Fifth Circuit Affirms Unconstitutionality of Harris County Bail System

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.

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 last year showed that Harris County’s magistrate and criminal judges imposed the scheduled bail amount 90 percent of the time, even for homeless people.

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.

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

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.

But the Fifth Circuit rejected that, finding that Rosenthal’s order amounted to an automatic right to pretrial release for misdemeanor arrestees.

This is “too broad a reading of the law,” Brown wrote, noting that “Texas courts have never sought to eliminate the use of bail bonds.”

The Harris County criminal court judges sought dismissal of the claims against them because judges are not liable when enforcing state law in their judicial capacity.

But the Fifth Circuit credited ODonnell’s claims that the criminal judges set rules on how to set bail, so they are effectively policy makers, meaning they can be held liable as county officials for a policy that infringes on constitutional rights under Section 1983 of the Civil Rights Act.

The panel did, however, dismiss Harris County Sheriff Ed Gonzalez from the lawsuit because, Brown said, he has no policymaking authority. He cannot release a defendant from jail in defiance of a bail set by a magistrate or criminal judge.

The dismissal is poetic justice for Gonzalez, who has been opposed to the county’s defending its bail system since the litigation’s early stages. The county has spent more than $5 million on outside counsel fighting the class action.

Then-Sheriff-elect Gonzalez submitted an affidavit in November 2016 in which he said he agreed with ODonnell. “I believe that the current operation of the money bail system, including the sheriff’s active participation in that system, violates the United States Constitution,” he wrote.

The bail bond industry, not surprisingly, denounced Rosenthal’s preliminary injunction, arguing in friend-of-the-court filings that there is no constitutional right to affordable bail and that bail bondsmen help courts run smoothly because they track down clients who do not show up for hearings.

Criminal justice reform advocates credit Rosenthal for revealing that the status quo in Harris County, which held 50,000 bail hearings for misdemeanor defendants in 2015, too often sees poor petty criminals pressured to accept plea bargains to avoid spending weeks in jail.

ODonnell is represented by attorneys with Washington, D.C.-based Civil Rights Corps, which has filed similar lawsuits in several other states. It opened another front with a Jan. 21 filing of a challenge to the bail policies in Dallas.

Assistant Harris County Attorney Robert Soard told the Texas Tribune he is pleased the Fifth Circuit reined in Rosenthal’s mandate for the county to release most misdemeanor defendants on personal bonds.

“The Fifth Circuit agreed that money bail could be used after an assessment of risk in accordance with Texas law,” he said in a statement.

He added that the appellate court’s proposed injunction “provides a framework for a settlement.”

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