HOUSTON (CN) - A proposed settlement to end cash bail for most misdemeanor arrestees in Houston emerged seemingly unscathed from a fairness hearing Monday, despite concerns from Texas Attorney General Ken Paxton that it will give a free pass to undocumented immigrants.
Hailed as a guidepost for reforms across the United States, the settlement governing pretrial release in Harris County drew some influential critics to Monday’s hearing: Harris County District Attorney Kim Ogg, three law enforcement unions and an attorney from Paxton’s office.
Houston Police Officers’ Union attorney Mary Nan Huffman gave a lurid example of how she said the settlement could endanger the public by mandating that misdemeanor arrestees be released on personal recognizance bonds, with no upfront fee of more than $100, as soon as practical. The settlement makes exceptions for longer detention for those arrested for family violence, violating protective orders, assault, not showing up for court, or for DUIs.
Huffman said a woman named Brittney was walking her baby in a stroller down the street and noticed a man in a red truck kept driving by her. She got home, put the baby down for a nap and started folding laundry on her living room couch. But she kept feeling like someone was watching her.
She said Brittney looked out her window into the backyard and the man in the red truck was staring at her, holding a knife in one hand and his genitals in the other.
“Without a bond hearing, no one would know his criminal history, how he’s committed rapes and been in and out of prison. PR bonds are a good thing for the right person at the right time,” Huffman said, as more than 100 people sitting shoulder-to-shoulder looked on from the gallery.
She said the proposed settlement, which has been preliminary approved by U.S. District Judge Lee Rosenthal, puts police at risk because when criminals reoffend and go on the lamb police are some of the first people to encounter them. The deal “caters to criminals,” she said.
The settlement builds off a preliminary injunction Rosenthal put in place in summer 2017 and modified a year later, after finding that Harris County unconstitutionally favored those who could afford cash bail by having magistrates set bail at probable cause hearings with a fee schedule based on the charges.
DA Ogg declined to testify Monday but aired her concerns in brief filed late Sunday.
Ogg stated that since January 2018 the number of open cases in the county’s 16 misdemeanor courts grew from 18,890 to 29,947, a 59% increase in the misdemeanor dockets.
“Criminal cases are remaining in scheduling limbo far too long,” Ogg states. “Our misdemeanor prosecutors are trying to manage exploding dockets and it is inhibiting their ability to effectively and efficiently resolve cases for victims and defendants. When cases become too old, they become more difficult to prosecute.”
Harris County Criminal Court Judge Franklin Bynum was among a group of Democrats voters elected in November 2018, ousting the 14 Republican judges who were defending the old fee-schedule bail system in court.
Bynum testified Monday that he led settlement negotiations with the class attorneys on changes to rules for rescheduling court dates.
He said since taking the bench in January he can attest most people don’t skip court appearances.
“I see worried faces filling my courtroom every morning. They are worried about their futures, their lives. People want to handle their problems,” he said.
Class attorney Neal Manne of the Houston law firm Susman Godfrey said in opening statements that Ogg’s brief cites arbitrary data despite evidence presented during a five-day preliminary injunction hearing in March 2017 showing releasing defendants on unsecured personal bonds has no effect on appearance rates.
“Harris County is going to have to get used to poor people having as much time to resolve their cases as rich people always had,” Manne said.
Besides, Bynum said, the DA’s office requests most of the reschedules. He blamed the prosecutors’ lag on their increased use of police body cams and blood draws for DUI cases and the time it takes to review such evidence.
In January, the new Democratic regime of judges adopted bail rules they took from Rosenthal’s injunction.
Elizabeth Rossi of the Civil Rights Corps, a Washington, D.C. nonprofit that led the challenge, said the judges’ new rules served as the centerpiece of the proposed consent decree, which took shape over seven months of negotiations.
Texas Assistant Attorney General Adam Biggs spoke out against the settlement. He said its order for automatic release of most offenders on no-fee bonds places Harris County on “a collision course” with a state law passed in 2017 that took aim at so-called sanctuary cities.
Senate Bill 4 allows prosecutors to charge law enforcement officials with a misdemeanor, punishable by up to a year in jail and stiff fines, if they refuse to comply with requests from U.S. Immigration and Customs Enforcement to hold immigrants in jail.
But Harris County Sheriff Ed Gonzalez made quick work of that concern. He testified that ICE officers work in the Harris County Jail and review defendants’ files.
“They’re not released if ICE puts a hold,” Gonzalez said.
In closing statements, Rossi recalled when she first met the named plaintiffs Maranda ODonnell, Loetha McGruder and Robert Ryan Ford.
“I met plaintiffs in May 2016. They were on the other side of the glass in Harris County Jail, unable to pay the hundreds of dollars needed to get out,” she said. “Each understood the basic injustice of their situation. The same thing happened to thousands of people. Harris County courts operated like an assembly line, causing already precarious lives to further unravel.”
The county spent around $10 million defending against the lawsuit. It’s estimated the settlement will cost another $97 million to implement. The agreement also calls for the parties to appoint a monitor to provide oversight of the new rules for seven years.
Rossi said the indifference of county officials was evident in their testimony. She said the officials claimed that people want to be in jail for hot meals and showers.
“Incredibly, they also said no one is in jail because they are indigent. My hope is the consent decree will turn that into an enduring truth,” the attorney said.
After a three-hour hearing, Rosenthal said she will make a final decision on the consent decree as quickly as she can.Follow @cam_langford
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.