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Equal Justice Under Law

Revised final bail order

We go from here.

The federal judge in a landmark bail lawsuit against Harris County set new ground rules for law enforcement and judges about pretrial release for thousands of low-income people arrested on low-level offenses in a revised injunction issued Friday.

The order prohibits the county from detaining a poor person in instances in which a person with money would be allowed to pay and get out of jail. Specifically, qualified poor people charged with certain offenses, such as drunken driving or writing bad checks, will be permitted to leave jail immediately and return for future appearances. However, the finding also gives judges two days to make a bail determination for people arrested on more serious offenses or who face holds or detainers that would prevent them from being released.

[…]

The county will have another chance to argue the full case when the 2016 lawsuit goes to trial on the merits on Dec. 3, however, county officials could opt to settle the case, something both sides have indicated they would like to do. In two years litigating the case, the county has hired dozens of lawyers at a cost of $6.7 million.

Precinct 1 Commissioner Rodney Ellis, a long-time criminal justice reformer who has backed the lawsuit, said Friday’s decision affirmed the courts’ finding that there are “no legal or moral grounds” for the “unconscionable and futile defense of a two-tiered system of injustice that favors the wealthy and punishes the poor.”

“The county’s indefensible money bond system routinely violates the constitutional rights of poor defendants and forces people to languish behind bars simply because they cannot afford bail — there is no disputing this basic fact,” Ellis said. “Countless families have been torn apart and lives have been ruined by an unfair bail system that denies pretrial liberty and basic constitutional protections to poor defendants.”

The lawyers defending the county called Chief U.S. District Judge Lee H. Rosenthal’s order “an excellent beginning for a settlement.”

“The county remains committed to a settlement that maximizes the number of misdemeanor detainees who are eligible for prompt release from jail without secured bail, that provides due regard for the rights of victims and protection of the community and preserves the independence of the judiciary,” said Robert Soard, first assistant to Harris County Attorney Vince Ryan.

See here and here for the background. It’s hard to remember because this has gone on for so long, but the entire fight so far has been about the preliminary injunction, which is what is being finalized here. This is the order to define what the county can and can’t do while the lawsuit proceeds. Litigating the case on the merits could take years more, and cost many more millions. So if the county really does see this order as a good foundation for a settlement, we should all be glad to hear it. Of course, that is mostly up to the misdemeanor court judges, who are the defendants and who have refused to budge throughout. Perhaps Commissioners Court can put some pressure on them, though outside of Commissioner Ellis they’ve been part of the problem, too. If you truly want to see this come to a just and cost-effective end, the answer is to vote those judges out in November. Ultimately, we get to decide. Grits has more.

Once more with the bail order for Harris County

Getting close to the end.

The federal judge presiding over the landmark bail lawsuit against Harris County said she planned to issue revised instructions within two weeks for how pretrial release should operate for thousands of poor people arrested on low-level offenses.

Chief U.S. District Judge Lee H. Rosenthal fielded input Thursday from attorneys on both sides of the contentious two-year dispute about which defendants should be held in custody and which ones released during the first two days following an arrest.

Rosenthal’s instructions from the 5th U.S. Circuit Court of Appeals were to figure out details, but she said she hoped the county, which has spent more than $6.1 million battling the lawsuit, was on board with the appeals court’s overall findings about the unfairness of “wealth based detention.”

[…]

The attorneys for the indigent defendants asked Rosenthal to consider ordering the immediate release of poor people arrested on certain offenses like drunk driving or writing bad checks if people with the means to pay bond were being released immediately on the same charges.

Lawyers for Harris County, and the hearing officers and county court at law judges who oppose the lawsuit, requested that Rosenthal follow the appeals court instructions to allow up to 48 hours for indigent defendants to appear before a judge who can make an appropriate determination about bail.

Judge Rosenthal had issued final instructions earlier in June, so I presume this is a modification of that. It’s my hope that the next development in this case will a ruling that satisfies the plaintiffs and that the defense accepts. We really do need to end this litigation, and there’s not much of an argument left for the county to make. Regardless, it’s still a good idea to vote out the judges that made us go through all this in November. A political resolution on top of a legal one would really make the difference.

Final instructions in bail practices lawsuit

We may finally be nearing a conclusion in this matter.

A year after a landmark ruling that upended Harris County’s bail system, a federal appeals court Friday issued final instructions for a Houston judge to craft a revised plan for releasing poor people who qualify after arrests for low-level offenses.

Lawyers on both sides of the contentious two-year lawsuit hailed the ruling Friday as a victory, and the county said it offered a solid template for a final settlement.

Chief U.S. District Judge Lee H. Rosenthal, who issued an injunction last year halting longstanding bail practices, set a new hearing June 14 for both sides to begin hammering out a detailed plan.

A New Orleans appeals court Friday rejected the county’s requests to halt or alter portions of the historic 2017 ruling in which Rosenthal found the county’s bail process violated constitutional rights to equal protection and due process, subjecting poor people to what termed “wealth-based detention.” The 5th U.S. Circuit Court of Appeals handed the case back to Rosenthal to begin implementing adjustments to her order addressing the release of misdemeanor defendants who don’t have holds or detainers.

“Harris County has been working diligently to improve the criminal justice system,” said Robert Soard, first assistant to Harris County Attorney Vince Ryan. “The county remains committed to a settlement that maximizes the number of misdemeanor detainees who are eligible for prompt release from jail without secured bail, that provides due regard for the rights of victims and protection of the community, and preserves the independence of the judiciary.”

But the court denied several requests from the county for immediate changes to Rosenthal’s order. Neal Manne, one of the attorneys for the indigent defendants, said he was delighted the court amended its ruling the way his legal team requested.

“We went 3-for-3 today, which is usually done only by Jose Altuve,” he said.

See here for the background. All I can say is that if everyone feels like they won in this ruling, then everyone should feel like they’re in a good position to negotiate a final agreement, and that maybe there aren’t that many points of disagreement left to dicker over. Perhaps we’ll find out on June 14. It is long past time for this matter to be resolved, and for a better and more just system to be implemented.

Fifth Circuit largely upholds bail practices ruling

Good.

The 26-page opinion by Judge Edith Brown Clement affirms the majority of Chief U.S. District Judge Lee H. Rosenthal’s landmark ruling, including her finding that the county’s bail policies violated the due process and equal protection clauses of the U.S. Constitution.

However, Clement and fellow judges Edward C. Prado and Catarina Haynes disagreed with Rosenthal’s analysis on three matters and sent the case back for her to reconsider those elements.

They concluded Rosenthal was overly broad in her analysis of the due process violation and in extending no-cash bail to all indigent defendants. They found her demand that qualified defendants be released within 24 hours was “too onerous,” opting instead for a 48-hour window.

They also ordered Rosenthal to fine tune how officials assess a defendant’s ability to pay bond.

County Commissioner Rodney Ellis, a supporter of the lawsuit who traveled to New Orleans to hear the oral arguments in the case, called it “a significant victory for justice.”

“With this decision, the conservative 5th Circuit is telling Harris County that it’s unconstitutional to have two justice systems: one for the rich and one for the poor,” Ellis said. “Yet Harris County has already spent more than $5 million defending a morally and legally indefensible bail system that violates the Constitution and punishes people simply because they are poor.”

[…]

Attorney Neal Manne, whose firm, Susman Godfrey, joined in filing the lawsuit, praised the decision.

“I am absolutely thrilled by the ruling, which is a huge and historic victory for our clients,” he said.

The appeals judges found that the county had acted mechanically in reviewing bond decisions, failing to take the time to consider economic factors. The ruling summarized Rosenthal’s equal protection findings by imagining the outcomes for two hypothetical misdemeanor defendants, identical in every way — facing the same charge, from the same criminal backgrounds, living in the same circumstances — except that one was wealthy and the other indigent.

While the wealthy arrestee was less likely to plead guilty and get a shorter sentence or be acquitted, and less likely to pay the social costs of incarceration, it found, the poor arrestee, “must bear the brunt of all of these, simply because he has less money than his wealthy counterpart,” they wrote.

See here for the previous update, and here for a copy of the ruling. This was basically how I read it based on the coverage of the arguments. I agree with attorney Manne and Commissioner Ellis that this is a great ruling, and that it’s way past time to settle this effing thing.

The Trib adds on:

But the ruling wasn’t a total win for the plaintiffs. The appellate court still said Rosenthal’s ruling was “overbroad” and asked her to narrow some of the orders against the county.

Perhaps of most significance, the appellate court pushed back on Rosenthal’s order for the sheriff to release at no cost all misdemeanor defendants who claim they can’t afford their bond within 24 hours of arrest, regardless of whether they’ve had their bail reviewed or set at a higher cost. The appellate judges appeared suspicious about Rosenthal’s time limit in their hearing and said Wednesday that it was too strict.

In sending the case back to Rosenthal for a modified ruling, the higher court suggested an injunction that demands that poor defendants who claim they can’t afford their bail be entitled to a hearing within 48 hours of arrest where they can argue for a lower or no-cost bond.

If a judicial officer declines to lower the bond at this hearing, he or she would have to put the reason for their decision in writing, and the arrestee would then get a formal bail review hearing before a judge. If, after those 48 hours, there are no records showing an individualized bail review process took place, the sheriff could release the defendant at no cost.

‘The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention,” Clement wrote.

I’m fine with that, and I expect the plaintiffs will be as well. Mark Bennett sums it up.

It’s time for the fourteen criminal court at law judges to declare victory and go home. ((Just between you and me, this opinion is a rout for the judges. The changes are small, and the current injunction remains in place until Judge Rosenthal modifies it.))

Indeed. I really hope this time they listen.

Fifth Circuit hears bail lawsuit arguments

Big day in court.

Amid a stream of pointed questions from the bench, lawyers for Harris County Tuesday asked panel of the 5th U.S. Circuit Court of Appeals to toss a lower court ruling that the county’s criminal justice system violated the constitution by holding poor defendants on low level offenses simply because they could not afford bail.

The arguments challenge an April ruling by Chief U.S. District Judge Lee H. Rosenthal in Houston that the county’s bail system violated due process and equal protection by discriminating against poor misdemeanor defendants, when people with the money to could await trial at home.

