HOUSTON (CN) — The Fifth Circuit on Wednesday affirmed that Texas’ biggest county unconstitutionally imposes cash bail on poor misdemeanor defendants, but vacated an injunction requiring the county to release them from custody within 24 hours.
U.S. District Judge Lee Rosenthal ruled in April 2017 that Harris County unconstitutionally favored those who can afford cash bail by having magistrates set bail at probable cause hearings with a fee schedule based on the charges.
Rosenthal’s injunction took effect in July last year, and after a hearing in October, the Fifth Circuit agreed that a preliminary injunction was justified.
But the panel on Wednesday dialed back Rosenthal’s order for Harris County to release on unsecured personal bonds all misdemeanor defendants who have not had a probable cause hearing within 24 hours of their arrest. Unsecured personal bonds do not require upfront fees.
Writing for a unanimous three-judge panel, Fifth Circuit Judge Edith Clement Brown vacated the injunction and remanded the case to Rosenthal.
Brown advised Rosenthal to expand the deadline by which Harris County must provide probable causing hearings to misdemeanor arrestees from 24 to 48 hours.
“We conclude that the federal due process right entitles detainees to a hearing within 48 hours,” Brown wrote in a 26-page order.
Brown, a George W. Bush appointee, made other suggestions on how Rosenthal should craft the injunction on remand, but said the Fifth Circuit will leave the details up to Rosenthal.
Brown suggested keeping in place Rosenthal’s order that Harris County pretrial services staff interview misdemeanor arrestees about their finances within 24 hours of their arrest.
The panel advised Rosenthal to include a clause in her injunction that if misdemeanor defendants sign an affidavit stating they cannot pay the preset money bail, and have not been released on an unsecured bond, they are entitled to a hearing before a magistrate within 48 hours of their arrest.
“At the hearing, the arrestee must have an opportunity to describe evidence in his or her favor, and to respond to evidence described or presented by law enforcement,” Brown wrote in a template for the new injunction.
That suggestion addresses evidence that Harris County magistrates and sheriff’s officers habitually told defendants not to say anything during the hearings so as not to incriminate themselves.
Harris County’s chief public defender Alex Bunin leads a program that began in July 2017, in which his office provides counsel for defendants at these probable cause hearings.
He told Courthouse News in January that his public defenders were stopping defendants from speaking on the record. “So instead of having defendants confess, they are represented by a lawyer who speaks for them and protects their rights,” Bunin said.
To hold the magistrates accountable for declining to reduce bail from the preset amount to an affordable one, the Fifth Circuit suggested that on remand Rosenthal order the magistrates to explain their reasons for the decision, on the record.
The panel disagreed with Rosenthal’s laser focus on defendants’ ability to pay bail, one of five factors that judges are to consider in setting bail under Texas law, and said Rosenthal did not give sufficient weight to judges’ interest in ensuring defendants show up for hearings.