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jail overcrowding

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.

More pre-trial diversion

DA Kim Ogg moves forward on more campaign promises.

Kim Ogg

During a press conference Tuesday, Ogg laid out in broad strokes the policy recommendations written by the committees and emphasized that she is seeking participation from experts and Houston’s leaders.

“We listen to the community,” she said, flanked by about 30 volunteers including former HPD Chief C. O. Bradford and Thurgood Marshall School of Law professor Lydia D. Johnson. “We are evidence-based and data driven, but it is important to know how the community wants tax dollars spent to enhance public safety.”

Ogg released the full reports from committees on officer-involved shootings, evidence integrity, equality, immigration, bail-bond reform, mental health and diversity.

Many of the reforms proposed using technology and data more efficiently to streamline the criminal justice system, such as moving to a paperless district attorney’s office or using evidence-based risk assessments to determine bail amounts.

Tarsha Jackson, the Harris County Director with the Texas Organizing Project, was on the bail bond committee and applauded Ogg for involving people with different backgrounds, some with conflicting interests.

“It was a tug of war,” Jackson said of her committee that included a bail bondsman and a representative of the Texas Criminal Justice Coalition. “We had deep debate on what the district attorney can do in regard to bail reform, about what’s possible. And the final results were some good policies that she can implement.”

You can see the committee reports here. The themes all came from the campaign, and however you feel about the conclusions, I’d hope we can all respect a process that involved a broad spectrum of stakeholders who worked together across a range of perspectives. The Press read through the reports so you don’t have to.

Among the most noteworthy is the passing mention that Ogg’s administration “will work with all of the Harris County Law Enforcement agencies” to implement cite and release “for appropriate misdemeanor crimes,” which was not mentioned during the press conference. This has been a topic of debate for years, if not a full decade, after the Texas Legislature authorized police in 2007 to issue citations for various small-time crimes rather than arresting people and hauling them to jail. It’d be like getting a traffic ticket, then going to court for it later. It applies to crimes such as driving with an invalid license, criminal mischief, graffiti and possession of less than four ounces of pot (Ogg already diverts most pot cases).

[…]

Also noteworthy are plans to expand mental health diversion. Staci Biggar, a Houston defense attorney who was on Ogg’s mental health transition team panel, said that the idea was to transition people charged with low-level crimes like trespassing, often related to a person’s mental illness, away from jail and into treatment. Rather than asking for money to fund a program, she said judges can still issue pretrial diversion contracts to mentally ill defendants and individualize the terms based on that person’s needs.

“The idea is placing more people on bond and placing them in facilities, making pretrial conditions be to go see a particular health provider, or maybe they need to stay in a particular living situation,” Biggar said. “They can order somebody to see a doctor and they can order somebody to be treated by one organization. If you take a misdemeanor [defendant] and maybe that’s the first or second time they’re arrested, yes, you’ve been arrested, but we’ll drop the charges if you go and do these various things. It shouldn’t be that we wait until you’re really, really in trouble before there’s a stronger intervention for mental health.”

Other noteworthy nuggets from the eight transition team reports include the end to hiking bail to sometimes tens of thousands of dollars for suspected undocumented immigrants; vetting expert witnesses in capital murder cases more extensively and never “expert shopping”; and releasing to the public body-cam footage of officer-involved shootings as long as it does not impede an ongoing investigation — among various recommendations from the officer-involved shooting panel headed by former Houston police chief C.O. Bradford.

As Ogg says, you can judge her by her results in 2020. I think she’s off to a great start.

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.

Still a few bugs in the system

A continuing story.

While Harris County officials are complaining that a federal judge’s bail order threatens public safety, the county has failed to provide more than 100 low-level defendants with pretrial services aimed at ensuring they make their court dates.

The latest revelations come amid criticism from District Attorney Kim Ogg, who accused county officials of trying to deliberately undermine the success of defendants released on personal bonds to bolster the county’s argument.

“Clearly the hope is that the reformed bail process fails,” Ogg said in a June 30 email obtained by the Chronicle. “This is necessarily a violation of their ethical duty and certainly not in the best interest of ordinary Harris County citizens.”

Ogg’s email did not identify which officials she believed might be responsible, and her office referred a request for additional comment to a court filing in which she supported changes to the county’s cash-bail system for misdemeanor offenses.

[…]

By missing court, the defendants also miss out on the assistance provided by the county’s Pre-Trial Services Division, such as text reminders about upcoming court dates that other defendants get seven days in advance and again on the day of the hearing.

Kelvin Banks, director of pretrial services, said a vendor, Voice4Net, manages the text messages for the county. He said his office is working with the vendor to set up reminders for those who are released by the sheriff, and is moving forward with plans for an additional staff member and training at the jail.

