Judge Won’t Buy Harris County’s Defense of Bail System

HOUSTON (CN) — Facing a class action accusing it of running an unconstitutional bail system that needlessly jails poor misdemeanor arrestees, Harris County could not persuade a federal judge Wednesday to stay the case until it implements long-overdue reforms.

The Harris County Jail in downtown Houston is the biggest in Texas, booking an average of 1,400 people a week.

It’s been a headache and embarrassment for county officials in recent years, due to overcrowding that critics say caused the death of four people who were beaten by fellow inmates there in 2015 and 2016, leading the Department of Justice to open an investigation.

A bail system in which as late as spring 2016 only 8 percent of misdemeanor arrestees were released on no-fee bonds has fueled the overcrowding. Even newly elected Harris County Sheriff Ed Gonzalez, a defendant in the class action, has conceded in a brief to the court that he believes the system is unconstitutional.

Other top officials agree. After a hearing Wednesday afternoon before U.S. District Judge Lee Rosenthal on the county’s motion to stay, Harris County Commissioner Rodney Ellis, a former state senator, said he’s confident a settlement will be reached before trial, but acknowledged the legal wrangling has been costly for taxpayers.

Commissioners are the executives of Texas counties, led by CEOs who are called county judges, but are not judicial officers.

“I do think it was a mistake on the county’s part to lawyer up. God knows how much money has been spent already, in my judgment, to defend a system that’s indefensible. … It’s a real simple proposition: Are you for simple justice or not?” Ellis, an African-American, said.

Lead plaintiff Maranda Lynn ODonnell, a 23-year-old mother of a young daughter, was arrested May 18, 2016 on a charge of driving on a suspended license and booked into Harris County Jail.
ODonnell says she couldn’t afford the $2,500 bail set by Harris County’s bail schedule, which sets predetermined amounts based on the charges.

Asserting civil rights and equal protection claims, ODonnell’s original complaint named only the county, its sheriff, and five magistrate judges as defendants. She added the county’s 16 misdemeanor court judges as defendants in an amended version.

Magistrates do not consider a person’s ability to pay a preset bond after an arrest for a minor crime, according to the lawsuit.

The county told Rosenthal in a Feb. 2 emergency motion to stay that it’s confident its reformed bail system, set to launch July 1, will moot ODonnell’s claims.

The county’s attorneys also bragged in the motion that the “public-safety assessment,” still under construction, in which all arrestees will be evaluated for bond eligibility by a computer program without pretrial service staff having to interview them, will make Harris County “a model for the rest of the nation.”

“A stay is warranted because plaintiffs’ proposed relief unnecessarily intrudes into areas that should be left to the local government. In reality, this case is not about the Constitution or the law. Rather, this case is about plaintiffs’ attempt to force policy changes — changes that should be made by elected officials, not a federal court,” the motion states.

One of the county’s hired guns, James Munisteri with Gardere Wynne Sewell in Houston, told Rosenthal on Wednesday that the percentage of defendants granted no-fee bonds has jumped from 8 percent to more than 20 percent since the litigation began in May 2016.

He credited rule changes the county’s 16 criminal court judges made in August 2016 that made no-fee bonds preferred for 12 misdemeanor charges, plus the hiring of two new magistrates and a new pretrial services form that collects more financial data about defendants earlier in the post-arrest process.

Unimpressed with Munisteri’s statistics, Rosenthal cut to the heart of the case:  “What percentage of those who cannot pay and who are subject to no other constraints are still in jail?” she asked.

Rosenthal, a George H.W. Bush nominee, is the chief judge of the Southern District of Texas.

She presides over the most imposing courtroom in the Bob Casey Federal Courthouse in downtown Houston, its focal point a huge marble slab that looms behind the bench, nearly filling the wall, framing the petite but fiery Rosenthal.

She was unfazed during the 90-minute hearing when Munisteri suggested that perhaps the only people being illegally detained in Harris County Jail as alleged in the lawsuit choose to be there.

“There are individuals, for instance, that for whatever reason, decide they do want to go the jail and stay there. If it’s a cold week,” he said.

Rosenthal gently backed Munisteri back from what she called his “dicey” argument.

“It’s uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery because they were afraid of the alternative,” she said.

“There may have been individual cases in which that fear was tremendously powerful and real. But you didn’t see a lot of people running towards enslavement. You don’t see a lot of people volunteering for jail in order to get warm.”

ODonnell’s attorney Alec Karakatsanis, with the Civil Rights Corps, a Washington, D.C. firm that does pro bono work, urged Rosenthal to see past Harris County’s claims that its new risk-assessment tool “will be magic.”

“They’ve had a validated risk-assessment tool since 1992 that’s been ignored by every defendant in this case,” he said.

In a Feb. 3 brief opposing the county’s motion to stay, Karakatsanis and his co-counsel wrote that the parties have been on the verge of settling the case more than once, but “certain defendants have blown up the deal.” He declined to elaborate on the holdouts during the hearing.

In refusing to stay the case, Rosenthal said the county had not given her enough data. She said there were too many “open questions” about when the county’s new system will be implemented, what changes will be made and how the bail payment schedule will be revised.

She set a Feb. 22 hearing for the parties to hash out their expert witnesses and a preliminary injunction hearing for March 6.

Ellis, the county commissioner, told reporters after the hearing that the county still has time to settle.

“I think they can still get there. But when you get vested interests involved who want to protect that turf, and some people who want to protect their pocketbooks, that adds to the complexity of it,” he said, adding that bail bondsmen are part of the problem.