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Under a Harris County policy, first-time DWI defendants are generally eligible to have $500 bonds set for what is usually a quick release from jail pending trial. But this man, and others in the same situation, cannot take advantage of that policy.
Instead, bond was set for him at 50 times that amount -- $25,000. The reason: The man, a Hispanic, was suspected of being an illegal immigrant.
The policy of high bonds for those believed to be non-U.S. citizens was instituted by Harris County criminal court judges last June. It has drawn fire from defense attorneys as unconstitutional.
Defense attorney Nancy Revelette, who represented the man and defends many Hispanics, says it is a violation of defendants' Fifth Amendment rights against self-incrimination to be required to tell a judge whether they are U.S. citizens. Her client refused to answer the question.
Michael A. Olivas, a University of Houston professor of immigration law, calls the high bonds a violation of federal law. Federal courts have exclusive jurisdiction over legal issues involving immigration, he notes.
Revelette says the underlying motivation for the high bonds is to keep suspected illegal immigrants jailed until the Immigration and Naturalization Service, which has 14 officers assigned to Harris County jails, can identify them and begin legal action to deport them. Judges are "tickled pink" to be helping get them out of the country, she says.
However, judges say they are merely trying to ensure that defendants who are freed from jail return for trial and that illegal immigrants may have fewer ties to the community to keep them here until their cases are heard in court.
The misdemeanor judges' guidelines for setting bonds state that a $25,000 bond will automatically be set in any case where "there is a reasonable suspicion or probable cause to believe the defendant is an illegal alien."
County criminal court Judge Jean Spradling Hughes, administrative judge for the county's misdemeanor courts, says the new policy replaced one in which judges refused to set bonds for defendants who were believed to be illegal immigrants. After a few months, judges decided that policy was unconstitutional, she says.
Hughes says the $25,000 bonds are set initially by the District Attorney's Office as a red flag for defendants considered to be flight risks. The amounts can be adjusted to fit the specific case and defendant, she says.
State District Judge George Godwin, administrative judge for felony courts, says high bonds for illegal immigrants can sometimes help keep dockets moving. The INS often will deport illegal immigrant defendants without first notifying the court system. The deported defendants don't appear for trial, so those cases clog up the court dockets, he says. Godwin says the higher bond amounts usually mean a defendant can be tried before deportation.
UH law professor Olivas disputes that judicial explanation. "That is just nonsense; that is not true." Attorney Frumencio Reyes raised the issue of Hispanic U.S. citizens being penalized by the higher bonds if they are suspected of being illegal immigrants. Reyes has no examples of such cases but says it can get "touchy as hell" when such a policy is applied to Hispanic citizens.
Such concerns are prompting calls to challenge to the policy.
Fort Worth attorney Mike Heiskell, president of the independent Texas Criminal Defense Lawyers Association, says he objects to the policy. His organization will be creating an immigration committee to delve into complaints about the treatment of immigrants.
Attorney Revelette took her complaint to misdemeanor court judges during a recent legal seminar, but she says the judges brushed her concerns aside. Revelette's drunk-driving defendant wound up pleading guilty to the charge and serving 20 days in jail. It was unclear if he was deported in the process.
But Revelette says that the next time she has a client who gets socked with a $25,000 bond as an illegal immigrant, she will demand a bond reduction hearing as the first step in appealing the county's policy to higher courts.
Until the practice is overturned, she says, the Harris County judiciary will continue in its dubious dual role as "de facto federal agents" for the INS.
Contact Seth Landau at firstname.lastname@example.org.