A trio of appellate judges heard 30 minutes of oral arguments from the county, which has spent $4.2 million combating the lawsuit, and another 30 minutes from lawyers for a group of indigent defendants who languished in jail for days because they couldn’t afford to post bail.

[…]

[Judge Catharina] Haynes commanded the questioning throughout the morning, including when Chuck Cooper, a seasoned appellate lawyer who heads the Washington, D.C. law firm Cooper & Kirk, argued for the county that the bail hearings were not perfunctory.

Haynes interrupted Cooper mid-sentence, with a rhetorical question, “Now they know they’re under scrutiny so they add an extra sentence to their rubber stamp?”

To Alec Karakatsanis, director of the Civil Rights Corps in D.C, who represents the indigent defendants who sued the county, Haynes repeatedly asked about why the defendants needed to be released from jail by the 24-hour mark.

“I’m asking a very specific question you’re not answering,” she said. “Where in the U.S. Constitution does it say you’re required to release… within 24 hours.”

“It doesn’t,” Karakatsanis said.

Haynes also asked what’s the value of the affidavit inmates sign to swear they can’t afford bail.

“What if they’re lying on this affidavit–I don’t know, if they’re a millionaire or something?” she queried.

Karakatsanis said they could face further prosecution for contempt if they misrepresented their means.

See here and here for some background, and here for a Chron preview; I’ve been following this for awhile so if you’re a regular reader this should mostly be familiar. The Trib adds some details.

The judges repeatedly peppered Cooper with questions about the county’s probable cause hearings, in which judicial officials called hearing officers hear the charges against a defendant, evaluate reports from pretrial interviews and occasionally alter bail. The plaintiffs have argued that defendants are not allowed to speak at these hearings, which Haynes and Prado jumped on.

“They’re called hearing officers. Is there a hearing or do they just look at the form and make a decision?” [Judge Edward] Prado asked.

When Cooper contended that they did, Haynes cut him off: “But they can’t speak. What is a hearing if you’re not going to listen?”

[…]

In his argument, Cooper cited multiple county reform efforts that have taken place since the court order took effect in June. In July, the county began using a new risk assessment tool to better recommend to judicial officers setting bail when low-risk offenders should be released on personal bonds. He said, though no data has been recorded in the court, that release on personal bonds has increased.

Haynes questioned whether it was worth sending the case back to the lower court to find new facts since the reforms have taken place. Karakatsanis argued the new facts are unknown, and that there is nothing in the court record to corroborate Cooper’s statements.

County Judge Darrell Jordan, the only Harris County judge who rejected money bail for indigent defendants before the ruling, was at the arguments and said afterward that he wished there was an opportunity to talk about the system under the changes. Overall, he said, the process hasn’t changed.

“If it is sent back to the lower court, then the numbers will show what is going on,” he said. “People are still being placed in jail, and they can’t afford to get out.”

It is unknown when the judges will make a decision whether to uphold Rosenthal’s ruling, overturn it or send it back to the lower court. But after the ruling, Karakatsanis said he was optimistic the court will stand by Rosenthal’s injunction.

“The order that they’re appealing from is based on very solid evidence, and they’re asking for it to be overturned,” he said. “You can’t just come in front of higher courts and say, ‘Well, facts are totally different from what happened…’ without any citation.”

All three judges were Bush appointees, by the way, one by 41 (as was trial judge Rosenthal) and two by 43. My layman’s reading of this is that the judges were far more skeptical of the county than of the plaintiffs, but they clearly found the 24-hour requirement to have a hearing or release a defendant questionable. If they want to modify that it’s probably not a big deal, but beyond that I hope they uphold the ruling. They’ll issue their opinion when they’re damn good and ready.

New county risk assessment system coming

We’ve been waiting.

Harris County officials on Tuesday touted their revamped strategy for deciding whether tens-of-thousands of individuals should be jailed before their criminal trials, a process that critics and a federal judge say disproportionately affects the poor who are unable to come up with the money to make bail.

On July 29, the county plans to implement the “public safety assessment,” to grade individuals arrested in Harris County each year on their risk of re-offending, committing a violent crime or failing to show up for court.

The tool is intended to recommend to judges and hearing officers that low-risk individuals – both felony and misdemeanor – be let out of jail on personal bonds. Higher-risk individuals would be required to post bail according to an established bail schedule, as well as face additional supervision such as round-the-clock monitoring or regular check-ins with probation officers.

“This is the biggest change in criminal justice reform that Harris County has ever seen,” said Kelvin Banks, the county’s director of pretrial services.

[…]

[Federal judge Lee] Rosenthal weighed in on the county’s new risk assessment tool earlier this month, writing that the new rules “do not change much.”

The system imposes a fee schedule ranging from $500 to $5,000 for misdemeanors and recommends up-front payment from most people.

“Like the old schedule … secured money bail is the standard recommendation for most categories of misdemeanor arrestees,” the judge wrote. “The approved changes are hardly different.”

Elizabeth Rossi, an attorney with Civil Rights Corps, said the risk assessment does not eliminate the use of a bail schedule, and despite its goal, will continue to ensure that those without means will be routinely jailed.

“It doesn’t solve the constitutional problem,” Rossi said.

See here and here for some background. I hope this helps, but it doesn’t sound like it moves us closer to a resolution. Maybe it will at least keep a few people out of jail who don’t need to be there. In the meantime, we wait for the appeals process to play out.

State to help defend county bail policies

Of course it will.

Best mugshot ever

Texas Attorney General Ken Paxton and the top lawyers in five other states are backing Harris County in its protracted battle over money bail for poor low-level defendants, as the tally of those released on no-cash bail nears 1,000.

Paxton and the lead attorneys in Arizona, Hawaii, Kansas, Louisiana and Nebraska filed a joint brief late Monday supporting the county’s appeal of a federal court order that took effect three weeks ago eliminating cash bail for indigent misdemeanor defendants.

[…]

At a tense Harris County Commissioners Court meeting on Tuesday, officials provided the clearest picture yet of the people released from impact of Rosenthal’s ruling. Nearly 980 people have been released by the sheriff under Rosenthal’s ruling as from June 6 through Friday, according to county’s office of budget management.

Of those, 40 people who were released on personal bonds had been arrested again by Friday and charged with new crimes, a rate of about 3 percent.

In the group of people who were able to afford cash bond — either through a bail bondsman or by posting cash — during the same time period, only about 1 percent had been re-arrested, county officials said.

The county’s arguments were countered in a lengthy hearing before Rosenthal that led to her order.

[…]

Paul Heaton, academic director of the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice and co-author of a study on Harris County’s criminal justice system, said the brief rehashes old arguments.

“The brief does demonstrate, however, that there are still important constituencies that have yet to be convinced of the need for bail reform,” he said. “Despite the significant progress in this area in states like New Jersey, Maryland, and Kentucky, and the mounting empirical evidence that cash bail systems can generate unwanted disparities and harm public safety — particularly when applied to low-level offenders — there are still many jurisdictions satisfied with the status quo that don’t want to change.”

Alec Karakatsanis, director of Civil Rights Corps, who represents ODonnell and the others who couldn’t afford bail, said Monday’s filing by the states’ attorneys echoed that stance.

“The amicus brief is a repeat of bail industry talking points that are entirely untethered to law and to fact,” he said.

I couldn’t find a copy of the Paxton brief, so you’ll have to rely on the story for what we know. Hard to know what else to make of this, or if the amicus brief will have any effect. Some days I wonder what it would be like to have an Attorney General who fights on the right side of an issue, any issue. Must be nice.

There is always some risk

I get the concern, but the alternative was unacceptable and now is illegal. Get used to it.

More than 600 people charged with misdemeanors have been released since June 7 when the U.S. Supreme Court rejected an emergency motion by the county to block [federal judge Lee Rosenthal’s] order, according to estimates provided to the county attorney’s office from criminal court officials.

[…]

“That’s my sort of common sense problem with this whole ruling,” said Harris County Judge Ed Emmett. “I’ve stated publicly that someone shouldn’t be in jail because they can’t afford bail…there’s got to be a risk assessment here. I don’t think anyone wants somebody to to keep driving drunk time after time after time until they kill some family somewhere.”

Other court members expressed similar concerns about people being released on personal recognizance.

Precinct 4 Commissioner Jack Cagle and Precinct 3 Commissioner Steve Radack said Rosenthal’s ruling makes it easy for criminals to game the system by swearing they do not have enough money to pay bail – even if they do – just to get out of jail.

“This is a slap at every single Harris County Criminal court judge,” Radack said. “It’s a slap at their integrity, their intelligence, and it’s, basically, it really doesn’t matter how bad you are, as long as you’re charged with a misdemeanor. If you say you can’t afford bail, you’re getting out.”

A 193-page opinion accompanying Rosenthal’s order outlined research that showed personal bonds in other jursidictions were no less effective at getting people to show up for their trials, nor did they significantly lead to additional offenses by those released. In fact, Rosenthal wrote, research shows pretrial detention increases the likelihood that people will commit future crimes.

Her order states that judges still have other tools – such as breathalyzers or GPS monitoring – to address the risk of releasees committing new offenses.

It also notes that the county has “not compiled the data it has to compare failure-to-appear or new-criminal-activity rates by bond type among misdemeanor defendants during pretrial release.”

Precinct 1 Commissioner Rodney Ellis has been the lone member of Commissioners Court who has agreed that the county’s bail system is unconstitutional. He repeatedly has advocated settling the case. He said Tuesday that under the current bail system, people who can afford to make bail can pay, get out, and re-offend, meaning that using high bail to detain individuals disproportionately affects the poor.

Commissioner Ellis has it exactly right. Maybe if the county would get its act together and compile some data then some other members of Commissioners would feel less need to fearmonger. The point is that all along, we let anyone go who could pay whatever bond was set, without worrying about whether or not they might re-offend. A system that takes into account risk rather than ability to pay will do more to reduce this kind of crime than anything else. Fortunately, that’s what the county will have to do now. That’s all there is to it.

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.

Fifth Circuit reinstates bail order

Good.