He said Monday he was reviewing resumes.

“We want to make sure we’re doing everything we can do to give defendants the best opportunity to be succesful on pretrial release,” Banks said.

Another vendor, called Uptrust, met with county officials on June 28, two days before Ogg sent her email, proposing a two-way messaging system that allows defendants to respond and provides information on childcare options and transportation.

It’s a little hard to say what is going on here, based on this story. There’s a lot of he-said/she-said in there. My basic premise all along is that the county has very little credibility on this issue, so I generally discount the complaints from Commissioners and judges about how hard this all is and how they’re Doing Their Very Best and Just Need A Little More Time and so on and so forth. Every action by the county – specifically, by those who continue to fight to support the status quo – is one of foot-dragging and reluctance to make changes, even small ones. I’ve yet to see a show of good faith. If we ever get to that point, then maybe I’ll take their complaints seriously. Until then, I say quit whining and do what the judge ordered you to do.

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.

Senate approves bail reform bill

Good.

Sen. John Whitmire

After weeks of politically touchy negotiations capped by a shove from a Houston federal judge, the Texas Senate on Thursday approved significant changes in the state’s bail bond system designed to keep low-level offenders from sitting in jail because they cannot afford to pay cash bail.

While the reforms had once been touted as one of the major criminal justice reforms of the legislative session, the final version of the bill dropped tougher provisions in the face of strong opposition from the politically connected bail bond industry.

Approved by a final vote of 21-10, Senate Bill 1338 mandates risk assessments for criminal defendants who are eligible for bail – an assessment that will mean more non-violent offenders who do not pose public safety risks can be released while they await trial, said Sen. John Whitmire, D-Houston, the bill’s author.

“This will mean significant changes in some counties that will improve how we administer justice,” Whitmire said, noting that a recent federal court in Houston mandates much of what the bill seeks to accomplish.

“It clarifies current law to require magistrates to impose the least restrictive conditions and minimum amount of bail necessary to ensure that the defendant appears in court and protect the public and victim.”

[…]

The measure approved by the Senate requires that defendants held on misdemeanors appear before a magistrate within 24 hours of their arrest, and that those held on felonies must be seen within 48 hours, Whitmire said.

“The risk assessments in this bill are an important component because bond setting and the amounts of bonds will be reflective of the real risk to public safety,” Whitmire said. “That element is missing now in many cases.”

See here and here for the background. As Whitmire notes, the injunction in the bail practices lawsuit helped nudge his bill along. It would be nice to think this could get it all the way to the finish line, but prospects in the House are unclear. Feel free to let your State Rep know that you support bail reform. There’s not much time left to get this done.

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.

Bail bondsmen complain about bail reform bill

I understand their concerns, but that doesn’t mean I agree with them.

Sen. John Whitmire

Legislation touted as a fix-all to reform Texas’ controversial jail-release system was blasted Tuesday by bail bondsmen and attorneys who said it would destroy the bail-bond industry and leave taxpayers footing a multimillion-dollar tab.

“The whole industry will be out of business” if the proposed measure passes, warned Harris County bail bondsman Rodney Vannerson, in testimony that echoed the sentiments of others. “The cost of replacing this system will be astronomical.”

During a standing-room-only hearing at the Texas Capitol, Sen. John Whitmire, D-Houston, sparred with several witnesses over whether his Senate Bill 1338 would improve Texas justice by allowing thousands of poor Texans to get out of jail before trial on minor charges – as the state’s top two jurists testified it will.

Texas Supreme Court Chief Justice Nathan Hecht and Court of Criminal Appeals Presiding Judge Sharon Keller, in a rare joint appearance, both endorsed the legislation. They said it is a much-needed overhaul of an antiquated system that keeps too many Texans in jail and gives violent offenders who have money the ability to get out of jail when they should not.

Targeted for the most criticism during the hearing was Harris County, which Whitmire and other witnesses said keeps thousands of indigent defendants in a chronically overcrowded jail because they cannot afford to make bail.

[…]

“This legislation is a radical sea-change in how bail is handled in Texas,” said Michael Whitlock, with American Surety Co., warning that similar changes in other states have proven controversial and costly.

Jeri Yenne, the criminal district attorney in Brazoria County, complained that the changes would add court time to current bail procedures.

Potter County District Attorney Randall Sims cautioned that justices of the peace who supervise bail hearings in many counties may be legally overwhelmed by the changes as many are not attorneys.

Randy Adler, an attorney who represents bail-bond companies, said $7 million in fees now paid to counties on bonds and millions more in forfeiture fees could no longer be collected.

