Criminal Justice

'Scathing' ruling by Houston federal judge finds Harris County's cash bail system unconstitutional

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Gavel and cash.

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In what the Houston Chronicle called “a scathing denouncement,” a federal judge ruled Friday that the cash bail system used in Harris County, Texas, is unconstitutional because it’s fundamentally unfair to the poor.

The New York Times and the Houston Press also had the story.

Chief U.S. District Judge Lee H. Rosenthal of the Southern District of Texas ruled that the system in Harris County—which contains Houston, America’s fourth largest city by population—violates the due process and equal protection clauses of the 14th Amendment. By relying on cash bail, she wrote, the system permits offenders their freedom according to what they can afford, rather than the seriousness of their crimes or their flight risk.

In her 193-page ruling, Judge Rosenthal ordered Harris County authorities to start releasing indigent misdemeanor defendants pending trial starting May 15. She also granted class action status to the case, covering all misdemeanants in Harris County.

The lawsuit was filed by the Texas Fair Defense Project, Civil Rights Corps and the law firm of Susman Godfrey on behalf of Maranda Odonnell, a single mother held for two days in May 2016 on a charge of driving with a suspended license because she couldn’t afford the $2,500 bail. Two other lead plaintiffs were added later.

See also: ABA urges 11th Circuit to strike down bail schedules as unconstitutional

Rosenthal cited a report showing fewer than 10 percent of people facing the more serious categories of misdemeanor in Harris County were released on unsecured personal bonds. She also cited more than 2,300 hours of video footage from misdemeanor probable cause hearings. One she picked out as “illustrative” showed that a hearing officer wrongly calculated a defendant’s criminal history and that defendant later pleaded guilty to get out of jail. Another showed a hearing officer saying he was glad the defendant was going back to jail.

That and other evidence suggests the county had been using financial bail as preventative detention, she said, rather than for its stated purpose of ensuring the defendant’s appearance at trial.

Harris County had been attempting to reform its bail system prior to the lawsuit, the Chronicle notes, and several officials hailed the ruling. The county’s chief prosecutor, District Attorney Kim Ogg promised full compliance, calling it “a watershed moment.” Sheriff Ed Gonzalez said his office would immediately begin to implement the order.

To represent 15 county criminal court judges who oppose the lawsuit, the state has hired appellate attorney Charles Cooper of Cooper & Kirk in Washington, D.C. Cooper—whose name has been floated as a possible solicitor general in Donald Trump’s administration—will advise the judges on whether to appeal.

As Rosenthal noted, the underlying issue of financial bail has come up repeatedly in courts nationwide. That’s partly thanks to activism from legal nonprofits Equal Justice Under Law and Civil Rights Corps, both of which involved attorney Alec Karakatsanis. Litigation against smaller municipalities has largely been settled, but lawsuits on the issue are pending in San Francisco and Sacramento, California.

“It’s my hope this decision and decisions like it will eradicate the notion of wealth-based detention from our legal system,” Karakatsanis, of Civil Rights Corps, told the Chronicle.

See also: Court systems rethink the use of financial bail, which some say penalizes the poor

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