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Costing County Taxpayers $1.2 Million, Bail Lawsuit Set for Historic Hearing

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Ten months and $1.2 million in taxpayer dollars later, there's a chance the lawsuit accusing Harris County's bail system of jailing poor people before trial simply because they can't afford bail may finally come to a close.

In a hearing beginning on Monday, civil rights groups will argue on behalf of all indigent misdemeanor defendants that it defies the Constitution to choose to release or detain people based strictly on whether they can pay an arbitrary cash amount listed on a bail schedule. Attorneys say it is possibly the first time this issue has ever been debated at an evidentiary hearing like this one.

At the hearing Monday, those groups — the Washington, D.C.-based Civil Rights Corps, the Texas Fair Defense Project and Houston law firm Susman Godfrey — will ask U.S. District Judge Lee H. Rosenthal for a preliminary injunction. If granted, it would force Harris County to overhaul its bail system — a result that is bound to be historic not just locally, but across the country.

"One feature of our current criminal system that has been underappreciated is just how few of the major processes, like the money bail system, have really been subjected to any meaningful legal scrutiny," said Alec Karakatsanis, lead attorney with Civil Rights Corps. "This will be a really important chance to put this system under a microscope and scrutinize all the ways it's devastating people's lives and damaging the integrity of the legal system."

Various criminal justice heads, including Sheriff Ed Gonzalez and Harris County Commissioner Rodney Ellis, have been calling for the county to settle the lawsuit since fighting it has continued to cost county taxpayers hundreds of thousands of dollars. According to the Harris County Attorney's Office, as of January 31, the county has been billed $1.2 million to "defend an indefensible system," as Ellis recently put it to the Houston Press.

Yet the county's army of lawyers have continued to move full speed ahead because of certain unnamed stakeholders who weren't agreeing to any of the proposed settlements or reforms. (Defendants in the suit include all the county misdemeanor judges, the state district judges, the bail hearing officers and — even though he's made clear whose side he's really on — the sheriff.) At one point, an attorney hired by the county named James Munisteri even argued that some people were sitting in jail not because they're poor, but because they wanted to be in there. As one might imagine: That didn't go over well.

At the hearing, the civil rights lawyers are prepared to present heaps of evidence they say will show that bail hearing officers are indifferent to poor people's ability to pay bail. They have prepared more than 100 video clips showing the hearing officers denying personal bonds to people for various reasons, including living in a car and not being able to recall phone numbers offhand for people who could vouch for the defendant. The hearing officers denied personal bonds even when the defendants charged with low-level misdemeanors, such as possession of 0.15 ounces of weed, worried about losing their jobs. And the hearing officers routinely set $5,000 or $3,000 bonds for people arrested for offenses clearly tied to poverty, which included "begging" outside a Walmart or gas station, or for using the restroom inside a hospital. (See two examples mentioned here in our video clip.)

Since being sued last May, Harris County attorneys say various bail reforms have reduced or possibly even eliminated the possibility of people sitting in jail solely because they're poor (which the plaintiffs find seriously hard to believe).

Still, the efforts are notable. On Tuesday, a key reform that would give people defense attorneys at those bail hearings finally had its day in Harris County Commissioners Court. Championed for well over a year by Chief Public Defender Alex Bunin, the reform is expected to hugely aid poor defendants who fear losing their jobs or homes or scholarships if they can't get a personal bond or at least a lower one. This way, there will be someone there to advocate for their best interests — because currently, defendants are not even allowed to talk at these hearings, or when they try, they get yelled at (Civil Rights Corps provided plenty of examples in its catalogue of videos of the hearings.)

"Either no one is speaking for them and the points on their behalf aren't being made, or, they're making points that are not relevant to the bail proceeding but could be incriminating," said Bunin. "They're just not prepared to do anything that will help themselves in that situation."

If Commissioners Court approves the blueprint for the reform at its next meeting, it's set to go into effect by July 1, the same date a new objective risk assessment tool goes into effect that's intended to help magistrates decide who is eligible for a personal bond and doesn't pose a flight risk. The county had asked Judge Rosenthal to put the bail suit on hold to wait and see how these reforms work, but Rosenthal said no, dealing the county a major blow and clearing the way for the preliminary injunction hearing.

If the county wins, it still isn't over, either. Karakatsanis of Civil Rights Corps said they are prepared to take the county's bail system all the way to trial.

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