Sheriff-Elect Backs Inmates in Class Action Bail Fight

Cameron Langford

HOUSTON (CN) – Harris County, which runs Texas’s biggest jail, must face a class action accusing it of running a “wealth-based detention system,” jailing misdemeanor defendants who can’t afford bail, a federal judge ruled. And, siding with the plaintiffs, the sheriff-elect called the system unconstitutional.

Booking an average of 330 people per day, Harris County Jail in downtown Houston is the biggest in Texas. In August and September, 76 percent of its inmates were awaiting adjudication of their cases, according to a county report released in November.

Harris County is the most populous county in the state, with more than 4.3 million residents. Houston is the county seat.

Lead plaintiff Maranda Lynn ODonnell, 23, filed a class action in May, accusing the county, its Sheriff Ron Hickman, and its criminal and municipal judges of maintaining a de facto policy of refusing to grant personal no-fee bonds to misdemeanor defendants with no history of skipping court appearances, even in the face of jail overcrowding.

In the lawsuit, ODonnell blames the crowding for the deaths of 55 people in pretrial custody at the jail from 2009 to 2015.

Sheriff-elect Ed Gonzalez filed an affidavit in support of the plaintiff class and opposing Sheriff Hickman’s motion to dismiss.

“Though I respect Sheriff Hickman, I respectfully disagree with his and his lawyers’ position that the sheriff should not even be a party to this case,” Gonzalez wrote in the Nov. 22 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. I believe that the sheriff should be a party to the current lawsuit, and I look forward to participating in the lawsuit in my official capacity once I am sworn into office on January 1, 2017.”

Poor misdemeanor arrestees in Harris County are denied due process hours after they are booked into the jail when they appear before magistrates via video without attorneys at probable cause hearings that last a minute or less, during which magistrates set their bail based on a fee schedule with no regard to their ability to pay, according to the complaint.

“The ability to make bail is to be regarded, and proof may be taken upon this point” is one criterion judges are supposed to consider in setting bail, under the Harris County Criminal Courts at Law Rules of Court, adopted by majority vote of the county’s 16 criminal judges in March, according to U.S. District Chief Judge Lee Hyman Rosenthal’s Dec. 16 ruling.

The Texas Code of Criminal Procedures contains identical wording, as does a 1987 agreed final judgment in the federal case Roberson v. Richardson, which challenged Harris County’s bail policies, Rosenthal noted in her 78-page memorandum and opinion.

However, sheriff’s officers and magistrates warn misdemeanor defendants at the hearings not to say anything because they could incriminate themselves. So they cannot request lower bail until they are assigned court-appointed attorneys and arraigned a few days later before county judges, who simply rubber-stamp the bail amount without reviewing it, ODonnell claims in court filings.

ODonnell says that if an attorney files a motion for a bail reduction or waiver, it usually takes a week to get a hearing.

Unwilling to fight for their innocence, often with their jobs on the line because they are missing work, ODonnell says many defendants plead guilty at their initial appearance, are sentenced to time served and immediately released from jail.

“The added detention, the complaint alleges, is imposed as a cost for exercising their constitutional right to a trial,” Rosenthal wrote. “A study of Harris County misdemeanor pleas forthcoming in the Stanford Law Review shows that 76.8 percent of detained misdemeanor defendants plead guilty, compared to only 52.8 of defendants released on bond.”

Rosenthal denied with prejudice the county’s, the sheriff’s and the Harris County judges’ motions to dismiss.

Asserting civil rights and equal protection claims, ODonnell’s original complaint named only five magistrate judges as defendants. She added the county’s 16 misdemeanor court judges as defendants in an amended version. State judges, called district judges in Texas, handle the county’s felony cases.

In an attempt to head off the lawsuit, the 16 judges changed the “County Rules of Court” on Aug. 12 to state that no-fee bonds are “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.

In refusing to dismiss, Rosenthal said there are unresolved disputes of fact, including whether ODonnell and one of her co-plaintiffs have standing.

The county argued that ODonnell lacks standing because she posted bond a few days after she was arrested and filed the lawsuit, and that it had the right to detain her because she has outstanding warrants in Harris and Galveston Counties for failing to appear for misdemeanor court hearings.

However, Rosenthal wrote: “Even taking the defendants’ factual allegations on these points as true, Ms. ODonnell would have standing to bring her claim. Ms. ODonnell alleges that no judicial officer timely considered her inability to pay or her eligibility for release despite her criminal history, and that this outcome is typical for misdemeanor defendants in Harris County. The defendants’ allegations do not resolve Ms. ODonnell’s claims.”

Co-plaintiff Loetha McGruder was arrested in May, charged with giving a false name to a police officer, a misdemeanor. A magistrate set her bond at the preset $5,000. She couldn’t pay it. Four days later a Harris County judge reduced her bail to a personal bond and she was released.

The county argued in dismissal motions that McGruder “is the prime example of the system functioning as it should,” because she was released the first business day after her probable cause hearing.

But Rosenthal found McGruder has standing to bring due process and equal protection claims because she was detained over a weekend, though the county acknowledges her poverty made her eligible for an immediate personal bond.

The other 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.

The plaintiffs gained an unexpected sympathizer on Nov. 8 when Gonzalez, a Democrat, upset incumbent Republican Sheriff Hickman in the election.

“Individuals should not be held in our Harris County jail just because they cannot pay an amount of money set according to an arbitrary schedule. In my view, this practice violates the U.S. Constitution,” Sheriff-elect Gonzalez wrote his Nov. 22 affidavit.

He criticized Hickman for seeking to dismiss, citing “the sheriff’s active participation” in the system being challenged, and vowed to implement reforms as soon as he takes office, Jan. 1.

“A reformed system should fully address public safety concerns but also protect the dignity and civil rights of every individual — rich or poor — who comes into contact with the jail and my deputies. Our current money bail system does not achieve these goals,” Gonzalez wrote.

ODonnell sued Sheriff Hickman and judges in their official and personal capacities. Rosenthal dismissed the personal claims.

She also dismissed the official claims against the five magistrates, finding they are not policy makers because they work under the supervision of the county and its judges. The personal claims against the magistrates survived because they did not move to dismiss them.

Attorneys for both sides said they are working to settle the case.

Harris County assistant attorney Robert Soard said Rosenthal is aware the county has teamed up with Luminosity, a nonprofit St. Petersburg, Fla. criminal justice consulting firm, to develop a “public safety assessment” and “decision making framework” to guide decisions on whether to release misdemeanor defendants on personal bonds without pretrial services having to interview them.

The system is expected to launch in March 2017.

“We would like the case to resolve quickly for the benefit of the people being arrested on misdemeanors in Harris County, to decrease the number of people staying in jail,” plaintiffs’ attorney Rebecca Bernhardt with the Texas Fair Defense Project said.

She called Sheriff-elect Gonzalez’s affidavit “helpful” for her clients’ case.

“It will be even more helpful to have him in office as a county official who is very invested in finding solutions for the jail that are constitutional and will improve public safety,” she said.

Rosenthal set a class certification hearing for Feb. 21, 2017.

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