Judge weighs temporary halt to money bail system

© Houston Chronicle • Mar. 23, 2017

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.”

Testimony stretching for more than a week echoed the national debate over how and when bonds are issued, a dispute that pits the traditional system of up-front cash bonds often guaranteed through a bail bond company against personal bonds, in which defendants face cash payments only if they fail to appear in court.

Jurisdictions from Colorado to D.C., New York and New Jersey have made major changes to their bond structures, and expert testimony delved into many of those approaches.

“This could be one of the defining civil rights cases of our time,” said Harris County Commissioner Rodney Ellis, who sat in court for several days and says the county should stop fighting the lawsuit. “We have a two-tiered criminal justice system that favors the wealthy and punishes the poor for being poor.”

The county has already spent $1.6 million in attorneys’ fees defending the case, said First Assistant County Attorney Robert Soard. Officials on both sides of the aisle – including Democratic Sheriff Ed Gonzalez and Republican County Judge Ed Emmett – have said they oppose unaffordable bail rates for misdemeanor offenses.

The Texas Fair Defense Project and Civil Rights Corps, with attorneys working free from local law firm Susman Godfrey, filed the lawsuit last year against Harris County, its sheriff, 16 judges and five hearing officers to challenge the system on behalf of three low-income defendants who couldn’t post bail.

At the time of her arrest, ODonnell had just been hired for a bartending job but did not have enough savings to cover her $2,500 bail. Others who filed suit were held for three and four days each before they saw judges and faced bail rates beyond their means.

Karakatsanis said tens of thousands of defendants are detained each year for lack of funds.

James G. Munisteri, who represents the county and the hearing officers, disputed this figure, saying the number of poor people jailed under these circumstances on any given day could be as few as two. But Karakatsanis fired back, highlighting a substantial number of inmates Munisteri had omitted from his calculation, causing the judge to chuckle and shake her head.

Rosenthal paid rapt attention to documents, witnesses and attorneys in assessing the constitutionality of the county’s system throughout a marathon injunction hearing that lasted eight days and involved more than 400 exhibits and videos of over 2,300 probable cause hearings, with testimony stretching past the 10-hour mark on several days.

The county’s team argued that it began planning cutting-edge bail reforms in 2015, and will install a more robust assessment tool in July – developed with help from a $2 million MacArthur Foundation grant.

Change is imminent, the county’s dozen-odd lawyers said, and an injunction to temporarily halt the current system would be disruptive.

The lawyers for those jailed told the judge the county’s reforms do not address the basic constitutional questions of equal protection for inmates who can’t pay cash bail, and who suffer a series of setbacks in their personal and professional lives as a result of detention.

Rosenthal will rule on the temporary injunction and a request for class-action certification that would expand the lawsuit’s reach to include all detainees who cannot afford bail.