A lawsuit challenging the cash bail system in Harris County, Texas, is at an unusual crossroads after 14 Republican municipal court judges named as defendants in the suit — all of whom opposed reforms — were voted out of office this month, a move that likely spells big changes for alleged offenders stuck behind bars because they can’t pay their way out.
The changing of the guard has led some observers to expect a settlement in the proposed class action brought by Maranda Lynn ODonnell in May 2016. The federal court suit alleges that the county’s bail practices wrongly keep poor defendants, including those accused of misdemeanor and nonviolent offenses, in jail if they cannot afford to post bail.
ODonnell, a 22-year-old mother of a 4-year-old girl, was jailed because she couldn’t afford to pay $2,500 bail after her arrest for allegedly driving without a valid license. Other defendants named in the suit include the county and five magistrate judges whose jobs entail setting bond.
The lawsuit argues the practice in Harris County of requiring a cash bail to be released from custody without considering an arrestee’s ability to pay is unconstitutional. Misdemeanor judges and hearing officers are tasked with setting the amount and use what the lawsuit describes as a “generic, offense-based bail schedule” as a guide.
Mark Jones, a political science professor at Rice University, told Law360 he believes that a settlement is the most likely outcome considering a majority of the Harris County Commissioners Court — the body that voted to fund defending the lawsuit — and all of newly elected misdemeanor court judges are in favor of ending the litigation and reforming the system.
Instead of imposing onerous cash bails, those judges could opt to drastically lower the amounts or simply release people based on a promise to appear in court down the road.
“The resistance is going to fade away now that every single one of those [defendants] will be leaving office in January,” Jones said. “Pursuing it any further is going to be punitive.”
Chief U.S. District Judge Lee Rosenthal held a hearing in ODonnell’s case exactly one week after the Nov. 6 election that saw Democrats sweep the judicial seats in Harris County, which includes Houston and the area around it. According to court records, the parties agreed to “attempt a resolution” of the lawsuit and are instructed to let the court know if a mediator should be appointed. The next hearing has been set for Feb. 1.
Law firm Susman Godfrey LLP had been doing most of the legal work on behalf of the challengers pro bono, according to Jones.
“They were happy to do it pro bono when they were fighting the good fight, but now that the good guys and gals are in office, I suspect Susman Godfrey’s advice will be, ‘Let’s just end this,’ now that, effectively, [proponents] of the old school system have all been swept out of office,” Jones said.
An attorney with the firm did not respond to a request for comment.
Judge Rosenthal entered an injunction in April 2017 ordering the release of misdemeanor defendants on personal bonds within 24 hours of their signing an affidavit saying they can’t afford cash bail. That ruling was reined in somewhat by the Fifth Circuit in June. In a decision limited to the injunction, the panel held the county must promptly release — but not necessarily within 24 hours — defendants who are determined not to be a threat based on a risk assessment tool.
The lawsuit has already cost county taxpayers $8.34 million as of Nov. 13, according to Harris County Commissioner for Precinct 1 Rodney Ellis, an outspoken opponent of the bail system who is now pushing for a settlement.
“Rather than continue to defend the indefensible, I remain committed to settling this litigation and advancing a system of justice that upholds the rights of all people and keeps our communities safe,” he said. “However, the next steps will largely be dependent on the incoming judges, many of whom ran on a reform platform.”
Ellis called the results of the Nov. 6 election a “mandate” that “Harris County must bring an end to its unfair and unjust cash bail system that makes freedom and liberty contingent upon wealth.”
During the litigation, the judges targeted as defendants framed the suit as an improper attempt to have a federal court intervene in a state judicial system. They have also painted ODonnell’s claims as “a reworded excessive bail argument that has been resoundingly, and repeatedly, rejected.”
“The cases interpreting the excessive bail provision of the U.S. Constitution have uniformly held that bail is not excessive merely because a defendant cannot pay it,” the judges said in a November 2016 brief.
An attorney for the defendants in ODonnell’s suit, including the county, judges and local sheriff’s office, did not return a request for comment.
Officials with the Harris County Attorney’s Office, which was already looking at ways to reform the system when the lawsuit was filed, have said publicly that any settlement needs to take into account protection of the community and the rights of the victims of the alleged crimes, while also maintaining the independence of the judiciary.
Jay Jenkins, a policy attorney with the nonprofit group Texas Criminal Justice Coalition, credits an education campaign with sparking public interest in reforming the system and doesn’t put much stock in the idea that straight-ticket voting led to the election results.
“This is something we’ve worked hard to put on everyone’s radar,” he said, noting a local newspaper called for a complete sweep of the misdemeanor court judges based on their handling of the lawsuit. “It was not completely out of the blue.”
And while this suit only named misdemeanor court judges as defendants, Jenkins said felony district court judges aren’t out of the woods, either.
He pointed to a September ruling from U.S. District Judge David C. Godbey certifying a class of plaintiffs in a lawsuit challenging Dallas County’s cash bail system as unconstitutional. Judge Godbey certified a broad class that includes “all arrestees who are or will be detained in Dallas County custody because they are unable to pay a secured financial condition of release,” according to the opinion.
Reforming the bail system in a way that would make it constitutional could largely track the injunction Judge Rosenthal issued in the Harris County case, Jenkins said.
“Policy-wise, any settlement is going to have to really focus not on technical aspects or specific risk-assessment calculations,” he said. “But our first priority with the settlement is that more people need to be released who cannot make bail.”
–Editing by Philip Shea and Jill Coffey.