NEW ORLEANS (CN) — Sixteen judges of the Fifth Circuit appeared split Wednesday during a special en banc hearing over Dallas County’s bail program that critics say keeps indigent defendants in jail indefinitely because they cannot afford their release.
Alec Karakatsanis, an attorney for the indigent plaintiffs challenging the system, argued people are being detained for weeks, or even months, simply because they are unable to post bail.
U.S. Circuit Judge Jennifer Walker Elrod, an appointee of George W. Bush, asked at the start of the hearing if she could pose a “practical question,” or a series of such questions: for instance, how would the Dallas County court go about enforcing lesser bail for indigent detainees?
“Are we being asked to tell state courts what to put in their orders?” Elrod asked, adding she was skeptical a federal court can make such a demand.
Texas Solicitor General Judd Edward Stone, who represents the county in the case, said there’s no problem with the Dallas criminal jail system and that the bail system itself is not difficult to navigate.
Stone gave an example of a woman held on a misdemeanor charge who could not afford bail. Within two days, he said, the woman had negotiated for a lesser bond that she could afford and an ankle bracelet and was out.
“You’re having us make a determination based on this one woman,” U.S. Circuit Judge Catharina Haynes, another appointee of George W. Bush, observed. “Isn’t that fact-finding?”
Haynes said such instances of fact-finding are for another court, not the Fifth Circuit.
“The bottom line here is that people are being detained” for days or weeks or longer, the judge said. “The question is, what is the state remedy for that?"
Haynes said she is not aware of a state protocol in Texas that lets out indigent, nonviolent detainees who cannot pay. She added that without a statute to govern the bail system, people are going to be detained simply because they are poor.
Stone circled back to whether the issue belongs before a federal court in the first place. When pressed by Haynes, Stone said the state does not believe there is a problem with the Dallas County bail system.
U.S. District Judge David C. Godbey in Dallas, who is overseeing the case that involves extensive discovery requests and numerous intervenors, issued a stay to pause discovery and other proceedings while the case plays out before the full Fifth Circuit.
Godbey, a George W. Bush appointee, granted the plaintiffs' motion for a preliminary injunction in September 2018 and ordered an end to the practice of not considering arrestees' ability to pay within 30 days. Godbey found the Dallas County judges routinely imposed secured bond amounts recommended by automatic schedules that result in pretrial detention of the indigent in violation of their equal protection rights under the 14th Amendment.
A three-judge panel of the Fifth Circuit upheld Godbey's ruling last December. Dallas County asked the New Orleans-based appeals court to rehear the case en banc, and it agreed to do so in February.
Daniel Volchok represents lead plaintiff Shannon Daves, a homeless cross-dresser who was kept in solitary confinement for over a month on nonviolent misdemeanor charges because she could not afford a $500 bail.
Volchok said Hayne’s fact-finding comment hit the issue on the head.
“The question is not whether there is one case or multiple cases,” Volchok said. “The question is, is there an error” in the system?
During rebuttal, Karakatsanis, who represents other plaintiffs in the class, pushed back on Stone's example and said “the record is replete with evidence that people were not being told there was a way to challenge this.”
“There are state procedures for filing for and getting immediate relief,” said U.S. Circuit Judge Edith Jones, an appointee of Ronald Reagan.
“The point here is that people are being told they have no way to challenge” their detention, Karakatsanis replied. “People are being put in jail cells and are being told there is no way to challenge their detention.”
Jones noted the Dallas County commissioner offers public defenders.
“The fact the petitioners have not used these remedies does not mean they do not exist,” the judge said.
“Public defenders are not present at the first hearing,” Karakatsanis replied. “They must be appointed, and once a public defender is appointed it takes at least a week, even in misdemeanor cases.”
Karakatsanis said that other states, for instance Louisiana and Mississippi, have rules governing indigent bail.
“Only if a person might be dangerous to the public can they be held” in those states, Karakatsanis said. He added that Texas, however, is silent on the issue.
The attorney said the appeals court is being asked to tolerate a legal system that allows people to be held without even the possibility of proving their innocence or indigent status.
The Fifth Circuit judges did not indicate how or when they will rule.
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