A Toxic Mix of Overcharging And Punitive Bail
An extraordinary example shines light on coercive factors that incentivize plea deals
Note: Since it’s peripherally involved in this story, I want note that I believe the recent Texas abortion law and others like it set an incredibly dangerous precedent–for more details on that see Steven’s post from last year. That said, this post is not about that law or its political impact (for more details on why that is the case see the “addendum” at the bottom of the post). I encourage folks to stay on the topic of this post in the discussion.
Last Thursday in Rio Grande City, a Texas border town in Starr County, a 26-year-old woman was arrested and indicted on a murder charge over an alleged self-induced abortion. By Sunday the Starr County District attorney had moved to dismiss the charge against her. Looking at the history of the case and how it played out provides a number of examples of issues that Criminal Legal System Reform advocates have been speaking out about for years.
The following account/timeline is pulled from the work MyRGV (a collection of Texas Newspapers, in particular, The Monitor which led reporting), the Washington Post, and Reason (a special shout out to Reason Senior Editor Jacob Sullum who was the first I saw to call out the March 30th indictment and personally helped me confirm some facts about the case).
January 7th, 2022 (On or around)
Lizelle Herrera miscarried. Sometime after that–a date has not been released–she went to a local hospital for treatment (most likely for the miscarriage). During the examination and treatment, Herrera is believed to have disclosed that she used some of the medication to induce the miscarriage. Sometime after that–again, no dates were shared–a member of the hospital staff reported this information to law enforcement.
Wednesday, March 30th, 2022
After an investigation into the case by local and county law enforcement, a Texas Grand Jury is convened where an unidentified prosecutor representing Starr County District Attorney Gocha Ramirez’s office charges Herrera with “intentionally and knowingly causing the death of an individual by self-induced abortion” (a “felony”). There is no evidence to suggest that Ms. Herrera was present for the hearing. Nor is there evidence that a judge is present. Under Texas law grad juries can be held without the defendant or a judge. The grand jury indicts her.
Thursday, April 7th, 2022
Over a week later, a warrant is issued and Ms. Herrera is arrested and jailed by the Starr County sheriff. On the same day her estranged husband, Ismael Herrera, files divorce papers. The husbands civil representative is Judith Solis, who is also one of the five prosecutors who work in DA Ramirez’s office. There is no statute or office policy perventing a prosecutor from taking on civil litigation work.
Friday, April 8th, 2022
Ms. Herrera has a pre-trial release hearing where a judge sets her bail at $500,000. Unable to pay that, she is returned to jail. News outlets begin to report on the story.
Saturday, April 9th, 2022
The Frontera Fund–a Rio Grande Valley abortion rights and accessibility advocacy group–holds a protest in front of the jail and begins raising funds for bail. News outlets continue the coverage. Experts on Texas abortion law begin to highlight that there is no standing law that allows the prosecution of a woman on these grounds. By that evening enough funds have been raised for a bondsman to put up the money and, after roughly 48 hours of incarceration, Herrera is released from jail.
Sunday, April 10th, 2022
DA Ramirez releases a statement announcing that after “reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.” He defends the investigation as warranted.
Monday, April 11th, 2022
DA Ramirez’s office files papers to dismiss charges. He also reaches out to apologize to Ms Herrera.
There are two things I want to specifically highlight from this story. The first is that it serves as an example of punitive bail.
Bail, as a concept, dates back to the 13th century. It was an important enough concept to the founders that it was included as part of the eighth amendment (“excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”). There are–in theory–two considerations that go into setting bail: is the individual a threat to community safety (i.e. reoffense) and is it required to ensure appearance at trial. Let’s look at these individually.
In this case, the alleged crime was “willfully and knowingly inducing a self-abortion” (again: not a crime, but let’s look past that). There is currently no evidence that Ms. Herrera was in any other way a threat to the community. Further, reoffense, if she maliciously chose to do so, is not easily or quickly repeated. So the need for bail fails on that account.
A possibly “better” argument is that setting bail was necessary to ensure appearance at trial. But, even if we buy into that line of thought, we should question setting the bail at half-a-million dollars. This is a sum of cash that is very difficult to quickly raise for a working-class or even middle-class person. The Frontera Fund was ultimately able to raise enough to enable a bondsman/agent to post bail. However, having a third-party organization be financially liable to the bondsman, arguably defeats the purpose of having the defendant have a direct financial stake to appear in court. Admittedly, if she were to jump bail, it’s the responsibility of the bondsman to bring her in. But that would have been the case if bail had been set at a lower, more manageable amount.
