Historic Bail Ruling in Texas Largely Upheld Appeals Court

by | February 15, 2018

By Gabrielle Banks

An appeals court Wednesday upheld most of a federal district judge's historic ruling that changed Harris County's bail practices, agreeing the previous bail system was unconstitutional and unfair to low-level indigent defendants.

The circuit court, however, ordered her to reconsider her ruling on several matters and revise an injunction it found overly broad.

The opinion by the three-judge panel affirmed the Houston lower court's conclusion in April that the county's bail process did not protect poor detainees from bail being imposed as "an instrument of oppression."

The appeals court concluded that indigent people in Harris County "sustain an absolute deprivation of their most basic liberty interests -- freedom from incarceration."

The ruling by the 5th U.S. Circuit Court of Appeals comes after the county mounted a $5.2 million challenge to a 2016 class action lawsuit brought by indigent defendants, whose lawyers argued their clients ended up in "wealth-based detention," often entering guilty pleas to get out of jail, while those with money could post cash bail and resume their lives pending trial.

"It's a huge deal that the 5th Circuit, one of the most conservative courts which is often the ultimate decider for this region, supports the finding of the district court," said state Sen. John Whitmire, D-Houston, an longtime proponent of bail reform. "I just plead with Harris County officials to quit wasting taxpayer money fighting the district court and just do what's right."

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."

The former state senator said the court's finding provided a strong argument that Harris County should promptly settle the lawsuit and enact meaningful reforms.

Robert Soard, first assistant to Harris County Attorney Vince Ryan, said the ruling affirmed the county's concerns that Rosenthal's order diminished public safety and let judicial officers determine the terms and conditions of release of misdemeanor defendants.

"Now, instead of immediate release after 24 hours without regard for risk to the community, (misdemeanor judges) retain discretion regarding release provided a hearing for the defendant occurs within 48 hours after arrest," Soard said.

The county is working to improve its criminal justice system and reach a settlement that maximizes the number of misdemeanor detainees eligible for release from jail without posting cash bail, but also ensures the rights of victims,  community safety and the independence of the judiciary, he said.

Tom Berg, first assistant at the Harris County District Attorney's Office, said the office is "substantially in agreement with everything the appeals court said in support of bail reform as we envision it for Harris County."

"It favorably resolves some concerns we had about implementation of the original order and we look forward to assisting the parties in making the additional refinements suggested by the court," Berg said. "We hold out hope that with this additional decision, the parties can finally reach resolution in this prolonged and costly case."

Alec Karakatsanis, an attorney with Civil Rights Corps, one of two justice reform groups that brought the lawsuit along with a Houston law firm, said the court's finding is a victory for the indigent defendants who sued the county after being held for days because they couldn't afford bail.

The suit was filed by Maranda ODonnell, a single mother who spent two days in jail because she couldn't post $2,500 bail after being arrested for driving with an invalid license.

"The 5th Circuit has strongly reaffirmed the central point of this case: Harris County's cash bail system is unconstitutional," Karakatsanis said. "We are reading the opinion and will evaluate the next steps for helping Harris County craft a system that does not violate the Constitution and devastate tens of thousands of human beings and their families every year."

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.

But the appeals court judges determined that Rosenthal erred in concluding that the county sheriff should be a defendant in the case. They found the top law enforcement official in the county should not be subject to the lawsuit because the sheriff does not have the same policy making authority as judges who are defendants in the case.

Sheriff Ed Gonzalez, who took office after the lawsuit was filed and formally supported the indigent defendants' claims, said he was glad to be dismissed as a defendant.

"I am encouraged by today's ruling ... upholding the trial court's finding that Harris County's old bail system is in need of change," Gonzalez said. "I am committed to continuing to work with all involved parties to ensure that Harris County's criminal justice system honors the rights of all defendants who have yet to be convicted of a crime, while also keeping all residents safe."

Another defendant in the suit, Criminal Court at Law Judge Darrell Jordan, who also supported the indigent defendants and also traveled to New Orleans to watch arguments in the October hearing, said it is time for the county to move forward.

"The most conservative court in America has found the discriminatory bail bond practices of Harris County to be unconstitutional," the judge said. "I'm calling for funding to be cut from these lawyers and this case to be settled immediately. Let's not go down in history as the county that fought for discrimination in 2018."

(c)2018 the Houston Chronicle