Houston Settlement Equalizes Pretrial Treatment of Rich and Poor

HOUSTON (CN) — A federal judge approved a settlement Thursday that mandates the prompt release without bail of most misdemeanor arrestees from jail in Houston, brushing off concerns of prosecutors and police that it will endanger public safety.

The settlement builds off a preliminary injunction U.S. District Judge Lee Rosenthal imposed in the summer of 2017 after finding that Harris County unconstitutionally favored those who could afford cash bail.

The Harris County criminal court building in Houston.

Under the old system that critics derided as assembly-line injustice, magistrates set bail at probable-cause hearings with a fee schedule based on the charges, with no regard to the defendants’ circumstances.

Thanks to the class action, Harris County now provides defendants with public defenders at these hearings and, if money bail is imposed, magistrates must state on the record there is clear evidence the defendant can afford it.

Most misdemeanor arrestees now are released on personal bonds, with no upfront payment required, within an hour of their arrests under new rules that Democratic county criminal judges implemented when they took office in January, after sweeping out of office 14 Republican judges who were defending the old bail system in court.

Texas’ most populous county, with more than 4 million residents, Harris County’s jail system is the third largest in the country.

The new judges used Rosenthal’s preliminary injunction as a template for their reforms. Rosenthal issued the order after a March 2017 hearing in which Harris County officials acknowledged they had no data to show that people are more likely to show up for court if they pay cash bond.

Dismissing law enforcement concerns that the settlement created an automatic personal-bond system, Rosenthal noted in her settlement-approval order that people arrested for violating protective orders, assaulting family members, not showing up for court, and those facing their second DUI charge can be held longer than 48 hours for a bail hearing before a judge.

The growing pains for the county’s criminal-justice system came at a steep cost. Harris County spent $10 million on outside defense counsel and agreed to pay lead class counsel the Civil Rights Corps, a Washington, D.C., nonprofit, more than $3.7 million in fees and costs.

Harris County Judge Lina Hidalgo — the county’s chief executive, not a court of law judge — praised Rosenthal for putting to rest opponents’ fear-mongering about the effects of bail reform.

“Under bail reform, the guilty will still be held accountable for their actions, but the accused won’t have their lives, livelihoods and families torn apart because they are too poor to buy their freedom,” she said in a statement.

Though Harris County District Attorney Kim Ogg voiced support for the reforms after taking office in January 2017, she argued against the settlement in an Aug. 30 brief, claiming the new system was saddling her staff with an “exploding” misdemeanor docket that had grown from 18,890 to 29,947, up by 59% since January 2018.

But Rosenthal credited testimony that prosecutors reset hearings more often than defendants, and wrote, “if cases do proceed more slowly, that fact would suggest that fewer indigent defendants are being coerced into pleading guilty and forfeiting legitimate defenses simply to get out of jail.”

The Professional Bondsmen of Harris County also pressed Rosenthal not to approve the settlement. They claimed that personal bonds can be granted to misdemeanor arrestees only if magistrates, also known as hearing officers, find such bonds are appropriate.

But Rosenthal saw hypocrisy in their argument. “The Professional Bondsmen’s position is striking given that their business model long depended on posting specific bail amounts for misdemeanor arrestees before those arrestees ever saw a hearing officer,” she wrote.

In an Oct. 21 brief, Texas Attorney General Ken Paxton cited the case of Brandon Bell to say the settlement endangers public safety.

Bell was arrested on Sept. 3 after a woman accused him of stealing her car at gunpoint. But he was initially charged only with misdemeanor trespassing and released on a personal bond.

Though prosecutors added a felony aggravated assault charge for the carjacking, Bell did not show up for a hearing and three days later he went on a crime spree that ended when a policeman shot him three times and killed him. He was 17.

Rosenthal was unmoved.

“No bail system can avoid all the risks. No system can guarantee that all those accused of misdemeanors who are released on personal bonds — rich or poor — will appear for hearings or trial, or that they will commit no crimes on release,” she wrote.

A monitor selected by the parties will oversee the consent decree for seven years and do audits. Their reports will be shared with the public.

It’s estimated the settlement will cost Harris County $97 million to implement.

Maranda ODonnell, 26, brought the class action in May 2016 after she was arrested on a misdemeanor charge of driving with an invalid license and a magistrate set her bail at $2,500.

“I was never asked if I could afford my bail. A sheriff’s deputy told me not to say anything during my hearing,” she wrote in a declaration filed with her lawsuit.

ODonnell, then 22, said she has a young daughter and lived paycheck to paycheck working at a restaurant that had just hired her. “I’m worried about whether my job will still be there when I get out,” she wrote.

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