In a case that could have sweeping effects on the American money bail system, Harris County lawyers squared off against civil rights attorneys during closing arguments Thursday to defend the county from the plaintiffs’ claims that its bail system is unconstitutional.
U.S. District Judge Lee H. Rosenthal will decide in the coming weeks whether to grant the plaintiffs’ request for a preliminary injunction — an order which could possibly force Harris County to overhaul the bail system in a way that ensures no poor person would ever be kept in jail before trial solely because they can’t pay for their release.
Yet, remarkably, the county continued to argue this happens so rarely in Harris County that on any given day there are likely only one to three people in jail just because they are indigent. And therefore Judge Rosenthal has no reason to grant the injunction. The plaintiffs — Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godfrey, representing all indigent misdemeanor defendants — found this argument most unreasonable.
And it’s with this argument, throughout the entire lawsuit, that the county appeared to most pointedly fall off the wagon, providing questionable explanations as to why else the other 350 or so people sitting in jail on misdemeanor charges couldn't get out before trial. At least seven percent of those people have additional holds preventing their release, attorneys said, such as from immigration authorities or warrants in other counties. But as for the other 93 percent, too often, the county seemed to fill in the blanks with thinly supported assumptions about why they remained behind bars. Assumptions that included some people "want to be in jail," and some people, "as tough as it is to say, have criminal proclivities," said attorney James Munisteri, just after claiming as few as one to three people were in jail because they couldn't pay. What he was suggesting was unclear.
To arrive at the conclusion that it is so rare for a poor person to get stuck in jail, Harris County relied in part on an interpretation of its data by Dr. Robert Morris, whose rather ironic definition of what it means to be indigent excludes anyone who had a job (including at Burger King), anyone with prior arrests (not convictions), and anyone who scored more than three points on his or her risk assessment — for factors like not owning a car, not living in a structured household, being a male, and not owning a landline phone (i.e., being a poor male). (It should also be noted that Dr. Morris has been paid thousands of dollars by the American Bail Coalition in the past to testify about his research to the New Jersey Legislature, and was liked so much by ABC that it had a webpage about Dr. Morris stating he has found that multiple detainers or "defendant choice" to be "motivations for continuing to remain incarcerated pending trial." Morris asked them to take it down once the plaintiffs presented it to Judge Rosenthal.)
It was questionable data interpretation like this that seemed too often to detract from the county’s otherwise reasonable arguments — that the bail system, though imperfect, is nevertheless legal and constitutional in all 50 states. That bail is not necessarily required to be “affordable.” That the reforms the county plans to make to its bail system will resolve many (but not all) of the plaintiffs’ complaints. These reforms, which have been widely applauded, include giving people defense attorneys at bail hearings to advocate for personal bonds, and using an innovative, objective tool to determine the flight risk someone poses or the risk that they will commit another offense if released.
But the plaintiffs say the changes do not resolve their underlying constitutional concerns.
Here’s why: The plaintiffs aren't arguing it's unconstitutional to impose money bail on petty misdemeanor defendants; the problem, plaintiffs argue, is how bail is imposed in Harris County. And that’s something that, without comprehensive, court-ordered relief, the plaintiffs don’t believe will change.
In Harris County, they argue, bail hearing officers do not consider a person’s ability to pay bail, as required by the Constitution. So for example: When those hearing officers set a $5,000 bail for a person charged with trespassing for sleeping under a bridge (a real example), the plaintiffs argue the high bail amount serves as a de facto detention order for the homeless man since it's obvious he cannot afford it. Detention orders for misdemeanors other than domestic violence are illegal in Texas. Given a rich person popped with a DWI probably could’ve easily paid that bail amount, plaintiffs argue it is an equal protection violation.
“If the government is going to deprive people of such an important right — their pretrial liberty — then we believe the government bears some burden to find other alternatives to detention,” Civil Rights Corps lead attorney Alec Karakatsanis told Judge Rosenthal.
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If Rosenthal were to order the bail system be overhauled, it is unclear what it would look like. The plaintiffs are not asking for the abolition of money bail in misdemeanor court. They are not even asking Judge Rosenthal to "legislate" how the system will operate in Harris County. They are merely asking Rosenthal to order that Harris County fashion its own system that will have the protections built in for poor people that they say are lacking now.
This could mean Harris County changes the bail schedule so that people charged with misdemeanors are released on varying levels of pretrial conditions—like GPS monitors, curfews or drug tests—instead of varying amounts of money. It could mean Harris County uses unsecured financial bonds instead, meaning a person is released without having to pay anything at the onset — but is on the line for the bail amount if they fail to show up to court, which is the whole incentive of money bail to begin with. Or it could mean Harris County has to implement new procedures to ensure that judges and hearing officers do everything in their power to consider a person's financial circumstances.
There's no telling when Judge Rosenthal will release her decision — but if she does grant the injunction, it's possible that the order will impact the bail system across the country for years to come.
And if she doesn't grant it, then the plaintiffs are prepared to take the county to trial.