Harris County took the fight over its controversial bail system to the U.S. Supreme Court on Tuesday, even as county officials scrambled to plan the imminent release of dozens of misdemeanor defendants held behind bars who cannot afford to post cash bail.

A federal appeals court ruling earlier Tuesday had greenlighted the release of hundreds of poor inmates held in the Harris County Jail on misdemeanor charges ahead of their trials, and Sheriff Ed Gonzalez prepared for the release of as many as 177 people starting Wednesday morning.

But in an emergency filing late Tuesday with the nation’s highest court, Harris County asked for another halt to the ruling by Chief U.S. District Judge Lee H. Rosenthal.

The county’s request went to Supreme Court Justice Clarence Thomas, who handles appeals requests from the 5th U.S. Circuit Court of Appeals. Thomas can either rule on the matter himself or take it to the full court, according to the county attorney’s office.

“In the absence of a stay, the district court’s order that Harris County — the third-largest jurisdiction in the nation — immediately release without sufficient surety untold numbers of potentially dangerous arrestees is certain to cause irreparable harm,” the county’s appeal states.

[…]

The appeal to the Supreme Court came at the end of a whirlwind day for the county in a closely watched case targeting a bail system in which poor people accused of low-level misdemeanors frequently are kept in jail because they can’t afford to post cash bail while awaiting trial.

On Tuesday morning, a three-judge panel from the 5th Circuit Court determined that Rosenthal’s ruling would remain in effect until the case goes to trial. The ruling set in motion the release of up to 177 misdemeanor detainees, who do not have money to pay cash bail and who do not have other restrictions such as mental health evaluations or federal detainers.

The inmates affected by the ruling account for about 2 percent of the total jail population of 8,800, sheriff’s officials said.

The county will comply with Rosenthal’s order until the U.S. Supreme Court weighs in.

“We know we all have to follow the order of a federal district court,” said Robert Soard, the first assistant county attorney. “We’re working with both the sheriff and pretrial services, and we’re going to try to accomplish that as seamlessly as we can.”

The sheriff’s office expected to begin releasing qualified inmates early Wednesday.

“It doesn’t mean that 177 people will walk out,” said Jason Spencer, spokesman for the sheriff. “That would be the absolute highest number. In all likelihood it will be less than that.”

See here for the background. I’m a little short on time, but you know where I stand on this. I’m rooting for Justice Thomas to decline to take up the county’s appeal, and I look forward to the county having to comply with the order. Maybe then we can finally bring this matter to a close. A statement from the Texas Organizing Project is beneath the fold.

(more…)

Harris County bail order halted

Very late in the day on Friday.

A federal appeals court granted Harris County a last-minute reprieve Friday in a contentious civil rights lawsuit, calling a temporary halt to a judge’s order that would have altered the way cash bail is handled for hundreds of people jailed on misdemeanor charges.

In an order posted after the courthouse closed Friday, the 5th U.S. Circuit Court of Appeals granted the request of the county’s teams of lawyers to stop the order – set to take effect Monday – until the appeals court can further review the matter.

A three-judge panel of the court notes the temporary halt to the order was issued “in light of the lack of time before the district court’s injunction will take effect and in order to allow full consideration of the following motions and any responses thereto.”

First Assistant County Attorney Robert Soard said the ruling will give the court time to fully consider the issues.

“The county attorney is pleased that the 5th Circuit has granted the stay to give us more time to work toward a settlement that is in the interest of all the people of Harris County,” he said late Friday. “They said, ‘Let’s just stop a minute.'”

Neal Manne, who is among the lawyers representing the inmates, said he respects the temporary ruling.

“We have great confidence that Judge Rosenthal’s decision and injunction will eventually be upheld,” he said.

Criminal Court at Law Judge Darrell Jordan – who was the only judge who did not want to appeal the decision – was disappointed with the appeals court decision.

“I don’t know why we’re still fighting this,” he said. “Millions of dollars of Harris County money is going to be wasted.”

As you know, I agree entirely with that sentiment. I had also drafted and prepared a longer post on Friday on the assumption that the Fifth Circuit would not halt Judge Rosenthal’s order. I saw this story before I went to bed and took this post off the schedule for yesterday, swearing under my breath about the late change. In the interest of not throwing away what I had already written, I’ve got that post beneath the fold. This is what I would have run if the Fifth Circuit hadn’t intervened. I have faith that once they do have a hearing they will reverse themselves, but until then we wait.

(more…)

Harris County will continue to fight bail lawsuit

Stupid. Stupid, stupid, stupid.

Harris County has appealed a federal civil rights lawsuit that challenged the county’s bail system, despite rising legal costs that have neared $3 million.

After a heated discussion and a closed-door meeting Tuesday, Harris County Commissioners Court voted 4-1 to appeal the suit and to ask for a delay to a May 15 start date that would require the county to consider an inmate’s ability to pay when setting bail.

The stay was filed after the meeting and Chief U.S. District Judge Lee H. Rosenthal promptly issued an order giving all parties until 5 p.m. Wednesday to respond to the defendants’ request for a stay.

Elizabeth Rossi, an attorney from Civil Rights Corps, who represents indigent defendants held in jail because they cannot afford their bail rates said her clients “are disappointed to learn that the county and the judges are appealing Chief Judge Rosenthal’s thorough and comprehensive decision but we are confident that every judge to review it will agree with her and uphold it.” Rossi said her team would “vigorously” oppose a motion for a stay.

County leaders also urged their legal representatives to continue trying to settle the lawsuit, which had led to an order from Rosenthal declaring the county’s system unconstitutional.

“We believe the system she wants to implement is arguably not legal,” County Attorney Vince Ryan said.

Precinct 1 Commissioner Rodney Ellis, who has pushed for settlement, cast the the lone vote against the decision to appeal.

“This is really asking the court to give you the funds to appeal,” he said.

Sheriff Ed Gonzalez, who is a named defendant in the lawsuit, also opposes the appeal. He declined to join the other defendants Tuesday in appealing the order, explaining after the Commissioners Court meeting, “We’re just going to move forward to implement it the best way possible and see what all these other proceedings lead to.”

I’m angry about this. It is a huge waste of time and money in pursuit of an unjust resolution. Everyone who supports this needs to be voted out. I don’t know what else to say.

“What are we fighting for?”

That’s the key question for the county in the bail lawsuit.

As legal costs mount, surpassing $200,000 per month, pressure is building for Harris County officials to settle a lawsuit over the county’s cash bail system that a federal judge has ruled unconstitutional.

Newly available documents reveal that teams of defense lawyers are racking up massive ongoing expenses, including one lawyer on retainer since June at $610 per hour and a Washington, D.C. appellate lawyer on board since mid-April at $550 per hour.

Among the two dozen county officials named as defendants in the civil suit, one is fed up.

“It’s time to settle,” said Criminal Court at Law Judge Darrell Jordan. “What are we fighting for?”

A settlement offer remains on the table from lawyers representing poor people stuck in jail for misdemeanor offenses because they could not afford cash bail. But none of the other defendants in the suit has budged, according to attorney Neal Manne, whose firm donated its services in filing the suit with two civil rights organizations.

First Assistant County Attorney Robert Soard said Friday he anticipates his office will have a recommendation for the Commissioners Court meeting Tuesday morning. Discussion of the case is included on the Commissioners Court agenda, with possible action to follow.

As of Friday, however, the county has been billed about $2.85 million by outside counsel – a cost the county attorney’s office says is not out of line given the number of defendants and a local criminal justice system that is one of the largest in the nation.

[…]

On Friday, Criminal Court at Law Judge Jordan hand-delivered a letter to County Judge Ed Emmett asking that he be allowed to settle the case immediately.

Emmett spokesman Joe Stinebaker explained the office’s response to Jordan’s letter.

“Judge Emmett has no authority whatsoever to allow or prevent any of the defendants in this suit from taking any action they deem appropriate,” he said.

The formalities were of little importance to Jordan, who said it seems obvious the county should settle, given Rosenthal’s comments that the indigent defendants are likely to prevail at trial.

It’s true that Judge Emmett doesn’t have the authority to make a settlement happen. So let’s be clear about who can make it happen: The County Court judges who are the defendants in the case and who (other than Judge Darrell Jordan, the lone Democrat among them) have insisted on continuing to fight, and County Commissioners Jack Morman, Steve Radack, and Jack Cagle, who have the authority to tell the judges that they will not pay for any further litigation. They have the opportunity to express that opinion on Tuesday. If they do not – if they vote to continue paying millions of dollars to outside counsel in pursuit of a losing and unjust cause – then we know whose responsibility this is.

Why won’t the county settle the damn bail lawsuit?

Lisa Falkenberg asks the same question I’ve been asking.

Now that Chief U.S. District Judge Lee Rosenthal – it should be noted, a Republican appointee — levelled her devastating assessment of Harris County’s rigid bail system a few days ago, ordering county officials to cease practices that violate misdemeanor defendants’ rights to due process and equal protection, you’d think the elected officials who hold the purse strings would admit the futility of fighting the lawsuit and stop funding this exercise in fiscal irresponsibility.

So, why doesn’t the county just settle the lawsuit, and put the money it is spending on lawyers to better use?

I got a surprising answer when I raised that question with the office of Ed Emmett, the county’s chief executive.

“We have consistently been told by the county attorney’s office that the other side does not want to settle,” Emmett said.

The county attorney is Vince Ryan, whose office represents county officials in legal matters. The “other side” is the plaintiffs: two civil rights groups –Texas Fair Defense Project and Civil Rights Corps – and local law firm Susman Godfrey.

Emmett’s spokesman, Joe Stinebaker, said that while commissioners decide whether to keep funding the county’s defense, they can only decide “based on honest and full advice of the county attorney’s office.”

OK. But why would the civil rights groups and a law firm working pro bono to improve the system refuse to settle? Could that be true?

“That’s totally false,” said Neal Manne of Susman Godfrey. “Anyone who claims it’s impossible to settle or we were not willing to settle either has mistaken information or is intentionally not telling the truth.”

