Six states back county in fight over bail reform

Texas Attorney General Ken Paxton and the top lawyers in five other states are backing Harris County in its protracted battle over money bail for poor lowlevel defendants, as the tally of those released on no-cash bail nears 1,000.

Paxton and the lead attorneys in Arizona, Hawaii, Kansas, Louisiana and Nebraska filed a joint brief late Monday supporting the county’s appeal of a federal court order that took effect three weeks ago eliminating cash bail for indigent misdemeanor defendants.

The American Bail Coalition also submitted a “friend of the court” brief on Monday siding with Harris County on behalf of bail bondsmen who have followed the case that had drawn national attention.

The county’s latest backers noted their concerns

about the dangers of cash-free bail as tensions mounted again Tuesday in Commissioners Court, where several county leaders argued the judge’s bail order posed a threat to public safety.

The federal order to change the county’s bail system stems from a civil rights case brought on behalf of Maranda O’Donnell, a 22-year-old mother who spent days at the county lockup on a charge of driving with a suspended license because she could not afford the $2,500 bail.

Two others arrested for low-level offenses joined O’Donnell’s suit, in which two civil rights groups and a Houston law firm argued in March that wealth-based bail was unconstitutional.

Chief U.S. District Judge Lee H. Rosenthal issued a sweeping opinion in April in which she found the current bail system discriminatory against indigent defendants and ordered immediate changes.

Rosenthal’s order took effect early this month, after the county’s request for a temporary halt to the order was denied by the district, appellate and ultimately the U.S. Supreme Court.

The appeal of the full order will be set for oral arguments before the 5th U.S. Circuit Court of Appeals in the coming months.

Tensions at meeting

At a tense Harris County Commissioners Court meeting on Tuesday, officials provided the clearest picture yet of the people released from impact of Rosenthal’s ruling. Nearly 980 people have been released by the sheriff under Rosenthal’s ruling from June 6 through Friday, according to county’s office of budget management.

Of those, 40 people who were released on personal bonds had been arrested again by Friday and charged with new crimes, a rate of about 3 percent.

In the group of people who were able to afford cash bond — either through a bail bondsman or by posting cash — during the same time period, only about 1 percent had been re-arrested, county officials said.

The county’s arguments were countered in a lengthy hearing before Rosenthal that led to her order.

A sampling of those who received personal bonds found that about 40 percent were arrested for criminal trespass, criminal mischief, evading arrest, or failure to identify to authorities — the most common crimes.

Several members of Commissioners Court, including Harris County Judge Ed Emmett, repeated their concerns that in some cases, defendants were released on personal bonds, accused of new crimes, and released again on personal bonds.

“There’s got to be an endpoint,” Emmett said.

Attorney Elizabeth Rossi with the Civil Rights Corp, which is among those filing the lawsuit, said the sampling is too small for broad conclusions.

A study published in March in the Stanford Law Review examined the impact of detaining people accused of misdemeanors ahead of their trials in Harris County. The study found that they are 25 percent more likely to plead guilty, 43 percent more likely to receive jail time and their sentences are twice as long on average.

The study also found that those detained while awaiting trial are more — not less — likely to commit future crimes.

Legal arguments continue

In the latest court filings, the attorneys for Texas and the other states filed a 20-page “friend of the court” brief that argues that states and local governments can structure their public safety systems to their liking. It says Rosenthal erred by “creating a novel constitutional right to avoid bail based on indigency.”

The Constitution, the brief says, does not give a person the right to avoid cash bail just because they can’t afford it.

The brief also quibbles with Rosenthal’s analysis of due process and equal protection provisions of the Constitution as they apply to indigent defendants, noting that “the mere inability to pay does not render bail excessive and thus invalid under the Eighth Amendment.”

The lawyers for the six states say Rosenthal’s order tramples on Texas law, depriving government officials of the right to set bail release conditions for misdemeanor defendants. Defendants will be less likely to show up for trial and the crime rate will surge, it says, causing the need for more police resources.

Paul Heaton, academic director of the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice and co-author of a study on Harris County’s criminal justice system, said the brief rehashes old arguments.

“The brief does demonstrate, however, that there are still important constituencies that have yet to be convinced of the need for bail reform,” he said. “Despite the significant progress in this area in states like New Jersey, Maryland, and Kentucky, and the mounting empirical evidence that cash bail systems can generate unwanted disparities and harm public safety — particularly when applied to lowlevel offenders — there are still many jurisdictions satisfied with the status quo that don’t want to change.”

Alec Karakatsanis, director of Civil Rights Corps, who represents O’Donnell and the others who couldn’t afford bail, said Monday’s filing by the states’ attorneys echoed that stance.

“The amicus brief is a repeat of bail industry talking points that are entirely untethered to law and to fact,” he said.

After the Commissioners Court meeting, Comissioner Rodney Ellis reiterated his support for changes to the county’s bail system.

“The arguments that states’ rights should trump the constitutional rights of those less privileged has a long and ugly history in this nation — and it’s unfortunate that Harris County and these six states seek to take us back to that ugly past rather than move us forward,” he said. “We need to enact reforms that create a more equitable system that treats all people equally and fairly under the law, regardless of their income level.”