HOUSTON (CN) – In 100 days, Harris County, Texas is set to revamp its bail system to ensure petty criminals don’t languish in its crowded jail, but a federal judge is weighing class-action claims that reforms can’t wait.
Cash is everything for people arrested in Texas’ most populous county, lead plaintiff Maranda ODonnell claims.
If you have it you can bond out of jail no matter how serious the crime you’re charged with, she says. If not, you can be jailed on a minor charge like driving with an invalid license, as ODonnell was in May 2016.
ODonnell’s attorney Alec Karakatsanis opened his closing arguments in an injunction hearing Thursday focusing on delays he said caused two of ODonnell’s co-plaintiffs to be detained in Harris County Jail in downtown Houston from Wednesday and Thursday to the following Monday before they saw a county criminal judge and could argue for lower bail.
Loetha McGruder and Robert Ryan Ford were arrested in separate incidents in May, charged with misdemeanors, and had their bail set at $5,000 at probable cause hearings presided over by magistrate judges.
ODonnell says her detention jeopardized a new restaurant job she was depending on to care for her young daughter. She got out of jail after a few days by paying her $2,500 bail.
A key contention of the proposed class is that setting bail higher than defendants can afford is de facto preventive detention, which is illegal for misdemeanor defendants in Texas unless they’re charged with a violent crime and placed under a protective order.
John O’Neill is one of several attorneys defending 15 of the county’s 16 criminal court judges against the class action.
The Winston Strawn lawyer told U.S. District Judge Lee Rosenthal on Thursday that Texas courts have held in case after case that you can set a bail high, knowing the “logical effect is that person will be detained,” if you consider five factors set out by state law, which most saliently include, “The future safety of a victim of the alleged offense and the community shall be considered.”
Rosenthal, the chief judge of the Southern District of Texas, is now considering whether to grant ODonnell’s proposed order for injunctive relief.
The order states: “Harris County and the Harris County Courts at Law Judges may not implement or enforce a system of wealth-based detention that keeps arrestees in jail solely because they cannot afford to pay money bail amounts imposed without providing an inquiry into the person’s present ability to pay the money bail amount and making findings that the arrestee has the present ability to pay the sum.”
But O’Neill told Rosenthal on Thursday that he’s reading the injunction relief proposal differently.
“I believe their order as it’s currently written anticipates that [all misdemeanor defendants are] released within 48 hours after appearing in front of a judicial officer but perhaps with an ankle monitor or other conditions,” he said.
“I don’t think that’s what it’s saying,” Rosenthal replied.
She said the order would let misdemeanor defendants found at a hearing, where they are represented by counsel, to be a danger to the community or to themselves to be detained on a secured, or cash, bail.
O’Neill conceded Rosenthal is describing the system that Harris County plans to adopt on July 1, in which defendants will be assessed by a computer data tool for their risk of committing a new crime or failing to appear without pretrial services staff needing to interview them, but judges will retain discretion on whether to grant them a personal recognizance bond, also called no-cost bail.
An exasperated Rosenthal asked O’Neill, “Then why are you so opposed to doing more now?”
She continued, “That’s what I’m trying to square. Your position is we are going to get there, exactly what they want. Why not simply say, ‘Fine judge, we agree?…I’m not suggesting you have to settle. I’m trying to understand your position that there’s no legal basis for what they’re asking me to do, when you are essentially saying we’re going to do that.”
O’Neill said Harris County is trying to put in a better system, but not because it thinks its current system is wrong. The county’s core argument is that there’s no constitutional right to affordable bail.
“There’s a tremendous interest in human liberty, there’s a tremendous interest in reducing costs,” O’Neill said. “But an order that completely provides that within 48 hours, no matter what you think, the defendant goes free? We just simply can’t agree to that in good conscience.”
The case is unusual in that two defendants have testified they agree the county’s bail system is broken and unconstitutional.
Harris County Sheriff Ed Gonzalez, who is in charge of the crowded jail that’s the subject of a Department of Justice probe for a rash of inmate deaths, and Judge Darrell Jordan, who is African-American, testified that most misdemeanor defendants should be released on no-fee bail. Both Democrats took office in January, months after ODonnell’s complaint was originally filed.
The county has made several reforms since the lawsuit was filed in May. It hired more magistrate judges, and its criminal court judges approved new rules in August that no-fee bail should be used for 12 specific offenses, petty theft and prostitution among them.
County executives also approved a pilot program this month in which defendants will be guided by public defenders at probable causing hearings. That program is set to launch July 1, the same day as the new risk-assessment tool.
Given the apparently consistent goals of the parties, critics wonder why the Harris County Attorney’s Office, and private attorneys they hired to represent the criminal court judges and magistrates, didn’t try harder for a settlement and instead dug in their heels as the county’s legal tab to outside counsel spiraled to more than $1 million and counting.
Rosenthal also heard arguments Thursday on whether to certify the class action. She didn’t say when she expects to issue a ruling.