In a sweeping 78-page opinion issued late last week, a federal judge has denied Harris County’s motion to dismiss the lawsuit that accuses it of operating an unconstitutional bail system.
District Judge Lee H. Rosenthal dismissed the sheriff and county judges from the lawsuit in their personal, but not official, capacities; and the five county bail hearing officers remain sued in their personal capacities, but not official capacities.
While the county had tried to argue county officials were immune from this suit under various policymaking grounds, Judge Rosenthal rejected the argument outright.
“Multiple and overlapping authorities may contribute to a policy of denying freedom from pretrial detention to those accused in misdemeanor cases solely because they are too poor to pay a bail bond,” Rosenthal wrote. “Or [authorities may contribute to] a policy of releasing wealthier misdemeanor defendants while detaining the indigent for days without a hearing on their inability to pay or eligibility for release on nonfinancial conditions. But the existence of multiple and overlapping authorities cannot, on its own, shield officers or official bodies from liability.”
In explaining why the plaintiffs have reason to bring the suit, Rosenthal wrote that the lawsuit had raised important questions about why the government would have any legitimate interest in detaining people charged with low-level crimes, who are not a threat to public safety and could otherwise be released. Quoting a Supreme Court case, Rosenthal wrote: “Liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” That exception, she went on, would include people charged with violent crimes who would threaten public safety.
Asserting civil rights and equal protection claims, [lead plaintiff Maranda Lynn] ODonnell’s original complaint named only five magistrate judges as defendants. She added the county’s 16 misdemeanor court judges as defendants in an amended version. State judges, called district judges in Texas, handle the county’s felony cases.
In an attempt to head off the lawsuit, the 16 judges changed the “County Rules of Court” on Aug. 12 to state that no-fee bonds are “favored” for 12 misdemeanor charges, including public intoxication, prostitution and possession of small amounts of marijuana.
Harris County also recently hired two more magistrate hearing officers and revamped its pretrial-services form to collect more financial data about misdemeanor defendants earlier in the post-arrest process.
But ODonnell claims in court filings that the judges’ customs are too ingrained, and that even after the August policy change they continued to force magistrates to set predetermined bond amounts for people arrested on those 12 charges.
In refusing to dismiss, Rosenthal said there are unresolved disputes of fact, including whether ODonnell and one of her co-plaintiffs have standing.
The county argued that ODonnell lacks standing because she posted bond a few days after she was arrested and filed the lawsuit, and that it had the right to detain her because she has outstanding warrants in Harris and Galveston Counties for failing to appear for misdemeanor court hearings.
However, Rosenthal wrote: “Even taking the defendants’ factual allegations on these points as true, Ms. ODonnell would have standing to bring her claim. Ms. ODonnell alleges that no judicial officer timely considered her inability to pay or her eligibility for release despite her criminal history, and that this outcome is typical for misdemeanor defendants in Harris County. The defendants’ allegations do not resolve Ms. ODonnell’s claims.”
Co-plaintiff Loetha McGruder was arrested in May, charged with giving a false name to a police officer, a misdemeanor. A magistrate set her bond at the preset $5,000. She couldn’t pay it. Four days later a state district judge reduced her bail to a personal bond and she was released.
The county argued in dismissal motions that McGruder “is the prime example of the system functioning as it should,” because she was released the first business day after her probable cause hearing.
But Rosenthal found McGruder has standing to bring due process and equal protection claims because she was detained over a weekend, though the county acknowledges her poverty made her eligible for an immediate personal bond.
Attorneys for both sides said they are working to settle the case.
Harris County assistant attorney Robert Soard said Rosenthal is aware the county has teamed up with Luminosity, a nonprofit St. Petersburg, Fla. criminal justice consulting firm, to develop a “public safety assessment” and “decision making framework” to guide decisions on whether to release misdemeanor defendants on personal bonds without pretrial services having to interview them.
The system is expected to launch in March 2017.
“We would like the case to resolve quickly for the benefit of the people being arrested on misdemeanors in Harris County, to decrease the number of people staying in jail,” plaintiffs’ attorney Rebecca Bernhardt with the Texas Fair Defense Project said.
I’m very glad to hear that settlement talks are happening, as that’s what I have wanted all along. As we know, Sheriff-elect Ed Gonzalez has filed an affidavit in support of the plaintiffs, which ought to help move that along. A class certification hearing has been set for Feb. 21, 2017. We’ll see how it goes from there.