The move is the latest in a string of legal defeats for Harris County and other defendants in the case, and leaves the door open for the U.S. Supreme Court to rule on the legality of the bail system in the country's third-largest county.
Harris County has argued to the Fifth Circuit that District Judge Lee Rosenthal was wrong to declare the county's bail system unconstitutional. Rosenthal, in a 193-page ruling in April, declared the county's misdemeanor bail system denied the rights of poor defendants to equal protection and due process, since they often languish for months in jail while more affluent defendants can simply post a money bond.
Rosenthal ordered Harris County to end this practice and allow poor misdemeanor defendants to be released within 24 hours of arrest. Harris County countered by arguing this left prosecutors no discretion to hold dangerous suspects, an argument Rosenthal rejected.
The Fifth Circuit has yet to rule on Rosenthal's ruling itself, but merely sees no reason to halt her order while Fifth Circuit judges deliberate. Still, the plaintiffs in the case — Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godrey — still see a victory.
“We are very pleased that the 5th Circuit has agreed with Judge Rosenthal that the injunction order should not be stayed," said Neal Manne, an attorney with Susman Godfrey LLP.
Robert Soard, first assistant at the Harris County Attorney's Office, said Tuesday that the county will ask the Supreme Court to halt Rosenthal's ruling while the case is on appeal. Should the county lose at the appellate level, Soard did not rule out an appeal to the Supreme Court.
By March, Harris County had already shelled out $1.2 million to defend the suit. In April, hedging before Rosenthal even made her decision, the county retained a swanky Washington, D.C. lawyer to handle any potential appeals in the case. These expenses, with so far no legal successes to show for them, have led critics of Harris County's approach to question whether endless rounds of appeals are a wise use of taxpayer money.