See here for the background. I am sure that if these bills pass, it will have a negative effect on the business of bail bonding, and I am sure some bail bondsmen will go under as a result. That’s unfortunate for them, but it doesn’t mean that these reforms aren’t right or necessary. The number of people who are held in jail because they can’t afford bond even though they represent little to no risk to anyone and even though their being in jail imposes a significant cost to themselves, their families, and all of us taxpayers, is simply unconscionable. I challenge the assertion that changing how bail is determines will be detrimental to society. And not to put too fine a point on it, even if the opponents of these bills get their way in the Legislature, the federal courts may force the issue anyway. Perhaps the better approach is to figure out how to adjust to a world that’s going to change one way or another, whether bail bondsmen like it or not.

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.

Bail reform bills

Glad to see this.

Sen. John Whitmire

An unusual bipartisan coalition of lawmakers and judges has teamed up to back broad reforms in Texas that could eliminate cash bail for nonviolent offenders who are not deemed dangerous or a flight risk.

Bills introduced simultaneously in the House and the Senate this week by Sen. John Whitmire, D-Houston and state Rep. Andrew Murr, R-Junction, would require all judges statewide to use a proven risk assessment tool and quickly determine within 48 hours whether a defendant accused of a nonviolent crime might be eligible for a so-called personal bond — a measure that carries a financial penalty only if the person fails to how up for court. Now, defendants who can’t afford to pay bail are left in jail, even for minor crimes.

The proposals have been hammered out by jurists and legislators following reports that show more than 1,100 people died in Texas jails in the last decade – most of them pretrial detainees such as Sandra Bland, who committed suicide in the Waller County jail after being locked up after a traffic stop.

Nonviolent defendants detained after the first hearing would be re-evaluated within 10 days. And judges would be required to seek alternatives for those deemed mentally ill or disabled.

Supreme Court Chief Justice Nathan Hecht, who is backing the measures, said he and other members of the National Conference of Chief Justices of the United States generally have concluded that America’s bail bond system “simply doesn’t make any sense.”

He said he’d like to see Texas follow the model of New Jersey, Washington D.C., Kentucky, Arizona and other states in pursuing reforms that restrict or eliminate monetary bail for defendants who pose no real risks.

Hecht said bail reforms elsewhere already have saved taxpayers’ money by eliminating unnecessary jail expenses and spared hardships for low-risk defendants who often lose jobs, homes or their health while being locked-up awaiting trial.

“There are constitutional problems, there are practical problems, there’s a burden on taxpayers — change is just the right thing to do,” he said. “We’re just talking about low-level crimes —we’re not talking about crimes of violence. So across the country, there’s been an effort to change bail procedures to get away from high bond and jail time in all of these low-level crimes.”

Hecht chairs the Texas Judicial Council, 22-member group that includes Murr. Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals is vice chair. He said the council studied bail reforms and recommended changes last fall.

See here for some background. Via Grits, the bills in question are HB3011 and SB1338. Grits also notes that the bail bondsmen are fighting these bills, which is not surprising. A later version of this Chron story goes into that.

“We have a very conservative governor, lieutenant governor, Senate and House,” said Michael Kubosh, a Houston City Council member and long-time commercial bondsman. “To get all that through, there’s going to be a real battle, and our lobbyists are talking to them. They’re not going to want to let crime run rampant and give everybody free bonds.”

Kubosh and other industry supporters say bondsmen help make sure low-level defendants appear in court – and track them down when they fail to appear. They say they also get families involved, since relatives often must post cash or property to back bail bonds even when commercial bondsman are involved. He and other advocates are simultaneously monitoring a federal court challenge to a fairly rigid bail schedule used for years by Harris County judges even for low-level misdemeanor offenses.

[…]

The legislation also says that defendants are entitled to have lawyers present at pretrial detention hearings – not a common practice today.

On any given day, the Harris County Jail is crowded with 1,500 or more misdemeanor offenders awaiting trial. The county has spent more than $1.2 million in legal fees so far defending county court-at-law judges and hearing officers in the federal civil rights case before Judge Rosenthal.

Kubosh, the commercial bondsman, said he agrees that truly indigent defendants often don’t get personal bonds in Harris County. But he argues that bondsmen routinely save the county money by helping ensure that those who are released on commercial bond follow court conditions and by tracking down those who fail to appear. With fewer commercial bonds, he argues, “you’re going to see a spike in people thumbing their noses at the courts … you’ll see huge increases in warrants.”

No question, this would affect the bail bond business, and I can’t blame them for opposing these bills. I don’t agree with CM Kubosh’s assessment of what may happen if these bills pass, but there ought to be an objective way to evaluate it. Personal recognizance bonds are used with far greater frequency in other states. Is there any evidence to suggest that crime “runs rampant” where PR bonds are more the norm? Show me some numbers, or this is just going to sound like scaremongering.

