County’s rollout of new bail system faces delay

Rules to be in place by July’s end, but judge says they ‘do not change much’

Harris County’s longtrumpeted new system for setting bail for people awaiting trial will be up and running by the end of July, nearly a month later than the July 1 effective date the county had promised a federal judge, officials said Monday.

The new approach won a green light late Friday from Chief U.S. District Judge Lee H. Rosenthal, who issued an order saying the new system did not violate an April ruling that threw out the previous system as unconstitutional.

But Rosenthal warned in a blunt 200-word footnote that the new rules “do not change much,” indicating county judges must stop requiring cash bail for low-level, misdemeanor defendants who can’t afford it.

The new rules will be based on a risk-assessment tool designed to help the county’s judges determine a defendant’s likelihood of appearing in court and staying out of trouble. The system imposes a fee schedule ranging from $500 to $5,000 for misdemeanors and recommends upfront payment from most people.

“Like the old schedule … secured money bail is the standard recommendation for most categories of misdemeanor arrestees,” the judge wrote. “The approved changes are hardly different.”

A lead attorney for the people suing over the bail system said Rosenthal’s order showed frustration with the county.

“The interesting thing is that she notes the county has not done what it said it was going to do,” said Neal Manne, a partner at Susman Godfrey, a law firm providing its services at no charge.

County Commissioner Rodney Ellis, who has supported changes to the bail system, said the judge’s order puts the county on notice.

“Judge Lee Rosenthal’s recent order goes to the crux of the matter in this case: It doesn’t matter what Harris County’s rules say if its judges are violating the Constitution by imprisoning people before trial because they can’t pay money bail,” he said.

The order stems from a federal civil rights lawsuit filed on behalf of Maranda ODonnell, a young mother who was held in the Harris County Jail because she couldn’t afford to post $2,500 bail after she was arrested for driving with a suspended license. Similar lawsuits filed on behalf of two other people were merged into the case in August.

Rosenthal ordered a temporary halt to the county’s bail system to accommodate indigent defendants until the lawsuit is resolved. The order went into effect after the U.S. Supreme Court in early June refused to stop it.

As of June 23, nearly 1,000 indigent defendants had been released on personal bonds without posting cash bail for a limited group of misdemeanor offenses, even as county officials worked to implement the new risk-assessment system.

‘Not a significant delay’

Officials have argued that cash-free releases increase the likelihood that defendants will commit new crimes, though opponents say the numbers are too small to measure.

The county already has spent more than $3.5 million in legal fees — including the hiring of a $550-an-hour Washington lawyer — to fight the suit.

On Monday, officials said the new system should be fully in place by July 29.

“It was delayed approximately two weeks,” said Robert Soard, the first assistant county attorney who coordinates the county’s defense in the case. “It’s not a significant delay.”

Kelvin L. Banks, director of Harris County Pretrial Services, said the new rules will be rolled out in stages across the division’s 114 employees. An average of 200 new defendants enter the system each day.

“It’s a huge undertaking, but we welcome it,” Banks said, noting that he took the job last year to take part in a change that would “set a benchmark … that is going to be echoed across the country.”

Banks said the monthlong implementation began Monday for pretrial services workers, who have a new standardized form for obtaining information from defendants, including sworn statements about whether they can afford cash bail.

Next week, staffers will get training on how to use the public safety assessment, a standardized formula developed in partnership with the Laura and John Arnold Foundation, a Houston nonprofit, and funded by the New York-based MacArthur Foundation, he said.

The following week, county officials will start to recommend varying supervision levels based on the risk assessment, such as requiring people with a history of not showing up for court to check in more frequently than those who regularly appear as needed.

The county has added 13 new employees in recent months to help keep up with the new demand, Banks said.

Whether the county’s approach is constitutional depends on how it’s implemented, Rosenthal noted in the two-page order Friday. She said the county had a “consistent custom and practice” to require cash bail.

Rosenthal praised the county’s new rules, however, for instructing judges who set bail that they should ensure that “liberty is the norm, and detention prior to the trial or without trial is the carefully limited exception,” as the U.S. Supreme Court instructed in a decision 30 years ago.

Nine factors considered

Matt Alsdorf, the Arnold Foundation’s vice president of criminal justice, has told the Houston Chronicle the risk assessment was developed using more than 1.5 million cases across the country. The research determined factors that are most likely to predict a defendant’s likelihood of missing a court appearance or committing another crime.

The nine factors considered include age, prior convictions — including misdemeanors, felonies and information about whether the offenses were violent — and whether the defendants showed up for court in previous cases. The assessment does not consider race, gender, drug use, national origin or income.

“Judge Lee Rosenthal’s recent order goes to the crux of the matter in this case: It doesn’t matter what Harris County’s rules say if its judges are violating the Constitution by imprisoning people before trial because they can’t pay money bail.”

Commissioner Rodney Ellis