[…]

Thoroughly confused, I reached out to the county attorney’s office. First Assistant County Attorney Robert Soard promptly responded. I asked him if his office had really been recommending to Emmett and other commissioners not to settle because the other side wasn’t interested.

“I guess I can’t comment on that because you’re getting into settlement talks and we’re not allowed to talk about that,” he said.

He did offer an observation: “It takes two parties to settle a case. We can make offers, we can make suggestions but unless they’re accepted, there can’t be a settlement.”

Well, yes. But failure to agree to specific terms of a settlement is very different from refusing to settle at all. I told Soard about Karakatsanis’ offer to settle if the county would just abide by Rosenthal’s ruling. At this point, it could save the county millions in legal fees.

“If they make an honest promise and put it in writing we’ll certainly look at it,” Soard said. He noted that although his office can recommend a settlement, it can’t mandate one; all the county officials named as defendants would have to agree.

You know where I stand on this. Like Falkenberg, I’m not sure who’s blowing smoke here. The one thing I would push back on is the notion that Commissioners Court merely approves or denies the requests to fund the county’s defense. Our commissioners are a lot more invested in this case than that, and as we have clearly seen, at least two of them (Radack and Cagle) don’t appear to be willing to give up the fight. I would want to know more about what the Commissioners – other than Rodney Ellis, who has been quite vocal about not supporting any more expenditures on the lawsuit – ave been saying and doing. They themselves may not be the clients in this lawsuit, but they sure do wield some influence.

And now we have this.

A new settlement offer is on the table in the high-stakes federal lawsuit over Harris County’s bail system in the face of a judge’s ruling that poor people are wrongly kept behind bars because they can’t post cash bail.

The offer comes less than 24 hours after County Judge Ed Emmett told the Chronicle that he’d been informed repeatedly by the county attorney’s office that the lawsuit couldn’t be settled because attorneys for the inmates were unwilling to reach a deal.

The comments brought an immediate offer to the county from a lawyer representing misdemeanor suspects: Agree to the terms outlined by Chief U.S. District Judge Lee H. Rosenthal and the lawsuit can be resolved.

“If they’re willing to settle today, we’re happy to settle, and they could stop spending taxpayer money defending a hopeless cause,” attorney Neal Manne, a managing partner at Susman Godfrey, said Wednesday.

[…]

Manne said the settlement offer is just the latest attempt to reach an agreement out of court. He said he submitted the first settlement offer at the county’s request on June 1, which led to two days of mediation in August. After that, the two sides exchanged multiple drafts of proposals, with the final one early this year before the injunction hearing was initially set to begin in February.

First Assistant County Attorney Robert Soard said Wednesday that settlement discussions had been ongoing prior to the injunction hearing in March and that he was not opposed to further talks since the judge’s ruling.

“I agree with Neal [Manne] that there have been ongoing talks about possible settlements,” he said. “They’ve made offers. We’ve made offers. I don’t know why it’s the county’s fault. Certainly the county is willing to settle on terms that are reasonable. There’s no question about that. And there’s no questions that there have been talks.”

Well OK then. Unless the county believes the judge’s terms are not reasonable, then the framework for a settlement is right there. What’s it going to be, fellas?

County considers its bail options

I can think of one, if they need some help.

With just two weeks until the 193-page order from Chief U.S. District Judge Lee H. Rosenthal kicks in May 15, county officials are working to draft a plan to deal with the hundreds of misdemeanor offenders now behind bars and the new cases filed each day.

County officials and more than a dozen lawyers spent Monday in meetings deciding whether to appeal the order, said Robert Soard, first assistant at the Harris County Attorney’s Office. He said he anticipates the legal team will have a recommendation about whether to appeal before the next Commissioners Court session May 9.

Jason Spencer, spokesman for Sheriff Ed Gonzalez, said the changes will require collaboration among multiple agencies to comply with the ruling so quickly.

“It’s not just a flipping of a switch and now we can do these things,” he said. “It takes time and planning to put new systems in place that weren’t there before.”

Paula Goodhart, administrative judge for the misdemeanor courts, was also among those in the meetings.

“Like everyone else, we’re still trying to process it,” Goodhart said.

Goodhart declined to answer questions specific to the lawsuit, because she is one of the defendants. Instead, she spoke about changes that have been in the works for the past two years to reform the county bail system.

“We do recognize that low- and moderate-risk people should be out pending trial,” she said. “We just want to balance public safety with individual liberty interests.”

On any given day, between 350 and 500 people-about 5.5 percent-of the jail population are awaiting trial on misdemeanors. But about 50,000 people are arrested in Harris County on misdemeanors each year, so the number of people who would not have to pay a bondsman or plead guilty to get out of jail could be in the tens of thousands.

County budget officer Bill Jackson said his office is working to understand how many people may be released by the judge’s order and how much that could reduce the cost of incarceration at the overcrowded jail.

“This is such a moving target,” Jackson said. “There’s just way too many ‘what-ifs’ and variables.”

See here for the background. I can’t help with the what-ifs and the variables, but I can give them one solid piece of advice: Don’t appeal. Save your money on the high-priced lawyers and start implementing what the judge ordered. The county will save a bunch of money by not having so many people in jail, and with that there will be fewer deaths, fewer rapes, fewer allegations of brutality against the guards, and so on. There will also be a higher general level of justice in the county, with fewer people forced out of work and fewer people spending money they don’t have on bail bondsmen and court costs. Less cost, less death, more justice. Someone help me out here, what is it we have to think about here?

Some officials, however, bristled Monday at the judge’s opinion,which was handed down late Friday.

Precinct 4 Commissioner Jack Cagle said the ruling was an example of a federal judge changing Texas law. Precinct 3 Commissioner Steve Radack wondered whether the release of inmates could impact public safety.

“Just because somebody has been charged with a Class B or A misdemeanor doesn’t mean that’s a person that’s a real nice person, that’s real trustworthy and hasn’t been involved in an active assault,” Radack said.

Take your two-bit scare tactics and tell it to Judges Hecht and Keller, guys. And settle the damn lawsuit.

Harris County bail system ruled unconstitutional

Damn right.

A federal judge in Houston Friday issued a scathing denouncement of Harris County’s cash bail system, saying it is fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail.

In a 193-page ruling released Friday, Chief U.S. District Judge Lee H. Rosenthal ordered the county to begin releasing indigent inmates May 15 while they await trial on misdemeanor offenses.

Rosenthal concluded the county’s bail policy violates the due process and equal protection clauses of the Constitution.

“Liberty is precious to Americans and any deprivation must be scrutinized,” the order states, citing a comment from Texas Supreme Court Chief Justice Nathan Hecht.

The judge also granted “class-action” status to the case, meaning that her findings will apply to all misdemeanor defendants taken into custody.

The ruling – a temporary injunction that will remain in place until the lawsuit is resolved pending appeal – will not apply to those charged with felonies, or those who are being detained on other charges or holds.

First Assistant County Attorney Robert Soard said late Friday officials are reviewing the orders.

“No decision has been made at this time concerning an appeal of the preliminary injunction,” he said.

See here for the background, and here for a copy of the ruling. Grits highlights a key aspect of it.

Judge Rosenthal heard testimony from the Hearing Officers setting bail amounts on the front lines and poignantly found them non-credible: “The Hearing Officers’ testimony that they do not ‘know’ whether imposing secured money bail will have the effect of detention in any given case … and their testimony that they do not intend that secured money bail have that effect, is not credible.” In fact, she attributed “little to no credibility in the Hearing Officers’ claims of careful case-by-case consideration.” In the hearings she watched, they “treat the bail schedule, if not binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount.”

If Judge Rosenthal were Politfact columnist, she’d be giving the Hearing Officers a “Pants on Fire” rating. To the extent that appellate courts must rely on her credibility assessments, and on many topics, they must, those lines may well preclude quite a few appellate paths for the defendants.

Her critique extended beyond the Hearing Officers, though to elected judges acting as “policymakers” overseeing Harris’ County pretrial-detention mill, whom she found to be willfully and conveniently ignorant about the human impact of they system they’re running:

policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial. In addition to the absence of any information about the relative performance of secured and unsecured conditions of release to achieve these goals, the policymakers have testified under oath that their policy would not change despite evidence showing that release on unsecured personal bonds or with no financial conditions is no less effective than release on secured money bail at achieving the goals of appearance at trial or avoidance of new criminal activity during pretrial release.

That’s exactly right – they’re not going to change unless somebody makes them, and Judge Rosenthal clearly has decided she’s that somebody.

I would note that all of those elected judges are Republicans (*), and they are all up for re-election next year, so there is another way to force a change here. In the meantime, I have to ask again, why are we even still fighting this? What principle are we defending? Why are we writing checks to fat cat Washington DC Republican lawyers to “advise” on whether or not to appeal? Stop the madness and stop wasting my tax dollars on this crap, and settle the damn lawsuit already. It’s the right thing to do on every level. District Attorney Kim Ogg wants to settle. Sheriff Ed Gonzalez wants to settle. Commissioner Rodney Ellis wants to settle. Everyone else needs to get in line.

(*) The judges in question preside over the County Courts, where misdemeanors are heard. County Court Judge Darrell Jordan, who was elected in 2016 to fill a newly-created bench, is the lone Democrat. He also is the lone judge to favor settling.

Settle the damn bail lawsuit already

Enough.

Harris County commissioners Tuesday voted to add high-profile, conservative litigator Charles Cooper to a growing team of attorneys defending the county and several public officials against a civil rights lawsuit alleging the county’s bail system unconstitutionally jails the poor.

Cooper, a former clerk for U.S. Supreme Court Justice William Rehnquist and friend of U.S. Attorney General Jeff Sessions, would represent 15 out of 16 county criminal court of law judges in a potential appeal.

No decision has been made yet in the case nor has it gone to trial. Parties are awaiting a ruling from Chief U.S. District Judge Lee Rosenthal to determine if the current bail system should be suspended before trial. When Rosenthal makes that ruling, either the plaintiffs or the county could appeal.

“It’s simply being ready to deal with eventualities,” First Assistant County Attorney Robert Soard said of Cooper’s retention. “Whether the county decides to appeal, the plaintiffs decide to appeal, it’s sometimes good to have these things lined up in advance.”

