Fifth Circuit Wrestles With Bail Policies in Houston Jails

(CN) – A panel of Fifth Circuit judges on Tuesday questioned whether a federal judge in Houston went too far in overhauling the bail policies of Texas’ biggest county by ordering it to release poor misdemeanor defendants from jail within 24 hours.

Harris County, with 4.5 million residents, is the third-most populous county in the United States and it’s going through expensive growing pains in its approach to criminal justice.

On one hand, county officials agree with a growing consensus across the United States that petty criminals should not languish in jail, possibly losing their jobs and custody of their children, or pleading guilty to crimes they did not commit to regain their freedom, simply because they cannot afford bail.

Harris County started phasing in reforms in July geared toward granting more misdemeanor defendants personal recognize bonds, in which no fee is required to bond out of jail.

But the county is fighting a federal class action that claims it unconstitutionally jails poor, low-level defendants, and has racked up more than $4 million in legal fees fighting the case.

The latest chapter in the litigation came Tuesday, when a three-judge panel of the Fifth Circuit in New Orleans heard arguments from attorneys representing Harris County criminal judges and hearing officers, who preside over probable cause hearings in which bail is set.

Harris County is asking the Fifth Circuit to undo U.S. District Judge Lee Rosenthal’s preliminary injunction under which since early June the county has had to release misdemeanor defendants from detention on personal bonds within 24 hours after they sign an affidavit stating they cannot afford cash bail.

Rosenthal also ordered Harris County Sheriff Ed Gonzalez to release from jail all misdemeanor defendants who are not subject to immigration, mental health or family violence holds on personal recognize bonds if they have not had a probable cause hearing within 24 hours.

Chuck Cooper, with the Washington, D.C. law firm Cooper & Kirk, kicked off Tuesday’s hearing for Harris County, saying that Supreme Court guidance on comity — that federal and state governments respect each other’s laws — requires Rosenthal to step back and let county and state criminal judges address constitutional issues with the county’s bail system.

He said Texas law lets criminal defendants file pretrial habeas corpus petitions in which they can argue that their detention is unconstitutional. He said such cases would take four weeks to get to a state appellate court if a county criminal judge denies the petition

Fifth Circuit Judge Catharina Haynes questioned the practicality of a habeas petition for misdemeanor defendants, who often are sentenced to time served and released after a few days in jail when they plead guilty.

“In a case where the likelihood is your sentence isn’t even going to be two weeks, how meaningful is that procedure?” Haynes asked.

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 put her at risk of losing a restaurant job she needed to provide for her young daughter. She got out of jail after a few days by paying her $2,500 bail.

Her class action was consolidated in August 2016 with a similar lawsuit. ODonnell is represented by attorneys with Washington, D.C.-based Civil Rights Corp.

They obtained a preliminary injunction after arguing that Harris County relies too heavily on a preset bail schedule based on the charges, which does not adequately consider a defendant’s finances in refusing to grant personal bonds, in violation of federal equal protection and due process rights.

ODonnell’s attorneys say the county’s criminal judges rarely deviate from the bail set by the magistrate judges.

Haynes and Fifth Circuit Judge Edward C. Prado, both President George W. Bush appointees, asked Civil Rights Corp. attorney Alec Karakatsanis if Rosenthal’s order went too far into the jurisdiction of the county’s criminal judges.

“Here’s the problem I see: It looks like the judge attempting to solve the problem of the county court judges failing to exercise discretion and act as judges, but instead rubberstamping and just wholesale doing one thing, has flipped it to taking away all discretion and making them wholesale do the opposite. And is that really the right solution?” Haynes asked.

Harris County argued in a motion to stay that Rosenthal’s order effectively strips county criminal judges and magistrate judges of their authority to consider four other factors that judges are supposed to weigh under Texas law in setting bail, besides ability to pay, including the safety of the victim and community.

Haynes asked whether someone charged with a Class A misdemeanor for assault should be released from jail and treated the same way as a defendant facing a loitering charge under Rosenthal’s injunction.

Karakatsanis said Harris County can change its rules to favor pretrial detention for people charged with assault, but it chooses not to, which undermines its arguments about public safety.

“Nothing about Judge Rosenthal’s legal finding would prohibit Harris County from treating those people differently. … If they wanted to tomorrow they could pass a new rule saying anyone charged with assault should be detained without bond until a hearing before a judge, until a judge could look at the person, issue nonfinancial conditions like a GPS, a stay-away order, a curfew, things like that,” Karakatsanis said.

“Harris County, for assault cases, has already decided they will release anyone charged with assault if they pay $50 to a bondsmen or $100 to a bondsmen, whatever 10 percent of the bail amount would be.”

Bail bondsmen typically charge a defendant 10 percent of the bail, which is subject to forfeiture if the defendant misses court hearings. This gives bondsmen incentive to track down wayward clients and bring them to court — and bondsmen are given great discretion in how they may do that.

“Harris County has already made policy judgments about public safety in those cases. That’s why some of the overheated rhetoric in this appeal about the danger to public safety rings so hollow,” Karakatsanis said.

Fifth Circuit Judge Edith Brown Clement, a President George H.W. Bush appointee, rounded out the panel and spoke little during the hour-long hearing.

The judges gave no indication of how or when they might rule. Another Fifth Circuit panel stayed Rosenthal’s preliminary injunction as of May 12, but lifted the stay on June 6.

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