HOUSTON (CN) – Criminal justice reform in Texas’ biggest county took another tortured step forward Thursday, as combatants in litigation over the county’s bail policies laid out their differences before a federal judge who is narrowing her injunction in the case.
U.S. District Judge Lee Rosenthal has put Harris County on the path towards reforms in line with a growing movement across the United States away from cash bail.
Harris County, with 4.5 million residents, is the third-most populous county in the United States. Its seat is Houston.
Rosenthal issued a preliminary injunction in April 2017, finding Harris County’s practice of having magistrates set bail at probable cause hearings with a fee schedule based on the charges unconstitutionally favors those who can afford cash bail.
She ordered the county to release within 24 hours on personal bonds, which do not require upfront fees, misdemeanor defendants who sign affidavits stating they cannot afford the preset bail.
Harris County and 14 of its 16 criminal court judges appealed Rosenthal’s order to the Fifth Circuit, but a three-judge panel affirmed in February that the county’s “wealth-based detention” system is unconstitutional.
However, the unanimous panel disagreed with Rosenthal’s laser focus on defendants’ ability to pay bail. It said she did not give sufficient weight to judges’ interest in ensuring defendants show up for hearings and for community safety.
The New Orleans-based appellate court remanded the injunction to Rosenthal with instructions to narrow it in light of its holding that there’s no automatic right to pretrial release for misdemeanor arrestees, which it said Rosenthal’s order amounted to.
Rosenthal started that process at Thursday’s hearing.
“I hope defendants are committed to following the rest of the country in fixing a bail system the Fifth Circuit agreed is terribly flawed,” she said in opening statements.
Harris County’s insistence on fighting the litigation, which started in May 2016 and has already cost it more than $6 million in fees to outside counsel, is puzzling to two critics with insider knowledge of its criminal justice system.
Judges Mike Fields and Darrell Jordan, the only African-Americans among the county’s 16 misdemeanor court judges, are defendants in the lawsuit only in name because they agree with the challengers’ claims that the county’s bail system is flawed.
Fields, a Republican who has presided over his court since 1998, said in a statement Wednesday, “Now, we face what I believe, is the civil rights issue of this generation: How will we treat those accused of running afoul of the law? Will the rich have one system of justice and the poor another?”
Fields compared defenders of the county’s bail practices to those “society deemed good, moral and decent people,” who opposed ratification of the 14th Amendment in 1868, which undid the U.S. Supreme Court’s Dred Scott decision. That 7-2 ruling in 1857 held that people of African ancestry did not qualify as U.S. citizens.