In a historic decision, a federal judge has found that Harris County's bail system infringes on the rights of poor people charged with non-violent offenses, granting a preliminary injunction against the county and forcing immediate changes on the county's bail system.
U.S. District Judge Lee H. Rosenthal issued her decision in a sweeping 193-page ruling, finding that the plaintiffs had a high chance of proving at trial that the county's bail system is unconstitutional. The plaintiffs—Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godfrey, representing all indigent misdemeanor defendants—had charged that Harris County's bail system punishes the poor and favors the wealthy because bail hearing officers fail to consider people's ability to pay bail, as the Constitution requires. Instead, plaintiffs claimed, they set bail based on an arbitrary bail schedule and often ignored recommendations to release non-violent people on personal bonds.
"Misdemeanor arrestees are often...people 'living on the edge at the point in their lives that intersects with getting involved in an arrest,'" Judge Rosenthal wrote in closing. "In Harris County, they may be homeless. They may lack family, friends, and [people in their lives willing to bail them out]. Some are, no doubt, of bad reputation and present a risk of nonappearance or of new criminal activity. But they are not without constitutional rights to due process and the equal protection of the law."
Here's how the new system will work under the preliminary injunction: Rosenthal has ordered that Harris County will be required to interview all misdemeanor arrestees about their financial conditions at the Houston jail and Harris County Jail. At the very first probable cause and bail hearing, if the person is eligible for release (i.e., has no other holds, isn’t charged with domestic violence or needing to undergo a mental competency exam), they are required to be released on unsecured money bond if they haven’t already bailed out the normal way. The difference is, normally to bail out, people have to pay up front; now, they’ll only have to pay if they don’t show up for court.
Judges can also order supervision tools such as GPS monitoring or drug testing if necessary. If the first hearing doesn’t happen within 24 hours of arrest, then the sheriff is required to release people from jail on a personal bond without any upfront payment.
“It’s very encouraging that the courts are starting to scrutinize these practices, which for so long have caused so much harm to impoverished people but have escaped any real scrutiny,” said Alec Karakatsanis, the lead attorney for Civil Rights Corps. “I’m really encouraged by this ruling. It’s part of a larger movement going on around the country to give more scrutiny to practices that result in deprivation of basic human liberty.”
Rosenthal was faced with weighing Harris County's commendable promises to reform its bail system in future months against the harm that its current system does to people right now on a daily basis.
The county at various points asked Judge Rosenthal, unsuccessfully, to delay the lawsuit until the county could implement the reforms, such as hiring attorneys to represent people in bail hearings and to reform the bail schedule itself. And repeatedly, the county argued that misdemeanor defendants did not have the right to "affordable bail."
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But Rosenthal ultimately rejected that argument, saying that the county had other options to ensure people show up for court beyond setting money bail at an unattainable amount. For example, she wrote, there were other tools for pretrial supervision, such as ankle monitors. Or, the county could still use money bail—but only make people pay the money if they fail to show up for court, which is the whole incentive of bail to begin with.
"Under Texas law, Harris County magistrates — the Hearing Officers and County Judges — may weigh the state-law factors to arrive at a high amount of bail," Rosenthal wrote. "But they cannot, consistent with the federal Constitution, set that bail on a secured basis requiring up-front payment from indigent misdemeanor defendants otherwise eligible for release, thereby converting the inability to pay into an automatic order of detention without due process and in violation of equal protection."
Harris County Attorney's Office spokesman Robert Soard says the county is reviewing the order and has not yet decided whether it will appeal. The county has already hired an appellate lawyer, Charles "Chuck" Cooper—who had been Donald Trump's front runner for solicitor general before withdrawing his name. He will assist the county in deciding how to go forward.
Read our full analysis of the ruling here, with highlights of Rosenthal's most compelling findings.