[…]

The county already has paid approximately $2 million to two outside law firms in the case, money that reform advocates such as Precinct 1 Commissioner Rodney Ellis said could have been spent on actually implementing reforms being sought in the suit.

Ellis, who has advocated to settle the lawsuit and has criticized the county’s bail system, cast the lone vote Tuesday against retaining Cooper. He questioned Cooper’s role in defending California’s ban against gay marriage before the U.S. Supreme Court.

“He seems like the leading candidate that people go to if you want to fight civil rights,” Ellis said.

See here and here for some background. I realize that we’re still waiting for a decision on whether to put an injunction on the county’s bail policies (which I think will be granted) in advance of the trial itself, but this has already taken a long time and cost a ton of money. Meanwhile, the county’s justification is that they’ve made reforms so there’s nothing for them to be sued about. If that’s truly the case, then it shouldn’t be that difficult to work out whatever differences do remain, and save a lot of time and trouble. Digging our heels in further makes no sense to me, and I question the judgment of everyone involved who insists on it. The Press has more.

Commissioners get testy over bail practices lawsuit

Let’s hash it all out.

Sen. Rodney Ellis

Tensions flared at Harris County Commissioners Court Tuesday after new Commissioner Rodney Ellis filed legal papers supporting civil rights groups in their high-profile federal lawsuit against the county and its bail system.

In a rare public argument before dozens of onlookers at the meeting Tuesday, Ellis’ colleagues — all Republicans — took issue with his action, with some calling the move unprecedented and insinuating that the county attorney should consider whether Ellis could be excluded from private discussions about the lawsuit in the future.

“I’m concerned about how this impacts commissioners court, impacts executive sessions,” said Precinct 3 Commissioner Steve Radack, who represents western and northwestern portions of the county, including Katy and Cypress. “I’ve never been through something like this before.”

The exchange shows how the lawsuit has exposed new fissures in county government. Ellis, a former state senator, says he is making good on a promise to shake up the traditionally quiet, non-combative style of the governing board of the country’s third-largest county, with strategies he says have successfully helped him in a Republican-dominated state Legislature.

After the meeting, Ellis defended his actions, saying he would be prepared to take legal action if he were excluded from executive sessions. Without the lawsuit, he said, the system would not have changed.

“If it were not for politics and pressure, the administrators here in the county would still be administering for decades,” he said.

[…]

Ellis’ brief offers to help Chief U.S. District Judge Lee H. Rosenthal assess the collateral impact that cash bail has for poor, mentally ill and homeless people and African-Americans — who are jailed at disproportionately greater rates and suffer extreme economic harms when they spend time behind bars.

In addition, the brief says, lengthy jail time impacts their legal prospects and their health. It mentions the example of Sandra Bland, a black motorist arrested in Waller County after a traffic stop, who committed suicide after spending a weekend in jail on a bond she could not afford.

The civil rights groups’ remedy for Harris County is “eminently feasible, cost-efficient, and narrowly-tailored,” and is consistent with the county’s ongoing aims to improve bail practices, the brief says.

See here for the most recent update; we are still waiting for a ruling on an injunction. I get the concerns expressed by Commissioners Radack and Cagle and Judge Emmett. It is undoubtedly a weird place for Commissioners Court to be to not be all rowing in the same direction. Of course, the Sheriff and District Attorney are also in favor of settling the lawsuit and implementing the reforms the plaintiffs are seeking. It’s true that Harris County has been moving in the direction of some of these reforms and that some good has already been done, but it’s also true that the problems have been there for decades, and none of these reforms were put in place before the lawsuit was filed. Given the amount of money that has already been spent by the county defending against the lawsuit and the likelihood of losing, seeking to settle and get to the real work sooner rather than later sure seems like a viable strategy to me. What exactly is it the county is fighting for at this point?

Bail practices lawsuit wraps up

It’s up to the judge now.

The call by two civil rights groups for an immediate fix to Harris County’s bail system is now in the hands of a federal judge after high-stakes arguments over whether poor people should remain in jail on misdemeanor offenses because they can’t afford to post bail.

Key criminal justice leaders in the county – including the sheriff, district attorney, public defender, misdemeanor judges and hearing officers – have weighed in on a lawsuit filed last year challenging the local system as unconstitutional.

Now Chief U.S. District Judge Lee H. Rosenthal will decide if the current bail system should be suspended temporarily until the lawsuit goes to trial, despite efforts already under way to alter the local system.

The county’s bail schedule punishes “working poor” people like Maranda ODonnell, a single mother who filed the lawsuit after spending two days in jail for driving without a valid license, attorney Alec Karakatsanis said during closing arguments Thursday.

The county’s lawyers argued changes already made to the system have brought an increase in defendants released on no-cash bonds.

“The present system is not perfect, it’s a compromise,” said John O’Neill, who represented the county judges. “It’s as imperfect as democracy.”

See here and here for some background. What’s at stake here is a preliminary injunction against the current system, with a full trial on the merits of the lawsuit to follow, if there is no settlement in the interim. I’m not sure what an injunction would look like in practice, but I’m sure Judge Rosenthal will have some ideas if she grants it. I get the sense that ruling will come sooner rather than later, but we’ll see. The Press has more.

Sheriff Gonzalez testifies in bail practices trial

He says on the stand what he has been saying elsewhere.

Sheriff Ed Gonzalez

Harris County Sheriff Ed Gonzalez took the witness stand for an hour Wednesday afternoon in a closely watched federal civil rights case that is challenging whether it is constitutional to impose monetary bail on people arrested for minor offenses if they cannot afford to pay it.

Gonzalez confirmed his opinion that the money bail system is arbitrary, unfair to poor defendants and undermines public safety.

“I personally do not believe it’s a rational system,” he said. “It should be equal protection for everyone.”

When an attorney representing Harris County judges asked him about the death rate at the jail being lower than outside the jail, the federal judge interrupted and asked if he was suggesting jail was a better place to be. The attorney, John O’Neill reframed the question.

[…]

Gonzalez sat in court at the defense table for three hours Wednesday morning, listening as another opponent of the bail system testified about a system he said “doesn’t pass the laugh test.”

See here and here for some background. Sheriff Gonzalez was not the only elected official to take the stand.

Harris County Criminal Court at Law Judge Darrell Jordan, on the bench since January, also testified Wednesday before Rosenthal about his experience as a defense attorney and now as judge who must make dozens of bail decisions each day. He has begun releasing misdemeanor defendants on personal bonds if they have no holds. If they have risk factors or holds he has a conversation to see what they can afford.

Jordan said he’s seen in other courts that innocent defendants often plead guilty if they can’t make bail, just so they can get out and maintain their livelihoods.

The county is in the process of reforming its system of assessing defendants’ flight risk and setting bail. In the meantime, plaintiffs are asking Rosenthal to impose a temporary injunction, making immediate fixes so that bail is made easier for nonviolent defendants. Rosenthal asked Jordan if he believed the county would stop running a system in which people plead guilty because they are poor without an injunction.

His answer: “No.”

I think the fact that we’re having a trial over this is pretty good evidence to that effect as well. I can’t wait to see what the defense’s case looks like. The Press has more.

Bail practices lawsuit gets going

The first day in court for this lawsuit was Monday.

Neal S. Manne, a managing partner at Susman Godfrey, told Chief U.S. District Judge Lee H. Rosenthal in his opening statement Monday that ODonnell and hundreds of other poor people charged with minor crimes do not get a fair chance to win pretrial release here if they can’t afford to pay a bondsman.

He lauded the recent bail reforms the county has begun and those it plans to install, but he said none address the basic constitutional questions of equal protection under the law.

“If you have money, you can get out. If you don’t, you can’t,” Manne said. “That’s what we’re here about.”

The opening statements took on a question-and-answer format as Rosenthal peppered the lawyers with dozens of sharp questions and hypothetical arrest scenarios trying to get at the truth of how bail works here.

Melissa Lynn Spinks, who is heading the defense team on behalf of the Harris County Attorney’s Office, said the premise that Harris County has a wealth-based bail system is “a woefully simplistic argument.”

“The defense believes there is a category of high-risk defendants that we simply can’t ignore,” she said, explaining that hearing judges weigh several factors in setting bail.

Four other attorneys representing the judges, the sheriff and the county presented a preview of their arguments, interrupted by lively questioning from the judge.

Plaintiffs are seeking an injunction against the county to force immediate changes in the bail process. There’s no monetary award being sought, just changes to the system. It’s not clear to me what the timeline is, so we’ll just have to follow along and see. In the meantime, as we know there have been some changes made that will address some of these issues, but there’s more that needs to be done. Grits for Breakfast quotes an email from UH law professor Sandra Guerra Thompson that begins with a discussion of two bail reform bills that have been filed in the Lege and then moves on to this lawsuit as a case in point.

Ending Pretrial Punishment. If your loved one is arrested tomorrow in Texas, he or she will almost certainly be required to pay money to get out of jail. For most people who cannot pay the entire amount of the bail set, the only viable way to get out of jail is by making a non-refundable payment to a bondsman. This amounts to punishment, a fine, without proof of guilt. As someone who has paid bail money to get a cousin out of jail in Houston, I will tell you that it feels very much like pretrial punishment. The same troubled cousin was later arrested in Austin where judges have implemented a risk-based system, and he was released on a PR bond within a few hours. This use of PR bonds, based on a validated risk assessment, is what the bail bill would implement. The vast majority of people arrested are low-level, low-risk people who should be promptly released on PR bonds upon a finding that they are safe to be released. Rather than pay for a bail bond, they can use their money to pay for an attorney so the county doesn’t have to appoint one at taxpayer expense.

[…]

Meanwhile, back at the ranch . . . Houston officials defend the indefensible. Litigants have challenged the money bail system in Harris County, the state’s largest and deeply intransigent jurisdiction. The trial started today, March 6th. The litigation shake-up, combined with the election of reform-minded officials, has already brought some progress. Remarkably, the District Attorney Kim Ogg, following the lead of the Sheriff Ed Gonzalez, recently filed an amicus brief siding with the plaintiffs who are suing the county’s misdemeanor judges (see attached brief). So far, the county refuses to budge from its stance supporting the use of money bail, even though the system has been shown to be arbitrary, wasteful, cruel, and dangerous. The county’s lawyers went so far as to make the ludicrous statement that some people are in jail because they prefer to be there!

