Federal Judge Strikes Down Houston-Area Bail System

HOUSTON (CN) – Texas’ most populous county unconstitutionally jails poor people charged with misdemeanors only because they cannot afford bail, a pretrial-detention system that also violates state law, a federal judge ruled.

Lead plaintiff Maranda ODonnell sued Harris County in May 2016, after she was arrested on a misdemeanor charge of driving with an invalid license and a magistrate judge set her bail at $2,500.

ODonnell, 23, says her detention jeopardized a new restaurant job she was depending on to care for her young daughter. She got out of jail after a few days by paying her $2,500 bail.

She argues in her lawsuit that the county’s system of using a fee schedule to set bail based on the charges violates Fifth and 14th Amendment rights to due process and equal protection.

She also named Harris County’s 16 criminal court judges, its sheriff and five magistrate judges who set bond at probable cause hearings as co-defendants.

ODonnell says it makes no sense that someone charged with murder could be released if they can afford bail, while poor people charged with petty crimes languish behind bars, making them more likely to plead guilty to crimes they didn’t commit to get out and tend to their jobs and family.

Harris County counters that it considers more than just a defendant’s ability to pay in setting bail. It also weighs their criminal history and prior failures to appear for court hearings.

U.S. District Judge Lee Rosenthal agreed with ODonnell and granted her preliminary injunctive relief on Friday.

Rosenthal decided the county’s current system of requiring pretrial services staff to verify a misdemeanor defendant’s background information with a reference provided by the defendant before they can be released on an unsecured bond – with no payment up front –delays the process, impinging on the constitutional right to pretrial liberty.

She ordered Harris County pretrial services staff to make misdemeanor defendants sign an affidavit, stating what amount of bail they “could reasonably pay within 24 hours of his or her arrest” under penalty of perjury.

The affidavits must be reviewed by a magistrate judge at probable cause hearings that happen within 24 hours of an arrest.

“The purpose of this requirement is to provide a better, easier, and faster way to get the information needed to determine a misdemeanor defendant’s ability to pay,” Rosenthal wrote in a 193-page order.

Though Texas and federal law say judges must customize a defendant’s bail amount based on their circumstances, evidence presented during an eight-day hearing in March showed that Harris County’s hearing officers and criminal judges impose the scheduled bail amount 90 percent of the time, even for homeless people.

ODonnell’s attorneys presented evidence showing that Harris County’s bail system is so ingrained to work against poor people that of the 9,388 defendants the county’s pretrial services department recommended be released on no-fee or personal bonds, the magistrates denied a personal bond 56.3 percent of the time in 2015.

Judge Rosenthal reviewed 2,300 recordings of misdemeanor probable cause hearings and cited one she says discredits the hearing officers’ claims that they carefully review defendants’ ability to pay the scheduled bail on a case-by-case basis before setting bail.

A hearing officer found a defendant identified only as D.M., charged with possession of less than two ounces of marijuana, had his bail set too low due to “all his priors” and raised it to $5,000, Rosenthal wrote in her order.

“The defendant requests a personal bond because his fiancée is pregnant and he is the only income earner in the household,” Rosenthal wrote, citing the hearing video. “The hearing officer responds, ‘I take all that into consideration’ but again points to the defendant’s prior convictions. The defendant points out that he has never missed a court appearance for any of those prior arrests and convictions. The hearing officer cuts him off, stating, ‘That is one factor, the other factor is everything else … Based on the nature of the offenses for which you were charged, I’m not going to consider you’ for a personal bond.”

The videos confirmed ODonnell’s claims that hearing officers and sheriff’s deputies at probable cause hearings tell defendants not to say anything out of fear they will incriminate themselves, so defendants can’t argue for lower bail.

Their first opportunity to do so is at their initial appearances before county criminal judges, who deny release on unsecured bonds 90 percent of the time, according to the case record.

Harris County is implementing reforms set to launch July 1 that it argues will moot ODonnell’s claims, including a risk-assessment tool that will gauge a defendant’s likelihood of missing court hearings or committing new crimes while out on bond, without pretrial services staff having to interview them, and it will make bond recommendations within 30 minutes of an arrest.

But critics say the tool is not a cure-all because judges will still have discretion to ignore the recommendation of a personal bond and set a cash bond.

Throughout the March hearing, Rosenthal pressed the county’s attorneys to give her stats comparing the pretrial failure-to-appear rates for those released on paid and no-fee bonds. But one judge testified that Harris County doesn’t keep those records.

“The policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial,” Rosenthal wrote.

Numerous county officials have publicly stated they agree the county’s bail system is unconstitutional, including two defendants in the case, Harris County Sheriff Ed Gonzalez and Judge Darrell Jordan, the only Democrat among the county’s 16 criminal-court judges.

To address a booking bottleneck at the county jail that sometimes prevents Houston police from transferring arrestees there, Rosenthal ordered Gonzalez to release all misdemeanor defendants who haven’t had a probable cause hearing within 24 hours of their arrest on no-fee bonds.

“A misdemeanor defendant’s criminal background or risk factors may give the county a persuasive reason to detain that defendant. But an order imposing secured money bail is effectively a pretrial preventive detention order only against those who cannot afford to pay. It is not a detention order as to defendants who can pay, even if they present a similar risk of failing to appear or of committing new offenses before trial as those who cannot pay,” Rosenthal wrote.

Rosenthal agreed with ODonnell’s key claim that setting bail higher than defendants can afford is de facto preventive detention, which is illegal for misdemeanor defendants in Texas unless they’re charged with a violent crime and placed under a protective order.

Harris County has already spent more than $2 million on outside counsel defending against the lawsuit and its hiring of Washington D.C. lawyer Charles Cooper, an appeal specialist, last month suggested it will appeal Rosenthal’s injunction.

First Assistant County Attorney Robert Soard told Courthouse News on Monday that the county is weighing its options.

“We are reviewing the orders and the memo and opinion. No decision has been made at this time concerning an appeal of the preliminary injunction,” he said.

Rosenthal’s order cites recent changes made by New Jersey, Maryland, New Mexico and the city of New Orleans that favor releasing poor, low-level defendants on personal bonds.

Advocates say bail reform will also ease Harris County Jail’s chronic overcrowding problems. More than 75 inmates died in the jail since a U.S. Justice Department probe in 2009 found the county was providing inadequate medical and mental health care to inmates and guards were using excessive force on them.

The preliminary injunction takes effect May 15. Rosenthal also granted ODonnell’s motion to certify a class action.

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