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SCOTUS will not hear Harris County bail appeal

Let this please be the end of the line.

U.S. Supreme Court Justice Clarence Thomas has denied Harris County’s request to stop the release of misdemeanor inmates who can’t afford to post cash bail.

The county had appealed late Tuesday to halt Chief U.S. District Judge Lee H. Rosenthal’s directive that it begin releasing some inmates accused of misdemeanor crimes who cannot afford bail. That order had gone into effect Tuesday, and continued Wednesday, while Thomas considered the county’s application.

Thomas’s denial means some inmates will continue to be released on personal recognizance ahead of their trials if they cannot afford bail. The county still has the option to ask another justice or the full Supreme Court to reconsider Thomas’s denial. Often follow-up requests to other justices are referred to the full court, according to the public information office for the Supreme Court.

Meanwhile, an appeals court is also considering the county’s appeal of Rosenthal’s full order.

See here for the background. The full Chron story has more details.

Chief U.S. District Judge Lee Rosenthal in Houston issued a 193-page ruling in April that the county’s bail system was unconstitutional and ordered the release of indigent misdemeanor defendants using personal bonds.

The 5th U.S. Circuit Court of Appeals on Tuesday morning rejected the county’s efforts to halt Rosenthal’s injunction while they challenged the full ruling in court. The county filed the same day for emergency consideration before the U.S. Supreme Court.

The latest legal blow left county officials weighing their options and refocusing efforts on challenging the larger order from Rosenthal, said First Assistant County Attorney Robert Soard.

The county still has the option to ask another justice or the full Supreme Court to reconsider Thomas’ ruling. Follow-up requests to other justices often are referred to the full court, according to the high court’s public information office.

Harris County District Attorney Kim Ogg – whose office has already begun supporting personal bonds for misdemeanors – praised the court’s decision.

“There is no longer any legal reason why the county cannot comply with Judge Lee Rosenthal’s order,” she said, in a written statement. “Holding people in jail solely because they are poor violates due process, and the courts at every level of our federal judiciary have clearly spoken.”

[…]

Precinct 3 County Commissioner Steve Radack said the county wants a chance to complete its reforms without federal intervention.

“I want the end result to be fairness, and that’s what we have been striving for,” Radack said. “I don’t think you can always get court-ordered fairness.”

The bail bond industry has also opposed the order, which will release thousands of potential clients without requiring them to post bond.

Veteran bondsman Carlos Manzano, of Americas Bail Bonds, said he and many of his colleagues believe the overuse of personal bonds will create a dangerous situation for the community.

“It’s kind of like just like giving everybody a slap on the hand,” he said. “It’s going to blow up in the county’s face. It’s just a ticking time bomb.”

[…]

Legal experts said the county has just about used up all its options in challenging Rosenthal’s order.

“There’s no question that Justice Thomas has concluded that there isn’t clear and obvious irreparable harm to the state if the stay isn’t granted,” said Lonny Hoffman, a professor at the University of Houston Law Center who specializes in federal procedure.

Sarah R. Guidry, executive director of the Earl Carl Institute for Legal and Social Policy at the Thurgood Marshall School of Law at Texas Southern University, said Thomas’ rejection of the county’s appeal will force local changes.

“This is going to put a fire under the county to figure out how to implement this,” she said. “It’s also going to have a huge impact on the bail bonds industry. They’re going to have to figure out a different way to make a living. They’re not going the get the bulk of their income off of poor people who are charged with low-level crimes.”

You know where I stand on this, so you know what I think of those BS fearmongering arguments from Steve Radack and the bail bond people. But hey, if I’m wrong then we’ll find out, because the county now has no choice but to comply. And when we find out that they’re the ones that are wrong and that nothing too bad happens, then what exactly will be the point of continuing to appeal? Settle now and save whatever dignity and lawyers’ fees we still can. It’s the only rational option. Lisa Falkenberg has more.

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9 Comments

  1. Bill Daniels says:

    If we trust indigent defendants to show up for all their court proceedings, then why is it we don’t trust non indigent people to show up? The deputy’s husband that killed the guy in the Denny’s fight just paid $ 100K to get out of jail, as did the wife. Let’s say they were both indigent. They get out free? Everybody OK with that?

  2. neither here nor there says:

    Bill I worry about you. Were they charged with misdemeanors? If you don’t know I suggest you find out before you answer.

  3. Jason Hochman says:

    It is unreal that the county is fighting this, and great expense to the taxpayers. I once worked as a corrections officer in a county jail, far away from Houston, but it did the same thing–most inmates had a cash bail and a surety. Those who couldn’t afford a lawyer and couldn’t afford to bond out would sit in jail for perhaps two years, and then be offered a plea deal for “time served.” Of course, they took it, and got out in a month, now a felon, and the prosecutors, sheriffs and others got to campaign as “tough on crime,” and getting “bad guys off the streets.” This is a reversal of the constitutional premise of being arrested, with the presumption of innocence and then having a trial, being convicted and serving a sentence after a trial–not serve a sentence and then plead guilty.

    When you consider the Federal Reserve 2014 report on the economic well being of US households, this becomes even more of an affront. In the survey 47% of US households indicate that an emergency expense of $400 would be a challenge, with 14% indicating that they could not cover the expense, and the others responding that they may sell something, get a payday loan, use a credit card or borrow from family. If you consider some of the sad stories, such as Sandra Bland, and folks were commenting that her family obviously didn’t care enough to pay her bail, it is more likely that they couldn’t, or were in the process of raising money. Please let this be the end of the line.

  4. Bill Daniels says:

    @Neither:

    I stand corrected, you are right, and I used a bad example of people charged with a felony, not a misdemeanor. Mea culpa. OK, having said that, my basic point stands. If we can trust indigent people to absolutely show up for all court proceedings, why is it we can’t trust people who can bond or bail out? Seems unfair to charge bail just because someone can afford bail. The only fair way to implement this is, everybody gets ROR for misdemeanors.