Holding tight to the Bail Schedule. To deflect the criticisms, Harris County officials have agreed to do everything short of getting rid of the bail schedule. Last month, they touted the implementation of the Arnold Foundation risk assessment instrument, which would be important if the judges were actually planning to make decisions based on risk assessments rather than simply following bail schedules. They have no plans to do away with money bail, and that is why the county has been unable to settle the lawsuit.

Here are other “baby steps” that Harris County has made, while desperately clinging to the money bail system. After years of feet-dragging, county officials have finally agreed to provide people with public defenders at bail hearings as part of a pilot project. (I will never understand why a “pilot project” is necessary. By what measure will they evaluate whether it is a good idea to give people access to a fair defense at bail hearings? Keep in mind that prosecutors have participated at these hearings for many years. That’s right—the county has held one-sided hearings with a prosecutor and magistrate, but no one to speak for the jailed person!)

To its credit, the county has started several programs to reduce the number of people in jail: the District Attorney’s policy to“legalize” of small amounts of pot, a “reintegration court” to get minor offenders out of the jail quickly, and very modest efforts to get the seriously mentally ill out of the jail and into treatment facilities. All of these programs are welcome and long-overdue, but they are not bail reform.

And that is what this lawsuit is about, for Harris County. For the state of Texas, that action is in the Legislature, and you should click over to Grits to learn more. I’ll be keeping an eye on the trial.

Ogg sides with bail reformers

As well she should.

Kim Ogg

District Attorney Kim Ogg on Friday filed a brief supporting bail reform in the lawsuit brought against Harris County’s misdemeanor judges to change the bail system.

The civil rights lawsuit, filed in federal court, is expected to begin a three-day hearing on Monday about whether the judge should issue an injunction.

Ogg, whose office is not a party to the litigation, filed a four-page amicus brief saying bail reform is necessary and long overdue.

“It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time,” she wrote in the brief. “These secure beds and expensive resources should be prioritized for the truly dangerous offenders and ‘flight risks’ who need to be separated from the community.”

[…]

Ogg said the issue is whether defendants charged with minor offenses are being held in the Harris County jail solely because of their inability to pay bondsmen’s fees, not because of legitimate concerns about their willingness to appear in court.

“Our primary concern is public safety. We do that by being smart on crime,” Ogg said. “When people are charged with minor offenses and do not present significant risks of flight or danger to the community, releasing them on their own recognizance – or with minimal restrictions – is called for by both the Texas and U.S. constitutions.”

Tom Berg, Ogg’s First Assistant, said the office is not “taking sides” but just explaining that they want to see change.

“These are major changes that we believe are long overdue,” he said. Berg noted that the office is also supporting county-funded defense attorneys at magistrate courts that run 24 hours a day with a prosecutor and a judge but no lawyer at that initial appearance. That issue has run into hurdles because of several issues but mostly because of the cost of staffing the initiative.

Ogg joins Sheriff Ed Gonzalez, whose office is party to the lawsuit, in siding with the reformers. I presume an amicus brief coming from the District Attorney in this matter would carry some weight. The next round of hearings begins today, so we should know soon enough what the effect of Ogg’s intervention will be.

Harris County really needs to settle that bail practices lawsuit

Enough already.

Two Houston-based lawmakers called on Harris County Attorney Vince Ryan Friday to dismiss an attorney hired to represent county judges in a federal civil rights lawsuit, after that attorney claimed in a hearing that many people jailed in Harris County were there by choice – not because they could not afford to post bond.

Among other statements, the attorney, James G. Munisteri, told a federal judge Wednesday that as few as “zero” defendants are jailed pretrial who can’t afford to pay and some choose to stay locked up in one of the nation’s largest jails because it’s cold outside.

The ongoing civil rights lawsuit challenges Harris County judges and other officials for granting very few no-cost pretrial bonds to misdemeanor offenders – as few as 8 percent in May when the suit was filed, according to county statistics. The lawsuit claims that judges routinely violate the civil rights of the poor by failing to consider the inability to pay before jailing thousands of people annually before trial for minor crimes like marijuana possession and trespassing.

The county argued in a hearing this week that the lawsuit should be tabled because officials have made improvements and that 23 percent of those accused of misdemeanors were released on no-cost bond as of October 2016.

But Chief U.S. District Court Judge Lee H. Rosenthal declined to put the case on hold Wednesday, saying there was not enough evidence to support the county’s claims.

[…]

State Sen. John Whitmire, D-Houston, and Harris County Commissioner Rodney Ellis, a former state senator, both of whom support bail bond reform, challenged Munisteri’s remarks as “indefensible.” Both argued that “tax dollars should not be used to fund this reprehensible representation.”

Robert Soard, First Assistant County Attorney, said that officials planned to review the matter.

“The quote should be placed in the context of presentations being made by both attorneys for plaintiffs and defendants during a hearing that lasted over one hour. We are awaiting a copy of the actual transcript to determine the actual context and an appropriate response,” he said via email.

See here for the last update, and here for previous blogging. The Press was the first on this story late last week. I’m not a lawyer, but I know a ludicrous argument when I see one, and when a competent attorney makes a ludicrous argument, I figure it’s because said attorney is saddled with a loser of a case. Which is why, as I have been saying all along, Harris County needs to settle this and be done with it. We should take our medicine and quit paying attorneys like Mr. Munisteri to make dumb arguments on our behalf in service of a policy that neither our Sheriff nor our District Attorney wants defended. More from the Press is here.

Motion to dismiss county bail practices lawsuit denied

Onward.

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.

See here for previous coverage, and here for a copy of Judge Rosenthal’s ruling. Courthouse News adds some details.

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.

City sued over bail practices

One more lawsuit going after the practice of jailing people who can’t afford to post bonf.

go_to_jail

Two civil rights groups sued the city of Houston late Monday, alleging the city jail has detained people for days at a time without offering them a hearing to determine if there was probable cause for the initial arrest.

According to the federal civil rights lawsuit, those who experience the wait — which ranges from eight hours to several days — for their transfer to Harris County custody are individuals who can’t afford bail. The county conducts probable cause hearings, but the groups said the lengthy delay is woefully routine and is unconstitutional.

They are suing under the Fourth and Fourteenth Amendments — for violations regarding probable cause and due process.

The lawsuit states that in July and August hundreds of people were arrested and kept in the city jail for more than three days without being granted a hearing. Part of the problem is overcrowding at the county jail, which creates a bottleneck.

[…]

The Civil Rights Corps, a criminal defense group based in Washington, D.C., and the Texas Fair Defense Project, an indigent defense advocacy group, filed the lawsuit in federal court in Houston. They’re seeking to have the case certified by a judge as a class action. The lawsuit also seeks compensation for individuals allegedly kept in the facility in violation of their constitutional rights.

As we know, there was a lawsuit filed against Harris County over their practices back in May. Both the Civil Rights Corps and the Texas Fair Defense Project are involved in that litigation as well, along with Equal Justice Under Law. It is my understanding that this new lawsuit is intended to be a completely separate action, not to be joined to the previous lawsuit. A longer version of the Chron story adds on about the first lawsuit.

Meanwhile, Harris County officials are awaiting a federal judge’s ruling on a motion to dismiss a separate federal case that accuses the county, sheriff judges and hearing officers of unfairly denying release to misdemeanor defendants who can’t afford their bail.

Last week, state Sen. John Whitmire, D-Houston, filed a related judicial misconduct complaint against three hearing officers who have routinely denied release on personal bonds. Their behavior, described in a Houston Chronicle story last week, violated both judicial ethics and state law, he said.

Whitmire on Monday urged Harris County District Judge David Mendoza to immediately remove the three hearing officers from presiding over bond hearings.

Mendoza said he would present Whitmire’s unusual request to a group of district court judges for consideration.

Robert Soard, a spokesman for the county attorney’s office, said the law firm handling the county’s bail case had offered to provide offer free legal counsel to the hearing officers, if needed.

See here for the background on that. To get back to the previous point, it is my hope that the city will work towards a settlement rather than fight this in court. The Press has more.

New Sheriff not interested in defending current bail policies

Good.

Ed Gonzalez

Ed Gonzalez

After defeating Sheriff Ron Hickman in the election this month, Sheriff-elect Ed Gonzalez is already sticking his nose in Hickman’s official business — mainly, the lawsuit filed against him.

Hickman, along with the county, all the county judges and five bail hearing officers, has been sued for participating in what a national civil rights group calls an unconstitutional bail system. The plaintiffs, Civil Rights Corps, argue that poor people in Harris County are being systematically jailed before trial just because they cannot afford to pay an arbitrary bail amount, unlike wealthier people charged with the same crime.

While Hickman has voiced support for bail reform in the past, he and his lawyers have nonetheless insisted he be dismissed from this lawsuit since he is simply complying with court orders from judges to house these people in the jail. Civil Rights Corps, however, argues that since many of these people are being held unconstitutionally, the sheriff is still liable. And it just so happens that Hickman’s successor agrees.

In an affidavit presented before U.S. District Judge Lee Rosenthal in federal court on Monday, Gonzalez called the county’s bail system unconstitutional and asked Rosenthal to keep the sheriff in the lawsuit — essentially encouraging Civil Rights Corps to continue to [sue] the office he will soon inherit.

[…]

Gonzalez’s premature involvement places the Harris County Attorney’s Office and its hired private attorneys in a somewhat awkward position: Once Gonzalez assumes office, county attorneys will be representing a public official whose views are seriously at odds with their entire argument — that nothing is legally wrong with the county’s bail system.

While the county raised ethical concerns in court yesterday about Gonzalez filing an affidavit apparently in support of the party that is suing him, Judge Rosenthal did not find any problems with it. In fact, one attorney from the Houston law firm Susman Godfrey, which is a plaintiff along with Civil Rights Corps, argued that the greater ethical concern was Gonzalez being “represented” by people who do not represent his views.

