Back on the week of April 5-11, the Forward Times ran a front page story announcing that the NAACP Legal Defense Fund (LDF) and Harris County Precinct One Commissioner Rodney Ellis had filed an amicus brief, in the United States District Court for the Southern District of Texas in support of a preliminary injunction to immediately halt Harris County’s practice of jailing people charged with misdemeanors solely because they are unable to pay bail.
We promised to keep our readers up-to-date on this issue and now we have a huge update to report that will impact many individuals across Harris County, especially those who are impacted the most – Black people, Latinos, poor people and disadvantaged residents.
This past Friday, in a historic ruling, Chief U.S. District Judge Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas, handed down a 193-page decision, finding that the Harris County money bail system is unconstitutional and ordered Harris County to stop keeping people, who have been arrested on misdemeanor charges, in jail because they cannot pay bail.
Judge Rosenthal highlighted statistics that revealed that 40 percent of the people who have been arrested on misdemeanor charges in Harris County had been arrested and jailed until their cases were resolved, and wrote in her ruling:
“Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.”
She also directly cited the LDF/Ellis amicus brief in her ruling, stating:
“An amicus filing by Harris County Commissioner Rodney Ellis and the NAACP Legal Defense and Educational Fund notes that African Americans make up 18 percent of Harris County’s adult population but 48 percent of the Harris County Jail’s adult population. A 2011 study found that in Harris County, 70 percent of white misdemeanor defendants obtain early pretrial release from detention, but only 52 percent of Latino misdemeanor defendants and 45 percent of African American misdemeanor defendants do so. The defendants did not dispute this data.”
Judge Rosenthal’s ruling was based on a pretrial hearing asking for a temporary injunction to halt the current bail system until the case can go to trial. As a result of the ruling, Harris County has until May 15th to change all of its processes concerning the jailing of people who have been charged with misdemeanors and can’t afford to pay the bail money, and Harris County must begin releasing those poor and indigent inmates on May 15, if they are found to have been held because of their inability to make bond while awaiting trial for their misdemeanor cases.
This is huge news for many Black, Latino, poor and disadvantaged Harris County residents, who have fallen victim to this law.
Commissioner Ellis responded to the judge’s decision.
“Harris County’s bail system is unconstitutionally discriminatory and morally indefensible – and we now have a federal court ruling telling us so,” said Commissioner Ellis. “It’s time for us to fix a broken justice system that favors the privileged and punishes the poor for being poor. We must stop investing countless tax dollars defending the indefensible and start advancing reforms that treat all people equally and fairly under the law. It will take us very little money to implement reforms and cost a heck of a lot to fight them.”
The LDF/Ellis amicus brief was filed in support of ODonnell v. Harris County, a lawsuit that seeks an immediate end to the practice of wealth-based detention of people charged with misdemeanors in Harris County and one in which it explained that Harris County’s bail structure constituted “a blatant and unlawful penalty for poverty” that is not only unconstitutional, but has had a disproportionately harmful effect on Black, poor and disadvantaged Harris County residents. Because Harris County bail determinations have been based on a predetermined schedule that does not account for ability to pay bail and does not offer a timely opportunity to address inability to pay bail, poor people charged with misdemeanors have been held in jail solely because they have been unable to pay bail.
“One’s punishment should fit their crime, not their bank account,” said Christina Swarns, Director of Litigation for LDF. “Harris County’s bail practices unlawfully create a cycle of poverty for those who cannot afford the cost of their freedom. When our justice system criminalizes poverty, we all pay.”
Harris County Attorney’s Office spokesman Robert Soard stated that the county is reviewing Judge Rosenthal’s order and has not yet decided whether it will appeal.
All indications are pointing to the fact that Harris County will continue to aggressively fight against the judge’s ruling, as well as the ODonnell v. Harris County lawsuit, which was filed in May 2016 on behalf of Maranda Lynn ODonnell. ODonnell spent more than two days in Harris County jail because she couldn’t afford to pay a $2,500 bond after being arrested on charges of driving with an invalid driver’s license.
To continue to fight against the lawsuit, the Harris County Attorney’s office asked Harris County Commissioners Court to approve the hiring of Charles “Chuck” Cooper, an appellate attorney who not so long ago had been Donald Trump’s front runner for solicitor general before withdrawing his name. Cooper is advising Harris County on how to move forward, although Commissioner Ellis, who has advocated for the County to settle the lawsuit, was vehemently against the hiring of Cooper to begin with, casting the only vote against his hiring at the April 11th Commissioners Court meeting.
The lawsuit is, however, still in the courts at this time. Others have joined in on the original lawsuit and that number may increase over time. Judge Rosenthal’s ruling serves as a severe blow to Harris County, and sends a strong message about the need to reform the bail system, which is a major part of the overall criminal justice system in Harris County.
Now, other Texas counties that have bail systems that mirror that in Harris County will probably find themselves facing future lawsuits as well. The Forward Times will continue to monitor this issue as it continues, as well as monitor the Texas Legislature during this current Legislative Session, particularly the House Criminal Jurisprudence Committee, to see if they will be able to effectively pass comprehensive bail reform legislation that will force the rest of the state of Texas to transform their current bail systems to do what is right and fair for all Texas residents.