Historic Bail Reform Deal Nears OK As Fresh Test May Loom

By Michelle Casady | November 3, 2019, 8:02 PM EST

A landmark settlement memorializing cash bail reforms in Harris County, Texas, appears to have a clear path to final approval — a move that could inspire other jurisdictions to take up similar changes but also open the door to a new round of litigation, those who have been following the 3-year-old lawsuit say.

After a final fairness hearing that packed a Houston courtroom on Oct. 28, where Chief U.S. District Court Judge Lee Rosenthal heard arguments both in favor of and against the consent decree — which allows indigent, misdemeanor, nonviolent offenders to be released from jail on a personal recognizance bond instead of a cash bond — approval of the deal seems all but certain.

Judge Rosenthal, who held the prior system was unconstitutional because it didn’t consider a defendant’s ability to pay, issued an order in September granting preliminary approval to the settlement agreement.

The deal follows a 2016 lawsuit brought by Maranda ODonnell, then a 22-year-old mother of a 4-year-old girl, against Harris County misdemeanor court judges and the county itself after she was jailed because she couldn’t afford to pay the $2,500 bail following her arrest for allegedly driving without a valid license. Misdemeanor judges and hearing officers are tasked with setting the bail amount and use what the lawsuit described as a “generic, offense-based bail schedule” as a guide.

There were no arguments put forth in briefing or at the hearing that would cause Judge Rosenthal to change course and deny approval, said Alex Bunin, Harris County’s chief public defender.

“I think her final order will look a lot like her preliminary order,” he said.

The proposed settlement, while narrow compared to the scope of other similar lawsuits challenging cash bail because it only applies to indigent misdemeanor defendants, can still have a big influence beyond Harris County, said Sandra Guerra Thompson, a professor at the University of Houston Law Center and director of its Criminal Justice Institute.

“It’s incredibly impactful because you have a ruling by a federal district court judge on the constitutional law of how the county is doing its pretrial justice determinations, and it was approved by the Fifth Circuit,” she said. “It puts other counties ... on notice that if you’re using the same kind of system as Harris, you’re also violating the law. Now they should understand that the status quo is not lawful.”

Thompson noted that another important aspect of the settlement, should it receive final approval, is that a monitor will be appointed to ensure compliance, and the county must also fund annual studies to gather data and “make sure the system is working properly.”

Judge Rosenthal — who, after an eight-day hearing, issued a 193-page ruling explaining her April 2017 preliminary injunction that ordered the release of indigent misdemeanor defendants on personal bonds within 24 hours — took the rare step of allowing nonparties to speak at the final fairness hearing.

In a docket entry, she noted she was opening the court for comments to ensure “there is a fair and full opportunity for the different views on the proposed settlement to be heard.”

Kevin Pennell of Pennell Law Firm PLLC, who represents the Professional Bondsmen of Harris County, was among those who spoke at Monday’s hearing and said he was grateful for Judge Rosenthal’s willingness to hear from other stakeholders not involved in the lawsuit.

“That was very unusual, but it was very much appreciated,” he said. “She clearly recognizes the issues in this case go beyond the parties involved.”

Pennell said he does see a path forward to challenge the federal consent decree but declined to discuss any specifics on the matter.

Still, he pointed to another lawsuit that’s pending in state district court in Harris County that challenges what’s referred to as “Local Rule 9.” That rule was promulgated by the defendant judges, the Harris County Sheriff, the county and the plaintiffs who brought this class action while the suit was ongoing. It effectively eliminated the bail schedule that was used as a basis for making bail determinations.

The Professional Bondsmen of Harris County, as amicus in the federal lawsuit, have argued that the consent decree now before Judge Rosenthal violates a Texas law that requires magistrates consider evidence presented by both the defendant and the district attorney’s office, and use discretion in setting bail.

“The new policy they’re attempting to embody in the consent decree says, ‘We’re going to release all misdemeanor defendants on a personal bond, with just a few exceptions,’” Pennell said. “But Texas law doesn’t allow you to do that.”

The plaintiffs who brought the lawsuit argued that judges were “blindly adhering” to a bail schedule that set out bond amounts for certain crimes, but Pennell said the consent decree “goes too far the other way.”

“Discretion means discretion,” he said. “It doesn’t mean there’s a policy.”

Adam Arthur Biggs, special litigation counsel for the attorney general’s office, urged the court during Monday’s hearing not to “substitute a blanket rule for discretion” in determining bond amounts.

“A blanket rule got us into this situation,” he argued.

Harris County District Attorney Kim Ogg, a Democrat who campaigned partially on the issue of bail reform, and initially supported the reforms proposed in this suit, told the court in August she was now opposed to the consent decree.

In a brief, Ogg argued there has been a 59% increase in the number of open cases on misdemeanor dockets since January 2018, which shows “people are not showing up to court.”

But Neal Manne of Susman Godfrey LLP, who represents ODonnell, countered that in court Monday, arguing what it really shows is that poor defendants are no longer being coerced into pleading guilty so they can go home.

Manne said Ogg and others had demonstrated an “insistence on political posturing without regard for the truth,” and had tried to undermine this agreement by “creating a false narrative” that misdemeanor defendants were dangerous and were not showing up to court.

“Unable to make their case based on evidence and data, they have regularly resorted to scare stories,” he said.

The district attorney’s office did not respond to a request for comment Thursday.

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--Editing by Rebecca Flanagan and Katherine Rautenberg.