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Bail practices lawsuit hearing

We so need to be done with this.

More than a dozen Harris County misdemeanor judges contend that public safety would be imperiled if they followed an “untenable” new pretrial release order by a Houston federal judge who has found the current county bail system unconstitutional.

An appellate lawyer representing 14 county court-at-law judges, all who are Republicans, argued before an appeals court in Houston Tuesday that Chief U.S. District Judge Lee H. Rosenthal’s revised instructions overstepped the narrow directions she was given in June by the federal appeals court to fine tune elements of her initial order. The revision afforded liberties that the appeals court did not mandate, allowing people arrested on certain offenses be released as promptly as those who are able to secure money bail, the judges’ lawyer argued.

“Since the Magna Carta money bail has been seen as sufficient surety and wealth is an inevitable factor…when that surety is money bail,” said Charles Cooper, a Washington D.C. lawyer representing the judges.

Many of the judges won’t be on the bench much longer to oversee the new bail policies, since seven are not seeking re-election this fall.

An attorney for the indigent defendants argued that Rosenthal’s order did not stray from the U.S. Fifth Circuit Court of Appeals instructions, nor does it create “irreparable harm” for the courts and the public. The courts can impose “unaffordable bail” if they can justify it, he said.

“A period of ‘wealth based detention’ is OK, but you have to show that you’re serving some interest,” said Alec Karakatsanis, who represents the indigent defendants in the class action suit.

See here for the most recent update. Just a reminder, this is all about the initial injunction. The case itself has not been heard, just the request for a restraining order, which is what is being appealed. Also as a reminder, we can ensure that there are no future plaintiffs for this lawsuit in November. You know, in case you needed another reason to vote. A three-judge panel will rule on this request, and we’ll see where we go from there.

Revised final bail order

We go from here.

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

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

[…]

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

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

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

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

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

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

Once more with the bail order for Harris County

Getting close to the end.

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

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

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

[…]

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

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

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

Final instructions in bail practices lawsuit

We may finally be nearing a conclusion in this matter.

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

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

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

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

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

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

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

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

Misdemeanor diversion

Sounds good to me.

Kim Ogg

Houston’s non-violent misdemeanor offenders will soon be cleaning up trash and invasive plant species plants along Buffalo Bayou in an initiative to help offenders clear up their criminal record, Harris County District Attorney Kim Ogg announced Wednesday.

The program, dubbed “Clean and Green,” has existed in several incarnations since the 1970’s and was one of Ogg’s campaign promises when she ran for DA in 2014, and again when she won in 2016.

“It’s a big reason why I ran,” the top prosecutor said Wednesday as she announced the program at the historic Allen’s Landing, a downtown recreational area on the bayou. “I wanted to ‘green’ criminal justice. I felt like our system could give back in a measurable, meaningful way. Counting the cubic tons of garbage or how many tons of plastic we pull out, it all has a public safety value.”

Misdemeanor offenders, 17 and older, will be allowed to clean up litter and invasive plants, skim waterways and perform other conservation services in public spaces across the county, especially along bayous and tributaries, according to Ogg.

Eligibility for the program, which starts this month, will be determined by prosecutors on a case-by-case basis and excludes defendants facing domestic violence, assault or weapons charges.

[…]

The initiative is expected to offer 160 offenders a month the opportunity to avoid a criminal record while reducing tax dollars currently spent on traditional prosecution and punishment of those offenders.

If selected, participants will be required to work one or two six-hours shifts. They will have to pay $240 to participate, unless they are indigent. Completion of the program fulfills the community-service requirement of pre-trial diversion contracts.

If they successfully complete the program, their criminal case will be dismissed and the arrest can be expunged, Ogg said.

I approve of all of this. This is what we should want to do with non-violent misdemeanor offenders. And yes, it’s what we voted for. Keep up the good work.

More judges caught up in the bail scandal

More judges to vote out.

For more than a decade, most of Harris County’s felony court judges directed magistrates to deny no-cash bail to all newly arrested defendants, in apparent violation of state judicial conduct rules, according to internal documents obtained by the Houston Chronicle.

The documents include charts with explicit court-by-court instructions from 31 district judges to reject all requests for no-cash bonds when defendants made initial appearances in court.

Records and testimony show that misdemeanor judges also routinely told magistrates for years to decline personal bonds, which allow a person to gain pre-trial release from jail without posting cash bail.

The previously undisclosed bail and bond instructions, which surfaced during disciplinary hearings against three Harris County magistrates, appear to corroborate longstanding complaints from criminal justice activists that the county’s bail system deprived defendants of a fair chance at pre-trial liberty.

[…]

Among those listed in the documents with no-bond policies are former judges Ryan Patrick, now the U.S. Attorney for the Southern District of Texas; former Harris County District Attorney Mike Anderson, now deceased, and his wife, Devon, who succeeded him in office after his death; and state Sen. Joan Huffman.

State District Judge Michael McSpadden, a long-serving jurist in Harris County, said he also had a no-bond policy for magistrates for at least a dozen years because he didn’t trust the lower-level jurists not to make errors.

“Almost everybody we see here has been tainted in some way before we see them,” he said. “They’re not good risks.”

“The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents,” he said. “Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, ‘Resist police,’ which is the worst thing in the world you could tell a young black man … They teach contempt for the police, for the whole justice system.”

Please, Judge McSpadden, tell us how you really feel. You all know how I feel, so I’m going to outsource this one to Scott Henson, whose continuation after the ellipses is addressed specifically to McSpadden:

The truth about Harris County judges misleading the courts and intentionally violating the constitutional rights of defendants before them is finally coming out.

When Texas state Sen. John Whitmire filed a complaint with the State Commission on Judicial Conduct against Harris County’s magistrate judges, they defended themselves by saying the elected judges directed them to deny personal bonds, which the judges themselves at first denied. The magistrates were sanctioned anyway, and sources in this must-read Houston Chronicle story by Gabrielle Banks suggested that the Commission is likely now investigating the judges who gave those orders, which is basically all of them.

During the case before Judge Rosenthal, the county claimed they could come up with no evidence that judges directed magistrates. But when the magistrates were accused of misconduct, they produced 600 pages of evidence in that regard that implicated many current and former judges.

Now we know for certain the policies were explicit, widespread, and top-down. This wasn’t a case of rogue magistrates denying bond without the knowledge of the judges. This is a case of magistrates serving as dependent vassals with no capacity for independent decision making whatsoever. And they obviously weren’t too keen on revealing that truth to the federal judge presiding over the case, who justifiably felt blind-sided when representations made in the magistrate’s disciplinary case flat-out contradicted those made in her court.

[…]

Let’s be clear: A) This was happening for DECADES before Black Lives Matter was on the scene, and B) the county NOT letting defendants be advised by lawyers at bail hearings was a big part of the suit! In fact, the county has now begun providing lawyers at bail hearings, so this is the first time they’re being advised by anybody.

It wasn’t Black Lives Matter or defendants’ families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it.

Vote ’em out. There’s never been a better time.

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.