Criminal Justice

5th Circuit stays judge's ruling requiring automatic release of indigent misdemeanor suspects

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A federal appeals court on Tuesday stayed a portion of a federal judge’s ruling that required the automatic release of misdemeanor defendants in Harris County, Texas, if they were unable to pay bail.

The 2-1 decision by the New Orleans-based 5th U.S. Circuit Court of Appeals left in place another part of an order by U.S. District Judge Lee Rosenthal of Houston that requires an individualized hearing to set bail within 48 hours. But the remedy for violating the 48-hour requirement should not be immediate release, the appeals court said. The Houston Chronicle and Houston Public Media have coverage.

Fourteen of the county’s 16 judges had sought the stay, arguing that Rosenthal’s requirement for automatic release violates the 5th Circuit’s earlier decision in the case. The 5th Circuit ruled in February that a bail system that mostly relies on set amounts is unconstitutional, and an individualized assessment is required.

Rosenthal’s order, imposed after the February appellate decision, had required the release of misdemeanor arrestees who aren’t subject to a hold—such as a detainer by immigration authorities or an outstanding warrant—if certain conditions were met. One condition is that the defendants would have been released if they had posted bail. The second is that they signed affidavits asserting an inability to pay.

The 5th Circuit overturned that automatic release requirement, along with Rosenthal’s requirement for the release of defendants who don’t get a bail hearing in 48 hours.

The 5th Circuit said Rosenthal had ordered “release of an indigent arrestee with no strings attached and before an opportunity for the county to provide the strings,” circumventing the purpose of bail and violating its original decision. “Secured bail was not eliminated for any category of indigent arrestees, no matter how narrow,” the appeals court said.

The 5th Circuit also said the remedy for failing to set bail within 48 hours should not be the release of the defendant. Instead, the 5th Circuit noted it had crafted a suggested model injunction in its earlier opinion that called for weekly reports of missed 48-hour deadlines and notification to defense counsel or the defendant’s next of kin. A pattern of delays might warrant federal court relief, the court had said in the past opinion.

In the new opinion, the appeals court said anything broader than the earlier suggested remedy violates any reasonable reading of its mandate.

A dissenting judge would have upheld Rosenthal’s release requirements.

The ABA had filed an amicus brief before the February decision that had urged the 5th Circuit to hold that the Harris County system is unconstitutional because it effectively conditions freedom on the defendant’s ability to pay.

The American Bail Coalition applauded the new decision. “The issue in Harris County was not the wealth-based discrimination per se, but instead it was the idea that wealth-based discrimination without adequate due process was the problem,” the coalition said in a press release.

Harris County Commissioner Rodney Ellis expressed disappointment at the ruling in a news release. “Time spent behind bars can cause significant harm to defendants who may lose their jobs or be unable to care for their families simply because they cannot afford bail, underscoring the real-world impact of a two-tiered justice system,” he said.

The case is ODonnell v. Harris County.

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