Judge Rosenthal is expected to decide soon on which parties will remain in the lawsuit.

The county argued Monday that its bail practices are not in violation of the Constitution since defendants see a magistrate within 48 hours (most of the time). And that magistrates, county attorneys said, have the information in front of them to consider a defendant’s ability to pay, as the Constitution requires. Civil Rights Corps lead attorney Alec Karakatsanis, however, repeatedly argued that the county was missing the mark: The point, he argued, is that magistrates systematically choose not to consider a defendant’s ability to pay bail, sending low-level, low-risk defendants to jail instead of giving them a personal bond.

See here for prior blogging on this. In case you’re curious, this is what Sheriff-elect Gonzalez is refusing to defend:

Anthony Wayne Goffney shuffles toward the floor marker where he is told to stand, wearing light blue pants and a smock top, four days after being jailed for trespassing.

A prosecutor rattles off information about his arrest as Goffney, stooped and gray-haired, appearing confused, gazes over his shoulder.

Court records show Goffney has dementia and a history of homelessness, yet his poverty is not discussed as hearing officer Jill Wallace, appearing via a video link, decides whether to jail him or let him go free.

Wallace says, rapid-fire: “Bond is set at $5,000. You’re denied a pretrial release bond.”

Then she adds: “Are you requesting the court to appoint you a lawyer?”

“Who me?” he asks.

“Yeah, you,” she answers.

Then Wallace sends Goffney to jail.

The videotaped encounter – among thousands that occur 24 hours a day at the Harris County courthouse – is among a cache released by the Texas Organizing Project showing what officials say is judicial indifference to a parade of poverty, homelessness and hopelessness.

“The elderly man [Goffney] has nobody to speak for him,” said Tarsha Jackson, a TOP organizer. “It’s inhumane and it’s not fair.”

There more, including video, at the story link. I don’t know about you, but that sure doesn’t sound like anything that has to do with “justice” to me. The county is arguing that the lawsuit should be dismissed because it has made progress in addressing the issues. Judge Lee Rosenthal has said she will make a final determination in January, after the new officeholders have had a chance to get sworn in. We know where Gonzalez stands, and I’ll be shocked if Kim Ogg isn’t there with him. We’ll see what that means for the case.

More lawyers for the bail practices lawsuit

I’m still not thrilled about this.

HarrisCounty

Harris County commissioners voted unanimously Tuesday to add another law firm to the county’s court fight against bail reform, a group whose job will be representing 16 county criminal judges who were recently added to a pending federal civil rights lawsuit.

[…]

Records show Harris County already has paid another law firm, Gardere Wynne Sewell LLP, $169,464 for six lawyers who have worked defending the county against the ODonnell civil case through July, according to a bill obtained through an open records request. Those bills included 113 hours of work by lead attorney Katharine David, who has charged $525 per hour, and 64 hours of work by Mike Stafford, a former Harris County attorney, who charges $610 per hour, according to new details released Tuesday.

So far, the county’s lawyers for the case have charged for, among other things, meeting with the county’s own hearing officers who set bond via video hearings, as well as sheriff’s officials, the 16 judges, the district attorney and other county officials. They’ve also drafted replies and motions in so far unsuccessful attempts to get the case dismissed, according to records obtained from the county attorney Tuesday.

Commissioners voted Tuesday to add another firm, Winston & Strawn LLP, to represent criminal county court at law judges.

Those judges were recently added as defendants to the case, which originally named the sheriff, hearing officers and the county as defendants. Precinct 4 Commissioner Jack Cagle pointed out he was voting in favor because the county attorney recommended approving the additional counsel.

“With the large number of people and entities being sued by the plaintiffs, there is the possibility of a conflict of interest,” said Robert Soard, first assistant county attorney. “Because of the possibility of a conflict and at the request of the judges, the Office of the County Attorney and Commissioners Court decided to retain separate counsel for the judges.”

Soard said the firm is assigning four lawyers to work on the matter and as agreed to charge $450 per hour with a cap of $40,000.

See here for the background. Again, I don’t have a specific objection to hiring outside counsel, and I agree that there could be a conflict of interest for an attorney who was representing, say, both the judges and the Sheriff’s office. But seriously, this lawsuit needs to be settled, like yesterday. This is a mess that the judges have created, and it needs to be fixed as expeditiously as possible. Fighting this lawsuit in court cannot be an option and should not be something that we the taxpayers are asked to support.

Spending money to defend our terrible bail practices

Ugh.

HarrisCounty

About $170,000 in tax money has been paid to outside attorneys to defend Harris Country officials from a federal civil rights lawsuit alleging that the bail bond system discriminates against poor people, records show.

That’s more than the cost of a six-month pilot project that would have provided attorneys for indigent misdemeanor offenders at bond hearings – a proposed reform critics say could have helped the county avert being sued in the first place, according to interviews and documents obtained by the Chronicle through public information requests.

[…]

The rising legal fees are not unusually high for outside counsel on a complex lawsuit, officials said. And outside lawyers may be necessary since the individual county leaders being sued – including judges and the sheriff – have publicly disagreed about how to reform the system, said Robert Schuwerk, a legal ethicist and author who is a retired University of Houston law professor. But county officials should have discussed those fees in advance and should have known from the first that if they pushed to litigate instead of reach a compromise that costs would escalate, he said.

“We may have a division of interests – it may be that the judges are saying no expense is too high for another branch to pay – the judges are not having to come up with the legal fees, I assume,” Schuwerk said. Even though an outside firm might be needed, Schuwerk said the county attorney’s own staff might also have better insight into the players and knowledge of the court system needed to reach a less costly settlement.

Critics, like state Sen. Rodney Ellis, argue that the county attorney should have handled the case himself and the money could have been better spent fixing the broken bail system.

“It’s the height of hypocrisy to spend taxpayers’ money in such a wasteful way,” Ellis said. “The county attorney is very capable and can adequately represent the position of the county in this matter. There is a certain irony in judges wanting to have their own lawyers to represent them as they refuse to provide legal representation to people who are charged with a crime with our criminal justice system.”

See here, here, and here for the background. I don’t have a problem in general with outside counsel being hired to handle litigation involving government entities. The County Attorney’s office has only so many employees, and they all have other responsibilities that could be adversely affected by spending the time needed to handle a lawsuit like this. And yes, the Sheriff and the DA and the judges may all have differing interests in this case. But you know what would solve this problem once and for all, and at minimal cost? Settling the lawsuit, which by the way would have the ancillary effect of saving the county a bunch of money in jail costs, not to mention keeping a lot of non-criminals out of jail. I don’t care who represents the county as long as we get that done. The Press has more.

Three updates on county-related lawsuits

Update #1: Judges sued as part of Harris County federal court bail challenge.

HarrisCounty

Attorneys challenging the constitutionality of Harris County’s pretrial bail policies have added all 16 of Harris County’s misdemeanor court judges as defendants in a federal civil rights lawsuit this week after mediation aimed at settling the dispute broke down after only two days, federal court records show.

Equal Justice Under Law, a nonprofit advocacy group based in Washington, D.C., the nonprofit Texas Fair Defense Project and a Houston law firm, Susman Godfrey, filed the suit in May, arguing that hundreds of offenders are not released on personal bonds and are unlawfully jailed for minor offenses like trespassing and shoplifting simply because they are poor and cannot afford even nominal bail payments. They argue that the county’s “wealth-based pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution.”

Earlier this week, U.S. District Court Judge Lee Rosenthal issued an order urging county officials to mediate and settle the dispute with the plaintiff’s counsel, who filed the action on behalf of Maranda Odonnell, a 22-year-old single mother who was jailed last year after being arrested for driving without a valid license only because she could not afford to post bail. Neither side would comment on why talks broke down.

See here and here for the background. The case number is 16-cv-01414, and there’s a copy embedded in the story. At an earlier hearing, Judge Rosenthal asked why the Sheriff was a plaintiff but the county criminal court judges weren’t. I guess this partly addresses that question.

Update #2, from the same case a couple of days earlier: Bail foes say Harris County attorneys misled federal judge in civil rights case.

Attorneys challenging the constitutionality of Harris County’s rigid bail system say the county’s attorneys have misled a federal judge by claiming that 20 percent of those arrested for misdemeanors are released on so-called personal bonds when county statistics show the actual number is 8.5 percent.

Equal Justice Under Law, a nonprofit advocacy group based in Washington, D.C., filed the civil rights suit against Harris County in May, arguing that hundreds of offenders are not released on personal bonds and are unlawfully jailed for minor offenses like trespassing and shoplifting simply because they are poor and cannot afford even nominal bail payments.

The group’s attorneys have cited Harris County’s own pretrial annual reports, which show that in 2015 only 8.5 percent of the 50,947 people arrested for misdemeanors were released on so-called personal bonds, which do not require cash or a bail bondsman. The percentage has remained about the same from January through April 2016.

The 20 percent figure came from Katharine David, one of five outside attorneys representing the county, who said during an Aug. 18 hearing that a fifth of those charged with misdemeanors are actually released on personal bonds. But her figure excludes anyone who bonded out immediately, anyone who was not interviewed by the county’s pretrial services office and anyone who was already on probation or facing immigration holds and thus not eligible for personal bonds, David later explained to the Chronicle.

[…]

David later said in an interview that the number of people who were arrested and later released on personal bonds remains small – 4,307 people out of 50,947 arrested for misdemeanors in 2015, or 8.5 percent.

But she said the county’s hearing officers should be judged based on the number of people they released on no-cost bond after interviews with pretrial services who were not already on probation or facing immigration holds. If those people were subtracted from the county’s 2015 annual report, the pool of misdemeanor offenders would be reduced from 50,947 to less than 30,000 arrestees, thereby increasing the percentage of those particular offenders who were granted pretrial release.

I don’t know about that – seems a bit dicey to me – but we’ll leave that to the lawyers and the judge to sort out.

And Update #3: Sheriff’s Office dismissed from jailed rape victim’s lawsuit.

The Harris County Sheriff’s Office has been dismissed from a lawsuit brought by a rape victim who was jailed by prosecutors after she suffered a psychological breakdown on the witness stand, according to court documents.