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.

County approves defense attorneys for bail hearings

Long overdue.

Harris County commissioners voted unanimously Tuesday to develop a pilot program that would make public defenders present at bail hearings, a move aimed at reducing what officials say is the unnecessary jailing of thousands of defendants because they can’t afford bail or are unfamiliar with the legal process.

The pilot could lead to Harris County becoming the first county in Texas to make legal representation available at all hearings where bail is set. The majority of individuals are not represented by attorneys at the hearings.

Advocates for criminal justice reform heralded the county’s move, noting that research shows those jailed and unable to bail out are more likely to plead guilty to crimes they did not commit.

They also pointed to cases like that of Sandra Bland, who failed to make bail after a controversial arrest and committed suicide three days later in the Waller County jail, as examples of tragedies that could be prevented.

Roughly 80 percent of the Harris County jail’s population – some 7,000 to 8,000 inmates – are pre-trial detainees.

“In a jurisdiction that large, this is really a sea change about the way they are going to do business,” said Jim Bethke, executive director of the Texas Indigent Defense Commission.

[…]

The county public defender’s office is working with the budget office to develop the pilot program. It could make public defenders present at some or all bail hearings. Currently, Bethke said, only Bexar County has a similar program – and that is tailored to offenders with mental-health conditions.

The public defender’s office will present a pilot program to county commissioners on March 14, and it would go into effect, if approved, on July 1. The county is also implementing a new risk assessment tool for hearing officers to better determine whether people can be released prior to trial.

I consider this another positive outcome of the ongoing bail practices lawsuit. The time was finally right for the issue to gain salience and require some kind of solution, even before any intervention from the court. I want to see what the effect of this is on the jail population, because if it doesn’t have a noticeable effect then something is wrong. Think Progress, which offers an overview of the case, has more.

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.

Chron favors a jail administrator

I remain unconvinced.

Next month, we’ll have a new sheriff in town. Ed Gonzalez will take command of the largest sheriff’s office in Texas, the third-largest in the nation, with more than 4,600 employees responsible for serving and protecting the estimated 4.5 million people who call Harris County home.

It would be nice if our new sheriff and the law-enforcement professionals under his command could focus all of their attention upon making our homes, streets and neighborhoods safer. Unfortunately, the biggest headache Gonzalez will face is running the perpetually troubled county jail.

On an average day, the jail houses more than 9,400 inmates, about 80 percent of whom are locked up while awaiting trial. More than a quarter suffer from some sort of mental illness, essentially making the Harris County Jail the largest de facto mental health facility in Texas. It’s already so overcrowded, outgoing Sheriff Ron Hickman recently asked the state jail commission for permission to let nearly 200 inmates sleep in plastic cots on the floor. Other prisoners have been shipped to private, for-profit jails at a cost of up to $1 million a month. Meanwhile, the county has spent close to $15 million on overtime pay this year to cover staff shortages, adding to the tab of more than $10 million paying for temporary medical help in the clinic and mental health wards.

[…]

Texas law assigns the task of running county jails to county sheriffs. But Commissioner Steve Radack, who’s spent years beating the drum for a jail boss answering directly to commissioners court instead of the sheriff, plans to lobby for state legislation requiring a licensed administrator to take over the jail. Even if the proposal dies in Austin, Radack plans to press Gonzalez to hire a professional jail executive, advice the new sheriff would be wise to follow.

Our state’s requirement that sheriffs run county jails is a 19th-century concept that doesn’t necessarily fit in the 21st century. Maybe it still makes sense in small Texas counties with comparatively few inmates, but it’s not the best way to administer the complex of jails in Harris County.

This idea has been kicked around before, coming up again last year a bit after Ron Hickman was installed as Sheriff. As noted, the Legislature would have to authorize this, and so the first step would be to identify someone to author and carry the needed bills. I’ve always been skeptical, but I could be persuaded that this is a better idea. I do have to wonder how you can make it through this entire editorial without discussing the bail issue and how so much of the crowding problem is directly related to that. Maybe administering the jail would be less onerous if it weren’t always bursting at the seams. Also, it’s not clear to me why Commissioners Court would provide better oversight than the Sheriff, whether the Sheriff remains in charge of the jail or not. Again, I could be persuaded, but you’re going to have to give me reasons rather than assertions.

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.

The new Sheriff in town

Sheriff-elect Ed Gonzalez has his work cut out for him.

Ed Gonzalez

When newly elected Sheriff Ed Gonzalez takes office on Jan. 1, he will face a tangle of budget, staffing and jail inmate safety issues inherited from more than a decade of struggles at the nation’s third-largest sheriff’s department.

