Texas Judges Ask Panel to Block Pretrial-Release Order

HOUSTON (CN) – Misdemeanor court judges in Houston urged a Fifth Circuit panel Tuesday to scrap a federal judge’s injunction they say is to blame for a spike in people failing to show up for court.

Fourteen Harris County criminal court judges claim in a motion to stay that U.S. District Judge Lee Rosenthal compromised public safety when she issued a preliminary injunction upending the bail system in Harris County, Texas’ most populous county with more than 4.5 million residents.

Since Rosenthal ordered the county to promptly release poor, misdemeanor defendants from jail, starting in June 2017, the county’s failure-to-appear rates have “skyrocketed,” the judges say.

Since January 2016, federal class actions have been filed in Houston, Dallas, Galveston and Lafayette, Louisiana, challenging county bail systems, following up on bail reforms already implemented in New Jersey, Alaska, Maryland and New Orleans.

Rosenthal added steam to the movement when she found in spring 2017 that Harris County’s bail system unconstitutionally favors those who can afford to pay cash bail to get out of jail.

A Fifth Circuit panel agreed that Harris County’s bail system is unconstitutional in February but, noting that there is no constitutional right to affordable bail, they said Rosenthal had erred because her order amounted to an automatic right to pretrial release for misdemeanor arrestees.

Rosenthal narrowed her mandate in July.

Her new injunction ordered the county, starting July 30, to promptly release on unsecured personal bonds, which do not require upfront fees, defendants who the county’s criminal judges have found, based on a new risk assessment tool, fall into seven categories of defendants who should presumptively be released on personal bonds.

Fourteen of the county’s 16 criminal court judges are not happy with Rosenthal’s new order either. Shortly before it was to take effect, they obtained an emergency stay from the Fifth Circuit.

They say in court filings that a model preliminary injunction a different Fifth Circuit panel gave Rosenthal to serve as a template for her revised preliminary injunction did not require Harris County to release any arrestees, only to give them an individualized bail hearing within 48 hours of their arrests.

Their attorney Charles Cooper, partner in the Washington, D.C., firm Cooper & Kirk, made arguments on the motion to stay Tuesday before a Fifth Circuit panel at the Houston federal courthouse.

Cooper, nervously putting his left hand into his pants pocket and removing it, told the panel it should adopt the preliminary injunction template wholesale.

U.S. Circuit Judge James Graves was skeptical.

“You will concede that the panel said it would leave the details up to the district court, but your recommendation seems to be to leave it as is,” said Graves, a Barack Obama appointee.

“That is what I am saying,” Cooper said.

U.S. Circuit Judge Jerry Smith, appointed by Ronald Reagan, asked the bail system challengers’ attorney Alec Karakatsanis about a key statistics that the misdemeanor judges say proves that Rosenthal’s initial injunction endangered public safety and the orderly administration of justice.

“What about this stat in their brief that 44.65 percent of arrestees released on unsecured bonds under the preliminary injunction have had bonds forfeited for failure to appear, compared to only 9.85 percent of arrestees who provided a secured money bail?” Smith asked.

“Absolutely not … We know for a fact that data has been manipulated,” said Karakatsanis, who works for the Washington nonprofit firm Civil Rights Corps.

Karakatsanis said that a main takeaway from an 8-day preliminary injunction hearing Rosenthal held in March 2017 is the county has provided no evidence to show people released on cash bond are more likely to show up for court than those released on unsecured personal bonds.

He said Rosenthal had actually found the opposite is true: that pretrial detention increases failure-to-appear rates and the likelihood a defendant will commit more crimes.

U.S. Circuit Judge Kyle Duncan, a Donald Trump appointee, filled out the panel. The judges did not say when they would rule on the emergency motion to stay.

The case has played out along racial and political lines. Of the 16 misdemeanor court judges who were sued over their administration of the county’s bail system, two agree with the challengers that the system is broken and refuse to defend it.

Judges Mike Fields and Darrell Jordan are the county’s only black misdemeanor court judges. Harris County Sheriff Ed Gonzalez, a Democrat, agrees with Fields and Jordan, and so does Harris County District Attorney Kim Ogg, also a Democrat.

The Harris County Commissioner’s Court, the county’s five-member executive board, meanwhile, has authorized the county to spend over $6.7 million, so far, defending against the litigation.

The only Democratic commissioner, Rodney Ellis, an African-American, has cast the sole votes against the legal defense financing. Ellis wants the county to settle the class action, now in its third year.

Lead plaintiff Maranda ODonnell sued Harris County in May 2016, after she was arrested on a misdemeanor charge of driving with an invalid license. A magistrate judge set her bail at $2,500 and she was jailed for two days.

She claimed the county’s system of using a fee schedule to set bail based on the charges violates Fifth and 14th Amendment rights to due process and equal protection.

Texas Governor Greg Abbott unveiled a set of proposals for bail reform in the Lone Star State on Tuesday that aligns with the Harris County criminal court judges’ emphasis on public safety.

The Damon Allen Act, named after a state trooper who was shot and killed during a traffic stop, would create a uniform case management system to ensure magistrate judges know a defendant’s full criminal history and whether they are subject to any protective orders, Abbott said in a statement.

“The rules setting bail should be modified to emphasize the safety of the community,” Abbott said.

The Legislature will consider Abbott’s draft legislation during its next session, which starts in January 2019.

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