County bail case en­ters its last stage

Trial judge must re­fine order, with help of op­pos­ing par­ties’ lawyers

Houston Chronicle - - CITY | STATE - By Gabrielle Banks

The heated court dis­pute over Har­ris County’s bail prac­tices faces a crit­i­cal turn­ing point at a fed­eral court hear­ing Thurs­day, as lawyers from both sides help the judge craft a fi­nal order de­cid­ing how pre­trial re­lease should op­er­ate for thou­sands of poor peo­ple ar­rested on low-level of­fenses.

One of two county judges who sided with the poor de­fen­dants who ap­pear daily in his court­room framed the ques­tion be­fore the judge as “the civil rights is­sue of this gen­er­a­tion.”

In reach­ing an ac­cord, the fin­ish line seems dis­tant.

Two years into a law­suit that has in­volved dozens of lawyers and cost the county more than $6.1 mil­lion, the op­pos­ing par­ties’ ideas re­main so po­lar­ized, they could agree to only a hand­ful of phrases in a jointly-authored pro­posal. The doc­u­ment lacked a sin­gle sen­tence the sides agreed on, dif­fer­ing even on the proper ti­tle to pre­cede the judge’s name when she signs off at the bot­tom.

The hear­ing Thurs­day fol­lows a June 1 rul­ing by the 5th U.S. Cir­cuit Court of Ap­peals up­hold­ing the trial judge’s find­ing that the county’s bail sys­tem was un­con­sti­tu­tional but di­rect­ing the trial judge to fine-tune el­e­ments of her ini­tial in­junc­tion that were overly broad.

Chief U.S. District Judge Lee H.

Rosen­thal’s April 2017 rul­ing in the land­mark class ac­tion up­ended long-stand­ing bail prac­tices, find­ing the county had rel­e­gated poor peo­ple ar­rested on mis­de­meanor charges to “wealth-based de­ten­tion,” whereas peo­ple with money charged with the same crimes could bail them­selves out.

In draft­ing rec­om­men­da­tions for Rosen­thal’s new order, the two sides ex­pressed fun­da­men­tally dif­fer­ent in­ter­pre­ta­tions of what the ap­peals court asked Rosen­thal to do.

The county’s lawyers have said they are will­ing to settle the case based on the ap­peals court’s rec­om­men­da­tions. In con­trast, the at­tor­neys for the in­di­gent de­fen­dants who brought the 2016 civil rights suit, along with two of the 16 judges they sued, say in a joint pro­posal that there are es­sen­tial de­tails Rosen­thal’s new order must ad­dress that weren’t ex­plained by the ap­peals court’s analysis.

The ap­peals court found the 24-hour time­line for re­leas­ing qual­i­fied mis­de­meanor de­fen­dants placed too heavy a bur­den on county of­fi­cials, find­ing that those ar­rested were en­ti­tled to a hear­ing within 48 hours.

Tim­ing of re­lease

The re­main­ing dis­pute cen­ters on the cri­te­ria used to de­ter­mine pre­trial re­lease for peo­ple ar­rested on mi­nor of­fenses, and con­cerns by elected county of­fi­cials over public safety posed by hasty re­leases.

The county be­lieves judges should have up to 48 hours to de­ter­mine con­di­tions of re­lease for those who can’t af­ford bail. Dur­ing those 48 hours, it is rea­son­able for in­di­gent de­fen­dants to wait be­hind bars for a de­ter­mi­na­tion, they con­tend.

“We be­lieve the in­de­pen­dently elected judges have to be able to make those de­ci­sions based on the peo­ple be­fore them and not based on a bunch of rigid rules,” said Robert Soard, first as­sis­tant to County At­tor­ney Vince Ryan. “They are mis­read­ing the opin­ion if they be­lieve there is a sub­stan­tive due process right for an in­di­gent pre­trial ar­restee to be au­to­mat­i­cally re­leased with­out a hear­ing.”

How­ever, lawyers for the in­di­gent de­fen­dants flatly op­pose what they call the ar­bi­trary de­ten­tion of peo­ple based on pre­set bail amounts, which fre­quently re­sults in poor peo­ple wait­ing for days in jail or en­ter­ing guilty pleas as a faster way out.

No ‘sep­a­rate but equal’

County Court at Law Judge Michael Fields who, along with the county’s only other African-Amer­i­can mis­de­meanor judge, sided with the in­di­gent de­fen­dants and framed the bail is­sue as “the civil rights is­sue of this gen­er­a­tion.” He com­pared it with wrong­headed think­ing by “good, moral and de­cent peo­ple” as when the Supreme Court in 1857 ruled on the Dred Scott de­ci­sion — which held that African-Amer­i­cans were not con­sid­ered cit­i­zens — and those who held fast to the “sep­a­rate but equal” law after the 1954 Brown v. Board of Ed­u­ca­tion ended racial se­gre­ga­tion in public schools.

“How will we treat those ac­cused of run­ning afoul of the law?” Fields asked. “Will the rich have one sys­tem of jus­tice and the poor an­other? Or will every cit­i­zen ac­cused of a crime be pro­vided the equal pro­tec­tion the Four­teenth Amend­ment de­mands?”

The county was tak­ing steps to re­form its bail pol­icy when the law­suit was filed on be­half of a young mother who spent two days in jail be­cause she could not mount $2,500 bail after an ar­rest for driv­ing on an in­valid li­cense. Lawyers from Civil Rights Corps, in Wash­ing­ton, D.C., the Texas Fair De­fense Project and free coun­sel from the Sus­man God­frey law firm in Hous­ton ar­gued that poor peo­ple also had a fun­da­men­tal right to pre­trial lib­erty. They broad­ened the case to in­clude all sim­i­larly sit­u­ated de­fen­dants ar­rested on mi­nor charges.

The law­suit split county of­fi­cials, with four out of five mem­bers of Com­mis­sion­ers Court opt­ing to op­pose it in court. The sher­iff, district at­tor­ney and one county com­mis­sioner, all Democrats, sided with the in­di­gent de­fen­dants, press­ing the county to quickly settle the suit and cut le­gal ex­penses.

“Will the rich have one sys­tem of jus­tice and the poor an­other? Or will every cit­i­zen ac­cused of a crime be pro­vided the equal pro­tec­tion the Four­teenth Amend­ment de­mands?” County Court at Law Judge Michael Fields

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