Staff shortages at the troubled jail operation alone have resulted in overtime expenditures of $14.8 million so far this year, adding to a current tab of $10.4 million to pay for temporary medical help in the jail clinic and mental health wards, county budget records show.

The burgeoning jail population – which soared to more than 9,400 inmates in September – has forced officials to put some inmates on temporary cots and ship others to private, for-profit jails for up to an additional $1 million a month.

And on the law enforcement side, critics point to low clearance rates for nearly all crime categories and a need for additional investigators and patrol deputies.

Gonzalez, a longtime Houston homicide detective who served on the City Council before being elected sheriff in November, told the Chronicle he is apprehensive about the fiscal condition of a department responsible for public safety in a large swath of unincorporated Harris County.

“My main priority will be dealing with the budget, the need to improve the situation at the jail, the overtime issues that are killing the budget, and morale that is really low right now,” Gonzalez said recently, as he prepares to take office.

Gonzales said he is committed to hiring an experienced, certified jail administrator to help oversee operations in the county’s sprawling jail complex and will work with the patrol and investigative divisions to improve clearance rates of crime.

He’ll also have to develop a new leadership team. The sheriff-elect said he expects only a few of the 25 high-ranking members of outgoing Sheriff Ron Hickman’s command staff to remain.

[…]

Jail safety expert Michele Deitch urged Gonzalez to create an independent group, or an ombudsman, to closely monitor jail conditions in what is largely a closed system.

“Prisons and jails around the country are the least transparent organizations that exist, yet they are the places where there is more urgency to make sure there is public transparency about what goes on and accountability for insuring the safe treatment of inmates,” said Deitch, a senior lecturer at the LBJ School of Public Affairs at the University of Texas at Austin. “What Harris County needs is a local system of external and independent oversight over the jail, in the same way we have created police accountability systems.”

Recent reports ranked Harris County with the highest per-capita rate of jail deaths of any other jail in the nation, as well as continued attempts at suicide by inmates and violent assaults on inmates and guards, Dietch said.

In April, Patrick Joseph Brown, 46, was jailed for allegedly stealing a guitar and then beaten to death in a crowded holding cell by two other inmates. The cell was equipped with surveillance cameras, but due to a lack of staffing, no officers were watching the monitors. At least two other deaths in the jail came after assaults on inmates by other prisoners, according to state in-custody death reports.

“The key to a safe jail is the staff,” Deitch said, “and you need to make sure staff are there in sufficient numbers, well-trained, alert and engaged and their morale is high.”

I’ve covered some of this before. I’ll say again, I believe the single most effective thing our new Sheriff can do to relieve both his budget and personnel issues is work to reduce the number of inmates in the jail. You know the song I’m singing, and it really is that simple. All of the problems discussed in this story are related to the locking up of too many people who have not been and in many cases will never be convicted of a crime. Gonzalez has less power to affect this problem than some others – he will be very dependent on the magistrates and misdemeanor judges who treat jail space as infinitely renewable – but he can at least order his deputies to issue citations to low-level non-violent offenders instead of arresting them, and he should have an ally in DA-elect Kim Ogg. He can also help force a settlement in the bail practices lawsuit against the county. He will still have plenty of other things to deal with, but getting this solved will make the totality of his task a lot less daunting.

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.

Whitmire files complaint against bail-denying magistrates

Good.

Sen. John Whitmire

Sen. John Whitmire

An influential Texas lawmaker on Thursday filed formal complaints against three Harris County magistrate judges after they were captured on videotape rushing misdemeanor defendants to jail without considering no-cost bonds.

State Sen. John Whitmire, D-Houston, filed the complaints with the State Commission on Judicial Conduct, citing an article published Thursday in the Houston Chronicle about the hearings and videos.

He complaints were lodged against Magistrates Eric Hagstette, Joseph Licata III and Jill Wallace. The hearing officers could not be reached immediately for comment.

Whitmire said he named the magistrates specifically in his complaint because of “obvious failures” to conduct hearings as required by statute.

“The total disregard for citizens and the complete lack of judicial temperament and professionalism are unacceptable,” Whitmire told the Chronicle. “I am requesting a thorough investigation by the State Commission on Judicial Conduct to determine if these violations are intentional, individual, or the responsibility of the elected judges who appoint these magistrates,” Whitmire said.

“Texas governing statutes clearly state that a magistrate should exercise their full discretion when conducting probable cause hearings and setting bond amounts,” Whitmire said. “It is clear from the video of their hearings that this is clearly not the case with these magistrates. It appears the probable cause hearings in Harris County not only violate the intent of these statutes, but also the letter of the law.”

