both equal protection and due process.

That is why we recommend that every incumbent judge continuing to fight the bail lawsuit be removed from his or her seat.

We do not make this recommendation lightly. There will be unfortunate consequences that weaken our misdemeanor courts in the short term. Harris County will lose experienced judges. Diversion courts will need new leadership if they are to continue. It’s possible that over the next four years we’ll face different sorts of challenges and scandals in pursuit of a new kind of judiciary. Our star ratings may seem off as we endorse challengers against incumbents with higher scores. But this is about something bigger than individual judges. This is about a criminal justice system in dire need of reform.

The public needs to send a message that we will not tolerate the status quo, one that the judges have been content to live with for too long. The only way to chart a path forward is to remove the current judges — root, branch and all.

EDITOR’S NOTE: I agree we have an unjust bail system that allows the dangerous yet rich to go free, while the harmless yet poor often stay in jail. But what the Chronicle is proposing may result in some piss poor judges being seated. Which brings me back to a point I’ve often stated. Judges should not ever be elected on a partisan basis.