  5. Bill Daniels says:

    @Jason,

    I’m glad I’m not the only person here who used a bad example. The Bland family had plenty of money for plane flights, travel expenses, attorneys, news conferences, etc., unless you tell me the ambulance chasers fronted all the money for all of that, including, the very new dress clothes they wore during their tearjerk pressers. I feel quite certain they could have bailed her out, but given her life history, probably just got tired of doing so and let her learn a hard lesson in Waller.

  6. neither here nor there says:

    Bill FYI on Sandra Bland,

     On Saturday, Sandy’s bond was set at $515, and she was allowed free calls from the booking desk. She contacted a sister who was hardly in a position to send $515, since she was being sued by her landlord for back rent, to the tune of more than $1,500. Mosley didn’t have the bond money either; he told Sandy that he would raise it from his fraternity brothers. He started contacting them but felt little urgency—after all, Sandy had always told him that “sitting out” time in jail had been so easy for her. By Sunday, neither he nor her family had the bond money ready.

    Sandy called no one from her cell. No one visited. She was a woman with a reputation for never crying—yet, according to the women in a nearby cell, she spent Sunday sobbing uncontrollably and saying, repeatedly, that being locked up was not a life she could deal with.

    On Monday, at about 6:30 am, she refused breakfast. Just before 8 am, she used the emergency-only intercom to beg a jail employee for more free calls from the front desk. He refused and said she needed to use the telephone in her cell. Two minutes later, she was on the intercom, making the same request. He again refused.

    An hour later, she was found hanging from a bathroom privacy partition in her cell with a noose around her neck, fashioned from a plastic, jail-issue garbage bag. Her feet were touching the ground. The position is well known among coroners as being common in suicides, and quite effective for quickly causing death.

  7. E says:

    @Bill Daniels

    If Harris County wants to let all misdemeanor defendants out ROR, it can do that, but it doesn’t have to. Requiring people who can afford a reasonable amount of bail to pay it doesn’t violate the Constitution; imprisoning people because they’re too poor to afford bail does.

    Basic due process and equal protection principles say the government can’t put you in jail just because you’re poor. Assume A and B are exactly the same in every way, except that A is rich and B is poor. If A and B commit the exact same misdemeanor, but A gets out on bail because he can afford it, while B stays in jail because he can’t afford it, the government is locking B up because he is poor.

    You might argue the government is not jailing B because he is poor, but rather because letting B out without requiring him to post bail means he is less likely to show up for court than A. I’ll assume for the sake of argument that posting bail makes a person marginally more likely to show up, but if so, the increase in likelihood is minuscule.

    In the case of misdemeanors, the potential sentence is already small, so the defendant doesn’t have much incentive to skip town to begin with. Moreover, if a defendant uses a bail bondsman, the premium the defendant pays is nonrefundable, so the defendant won’t get his money back even if he shows up; what incentive does bail give a defendant to come to court if he won’t get the money back? The answer is none. Bail bondsmen can send a bounty hunter after a fugitive defendant, but the court is going to issue an arrest warrant too. Is a defendant going to show up to court because he thinks a bounty hunter will find him when the police cannot? I doubt it.

    So on one side, the benefit of keeping a poor person in jail on a misdemeanor charge because he cannot post bail is very small. On the other side, you have the Due Process and Equal Protection clauses of the Constitution, which say no one should not be in jail solely because he is poor and that no one should be in jail before being convicted of a crime unless the government has a good reason. The result of balancing the two is obvious. The district court got it right.

    You say, “If we can trust indigent people to absolutely show up for all court proceedings, why is it we can’t trust people who can bond or bail out?” It’s not a question of trusting one and not trusting the other. The extra little bit of trust the government gets from having a misdemeanor defendant pay a bail bondsman an unrefundable $500 premium may or may not be a sufficient reason to require a defendant who can afford that amount to pay it–that wasn’t the subject of the lawsuit–but it is clearly not worth depriving those who don’t have $500 to spare of their right to not be imprisoned unless they’ve been convicted of a crime.

    If people who can afford bail want to abolish it, they can lobby Harris County–the bail bond lobbyists probably have them beat though. Or they can file their own lawsuit. I think they would have a difficult time winning, given the state of the law, but Harris County has utterly failed to justify its system in court, so who knows.

  8. Jason Hochman says:

    @Bill– I wouldn’t say that I used a bad example. I don’t know anything about the Bland family and their finances. I simply point out that according to the Federal Reserve study, it is highly likely that any family will have difficulty coming up with a $400 or $500 bail quickly.

  9. Steve Houston says:

    I’ve gone on record here many times as being in favor of bail reform but Municipal Court Presiding Judge Hartle made mention how there were way over a million open cases in traffic court last year when interviewed for a piece on the yearly warrant round up. I think that negates the comment how “minuscule” the increase was for not showing up simply because a case was a misdemeanor. Clearly many people do not show when there is no bond and as local attorney Paul Kubosh points out, that means under staffed police departments will have that much more work to do rounding this new batch of scoff laws that don’t show when they have no money at stake.

    The Bland case was a bad example not because the family did or did not have the funds to bail “Sandy” out (like some of you knew her personally-not!) but because she was arrested for assaulting the state trooper, had a lengthy criminal history including many examples of not showing up for court, still owed over $7500 in previous fines she hadn’t paid, had no permanent residence in Texas when stopped, and had no job to speak of as she was going to an interview for a month long internship. In short, she was a bad risk for a PR bond not because she was poor but because of her history and total circumstances. The changes to Harris County’s bail policies would not have kept her out of jail in Waller County either.