by Derek Gilna

U.S. District Court Judge Lee H. Rosenthal, of the Eastern District of Texas, issued a 193-page opinion on April 28, 2017 that effectively gutted what she termed a “discriminatory money bail system” in Harris County, which includes Houston.

PLN has long covered problems with the money bail industry, in which a defendant’s release from jail before trial is conditioned on their financial resources. [See, e.g.: PLN, Nov. 2017, p.38; Aug. 2016, p.36; Nov. 2012, p.1; Sept. 2012, p.36].

On June 6, 2017, the Fifth Circuit Court of Appeals in New Orleans refused to halt implementation of Judge Rosenthal’s ruling, and U.S. Supreme Court Justice Clarence Thomas declined to issue a stay the same day.

A three-judge panel of the Fifth Circuit heard arguments and officially declined to overrule the lower court on October 3, 2017 – leaving Judge Rosenthal’s order intact.

“This case requires the court to decide the constitutionality of a bail system that detains 40 percent of all those arrested only on misdemeanor charges,” Judge Rosenthal’s opinion began, “many of whom are indigent and cannot pay the amount needed for release on secured money bail.”

Finding that the bail system was a violation of both due process and equal protection, the district court granted the plaintiffs’ motion for preliminary injunctive relief, enjoining Harris County officials from continuing to use money bail.

Rejecting the county’s assertion that its money-bail system was “facially neutral,” the court noted that “indigent arrestees are otherwise eligible for pretrial release, yet they are detained for days or weeks until their cases are resolved” – solely because “they were too poor to pay the amount needed for release on the secured money bail imposed by the County’s policies and practices.”

The bonds in question are generally available only to those arrested on misdemeanor charges. Harris County has the third largest jail system in the United States, and around 50,000 people are arrested each year on Class A and B misdemeanor charges. A 2016 study by the University of Pennsylvania Law School found that over half remain in custody until their cases have been resolved – often for failure to make bail.

Judge Rosenthal asserted that her deliberations were “informed by recent empirical data about the effects of secured money bail on a misdemeanor defendant’s likely appearance at hearings and other law-abiding conduct before trial, as well as the harmful effects on the defendant’s life,” which often included the loss of a job or a place to live, and collateral consequences for the defendant’s family.

She sought evidence regarding the costs of these social disruptions due to jailing defendants too poor to post bond before issuing her ruling, seeking testimony from both local and national experts, including retired Harris County judges.

The Honorable Nathan L. Hecht, Chief Justice of the Texas Supreme Court, in remarks made before the decision was issued, said: “Twenty years ago, not quite one-third of [the state’s] jail population was awaiting trial. Now the number is three-fourths.... Though presumed innocent, they lose their jobs and families, and are more likely to re-offend ... taxpayers must shoulder the cost – a staggering $1 billion per year.”

The original plaintiff in the lawsuit was Maranda O’Donnell, 23, a single mother detained for two days after her arrest for driving without a license – solely because she couldn’t post $2,500 bail. Attorneys from two civil rights groups – the Texas Fair Defense Project and Civil Rights Corps – represented O’Donnell and two other plaintiffs whose cases were later merged into the suit, arguing that “all rigorous studies of pretrial release in misdemeanor cases show that release on secured money bail does no more to mitigate the risk of nonappearance or of new criminal activity during pretrial release than release on unsecured or non-financial conditions.”

In felony cases, Texas courts “have imposed or confirmed high money bail despite evidence of inability to pay the amount needed for pretrial release,” when the offense was serious but still required the same due process requirements as an actual detention order. See: Ex parte Ruput, 498 S.W.3d 220 (Tex. App.-Houston 2016).

Nonetheless, Judge Rosenthal found not only that “at least half of the detained misdemeanor population in Harris County wait 48 hours or longer after arrest before seeing a County Judge,” but also “at least 13 percent wait 96 hours or longer.”

As a result, she ordered that any misdemeanor defendant who signed an affidavit asserting his or her inability to pay a money bond must be released on a personal bond. Further, any defendant held more than 24 hours – even without a probable cause hearing – must also be released on a personal bond.

During arguments before the Fifth Circuit, Judge Catharina Haynes said she was “shocked” by the lower court’s order, questioning its 24-hour rule.

“Why not 48 hours? Or 72, or even 96? Where is the magic of 24 hours other than the Texas law to find probable cause, which you’re not challenging?” she asked.

Alec Karakatsanis, an attorney and director of the Civil Rights Corps, replied that 24 hours was not only compatible with the state-mandated time-frame for conducting probable cause hearings, it also prevented defendants held in jail from losing their jobs and housing, among other adverse effects of pre-trial incarceration.

The appellate judges also put hard questions to Charles Cooper, the attorney representing Harris County – including when he mentioned that defendants were not allowed to speak at pretrial hearings.

“They’re called hearing officers,” said Judge Edward Prado. “But [defendants] can’t speak. What good is a hearing if you’re not going to listen?”

