How a Recent U.S. Appeals Court Decision in Dallas Could Be Bad News for Bail Reform Advocates

Shannon Daves, a transgender woman, was homeless when Dallas police officers arrested her for an alleged misdemeanor in January 2018. (It’s not clear from court documents what she'd been charged with.) Four years later, her case could have dire consequences for those fighting for bail reform in Texas and around the country.

At the time, the police officers brought her to Dallas County Jail, where she waited in a holding cell for several hours before jailers herded her and 10 other detainees out of their cells to face a judge.

“The judge told me that I would have to pay $500 to be released from jail,” Daves said during sworn court testimony. She went on to claim the judge "did not ask me if I could afford to pay that much money."

Daves had been unemployed for a while before she was arrested. In August 2017, money got so tight that she had to live on the street, according to court records. She didn’t have $500 to bail herself out of jail and had to stay locked up while awaiting trial.

Later that year, a coalition of civil rights groups filed a class-action lawsuit against Dallas County on Daves’ and other poor inmates’ behalf.

Attorneys argued that Dallas County’s cash bail system kept poor people locked up pretrial while allowing those with money to pay bail to walk free. The county’s cash bail setup amounted to “systemic wealth-based detention” and violated Daves’ and other poor inmates’ constitutional rights, attorneys alleged.

After four years of court proceedings, federal judges recently dealt a serious blow to bail reformers in Dallas County seeking to end cash bail for low-income defendants like Daves.

Earlier this month, judges on the 5th U.S. Circuit Court of Appeals ruled that Daves and her fellow plaintiffs didn't have the legal standing to sue the county and state judges who set bail in Dallas.

"The focus on procedural and jurisdictional issues distract from the humanitarian crisis that's happening in the Dallas County Jail and jails across the country," said Elizabeth Rossi, an attorney with The Civil Rights Corps representing Daves and her fellow plaintiffs.

The court’s ruling upends a landmark ruling in a 2018 bail reform lawsuit that challenged Harris County’s misdemeanor cash bail system. In that case, the court ruled that plaintiffs did have the legal standing to file suit against judges setting bail. That decision ended cash bail in misdemeanor cases in Harris County.

Ken W. Good is an attorney on the board of the Professional Bondsmen of Texas, an organization that represents the interests of the private bail-bond industry. He praised the 5th Circuit’s decision, likening the criminal justice system to a conveyor belt in a candy factory, and efforts at eliminating cash bail to a wrench in the factory’s gears.

“The little piece of candy passing through are our defendants, and anything that slows down that wheel causes a backup. And these criminal justice reforms in our urban areas that are looking for alternatives to the private bail industry, which are replacements that do not work, are causing the wheels of justice to slow down,” Good said.

Since scrapping its cash bail system, the number of misdemeanor cases dismissed by Harris County authorities nearly doubled, from 35% to 68%. Experts say this means that people who couldn’t afford their bail were effectively coerced into pleading guilty to misdemeanor offenses just to get out.

Advocates emphasized that given the harsh conditions inside Texas jails, slowing down the gears of the criminal justice system by altering bail practices would be worth it.

“While the courts and attorneys argue, nearly 4,000 individuals are being held pretrial in Dallas county jail today because they're too poor to buy their freedom,” said Krishnaveni Gundu, co-founder and executive director of Texas Jail Project.

“At least 77 people have died in Dallas County Jail since 2009. We're talking about human beings who are being caged and essentially sentenced to death before trial because they're indigent. This is an acute crisis demanding a moral and ethical response from us, not legal gymnastics,” she said. (According to official state records, there have been 77 official deaths have been recorded with the Texas Commission on Jail Standards inside Dallas County Jail since 2009.)

This month’s decision leaves the door open for Harris County to reestablish its cash bail system and keeps Dallas’ system intact. The appeals court’s decision is not final, however: Judges sent the case back to the lower court in the Northern District of Texas.

The decision comes after Texas lawmakers passed SB 6 during a special legislative session last year. The law increases bail rates for low-level drug offenses and alleged repeat offenders.

Still, advocates said the momentum of the movement to toss out cash bail remains strong on the national level.

“Throwing people in jail pretrial, it’s not a deterrent, because people don’t think of it as a punishment for their crime, they see it as a punishment for being poor,” said Wanda Bertram, communications strategist at Prison Policy Initiative.

“Most people have become conscious of that fact over the last few years, and it’s why the movement against money bail enjoys a growing popularity. That’s more or less the state of things” outside of Texas, she said.

Several states beyond Texas have taken concrete steps to end cash bail. In California, for example, state judges ordered county officials to eliminate misdemeanor bail during the pandemic. Many counties in that state adopted the measure permanently shortly after. Illinois recently voted to eliminate cash bail statewide starting next year.

Back in 2018, the Dallas County Sheriff’s Office, which runs the jail, decided to hold Shannon Daves in a men's unit. She said the violent threats she received for being trans were so relentless that she was soon moved to a 24-hour solitary confinement cell instead.

"Except for the attorneys … I have not talked to anyone. I am not allowed out to exercise,” Daves said in a sworn statement more than three years ago. “I have been kept in my cell … for 24 hours straight every day since I have been here."