See here for the background, and here for Sen. Whitmire’s press release. What we saw on those videos was a disgrace and a mockery of justice. I hope the State Commission on Judicial Conduct takes this seriously. Grits and the Press have 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.

Checking in with Ed Gonzalez

Also known as Harris County Sheriff-elect Ed Gonzalez.

Ed Gonzalez

Ed Gonzalez

Ed Gonzalez will have a lot to do when he assumes the position of the county’s top cop in January.

He’ll have to rein in overtime pay, manage the Harris County jail population and win over the thousands of employees who backed his opponent in Tuesday’s election.

First, though, he plans to reactivate his peace officer’s license, which has been inactive since 2012.

“He will have to mail his application and pay a fee of $150 and take 40 hours of training including the basic state and federal law update,” said Gretchen Grigsby, spokeswoman for the Texas Commission on Law Enforcement. “Texas law will give him two years to do that.”

[…]

The county’s third sheriff in the last two years, Gonzalez will now turn his attention to managing the office and a sometimes-scandal-prone jail of nearly 10,000 inmates. The move could bring yet another seismic shift among the highest echelons of the department’s command staff.

“I haven’t finalized in my mind yet any thoughts on who I might keep or might not keep or bring in or anything like that,” Gonzalez said.

He said he hoped to meet with Hickman soon to assess operations at the department and have a transition framework in place within a week or so.

Observers will also be watching to see how Gonzalez fulfills pledges he made during the campaign to bulk up jail diversion programs and fight crime more effectively.

With county budget talks beginning in March, Gonzalez will have just a few months to get up to speed on the internal workings of a department of more than 4,600 employees and budget of approximately $483 million.

Harris County Budget Officer William Jackson said he would be meeting with Gonzalez and other newly elected officials to guide them through the budget process after they take office in January.

“Commissioner’s Court only approves the budget as a single number at the top,” Jackson said, explaining that if Gonzalez had different priorities, he will have flexibility to shift funds within his budget.

Gonzalez will also have address approximately 300 vacancies within the department, which has contributed to a crunch in staffing in both patrol and detentions, and said he would not rule out re-implementing measures former Sheriff Adrian Garcia – Hickman’s predecessor – had used to try to address jail overcrowding or other issues at the sheriff’s office.

“Everything needs to be considered and be on the table,” Gonzalez said, noting that Hickman’s reforms had caused both jail and patrol overtime to spike. “All that needs to be looked at.”

Like Kim Ogg, Ed Gonzalez had a strong electoral showing, but it’s not clear to me that he got crossover votes. Comparing his result to the judicial races, there were fewer undervotes in his race, so I’d say he probably just retained more of the Democratic base vote than the judicial races did. That was more than enough for a strong victory, and is perhaps a more accurate picture of Democratic turnout in Harris County in 2016, but it’s a slightly different dynamic than it was for Ogg.

Also like Ogg, Gonzalez will have a lot of issues to address beginning on Day One. He won’t face the kind of turnover that Ogg will face, which means he’ll retain the institutional knowledge and experience that already exists, but it also means he’ll have to work with a number of people who didn’t support him, and he’ll have to implement changes for an institution that may not want to change. The biggest challenge he faces is with staffing, and the single best thing that could happen to him is for the DA and the courts to send fewer people to the jail for him to have to find space and oversight for. Ogg will help with that, but it will be on Gonzalez to try to persuade the misdemeanor court judges to work with him. He can also implement some policies to facilitate early release for inmates that earn it, as his predecessor Adrian Garcia had done.

He’s going to have to deal with the challenge of mental illness among the inmate population, and especially among the people who cycle in and out of the jail. The old saw about the jail being the biggest mental health facility in Texas remains true, and unfortunately the results of the national election will not only not offer any help on that score, it’s a virtual certainty to make it worse. Also not going to get any better will be issues with undocumented immigrants and a large community of voters who supported Gonzalez in the election but deplore the current processes for checking immigration status and handing over some offenders to ICE.

There are things Ed Gonzalez can do as Sheriff to enable his success, and there are things that are beyond his control that will affect his success, like whether the misdemeanor court judges continue to treat the jail’s capacity as essentially unlimited. One factor that I’m less sure how to evaluate will be Gonzalez’s relationship with Commissioner’s Court. Steve Radack and the now-departed Jerry Eversole were Adrian Garcia’s biggest antagonists. I expect Rodney Ellis will be a strong ally, but he’ll also expect results. It’s not in his control either, but the best thing that could happen to Gonzalez could be another Democratic sweep in Harris County in 2018, ushering in misdemeanor court judges who are willing to give personal recognizance bonds, and maybe a second ally on Commissioners Court. We’ll see what he can do with what he’s got until then. The Press has more.