Cooper argued the county had instituted reforms that rendered Judge Rosenthal’s ruling unnecessary, including the adoption of a new risk assessment tool for defendants – though he admitted there was no indication of an increased number of pretrial detainees being released on personal bonds. Darrell Jordan, the only Harris County judge to reject money bail for indigent detainees before Judge Rosenthal’s decision, said the system had not really changed.

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

Harris County District Attorney Kim Ogg had already started seeking personal bonds for misdemeanor defendants. Along with Sheriff Ed Gonzalez and County Commissioner Rodney Ellis, she filed briefs with the appellate court in support of the district court’s ruling.

“There is no longer any legal reason why the county cannot comply with Judge Lee Rosenthal’s order,” Ogg said. “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.”

After the U.S. Supreme Court refused to stay the preliminary injunction, Harris County immediately released about 100 eligible prisoners. Representing about 1 percent of the jail population, they had all completed affidavits attesting to their financial inability to pay money bail, according to Jason Spencer, a spokesman for Sheriff Gonzalez.

“I think some people were expecting a massive release, but it’s really just sort of steady,” said Spencer, who expected the releases to continue daily. “We’re going to operate under whatever the latest [court] order is,” he added.

Legal challenges to money bail have now been mounted in at least 10 states. In Georgia, under the Obama administration, the U.S. Department of Justice argued in 2016 that a man held in jail for six days due to his inability to pay a $160 bond was “effectively denie[d] equal protection.” That case remains pending in federal court.

“It’s a huge problem all over the country,” said Karakatsanis, who noted that “450,000 human beings are in American jail cells every night just because they can’t make a payment. It’s terrible abuse to subject someone to that inhumane treatment.”

University of Houston Law Center professor Lonny Hoffman noted that U.S. Supreme Court Justice Thomas’ refusal to issue a stay meant there was “no question that [he] has concluded that there isn’t clear and obvious irreparable harm” from allowing the district court’s decision to stand.

“This is going to put a fire under the county to figure out how to implement this,” agreed Sarah R. Guidry, executive director of the Earl Carl Institute for Legal and Social Policy at Texas Southern University’s Thurgood Marshall School of Law, who added there would also be “a huge impact on the bail bonds industry.”

“They’re going to have to figure out a different way to make a living,” she concluded. “They’re not going to get the bulk of their income off of poor people who are charged with low-level crimes.”

Criminal justice reform advocates have long argued that in addition to being discriminatory, the bail system is grossly unfair.

“It just reinforces for me the point that our entire system of pretrial detention is predominately based on wealth,” Inimai M. Chettiar, a lawyer with the Brennan Center for Justice, told the New York Times.

“When you’re in jail because you can’t pay bail, innocent people are more likely to plead to crimes that they didn’t commit, because they need to get out,” observed California assemblyman Rob Bonta, who is sponsoring bail reform legislation.

The inability to make bond is not a problem faced by wealthy defendants, of course. For example, Tiffany Li, a Chinese real estate tycoon, posted $35 million in bail in April 2017 to be released prior to trial on a California murder charge.

In the Harris County case, Judge Rosenthal found that “under federal and state law, secured money bail [should] serve to detain indigent misdemeanor arrestees only in the narrowest of cases, and only when, in those cases, due process safeguards the right of the indigent accused.”

She made various findings of fact, including that “Harris County has a consistent and systematic policy and practice of imposing secured money bail as de facto orders of pretrial detention in misdemeanor cases,” and that such “orders effectively operate only against the indigent ... those that can pay are released, even if they present similar risks of non-appearance or of new arrests.”

The district court also found that these “de facto detention orders are not accompanied by the protections federal due process requires for pretrial detention orders ... [and this] policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution.” Despite the limited reforms implemented by Harris County to resolve those issues, the court said the county’s bail practices were still inadequate.

As a result, Judge Rosenthal ordered that “Harris County and its policymakers ... are enjoined from detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail. Pretrial Services ... must verify an arrestee’s ability to pay a secured financial condition of release by an affidavit ... [which] must give the misdemeanor arrestee sufficient opportunity to declare under oath ... the maximum amount of financial security the arrestee would be able to post or pay up from within 24 hours of arrest,” which would assist judges setting bail to determine a defendant’s ability to pay and also determine who is indigent and therefore eligible for appointed counsel at bail hearings.

“The 24-hour requirement is particularly needed to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention,” Rosenthal wrote.

Most importantly, the district court made clear that “an indigent defendant’s inability to pay secured money bail cannot be the basis for the Sheriff to continue to detain that defendant.” The court issued an order of clarification on June 30, 2017, affirming that the county’s adoption of a risk assessment tool for defendants did not conflict with the preliminary injunction order.

The case remains pending. See: O’Donnell v. Harris County, U.S.D.C. (S.D. Texas), Case No. 4:16-cv-01414. 

Sources: Texas Tribune, The New York Times, Houston Chronicle, www.usnews.com

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