Harris County Commissioner Rodney Ellis speaks out against the bail system at a Texas Organizing Project rally last year.
Harris County Commissioner Rodney Ellis speaks out against the bail system at a Texas Organizing Project rally last year.
Meagan Flynn

Harris County Attorney Who Argued Some People "Want to Be in Jail" Under Fire

After a lawyer who represents Harris County in a lawsuit accusing its bail system of being unconstitutional made some questionable comments in federal court, Harris County Commissioner Rodney Ellis and State Senator John Whitmire are calling for his removal from the case.

As the officials wrote to Harris County Attorney Vince Ryan, "Mr. [James] Munisteri put forward an argument laced with a dangerous ideology to justify why hundreds of poor people, who have yet to be convicted of any crime, languish in the Harris County Jail on a daily basis."

Last Wednesday, Harris County argued before U.S. District Judge Lee H. Rosenthal that the bail lawsuit should be delayed for several months, at least until Harris County had a chance to implement some of its planned reforms. The county had been sued in May 2016 by the national group Civil Rights Corps, which alleged that the county's bail system violated the Constitution by keeping poor people in jail before trial simply because they could not pay an arbitrary bail amount. But Judge Rosenthal denied the county's motion, apparently unconvinced that the proposed reforms would satisfy Civil Rights Corps's underlying constitutional concerns.

She seemed to arrive at that decision shortly after private attorney James Munisteri, hired by the Harris County Attorney's Office, made the odd argument that some people were sitting in jail not because they were poor, but because they wanted to be in there.

The exchange came after Judge Rosenthal asked Munisteri what percentage of people charged with misdemeanors were sitting in jail solely because they could not afford bail. Munisteri responded that there were multiple reasons a person might be in jail beyond the fact that they are poor. Here's the exchange:

“There are individuals, for instance, that for whatever reason, decide they do want to go the jail and stay there. If it’s a cold week,” Munisteri said, interrupted by Rosenthal.

"That's a dicey argument to make. That's a difficult assumption to make," the judge said. "It’s uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery because they were afraid of the alternative. There may have been individual cases in which that fear was tremendously powerful and real. But you didn’t see a lot of people running towards enslavement. You don’t see a lot of people volunteering for jail in order to get warm.”

But Munisteri, for some reason, did not stop there. He went on to say that, also, some people wanted to be in jail because they felt guilty, and they wanted to plead guilty. Rosenthal shot back again: "They may plead guilty because they just want to get out of jail — because there's no other way."

Commissioner Ellis sat through the whole hearing from the gallery, expressing his disapproval with the county's argument in a brief interview with reporters after the hearing. As he and Whitmire wrote to County Attorney Vince Ryan:


"It is our position that the Harris County bail system blatantly violates the rights and freedoms protected under the U.S. Constitution by creating one system of justice for the wealthy, and an unjust one for the poor. Further, it jeopardizes public safety and wastes taxpayer dollars. We realize that we respectfully disagree on many of these points and their possible solutions. However, we are confident that you will agree that Mr. Munisteri’s comments are indefensible and tax dollars should not be used to fund this reprehensible representation."


In a request for comment in response to Ellis and Whitmire's concerns, county attorney's office spokesman Robert Soard said they are awaiting a full transcript of the hearing in order to determine the context of Munisteri's comments.  (As mentioned, this argument is also made in writing in the county's legal filling, which we have included below; in the filing, the county says some people might "choose to stay in jail" because, for example, they would like to have their hearing with a judge by the next business day.)

The Houston Press has requested the most recent bill that the bail lawsuit has cost Harris County — A.K.A. Harris County taxpayers — to defend. At our last check-in, in September, the county had spent $170,000 defending the bail system, paying a multitude of outside lawyers between $240 and $650 per hour.

That bill was only current as of July 15, 2016, when the bail lawsuit had been pending for less than two months.

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