Pressure Mounts Against Bail System in Houston

HOUSTON (CN) – The CEO, district attorney and sheriff of Harris County, Texas, all agree its bail system needs to be reformed, siding with a federal class action that’s pushing to keep poor people accused of petty crimes out of its jail.

Harris County DA Kim Ogg, a Democrat, took office in January following a campaign in which she promised to focus tax dollars on prosecuting violent criminals instead of low-level offenders, especially marijuana possession cases.

Early this month, she rolled out at a diversion program in which people caught with less than four ounces of marijuana can take a four-hour drug education class to avoid being charged.

She estimates the program will keep 10,000 people annually out of Harris County Jail, which has been plagued in recent years by overcrowding that critics say is partly to blame for the deaths of 55 people in pretrial custody from 2009 to 2015.

The average jail population in January was 9,059 inmates, and an average of 6,920, or 76 percent, were awaiting adjudication of their cases, according to a county report.

Harris County, its sheriff, its 16 criminal court judges and five magistrate judges are facing a federal class action, accusing them of unconstitutionally jailing misdemeanor defendants solely because they can’t pay bail, which the plaintiffs argue violates their Eighth Amendment rights against excessive bail and 14th Amendment equal protection rights.

On Friday, Ogg joined a growing chorus of Harris County and Texas officials, some of whom are defendants in the case, who believe the county’s bail system should be reformed to grant more low-level defendants no-fee bonds, also called personal recognizance bonds.

“Holding unadjudicated misdemeanor offenders in the Harris County Jail solely because they lack the money or other means of posting bail is counterproductive to the goal of seeing that justice is done. We do not want to be complicit in a system that incentivizes presumptively innocent people to plead guilty merely to expedite their release from custody,” Ogg wrote Friday in an amicus brief for case.

Harris County Judge Ed Emmett – who is the county’s CEO, not a judicial officer – said at a recent county commissioners meeting, “I don’t think anybody in Harris County should stay in jail just because they can’t afford to pay bail.”

Harris County Sheriff Ed Gonzalez, who replaced his predecessor Ron Hickman as a defendant in the lawsuit when he took office in January, and will testify in the case, stated in an affidavit, “I believe that the current operation of the money bail system, including the sheriff’s active participation in that system, violates the United States Constitution.”

Texas State Sen. John Whitmire, D-Houston, who has held that office since 1983 and chairs the Senate Criminal Justice Committee, said in a joint letter also signed by Harris County Precinct 1 Commissioner Rodney Ellis in February, “It is our position that the Harris County bail system blatantly violates the rights and freedoms protected under the U.S. Constitution by creating one system of justice for the wealthy and an unjust one for the poor.”

Harris County Criminal Judge Darrell Jordan, an African-American and former defense attorney, is also a defendant in the class action. The county assigned him his own defense attorney for the federal lawsuit due to his practice of not using the bail schedule approved by the county’s criminal judges that sets bail fees based on the charges.

“Judge Jordan believes the current bail bond system is broken and needs reform,” he wrote Monday in a response to the plaintiffs’ motion for a preliminary injunction, asking that he be excluded from any injunction.

Harris County is implementing reforms, but doesn’t believe its current bail system is unconstitutional. The county asked U.S. District Judge Lee Rosenthal to stay the case until after July 1 when it plans to implement a risk assessment tool to rate defendants on their eligibility for no-fee bonds without pretrial services having to interview them.

Rosenthal denied the stay motion, unwilling to put off the claims of the plaintiffs, who argue that every day hundreds of people are held in Harris County Jail only because they are poor. They say a preliminary injunction would prevent arrestees from getting booked into jail, possibly losing their jobs or pleading guilty to crimes they didn’t commit to be released sooner than if they had asked for a jury trial.

About 8.5 percent of misdemeanor arrestees were granted no-fee bonds when the class action was filed in May 2016, and that has increased to about 12 percent now, according to the county.

The county’s latest, and perhaps most substantial, reform measure was introduced last week, when its commissioners approved a pilot program for public defenders to advise misdemeanor defendants at probable cause hearings overseen by magistrates.

The program is set to launch July 1, the same day as the new risk-assessment tool.

