A federal judge issued a blistering ruling Thursday evening calling into question the legal reasoning powers of Harris County judges and their attorneys, as she denied the county’s plea to block her order against its bail system from going into effect Monday.
Chief U.S. District Judge Lee H. Rosenthal reminded the county exactly why she ruled on April 28 that its treatment of poor people charged with low-level, nonviolent crimes is unconstitutional, and why the county has no basis for making those people pay an arbitrary amount of money before they can be released from jail pending trial. Granting a preliminary injunction, Rosenthal ordered that Harris County begin following the law by releasing all eligible indigent misdemeanor defendants on personal bonds within 24 hours of arrest, and attaching an affordable bail amount to those bonds in the event that the defendants don’t show up for court and have to pay the price.
Harris County said this would cause “irreparable harm” to the government and to the public, and asked her to either block this order while county attorneys appeal to a higher federal court or at least delay it for 30 days.
That request, Rosenthal said, amounts to violating the constitutional rights of thousands more people. And so her answer was absolutely not. As she wrote:
“Ample credible, reliable evidence shows that Harris County detains well over 100 misdemeanor defendants a day only because they are too indigent to pay secured money bail. These defendants are otherwise eligible for release and would be released if they could pay a bondsman the nonrefundable premium of around ten percent of the bond amount. That cannot continue. Time is of the essence. Every day brings about the incarceration of another hundred indigent misdemeanor defendants, in violation of the Constitution. This factor weighs heavily against a stay.”
Her conclusion was in line with the arguments made by the plaintiffs: Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godfrey, which represent all indigent misdemeanor defendants in this class-action case.
In rejecting the county’s arguments, Rosenthal not only noted that the county primarily relied on irrelevant case law in its brief, but also that the county seemed to misunderstand her order. While County Attorney Vince Ryan and First Assistant Robert Soard told reporters Tuesday that judges are worried about "truly dangerous people" who they think should stay in jail, Rosenthal spent plenty of time reminding Harris County that preventive detention is illegal for misdemeanors in Texas. By comparison, the pretrial release system that Rosenthal has fashioned does not create any new law or invalidate old ones. Rather, it merely “rectifies the County’s constitutionally flawed procedures.” Because Harris County could not explain why following the already-existing law would cause the residents of Harris County “irreparable harm,” Rosenthal rebuked the county for mounting, basically, a nothingburger argument, writing:
“The defendants take a scattershot approach to arguing that their appeal presents a substantial case on the merits. They assert that the case ‘presents serious, novel legal issues’ without identifying what legal issues are novel. The defendants are right that this case involves important issues… But merely stating the importance of the issues and the seriousness of the legal questions does not mean that the defendants have presented a substantial case on the merits.”
Last, in perhaps the most remarkable passage, Rosenthal also called out the county’s inconsistent arguments that stop just short of hypocrisy.
Throughout the hearing, Harris County argued several times that there are only one to three people stuck in jail solely because they can’t pay bail. (And then struggled to explain why else the other 450 people were stuck there; at one point the county said some just want to be in there.) Judge Rosenthal turned that argument on its head, saying that, if that really is true, and Harris County really doesn’t detain more than 100 people per day because they’re poor, then the county should have no problem complying with her order.
“The defendants’ consistent argument throughout this litigation has been that virtually no one is detained in Harris County by an inability to pay secured money bail, and that almost all misdemeanor defendants are released, either by pretrial bond or postconviction sentence, within three days of arrest. If that is true, the defendants cannot be irreparably injured by the court’s Order, because it would apply to so few cases. If the defendants are now reversing their position and arguing that an overwhelming number of misdemeanor defendants are detained by their inability to pay secured money bail, the defendants themselves have shown the evident need for emergency relief from this court.”
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The county also tries to argue that complying with the order will be too overwhelming and expensive for Harris County Pretrial Services, citing cost-estimate testimony from Director Kelvin Banks that Rosenthal “specifically found unreliable and greatly exaggerated.” On top of it, both Harris County Sheriff Ed Gonzalez and District Attorney Kim Ogg believe that the county needs to, and can, comply with Rosenthal's order. Ogg, in fact, said it was "a half century overdue."
The legal battle over the future of Harris County’s bail system is far from over, as Harris County attorney Vince Ryan told the Houston Press Tuesday that the county is prepared to fight the case to the Supreme Court if necessary. For now, it will likely take Rosenthal’s ruling to the U.S. Fifth Circuit Court of Appeals.
In any case, beyond denying the county the relief it sought Thursday, what Rosenthal really did was remind us whom this legal fight is between: black-robed, well-off Republican judges who are clinging tightly to power, and poor, often black and brown defendants who are sitting in jail on low-level crimes for which they have not yet been convicted, wishing the judges would just loosen the grip.