In an amended lawsuit filed on Thursday, all claims against Harris County Sheriff Ron Hickman and his office were dismissed.

“What has become clear since we filed the initial complaint is that we can address the same legal issues through our lawsuit against Harris County,” said Sean Buckley, lead attorney on the civil case. “We now believe that it would be duplicitous to sue both Hickman and Harris County.”

See here, here, here, and here for the background. Doesn’t sound like Sheriff Hickman is off the hook, just that the case will be tried differently. I don’t see either of these as being settled any time soon. Links for this update and the first one via Houston Legal.

More focus on bail practices

Something needs to be done, whether via the ongoing lawsuit or other means.

go_to_jail

Sandra Thompson, a University of Houston law professor, has spent hundreds of dollars bailing her cousin out of jail for minor offenses.

“I get steamed under the collar when I think about this issue,” Thompson said. “I’m really mad and I’m ready to see some change. ”

Thompson and several other community members gathered Saturday afternoon at the Thurgood Marshall School of Law at Texas Southern University to discuss bail reform issues in Harris County and suggest potential solutions. The Earl Carl Institute for Legal and Social Policy Inc., a city organization that seeks justice for minorities, hosted the event. Community leaders expressed concern about poor individuals jailed for nonviolent crimes because they can’t afford to make bail.

“You have a system that gets it wrong all across the spectrum,” Thompson said. “You got low-risk people stuck in jail because they’re poor. You got high-risk people getting out because they’re rich.”

[…]

Community leaders at the meeting on Saturday said the ongoing lawsuit would be one solution regarding the bail reform issue, but also urged local court officials to assess the risk of the individual when setting bail. In Harris County, the average bail is between $500 and $5,000 for misdemeanors.

“If someone is taken to jail on a minor, nonviolent offense like trespassing or theft, bail shouldn’t be determined by a schedule that doesn’t consider risk or ability to pay,” said Mary Moreno, a representative from Texas Organizing Project, a nonprofit advocacy group for low-income people in Houston.

Moreno announced the group’s new campaign Saturday to decriminalize poverty in Houston. The group seeks to reform the criminal justice system in Harris County and one of its initiatives concerns bail reform.

“For those living paycheck to paycheck, two or three days of being in jail means losing hours at work and can start a domino effect of unfortunate events that can cause serious financial hardships taking months or years to recover from,” she said.

Moreno also stressed the importance of not jailing people for being unable to pay traffic tickets. She said other options could be community service, payment plans, and the deduction of fines.

See here and here for more on the lawsuit, for which we should get a ruling on who should be defendants this week. This lawsuit may force some changes, but ultimately it’s going to come down to the judges and the DA, with some responsibility for the Lege as well. In the meantime, go back to what Professor Thompson said about risk, and reflect on the fact that Robert Durst was granted bail after being arrested for the murder and dismemberment of Morris Black. Surely people arrested for misdemeanors represent no bigger threat to anyone’s safety than he did.

Bail practices lawsuit update

There was a hearing in court this week, and the judge was skeptical.

U.S. District Judge Lee Rosenthal declined Thursday to rule on whether Harris County should be dismissed from a lawsuit intended to force officials to reform a tough bail system in which more than 70 percent of jail inmates are being held pretrial.

Maranda Lynn Odonnell, a single mom jailed for driving without a valid license and held for two days because she couldn’t afford $2,500 bail, has been put forward as the plaintiff in the civil rights lawsuit as a representative of thousands of poor people who suffered undue hardship because of their inability to pay bail in Harris County.

Her claim was consolidated Thursday by Rosenthal with similar complaints by a pregnant woman and a man arrested for shoplifting cosmetics who were both jailed because they could not pay for bail.

But lawyers for Harris County have argued that the county itself – and its elected county commissioners – don’t control decisions made by judges. Under the current system, only about 8 percent of misdemeanor offenders were released without having to pay bail in 2015, according to county statistics.

In court, Rosenthal questioned whether lawyers representing poor former detainees are pursuing the right parties by targeting the county sheriff, county hearing officers and the county itself when it is county court at law judges who act as policymakers and set the bail bond schedule that’s been challenged.

She gave Odonnell’s attorneys a week to decide whether to add judges as additional defendants and hinted that she considered it a “dicey proposition” to hold the sheriff responsible for bail-driven injustices.

See here for the background. I tend to agree that the judges should be included as defendants, as they are the root of the problem. That said, it’s not like the various county officials have no influence here. Thay have always been free – and, I would argue, obliged – to speak up on this and apply pressure to the judges and District Attorneys who have caused the problem. They are complicit, even if they aren’t a fit as defendants.

In the meantime, the Justice Department has gotten involved as well.

The Obama administration has joined the fight against the American bail industry, telling a federal appeals court that bail practices that keep poor defendants locked up because they cannot afford to purchase their freedom are unconstitutional.

“Bail practices that do not account for indigence result in the unnecessary incarceration of numerous individuals who are presumed innocent,” the Justice Department wrote in an amicus brief filed Friday.

The brief marks the first time DOJ has weighed in on the constitutional requirements of bail systems in a federal appeals court.

[…]

Maurice Walker is at the center of the case at issue. The 54-year-old was arrested by the Calhoun Police Department in Georgia in September 2015 for allegedly being a “pedestrian under the influence.” Walker, who has limited income and serious mental health issues, was told he would not be released unless he came up with $160, the fixed amount set by bond for someone charged with being a pedestrian under the influence.

Court was held just once a week in Calhoun, and Walker was arrested on a Thursday before Labor Day when there was no court. He remained in jail for six days, and would have been there longer ― but he was released after lawyers with Equal Justice Under Law and the Southern Center for Human Rights filed a class action lawsuit on his behalf while he was still behind bars.

A lower court ruled in favor of the plaintiffs in that case; it is being appealed. There will be a hearing in September on a motion for an injunction against Harris County’s bail practices. Stay tuned.

Ellis v. Radack

From the inbox:

Sen. Rodney Ellis

Sen. Rodney Ellis

On Tuesday, Commissioner Steve Radack said during a public session of the Harris County Commissioner’s Court that Senator Rodney Ellis should “shut up” about criminal justice reform. Click here and scroll to the 30 second mark of the Executive Session.

Today, Senator Ellis offers the following response:

“In an outburst more in the style of Donald Trump rather than the more staid Commissioner’s Court, Commissioner Radack called me out by name and told me to ‘shut up’ about criminal justice reforms in our community,” said Senator Ellis. “As long as I have the privilege of public service, I’m not going to shut up.”

Ellis continued: “I’m not going to shut up about our broken criminal justice system and people dying in jail. I’m not going to shut up about a bail system that keeps people in a cage just because they’re poor. And I’m not going to shut up about the fact that the attorney you can afford too often determines the quality of justice you receive.”

“This isn’t an argument about statistics – it’s an argument about whether or not Harris County continues to needlessly destroy lives, jeopardize our communities, and waste taxpayer dollars with its broken justice system. I’m going to speak up for all people and especially the most vulnerable in our society, just as I’ve always done. And I will not be bullied by any Commissioner, regardless of where my public service takes me.”

“I challenge Commissioner Radack to sit down for a public debate about the criminal justice reforms needed in our community.”

All righty then. The video link above is to Tuesday’s Commissioners Court meeting. Note that what comes up is the Call To Order – you need to then click on the Executive Session link to see the bit in question. That clip is only 2:28 in length, so you may as well just watch the whole thing. Radack is referring to the lawsuit filed against Harris County by the non-profit Equal Justice Under Law over the county’s bail practices. That lawsuit has since been updated to add another plaintiff. See Grits for more details about that, and for a long-overdue move on the county’s part to actually use Pretrial Services in a meaningful way. Along the way, it would appear that some nerves have been touched and things may get a bit contentious. Bring it on, I say. Oh, and by the way, Commissioner Gene Locke sided with Sen. Ellis on this one. The Court is one of the chummier political institutions we have around here. This little bit of disharmony was welcome and refreshing.

UPDATE: Here’s the Chron story.

Lawsuit filed over Harris County bail practices

This could be a big deal.

An advocacy group based in Washington, D.C., challenged Harris County’s bail system on Thursday, arguing in a federal civil rights lawsuit that hundreds of offenders are unlawfully jailed for minor offenses like trespassing and shoplifting simply because they are poor and cannot afford even nominal bail payments.

Lawyers for the non-profit, Equal Justice Under Law, filed the suit on behalf of Maranda Lynn ODonnell, a 22-year-old single mother jailed Wednesday for driving without a valid license, and all other pretrial misdemeanor offenders held in Harris County, asking the court for class action status.

ODonnell, mother of a 4-year-old, has been held for two days only because she can’t afford to post $2,500 bond, according to court documents. The suit described ODonnell as one of many poor defendants who have been “subjected to the County’s unlawful and ongoing post-arrest wealth-based detention scheme.”

“She is currently being held in a jail cell solely because she cannot pay what to other people is a small sum of money,” the lawsuit says, noting that the U.S. Supreme Court has “repeatedly articulated the fundamental principle that no person can be kept in a jail cell solely because of her poverty.”

Equal Justice Under Law has previously targeted what it calls “money bail” practices all across the United States as unconstitutional, filing lawsuits against 17 other cities and counties nationwide, including Ferguson, Mo., New Orleans and San Francisco, according to Alec Karakatsanis, one of the non-profit’s attorneys.

The group has obtained federal consent decrees eliminating that practice for newly-arrested offenders in eight cases involving smaller cities, including Clanton, Al., Dodge City, Kan, and Moss Point, Miss., he said. Harris County is the largest jurisdiction to face a challenge from the group.

Here’s some background on EJUL and this particular crusade; they have some other causes going on as well. The lawsuit names Harris County, the Harris County Sheriff, and Harris County Criminal Law Hearing Officers as defendants. You know how I feel about this, and you also know that this is largely self-induced on the county’s part. Harris County has recently taken a step towards reforming how bail is done, which is long overdue and still in believe-it-when-I-see-it mode. Perhaps this action will spur that along. Grits and the Press have more.