U.S. District Judge Lee H. Rosenthal heard two deeply conflicting arguments from the county and national group Civil Rights Corps, which sued Harris County in May 2016 on behalf of all indigent people arrested on misdemeanors, asserting that the county's bail system punishes the poor and favors the wealthy. In court Tuesday, both parties accused the other of presenting intentionally deceptive and misleading arguments to Judge Rosenthal, with the county attacking Civil Rights Corps's argument as radical and unrealistic and Civil Rights Corps accusing the county of overlooking the gravity of detaining hundreds of indigent people and overstating the effectiveness of the proposed reforms.
Attorneys for Harris County asked Judge Rosenthal to simply give them a chance to see how the bail reforms play out, arguing that the bail system as it exists today is much different from how it worked this past May. The changes already underway, they argued, have prevented pretrial detention of people for the sole reason that they are poor. But Judge Rosenthal remained unconvinced, apparently unwilling to take the county for its word that the reforms would fully resolve the plaintiffs' concerns about the constitutionality of Harris County's bail system — concerns which are even shared by Sheriff Ed Gonzalez, who is a defendant in the lawsuit.
Rosenthal appeared to arrive at her conclusion shortly after the county made a confusing and rather alarming argument that some people charged with misdemeanors were sitting in jail not because they were poor, but because they wanted to be in jail.
Rosenthal had asked what percentage of people were sitting in jail solely because they could not pay bail, and an attorney hired by the county, James Munisteri, responded that it's possible the answer is zero (though not certain). There were a multitude of reasons that poor people might be sitting in jail other than that they're poor, he said. The first reason he gave: Because they wanted to be in there.
"That's a very dicey argument to make," Rosenthal shot back, saying the idea was "reminiscent of a historical argument that people enjoyed slavery because they were afraid of the alternative."
"You didn't see a lot of people running toward slavery," she said. "You don't see a lot of people volunteering to go to jail. ...I can't grant a stay on that basis."
(Note: The Houston Press completely understands what the county means when it says there are people who "want to go to jail." This population includes severely mentally ill homeless people who in many cases simply don't know how else to get help — including one such person who tragically died in the jail of a stroke last November, just weeks before social workers could find him a home. But, anyways.)
Munisteri only went on to dig himself a bigger hole, going on to say that, also, sometimes people want to be in jail because they feel guilty, and they want to plead guilty. "They may plead guilty because they just want to get out of jail — because there's no other way," Rosenthal responded.
Suffice it to say that there are probably better ways the county could have answered Rosenthal's questions about the bail reforms. And, to be sure, those reforms are notable. One thing for certain is that, even if this lawsuit were to die tomorrow, the changes it has thrust upon Harris County's criminal justice system are already apparent and important.
By late March or early April, the county intends to finally revise its 40-year-old bail schedule — the little chart that hearing officers have used to set people's bail, based almost exclusively on charges and prior convictions, allegedly without regard for people's ability to pay it as the Constitution requires. Since the lawsuit was filed, however, the county is now saying that hearing officers have been making a concerted effort to consider ability to pay.
As evidence, attorneys pointed to Harris County Pretrial Services October 2016 data in which hearing officers awarded personal bonds to 23 percent of people charged with misdemeanors. That's compared to roughly 15 percent of people at that hearing in 2014. Attorneys for the county said hearing officers are expected to issue even more personal bonds after the county implements a new objective risk-assessment tool in July. The tool is intended to evaluate people's flight risk or public-safety risk without allowing factors like race or what side of town they're from get in the way.
Still, Civil Rights Corps lead attorney Alec Karakatsanis dismantled many of these optimistic promises in what could best be described as a frantically articulate monologue that prompted the court stenographer to ask him to slow down. As Karakatsanis pointed out, the fact that hearing officers gave 23 percent of people personal bonds should instead be understood as they denied personal bonds to 77 percent of people. He noted that, even with the current risk-assessment tool, which has been in use since 1992, hearing officers still routinely ignore recommendations for personal bonds made by Harris County Pretrial Services officers. Since nothing under the law or in court rules requires them to follow such recommendations, Karakatsanis surmised that there is nothing to guarantee that a new risk-assessment tool would make any real difference.
According to the Press's analysis of Pretrial Services's October data, of the 1,321 cases in which Pretrial Services recommended a personal bond, hearing officers still denied them 55 percent of the time.
Also at the hearing was Harris County Commissioner Rodney Ellis, who afterward lamented the Harris County Attorney's Office's decision to hire so many extra lawyers, spending hundreds of thousands of taxpayer dollars to "defend an indefensible system."
Judge Rosenthal will next decide whether to grant the plaintiffs preliminary injunction at a hearing the first week of March.