HOUSTON (CN) – Assembly-line, lock-them-up criminal justice is a thing of the past in Texas’ biggest county, thanks to a federal judge who has mandated the prompt release, starting July 30, of some poor defendants charged with petty crimes with no payment of bail.
Now in its third year, a class action lawsuit challenging the bail practices of Harris County, which operates the state’s biggest jail with a typical inmate population of around 9,000, in downtown Houston, has upended the status quo in line with similar reforms from Alaska to New Jersey.
With more than 4.5 million residents, Harris County, is the third most populous in the United States behind Los Angeles and Cook County, home to Chicago.
The class claims the county’s system of using a schedule to set bail based on the charges, regardless of a defendant’s finances, puts poor people at risk of having their lives implode with jobs lost, kids put into foster care, or to pleading guilty to crimes they did not commit so they can get out of jail.
They say the county has provided no evidence to show people released on cash bond are more likely to show up for court than those released on personal bonds, which do not require upfront fees.
U.S. District Judge Lee Rosenthal reined in her preliminary injunction in the case on Friday, as instructed by the Fifth Circuit in New Orleans, which found her previous injunction’s mandate that the county release within 24 hours all misdemeanor defendants who signed affidavits attesting they cannot afford cash bail was too burdensome for the county.
The Fifth Circuit did, however, agree with Rosenthal’s key finding that Harris County’s bail system unconstitutionally favors people who can afford to pay their way out jail.
Rosenthal’s new injunction orders the county to promptly release on personal bonds defendants who the county’s criminal judges have found, based on a new risk assessment tool, should presumptively be released on personal bonds.
These are people charged with crimes like drunken driving, petty theft, or writing bad checks, who do not have any formal holds for outstanding warrants, federal immigration detainers, upcoming hearings to determine their mental health, or any family violence restraining orders.
Rosenthal disagreed with the county’s claims the injunction eliminates cash bail for all poor misdemeanor arrestees.
“This order is much narrower, in that it does not apply to all misdemeanor arrestees, or even all indigent misdemeanor arrestees, but only those deemed by local law as eligible for release on personal bond,” Rosenthal wrote Friday in a 24-page order. “And it does not forbid pretrial detention after an adequate hearing and individual assessment.”
To ensure that magistrate judges, who set bail at probable cause hearings, are not railroading defendants into jail, the injunction mandates that they must state in writing, or say on the record, the reason they denied them personal bonds.
If magistrates do not provide any such bail-determination record, Rosenthal’s order authorizes the Harris County Sherriff’s Office, which oversees the jail, to release arrestees on personal bonds.
County officials say they are hopeful that a new processing center jointly run by Harris County and Houston, set to open on August 18, will shorten the time from an arrest until the defendant appears before a magistrate judge.
Cynical observers of the litigation have questioned if the bail bond industry, which has backed Harris County in amicus briefs, is holding the county back from settling the litigation.
The county has spent $6.7 million of taxpayer money on defense attorneys for the case.
A trial on the merits is set to start December 3.
First Assistant County Attorney Robert Soard told Courthouse News on Monday that the new injunction provides a framework for settlement talks, and the county is looking forward to further discussions with the challengers.
“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,” he said in a statement.
Lead plaintiff Maranda ODonnell claims in her lawsuit she couldn’t afford the $2,500 bail set by the county’s bail schedule after she was arrested on a charge of driving with a suspended license and booked into jail in May 2016.