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Fifth Circuit Judges Question Harris County's Bail System — and Prior Ruling

Civil Rights Corps, Texas Indigent Defense Project and Houston law firm Susman Godfrey sued Harris County in May 2016 over its bail system.
Civil Rights Corps, Texas Indigent Defense Project and Houston law firm Susman Godfrey sued Harris County in May 2016 over its bail system.
Photos by Marco Torres
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Arguing a case that could permanently change the money bail system in Harris County and beyond, civil rights attorneys squared off against county lawyers during oral arguments in the U.S. Fifth Circuit Court of Appeals, where the lawsuit accusing Harris County of detaining poor people just because they can't afford bail remains on appeal.

In April, U.S. Chief District Judge Lee H. Rosenthal ruled that Harris County's bail system violated poor misdemeanor defendants' rights to equal protection and due process because magistrates and judges had a systematic practice of failing to consider people's ability to pay when setting their bail, as the Constitution requires. Instead of making individualized decisions about bail, hearing officers stuck to a rigid bail schedule in about 90 percent of cases, Rosenthal found — meaning that, in Harris County, if you couldn't pay the amount on that schedule, the bail basically amounted to a pretrial detention order, which is illegal for misdemeanors in Texas. As a result, Rosenthal ordered that almost all misdemeanor arrestees be released within 24 hours on personal bonds if they could not afford bail.

The county, however, has maintained that there is no such thing as the constitutional right to "affordable bail," and that Rosenthal's ruling was of a "radical nature." The panel of three Fifth Circuit judges were not necessarily convinced, repeatedly raising serious concerns about Harris County's bail system — but they voiced serious concerns, too, about the scope of Judge Rosenthal's order and whether it went too far.

On Tuesday, the county's appellate attorney, Charles Cooper, spent most of his time arguing before the judges that Rosenthal did not even have the jurisdiction to issue such a sweeping class-action order that refashioned the county's bail system. Instead, Cooper argued, if a defendant has a problem with his bail amount, he should take it up with the county judge, and if he doesn't like the county judge's response to his outcry, he can file a writ of habeas corpus and take the complaint all the way to the Texas Court of Criminal Appeals. And then, after that, to federal court.

"The concern that I have here, it seems to me that you have a problem of a continual violation, as the court found, of the Eighth and Fourteenth Amendment," Judge Catharina Haynes said in response to Cooper. "Is a federal court powerless to remedy something that the county and state are apparently not remedying? The problem is," she continued, "you would simply never get to the federal courts on habeas in a case like this, because by the time you got through the state process, basically the time you would spend as a misdemeanor convict would be done. How can that really be a remedy?"

Apparently, in the county's eyes, it doesn't matter if the opportunity for a defendant to contest excessive bail isn't meaningful. It just has to exist. "The precedents require that the opportunity to advance this constitutional argument be available, and that that opportunity be genuine, and we would submit to you it is genuine," Cooper said.

Cooper also maintained that all the judges and hearing officers genuinely consider people's ability to pay when setting bail, contrary to Rosenthal's findings. He countered that Harris County Pretrial Services interviews all defendants after they are arrested and submits a written report of the defendants' answers to the bail hearing officers. Those hearings, which also include a determination of probable cause, last approximately 60 seconds— and both parties agree that defendants generally aren't allowed to talk.

"So you go by that form and whatever comes out is the determination as to whether there’s bail or not. They’re called hearing officers — is there a hearing?" Judge Eduardo Prado asked Cooper. "Or do they just look at the form and make a decision."

"No, no — there's a hearing," Cooper said. "The individual defendant is before the hearing officer at least by video."

"They can't speak," Judge Haynes said.

"Well, your honor, it’s certainly true that the effort by the defendant to speak is interrupted by the hearing officer out of concern that he will incriminate himself," Cooper said.

"What is a hearing if you’re not gonna listen?" Haynes shot back. "What are you hearing as a judge if no one is talking?"

Alec Karakatsanis, lead counsel for the Civil Rights Corps — which, along with the Texas Fair Defense Project and Houston law firm Susman Godfrey, sued the county in May 2016 — argued that Harris County's position Tuesday completely devalued the concept of the right to pretrial liberty.

Seminal case law has said that defendants should be released before trial by the least restrictive means — such as on no conditions, or, if they are a flight risk or public safety threat, with an ankle monitor — and that pretrial detention should be a "carefully limited exception." But in Harris County, according to Rosenthal's findings, 40 percent of misdemeanor defendants can't bail out and remain detained until their case is finished. If judges want to set bail that people can't afford, resulting in their pretrial detention, they can do that, Karakatsanis said — as long as they provide a legitimate explanation and go through a process. Harris County doesn't do that, the plaintiffs argued, which is why Rosenthal had to act.

Still, Haynes and Prado questioned whether Rosenthal's solution — requiring the release of all misdemeanor defendants within 24 hours of arrest if they can't pay bail, unless they are subject to other warrants or holds — just swapped one problem for another.

"Have we now gone too far to the other side, and there’s no discretion given to the judges, where before what we had was everybody gets locked up, and now what we have is everybody gets released?" Prado asked. "In neither system do you have a judge individually looking at each case and making an individual decision."

Haynes questioned why Rosenthal ordered that misdemeanor defendants be released within 24 hours rather than, say, 48 hours — "what's the magic of 24 hours?" she asked. Under Texas state law, hearings for probable cause are required to be held in 24 hours, but bail hearings aren't required for 48 hours. Plus, Haynes said she was "disturbed" by the fact that the sheriff is the one who is required to release people from custody within 24 hours on personal (or unsecured) bonds when judges have not signed off on it, calling the process "chaotic."

It seemed she and Prado hit on the county's chief criticisms of Rosenthal's order since it came down last spring — yet did so without letting the county off the hook for its draconian bail policies of the past couple decades.

The county has taken significant strides to change those policies, though — efforts that started before the lawsuit was filed. Criminal justice officials adopted a new risk assessment tool, used to objectively decide based on someone's history who is a flight or public safety risk. They gave the Harris County Public Defender's Office money to have attorneys present at all bail hearings so that an attorney could talk for the defendant. And judges stopped ordering blanket conditions — such as drug testing everyone — if the conditions were irrelevant to the individual. The county has argued that Rosenthal's ruling has hindered these reforms, and that it has been a failure. It has waved around statistics, at least in early July, saying that at that point 30 percent of people released on unsecured bonds by the sheriff were failing to appear in court — yet refused to provide underlying data to the Houston Press or even to the plaintiffs themselves so that the cases could be examined, sending both of our requests for the data to the Texas Attorney General's Office.

It is worth noting that about 90 percent of people released on unsecured bonds are not supervised at all — Harris County Pretrial Services director Kelvin Banks told us in August — despite the county's repeated concerns about defendants' purported public safety threats.

The Fifth Circuit is expected to issue a decision in the case in the coming weeks or months. If the county doesn't like the outcome, attorneys have indicated in the past that they are willing to fight the case to the Supreme Court.

Karakatsanis said he's confident that, despite the judges' concerns about Rosenthal's order, they will rule in favor of the plaintiffs.

"Every time throughout this case we've gone through the facts and gone through the arguments, it's really impossible for someone to justify the way Harris County's been operating the system," Karakatsanis told the Press. "It becomes clear to me every time we're in court: It's difficult to justify keeping people in jail just because they're poor."

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