HOUSTON (CN) – The man in charge of Texas’ busiest jail is a defendant in a federal class action attacking his county’s bail system, yet he sided with the plaintiffs Wednesday, testifying that most poor misdemeanor arrestees should be released from jail on no-fee bonds.
Just two months into his tenure, Harris County Sheriff Ed Gonzalez is standing at the crossroads of criminal justice reform and business as usual in the state’s most populous county with his thumb out, eager to help implement changes he says are long overdue.
Gonzalez took the stand Wednesday before U.S. District Judge Lee Rosenthal, gold-lined shoulder patches framing his crisp black service uniform, and maintained the unflappable demeanor that Houston, Harris County’s seat, came to expect during his three terms on the City Council.
“I personally don’t believe it’s a rational system,” Gonzalez told plaintiffs’ attorney Neal Manne about the county’s bail system. “When we look at equal protection, in my opinion it should be equal protection for everyone, but statistically speaking it doesn’t bear that out. When I see that many of the people inside the jail, on any given day an average of 9,000, are just poor and can’t bond out, and I look at racial disparities, disproportionally communities of color, then that’s very concerning to me.”
John O’Neill with Winston Strawn in Houston is part of a team defending 15 of the county’s 16 criminal court judges against the class action, in which lead plaintiff Maranda ODonnell claims the judges and five hearing officers that oversee probable cause hearings unconstitutionally set bail for misdemeanor defendants with no regard to their ability to pay.
O’Neill hugged a podium and leaned into a microphone Wednesday, questioning Gonzalez about the actual impact of misdemeanor defendants on the jail that is often close to its state-mandated inmate capacity.
“The jail has capacity for 10,000 prisoners and you run sometimes at 9,700 prisoners. Is it fair to say that only about 380 to 500 of those are misdemeanor offenders?” O’Neill said.
“That sounds about right,” Gonzalez said.
“Generally the misdemeanor pretrial defendants make up only 3 to 5 percent of the jail population, and a substantial number are in progress, being processed and will be out within two days?” O’Neill said.
Fifteen people died in the custody of the Harris County Sheriff’s Office in 2016, and critics say the crowded jail puts inmates in danger. But O’Neill challenged that conventional wisdom.
“That is a terrible tragedy. But to be fair the death rate inside the jail is actually less than the death rate of people outside the jail,” he said.
Judge Rosenthal stopped him: “Are you arguing it’s safer in jail because you can’t afford to get out?”
O’Neill answered, “No I’m arguing that it’s totally incorrect to indicate the jail is an extremely unsafe place, that the death rate itself shows that it’s not true.”
Gonzalez conceded to O’Neill that he believes the jail provides adequate medical care to inmates, 30 percent of whom, he said, have a medical or mental health issue.
But the sheriff said jail isn’t an ideal place to get medical treatment.
“It’s adequate, yes, but never enough. One of my concerns when somebody dies in our custody is could they have been better served out in the community receiving ongoing treatment or around their family?” he said.
Throughout the litigation, and before the lawsuit was filed in May 2016, Harris County officials have touted grant-funded reforms they are developing that they claim will make the county the gold standard nationally for a criminal justice system that prioritizes inmates’ humanity.
The most frequently cited reform is a new risk-assessment tool that is set to launch July 1, that proponents say will rate misdemeanor defendants on their risk of not showing up to hearings, or otherwise violating bond, without pretrial services staff having to interview them, and advise judges to quickly let low-to-moderate risk defendants out of jail on personal recognizance bonds, also called no-fee bonds.
The county asked Rosenthal to stay the lawsuit until after the tool is implemented. She declined.
Harris County Criminal Court No. 16 Judge Darrell Jordan doesn’t buy the hype. After 10 years as a criminal defense attorney, Jordan took office in January and testified that when he first put on his robes he was shocked to learn how much autonomy judges have.
Like Gonzalez, Jordan believes the bail system is unjust and broken. And like the sheriff, he’s a defendant in the class action, but agrees with the plaintiffs. Due to their views, the county has assigned both Gonzalez and Jordan their own county attorneys, while retaining outside counsel for the other 15 criminal judges and five magistrate judges at substantial cost.
The county has spent more than $1.2 million on private attorneys for the case.
Jordan prides himself on giving more no-fee bonds to poor defendants than any of his colleagues. All the Harris County criminal judges preside over misdemeanor courts.
Jordan, a 40-year-old African American who could pass for 30, wore a dark blue suit and tie Wednesday, folding his 6-foot-3-inch frame into the witness stand next to Rosenthal.
He said he doesn’t think the risk-assessment tool will lead to more judges releasing defendants on no-fee bonds because the judges will still have discretion whether to follow its recommendations.
Jordan said a preliminary injunction is needed because though Harris County criminal judges changed their court rules in August to favor no-fee bonds for 12 charges, including marijuana possession and prostitution, judges are still setting money bonds for people who are obviously poor and a low risk for skipping bond.
“I believe it’s necessary because in my short time once I recognized that things were wrong then I changed immediately to make sure I’m doing the things that are right. It’s almost like knowing your tub is leaking and saying, ‘Let’s wait six months, we’re going to have a new fix for it.’ If you truly care you fix it that day,” he said.
Jordan showed how he gears his court towards getting people out of jail. Jordan said a young man told him last week he works for his dad and his dad could bail him out, but he didn’t have the phone number.
“I said, ‘Well where does he work?’ Because his dad owned the company,” Jordan testified. “We Googled it from the bench. I called his dad and I said, ‘I know this isn’t a call you were expecting, but your son is in jail and we’re trying to determine how much he can afford to pay to get out?’
“He had two cases, $4,000 bond on each. His dad said, ‘Well I can come up with $200.’ I said, ‘OK sir I’m going to lower your son’s bonds to $1,000 each.’ He said, ‘Alright I’ll come down there and get him out.’ I hung up the phone and I told the defendant, ‘See you later.’”
Defendants in Harris County and throughout the nation must typically pay bail bondsmen 10 percent of the set bail to bond out.
Rosenthal, a stickler for hard figures, said she would like to see the difference in the number of bond violations in Jordan’s court as compared to other courts that don’t hand out no-fee bonds so liberally.
She ordered the parties to get her reports on bond violations for each of the county’s 16 criminal courts.
“You’re a lab experiment, congratulations,” she told Jordan.
“Thank you,” he said.
Jordan said during a break in the proceedings Wednesday he feels like an outsider among his peers because, due to the litigation, they’ve been told not to talk to each other, though they are meeting Thursday morning to discuss the new risk-assessment tool.
“I have to go to a meeting with all the judges tomorrow and they’re going to be looking at me crazy, I don’t care,” he said.
The preliminary injunction hearing is scheduled to run through at least Thursday this week, take a week off and resume March 21 if needed.