Despite mounting public pressure to settle the lawsuit, Harris County Commissioners Court voted on Tuesday to allow the county to appeal a federal judge’s scathing ruling that found its current bail system unconstitutional. And County Attorney Vince Ryan says he is prepared to take this case to the U.S. Supreme Court if necessary.
Chief U.S. District Judge Lee H. Rosenthal recently ruled that Harris County’s misdemeanor bail system violates poor people’s constitutional rights to equal protection and due process since defendants with money are able to bail out within hours of arrest while the poor must languish in jail before trial. Rosenthal granted a preliminary injunction against the county, blocking the current misdemeanor bail system and ordering all indigent misdemeanor defendants be released on a personal bond within 24 hours of arrest, unless they are subject to another hold.
On Tuesday, however, the Harris County Attorney's Office and its army of private attorneys filed an emergency motion asking to put these sweeping changes on hold while their appeal of Rosenthal's ruling in the U.S. Fifth Circuit of Appeals is pending. They claim that Rosenthal is the one who’s got it all wrong.
They claim that her order is not even legal. They claim it has stripped county judges of their judicial discretion to decide who gets to stay in jail before trial because the arrestees might be a public safety threat — despite the fact that preventative detention is illegal for misdemeanors in Texas. And despite the fact that making people pay money to get out of jail "does not make people safer," said Judge Darrell Jordan, who has sided with the plaintiffs and who already abides by Rosenthal’s order.
“We’re moving toward a system where indigent folks will not be held in jail because they can’t afford to pay, but we still need to give some discretion to judges to hold people who are truly dangerous,” said First Assistant Robert Soard. “Now, we can debate whether someone is dangerous or not, but certainly the judges feel that there are people who should remain in jail because they are a danger to the community.”
In spite of Judge Rosenthal’s 193-page ruling, Soard and County Attorney Ryan held fast to the county’s belief that the current bail system is constitutional — yet acknowledged that some poor people’s constitutional rights are violated “occasionally.” Ryan perplexingly compared this to police officers’ violating people’s rights on the street occasionally, which he said he reads about in the newspaper every day. “But does that mean you’ve got to change every system and every uniformed police officer? Of course not,” he said.
According to Judge Rosenthal, however, the constitutional violations heaped on poor people in Harris County every day do require immediate changes to the whole system.
In Harris County, 40 percent of people charged with misdemeanors remain incarcerated until their cases are completed. From 2015 through January 2017, only roughly 9 percent were given personal bonds, and bail hearing officers ignored Harris County Pretrial Services recommendations to release folks on personal bonds 67 percent of the time. “Any one individual kept in jail one minute longer than they should, that is an injustice,” Ryan conceded. “But we live in an imperfect world. We live in an imperfect criminal justice system.”
Every day, an estimated 100 people remain in jail solely because they cannot afford bail.
In light of that data and dozens of hours of video footage — which showed hearing officers routinely denying personal bonds to people and instead sticking to a bail schedule — Judge Rosenthal concluded the hearing officers violate the Constitution. The evidence, she said, upheld allegations that they fail to consider people’s ability to pay, as the Constitution requires. Rosenthal applauded the county for moving forward with some reforms — which the county claims will resolve all of the plaintiffs’ concerns. But Rosenthal disagreed.
Under the system Rosenthal ordered, all misdemeanor arrestees must fill out a financial affidavit after their arrests. Their bail cannot be set higher than what they can afford to pay in the next 24 hours, even if that amount is zero. Otherwise, Rosenthal explained, unattainable bail amounts to a de facto detention order, which is illegal for misdemeanors in Texas. If a hearing officer has not determined whether there is probable cause for a person's arrest within 24 hours, then the sheriff is required to release that person on a personal bond. This is not new: It’s already a law in Texas, one that Rosenthal estimated Harris County violated 10,000 times over the past two years.
Finally, if during the probable cause hearing the hearing officer fails to follow the above rules for indigent defendants, then again, the sheriff must go ahead and release the defendant on a personal bond. Any provisions that the hearing officer put in place in the interest of public safety — such as ankle monitors, ignition locks or protective orders — will remain.
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"We're disappointed in the county and judges' decision to appeal Judge Rosenthal's thorough and comprehensive decision condemning Harris County's pretrial detention system," the plaintiffs—Civil Rights Corps, Texas Fair Defense Project and Houston law firm Susman Godrey, which all work pro bono, said in a statement. "But we are confident that any judge who reviews it will uphold her ruling."
Ryan spent a significant portion of time Tuesday saying that he believes Rosenthal’s ruling is beyond the Constitution. He said it's because the sheriff does not have judicial authority to determine people are indigent based on the affidavit and release them on personal bonds. Which is a curious position to take, given, as several attorneys the Houston Press spoke with, including Chief Public Defender Alex Bunin, noted: This authority already exists in Texas law. "The bigger problem is the logistics for the sheriff — I don't think it's a legal issue," Bunin said.
Harris County Commissioner Rodney Ellis was the lone commissioner to vote against allowing the County Attorney's Office to hire private attorneys to appeal Rosenthal's ruling. He said that Vince Ryan's claim that the bail lawsuit has actually "slowed down reforms" was among the "strangest comments I have ever heard."
"It's pretty hard to defend the indefensible," he said, "but sometimes good people stretch their imagination and find a creative way to do it."