Bail lawsuit judge sets prisoner release rules
New rules for pretrial release of low-income people could set stage for settlement in lawsuit over Harris County treatment in court
The federal judge in a lawsuit against Harris County over its bail practices sets new rules for the pretrial release of thousands of low-level offenders.
The federal judge in a landmark bail lawsuit against Harris County set new ground rules for law enforcement and judges about pretrial release for thousands of low-income people arrested on low-level offenses in a revised injunction issued Friday.
The order prohibits the county from detaining a poor person in instances in which a person with money would be allowed to pay and get out of jail. Qualified poor people charged with certain offenses, such as drunken driving or writing bad checks, will be permitted to leave jail immediately and return for future appearances. However, the finding also gives judges two days to make a bail determination for people arrested on more serious offenses or who face holds or detainers that would prevent them from being released.
The ruling Friday comes in the wake of opinions in February and early June by a federal appeals court that the 2017 injunction upending long-standing bail practices was overly broad. The appeals judges asked the trial judge to fine tune her bail instructions, but they agreed with her finding that the country’s third largest criminal justice system was routinely subjecting indigent defendants to “wealth-based detention” in violation of their constitutionally protected rights to due process and equal protection.
The county will have another chance to argue the full case when the 2016 lawsuit goes to trial on the merits on Dec. 3, however, county officials could opt to settle the case, something both sides have indicated they would like to do. In two years litigating the case, the county has hired dozens of lawyers at a cost of $6.7 million.
Precinct 1 Commissioner Rodney Ellis, a longtime criminal jus-
tice reformer who has backed the lawsuit, said Friday’s decision affirmed the courts’ finding that there are “no legal or moral grounds” for the “unconscionable and futile defense of a twotiered system of injustice that favors the wealthy and punishes the poor.”
“The county’s indefensible money bond system routinely violates the constitutional rights of poor defendants and forces people to languish behind bars simply because they cannot afford bail — there is no disputing this basic fact,” Ellis said. “Countless families have been torn apart and lives have been ruined by an unfair bail system that denies pretrial liberty and basic constitutional protections to poor defendants.”
The lawyers defending the county called Chief U.S. District Judge Lee H. Rosenthal’s order “an excellent beginning for a settlement.”
“The county remains committed to a settlement that maximizes the number of misdemeanor detainees who are eligible for prompt release from jail without secured bail, that provides due regard for the rights of victims and protection of the community and preserves the independence of the judiciary,” said Robert Soard, first assistant to Harris County Attorney Vince Ryan.
Kate David, who represents the county hearing officers, said Rosenthal made most of the changes to the order that her clients had requested.
“We are happy about that,” she said.
Attorneys for 14 judges who oppose the lawsuit did not respond to a request for comment.
Faulty data alleged
Lawyers for the indigent defendants who brought the case said the revised order, like the original injunction, makes the system fairer for all.
“The ruling affirmed the basic constitutional principle that it’s a violation of equal protection to keep a poor person in a jail cell when a person with money would be released,” said Elizabeth Rossi, an attorney on the case from Civil Rights Corps.
She said the county has introduced faulty data to make it seem like the groundbreaking injunction was creating a public safety risk.
“In an attempt to sabotage the order, judges have manipulated the system and manipulated their bond forfeiture practices to make it look like people are failing to appear, but what the data show is that’s not the case.”
In its June 1 opinion, the 5th U.S. Circuit Court of Appeals gave Rosenthal 30 days to revise her order. Rosenthal fielded input from both sides before she issued her ruling Friday.
The amended order extends the time period between an arrest and a bail determination from 24 to 48 hours, based on the appeals court finding that the shorter window imposed too heavy of a burden on county officials. Rosenthal also found that poor defendants may be held in jail on unaffordable bail if a judge has made an assessment that that is appropriate.
In the spirit of her determination that the county had violated the constitution, Rosenthal’s order also sets out to level the playing field for those who cannot afford to pay bail, eliminating “wealth-based detention” for misdemeanor defendants who qualify for release. She provides a blueprint for officials to release eligible misdemeanor defendants as promptly as people who could can post bail money up front.
At bail hearings, she found that judges must provide each defendant an “individualized consideration” about whether they must post cash bail. Defendants must have a chance to present and respond to evidence and provide input about their ability to afford bail, the order says. Rosenthal also instructed the county to provide defendants an adversarial bail review hearing within a business day.
‘Obligation to fix’ the system
The county has opposed the April 2017 ruling jointly with 14 judges and the hearing officers who set bail. Several elected Democrats have supported the indigent defendants’ position, including District Attorney Kim Ogg and Sheriff Ed Gonzalez.
Court at Law Judge Mike Fields, one of two misdemeanor judges who have joined with the indigent defendants in seeking revisions to the old bail system, said he was impressed with the judge’s carefully crafted remedy.
“As I’ve always maintained, my colleagues and I did not create this system that not only Judge Rosenthal but the 5th Circuit and nearly every criminal justice stakeholder has agreed is unconstitutional, but we have an ethical and moral obligation to fix it,” he said.
“That’s the essence of leadership. Hopefully, we can come together, set aside our differences and resolve this matter prior to a lengthy and expensive trial,” Fields said. “I remain confident that we will.”
The 2016 lawsuit was filed on behalf of Maranda ODonnell, a mother held in jail for two days after she couldn’t afford $2,500 bail on a charge of driving with a suspended license. Lawyers from Civil Rights Corps, in Washington, the Texas Fair Defense Project and free counsel from the Susman Godfrey law firm in Houston expanded the lawsuit to a class action on behalf of all people in ODonnell’s situation.