Essentially bail at half-a-million dollars was a guarantee that it would be very difficult or impossible for her to make bail. That decision has nothing to do with public safety or ensuring she appears in court. It appears to be purely punitive–to ensure that Herrera spends the pre-trial period in jail unless she was significantly wealthy enough to pay it.
Punitive bail on its own is bad enough, but, in this case, it gets combined with over-prosecution. Again, Ms. Herrera was indicted for a crime that does not exist. The most charitable reading is that the charging theory was based on a pre-Roe law that had never been removed from the Texas statutes. However, the law in question has been superseded for nearly 50 years! Further, accepting this happened, she was indicted a week before her eventual arrest–more than enough time for a line Prosecutor or a supervisor to discover the “error” and that ultimately it was “clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.” This means she spent at least 48 hours in jail for nothing. And if the impossibly high bail, set in part based on the perception of the non-existent crime she was charged with, had not been posted, Ms. Herrera would have spent more than five days in jail (because she would not have been able to be released until the courts had processed the request to drop charges when they opened on Monday). Further, without the media attention to the case and the work of advocates to raise bail, how long might she have spent in jail before the case was reviewed?
The over prosecution combined with punitive bail demonstrates how our current criminal legal system criminalizes poverty or even middle-classness. In this case, Ms. Herrera was held for three days, including a Thursday and a Friday. Given that Texas is an at-will employment state, her inability to show up at work due to being too poor to make bail could easily get her fired. So that’s one cost (also note that if it leaves her unemployed then she may need to rely on the publicly funded social safety net system). Her family also retained an attorney, so that’s another cost. Depending on the county rules, she could also be charged room and board for her incarceration. Then there are any health impacts–mental, emotional, or physical–from being caged, which may require treatment or impair her ability to work. As you can see, the costs quickly begin to pile up, and with them comes debt. And allow me to remind you that all that happened in the course of a few days, prior to a trial, and any determination of guilt or innocence.
And, now that she’s been released, Ms. Herrera has very recourse for her treatment. It’s possible that she could civilly sue. However, the police are covered by qualified immunity. It’s possible that the District Attorney’s office could potentially be found liable (for reasons discussed in the addendum below), however pursuing those sorts of cases is typically long and costly, and winning them, even in a case like this, is rare.
Yes, this case is an outlier for a number of reasons (again, see below). But the underlying issues I called out–punitive bail and over-prosecution–are all too common and well documented. Both are part of the trial tax. As many have pointed out, our (unhealthy) legal system relies on plea bargaining to function. This story helps show some of the mechanisms used (intentionally or not) to help coerce those deals. Granted Ms. Herrera was able to escape that system relatively quickly. Many are not so lucky. Yet, as DA Ramirez points out in his statement announcing the dropping of charges: “Although with this dismissal Ms. Herrera will not face prosecution for this incident, it is clear to me that the events leading up to this indictment have taken a toll on Ms. Herrera and her family.” He should have also included the toll her incarceration is sure to have caused in that statement as well.
Addendum: This speculation around this case was situated in a broader discussion about Texas abortion politics. Activists and analysts noted that it could have a chilling effect and that still may be the case. However, recent details have emerged that call the political angle into question.
I think it’s important to call out that DA Ramirez is a Democrat, a former criminal defender, and ran on a reform platform. Likewise, Starr County Sheriff Rene Fuentes is a Democrat. While it is possible that one or the other might be supporters of the current abortion law for personal reasons, it seems unlikely that both are or would want to frame a case around this.
Instead, reporting today from the Washington Post, revealed a number of facts that suggest that the motives behind this might have been more personal than political. As noted above, on the day that Ms. Ramirez was arrested, her husband filed for divorce. His divorce lawyer, Judith Solis, is also a prosecutor in DA Garcia’s office. There are currently no state laws or policies against a prosecutor taking work as a civil attorney. It’s theoretically possible for Solis to serve in this position without it technically being a conflict of interest. It definitely presents an appearance of impropriety (but that is not illegal). DA Garcia’s office has yet to respond to requests to name the prosecutor who presided over the indictment. If Solis was that prosecutor, then that changes the discussion significantly.
From my perspective, the question of whether this was political, personal, or even both doesn’t really matter as much as the impact and what it tells us about the system. However, if it turns out that this was tied to a line Prosecutor “going rogue,” then that also demonstrates how easily a single individual can play the fact that the system can be so easily exploited. And it also tells us something bad about the level of oversight and review in DA Garcia’s office.