Defendants currently do not get representation at the probable cause hearings and are often told not to talk by the magistrates to avoid incriminating themselves.

“This is a huge step for Harris County to have that public defender at the initial bail hearing and have access to the same information that the prosecutor has, this will put Harris County at the forefront of a nationwide trend. Harris County will be, along with El Paso County, one of only two in Texas that provide this service,” Harris County managing attorney Melissa Spinks told Judge Rosenthal on Monday, the first day of a preliminary injunction hearing.

“It has taken time but we’re very close to achieving what we believe is the gold standard in pretrial procedures,” Spinks said, adding that the county is increasing its use of “early presentments” at city jails and outlying county lockups, so misdemeanor defendants can bond out there before they are transported to the Harris County Jail in downtown Houston.

About three months after lead plaintiff Maranda ODonnell filed the class action, the county’s 16 criminal judges changed the “County Rules of Court” to make no-fee bonds “favored” for 12 misdemeanor charges, including public intoxication, prostitution and possession of small amounts of marijuana.

Harris County also recently hired two more magistrate hearing officers and revamped its pretrial-services form to collect more financial data about misdemeanor defendants earlier in the post-arrest process.

But ODonnell claims in court filings that the judges’ customs are too ingrained and that even after the August policy change, they continued to force magistrates to set predetermined bond amounts for people arrested on those 12 charges.

Changes can’t come soon enough for Harris County taxpayers, who will pick up the more than $1.2 million – and growing – tab that the county has paid private attorneys to fight the lawsuit.

One of ODonnell’s attorneys, Neal Manne with Susman Godfrey in Houston, told Rosenthal at Monday’s hearing that he’s concerned how the county’s new risk-assessment tool will be used because it already uses a similar tool that ranks people as more at risk of not appearing for future court hearings if they are poor.

Another named plaintiff, Robert Ryan Ford, could not pay his $5,000 preset bail after his arrest in May for misdemeanor theft. He pleaded guilty at his arraignment five days later, was sentenced to time served and released.

Manne said Ford is a good example of how the current risk-assessment tool works against poor people.

Manne, in a dark suit and red tie, his gray hair perfectly parted, said pretrial-services staff gave Ford a score of seven, meaning he’s high risk, with one being low risk, even though Ford had no prior failures to appear, despite an extensive criminal history.

“Ford had no prior failures to appear but he had a risk assessment score of seven because he’s indigent, he doesn’t have a landline phone and he lived in someone else’s home and he doesn’t own his own car. Oh and because he’s male you get a point against you for being male,” Manne said.

“That makes sense to me,” Rosenthal said, drawing laughs from some of the 40 spectators in the gallery of her 11th floor courtroom in the Bob Casey Federal Courthouse in downtown Houston, a wood-paneled room topped by skylights and lined with large portraits of her colleagues.

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

She peppered attorneys with questions throughout a five-hour hearing on Monday, her highly developed legal mind on display with probing, rambling inquiries that sounded like she was reading from a law book, pushing the 20 attorneys before her to give her an idea of what kind of injunction she could tailor narrowly enough not to overstep her authority.

“I can’t order judges to reach specific outcomes in specific cases in which they are clearly operating as judges,” Rosenthal said, peering over her large red-framed glasses.

She asked Spinks for hard numbers on the number of people who the county denies bail to because they believe they are a risk to the community, noting that the Texas Constitution bans preventive detention of any misdemeanor arrestee.

Harris County argues in court filings there’s no constitutional right to affordable bail and paying a bond increases the likelihood a defendant will show up for future court hearings, arguments echoed by bail bondsmen who have filed their own brief in the case.

But Manne said he plans to call a witness to refute that claim: Truman Morrison, a judge from Washington D.C., where for the last 22 years there’s been a law that money bail can’t be set in an amount that a misdemeanor defendant can’t pay.

“Our point isn’t that Harris County should work like D.C. Our point is there are systems that don’t use money bail,” Manne said. “Judge Morrison will tell you it’s 99 percent of arrestees are released without financial conditions in D.C., but not withstanding that the failure to appear rate is extremely low. That’s because they do tailored things to try to get people back to court, text reminders, phone reminders, simple things that are more effective than money bail.”

The preliminary injunction hearing will continue Tuesday and Wednesday.