Checking in with Kim Ogg

That’s District Attorney-elect Kim Ogg now.

Kim Ogg

Kim Ogg

Kim Ogg, still hoarse from shouting over the jubilant victory party crowd after winning her race for Harris County District Attorney, said Wednesday that her first order of business would be to evaluate and secure all of the evidence used in thousands of pending criminal cases.

Ogg, who will take over the largest district attorney’s office in Texas on Jan. 1, hopes to ward off the problems of unauthorized evidence destruction that emerged after it was discovered that deputies at the Precinct 4 Constable’s Office threw away evidence in hundreds of cases. Scores of cases that may have been affected have yet to be resolved.

“It’s so we know that cases that are pled or tried, after I take office, have the real evidence to back them up,” she said Wednesday.

[…]

“It’s a new day in Harris County,” [Tyler Flood, president of Harris County’s Criminal Lawyers Association,] said “I’m hoping Kim will bring transparency to a very secretive regime.”

Ogg sketched out broad agenda items Wednesday but said little about specific plans or possible command staff. She said she is putting together a transition team and was not ready to announce who would be helping her helm the agency, which employs about 600 people including 300 lawyers.

In addition to evaluating the security and veracity of evidence, Ogg said she would be reviewing the pending capital murder cases, including a handful of death penalty cases currently scheduled to go to trial in 2017.

Under her administration, she said, a team of prosecutors will look at the evidence, both damning and mitigating, before deciding whether to seek the death penalty.

“It’s a grave responsibility to undertake taking somebody’s life,” she said. “And I want more minds, and hearts, looking at these cases than just mine. So we’ll have a team.”

Ogg had the second-biggest day in Harris County on Tuesday, winning with 696,054 votes. That’s about 8,000 behind Hillary Clinton, and it means that like Clinton she received a fair number of crossovers. Getting a big vote total like that is both a mandate and a higher expectation level, so there are going to be a lot of eyes on Kim Ogg and what she does.

Not just locally, either. The Harris County DA’s race had a national spotlight on it going into Tuesday. A lot of that attention had to do with the DA’s prosecution of marijuana cases; Ogg as we know has outlined broad reforms for how cases like those will be handled. If she is successful at implementing those policies, it will be a big change and will likely have the effect of reducing the county’s jail population. I for one am looking forward to seeing her get started on that.

Ogg will have a lot on her plate from day one. There was a lot of turnover at the DA’s office after Pat Lykos won in 2008, and I expect there will be a lot more – some voluntary, some not – now that Ogg has won. For some insight on that, I recommend you read what former ADA (now defense attorney) Murray Newman says, from before and after the election. Transitions like this are opportunities for some people to settle scores and get grievances off their chests. That will likely result in a story or two that will be unfavorable to both Anderson and Ogg. I hope we can all keep people’s possible motivations in mind when we read those stories. Be that as it may, there will be a lot of new faces and new procedures at the DA’s office come January, and there will inevitably be some bumps in the road. How well Ogg manages the transition will go a long way towards setting the tone and laying the groundwork for implementing the real changes she wants to make.

One more thing: We all know that Ogg is a lesbian. Devon Anderson got into some hot water late in the campaign for bringing that up during a podcast interview. It hadn’t come up in either campaign before, and the vast majority of people in Harris County don’t care about anyone’s sexual orientation. But a few people with loud voices care A LOT about this sort of thing, and with Annise Parker back in the private sector (for now, at least), Kim Ogg is now the most high-profile elected official in Texas who is also a member of the LGBT community. That means she is the latest monster under Steve Hotze‘s bed, and she will be a target for people like Hotze and the hateful crap he likes to spew. I don’t know how that will play out, which is to say I don’t know how many people outside of Hotze’s little fever swamp will hear or care about anything he says, but I do feel confident saying that at some point during Ogg’s first term in office, he or someone like him will say or do something sufficiently disgusting that the rest of us will be forced to take notice. Be ready for it, that’s all I’m saying. The Press has more.

The answer is to always cram more people in the jails

Seriously?

go_to_jail

Harris County Sheriff Ron Hickman is asking the state jail commission to let nearly 200 inmates sleep on plastic cots on the floor of the already overcrowded county jail system, a request challenged by more than a dozen Houston-area lawmakers.

The lawmakers note that county officials have not fully followed the advice of their own criminal justice consultants, who since 2009 have advocated increased use of low-cost personal recognizance bonds as well as jail diversion programs for low-level drug offenders and the mentally ill to reduce jail population.

Today, the average daily population exceeds 9,400 inmates and nearly 80 percent are awaiting trial, county records show.

