Another Texas County Faces Challenge to Bail System

GALVESTON, Texas (CN) – A class action challenging Galveston County’s bail system as rigged to keep poor arrestees in jail has the same legitimate due process claims as litigation that transformed pretrial detention in Houston, a federal magistrate ruled Monday.  

Police arrested Aaron Booth, 37, in the early morning of April 8 on felony drug possession charges, set his bail at $20,000 on the recommendation of a prosecutor and booked him into Galveston County Jail.

Without asking if Booth could afford it, a magistrate judge rubberstamped the bail amount at a hearing later that morning after Booth asked for a court-appointed attorney and signed a pauper’s oath stating he could not pay for one.

Booth went back to a jail cell and the American Civil Liberties Union of Texas immediately took his case and ran with it to federal court.

The ACLU claims Galveston County’s use of a schedule to set bail based on the charges and failure to provide defense counsel for arrestees at bail hearings is an unconstitutional “wealth-based imprisonment” system.

Unless they plead guilty, the ACLU says, poor Galveston County inmates spend at least a week in jail before they have a hearing before a judge where they can lobby for lower bail.

And a week in jail can be disastrous as inmates cannot work and are at risk of being fired from their jobs, can miss rent payments and be evicted, or lose custody of their children,the ACLU argues in court filings.

The arguments are not novel. The ACLU is piggy-backing on a similar class action that led to a landmark ruling in April 2017 in which U.S. District Judge Lee Rosenthal held that the bail system of Harris County, home to Houston, unconstitutionally favors people who can afford to pay their way out jail.

The ACLU is also leading a court challenge of Dallas County’s bail-setting practices.

U.S. Magistrate Judge Andrew Edison refused Monday to dismiss Booth’s first amended lawsuit, which named as defendants Galveston County, its District Attorney Jack Roady, six state judges who preside over felony courts, three county criminal judges with jurisdiction over misdemeanor cases, and three magistrates.

In a motion to dismiss, the county said changes it made after Booth sued moot his claims.

Galveston County says arrestees now have the option of filling out an affidavit about their finances that magistrates must review before setting their bail; those still in custody 48 hours after their arrests are appointed an attorney to help them make their case for reduced bail; and magistrates must also write statements, or make them on the record, about why they declined to lower the bail.

But Judge Edison was not convinced the reforms are in place.

“Although the county contends that ‘steps have been taken to put in place additional procedural safeguards to ensure an arrestee’s ability to pay is taken into consideration,’ the record is not altogether clear as to what actual changes have been made to the county’s bail setting process,” he wrote in a 45-page order.

He wrote it’s unclear from deposition testimony from a local magistrate – who said she doesn’t believe that “anybody is ordering me to follow [the new procedures]” – whether all the judges and magistrates are following the new procedures.  

Asked Monday if the new bail guidelines are being applied uniformly, the county’s outside counsel, Joseph Nixon with Akerman LLP in Houston, said, “I know that they are. They are, absolutely.”

Nixon said Edison’s 45-page memorandum and recommendation is not the last word on the dismissal motions, as U.S. District Judge George Hanks will make that call.

Booth pleaded guilty to felony drug possession in August and was sentenced to 100 days in jail. A judge credited the 56 days he had already spent in jail, court records show.

His defense attorney declined to say what kind of drugs were involved.

Judge Edison also brushed aside the county’s argument that Booth’s release from jail mooted the class action because he now has no personal stake in the outcome.

“The Supreme Court has expressly held on several occasions that, in a class action challenging procedures for pretrial detention, the release of the named plaintiff from jail does not moot the action,” he wrote.

ACLU of Texas Attorney Trisha Trigilio praised the order and said the county needs to prove its bail reforms are for real.  

“We’re pleased with this thoughtful report and recommendation, which carefully evaluates the way each defendant contributes to Galveston County’s wealth-based pretrial detention system. While the county claims that it has adopted new procedures, it has filed almost no evidence to demonstrate how things have changed on the ground,” she said.

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