Hickman and Harris County Judge Ed Emmett are asking the Texas Commission on Jail Standards to extend their existing variance of 580 bunk beds and add another 192 plastic cot-like bunks known as “low riders.” Also called “boats,” the plastic cots would be used by inmates in both the 1200 Baker St. and 701 San Jacinto jail buildings in downtown Houston, the county’s application states.

Hickman’s request is on the agenda for Thursday’s jail commission meeting in Austin, and the sheriff acknowledged that the use of the plastic cots could cause “heightened apprehension” by jail regulators.

The sheriff said “low riders” are necessary due to a jail population that has risen dramatically since January from an average daily population of 8,500 to 9,400 last month, as well as the need to do preventative maintenance in various cellblocks.

“Harris County and the Sheriff’s Office realize variance beds are temporary in duration and not a permanent replacement for sound criminal justice policy or correctional practices,” Hickman stated in an Oct. 6 letter to the jail commission.

Ryan Sullivan, spokesman for the sheriff’s office, stressed late Wednesday: “Sheriff Hickman has been the foremost advocate for reforms of the criminal justice system and bail reform in Harris County. On multiple occasions, the sheriff has testified in the Texas legislature asking the state to bear its burden in criminal justice reform. Likewise, the sheriff has used the full force of his office to advocate for criminal justice and bail reforms locally.”

In the Oct. 6 letter to the commissioner, Hickman stated: “The department is committed to working with all stakeholders to reduce the jail population and lessen our dependence upon variance beds and we will continue to explore all options and opportunities to mitigate their necessity.

Sullivan pointed out “that variances are temporary fixes requiring more permanent solution.”

I’m sorry, but no matter how temporary this may be, the answer should be No. It is and has always been within our power to address this problem by not putting people in jail for the crime of not being able to afford to bond themselves out. For the umpty billionth time, even a small increase in the number of personal recognizance bonds would go a long way towards fixing these ever-recurring problems. I recognize that no Sheriff can make the misdemeanor court judges do this, but we can at least consistently identify the problem for what it is, in the hope of maybe applying a little pressure. Commissioners Court could help with that, too. Regardless, the Legislature should not do anything to enable the problem. The voters will have a chance to apply an electoral fix to this in 2018, but that’s two years off and the track record in off-year elections is not promising. Having the Lege say “fix this yourselves” is our best bet for now.

UPDATE: Grits is thinking the same thing.

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.

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.

What’s that definition of insanity again?

How many times are we going to find ourselves in this same situation before we finally accept that we need to do something different?

go_to_jail

The Harris County Sheriff’s Office has cut funding for law enforcement operations to cover exploding overtime costs at the department’s understaffed jail, a move critics say could harm public safety while failing to address departmentwide staffing issues.

Since March, the department has transferred nearly $8 million to jail operations from other areas in the department largely to cover overtime pay for jailers, which has risen 500 percent in the last two years, county records show.

Sheriff Ron Hickman acknowledges the fiscal strain but said state laws have tied his hands.

“When we steal money from some place in the budget like patrol, we can’t buy cars anymore, or new tires, we have to put that money to pay for the inmates,” he said at a recent town hall meeting in Clear Lake. “I have to (care for inmates). I’m statutorily required. Getting to your house the same day a burglary happens is not a legal requirement. So guess who suffers when we don’t have the funds? Y’all do.”

Monthly overtime costs have risen from $261,472 in mid-March 2014 to nearly $1.4 million by mid-June this year, records show. Overtime costs in May 2015, when Hickman was appointed sheriff, were $328,357.

The budget transfers come as county commissioners have rejected requests from Hickman to bulk up staffing with 376 new positions and after he changed employment policies to prohibit the hiring of jailers younger than 21 in hopes of developing a more mature workforce.

In an interview with the Chronicle, Hickman blamed the spike in overtime to an increased jail population, state requirements on staffing, aging facilities and trouble retaining jailers who can earn better pay with fewer hours elsewhere.

[…]

The Harris County Deputies’ Organization has grown so concerned about staffing and retention issues that the organization has begun filing records requests seeking the department’s manpower plan.

“We’re at a critical shortage when we have a high population of prisoners and we’re forcing people to work overtime and people are fatigued,” [David Cuevas, president of the Harris County Deputies’ Organization,] said.

Emphasis mine. You know what could solve these problems without shifting money around or taking deputies off of patrol or any of those other things mentioned in the story? Having fewer people in jail. In Sheriff Hickman’s defense, there’s not much he can do policy-wise to affect the jail population. He does, however, have the capability, and frankly the obligation, to call on the District Attorney and the criminal court judges to use the power they have to alleviate this problem, which after all is almost entirely of their making. I’d have more sympathy for him if he did that. We know what the problem is, and we know what the solutions are. We just refuse to do them.