ODonnell Consent Decree Will Harm Criminal Justice In Texas

By Randy Adler | December 15, 2019, 8:02 PM EST

Randy Adler
Randy Adler
Maranda ODonnell had lost her driver's license and auto insurance because of previous convictions involving driving under the influence of controlled substances. After yet another arrest, her lawyers argued that she was unlawfully denied the right to bail because she was unable to pay the amount prescribed by the bail schedule entered by the misdemeanor judges of county criminal court in Harris County, Texas.

Against this backdrop, the case of ODonnell v. Harris County unfolded and in the process, has became one of the most closely watched cases in the nation as it slowly moved its way through the United States District Court for the Southern District of Texas over the past three-plus years.

On Nov. 21 of this year, the trial court executed a consent decree documenting a settlement entered into by the parties.

The disposition of the case, which was viewed by many as something of a referendum on the ongoing battle between the legal right to bail and bail reform in our country, does little to resolve the argument and instead offers a grim preview of what lies ahead.

A working criminal justice system is based upon accountability. The ODonnell settlement, which applies to misdemeanor cases, throws this concept out the door. When a defendant is arrested, he or she must answer the charges. The defendant is released from jail preconviction with assurances that they will return whenever demanded by the court. If the defendant misses court, the bond is forfeited.

The case will then be put on hold awaiting the defendant's return to court. The delay may be a few days, a few weeks, or even months or years. In a few rare cases the defendant may never return. The purpose of bail is to assure that the defendant will return for court.

The ODonnell consent decree will cause a fundamental deterioration of the Texas criminal justice system in ways that are already being felt. This past January, as part of settlement negotiations, Criminal Court Local Rule 9.1 was implemented. It basically ordered the release of at least 85% of all misdemeanor defendants without bail and without seeing a magistrate.

Since that time, we have seen defendants failing to appear and not being held accountable because the settlement allows them to miss court without penalty. Cases are being put on hold awaiting a defendant's return, only to have a new personal recognizance, or PR, bond granted and a new hearing date set — followed by a new failure to appear. This cycle has seen itself repeated innumerable times, with defendants in some cases being granted seven or eight PR bonds.

The settlement also calls for a study to be conducted by Harris County to determine why defendants fail to appear for court, while also requiring it to implement and fund its recommendations. For example, if the study determines that defendants miss court because they need a phone, transportation or childcare, the county has agreed to provide these services for free to the defendants at taxpayer expense.

The criminal justice system recognizes that justice delayed is often justice denied. While defendants are not being punished for failing to appear, victims are not being afforded the same luxury. If a victim fails to appear to testify against a defendant, a case is in danger of being dismissed.

Since the implementation of Rule 9.1, the large number of defendants who never see a magistrate has resulted in bizarre multiple releases. Generally, these individuals would not be authorized to be freed if their criminal history or past failures to appear were subject to actual scrutiny.

A good example of this is the case of Alex Guajardo. In May of this year, the Pasadena, Texas, man was arrested on a charge of driving while intoxicated — his second such arrest — and was released on a PR bond. On July 31, he was arrested again, this time for assaulting his pregnant wife, Caitlynne. A day later, the trial court entered a protective order for Caitlynne and released Guajardo on another PR bond.

Three days after that, Guajardo was arrested once more — on charges of capital murder for killing Caitlynne and her unborn child. Investigators said he had allegedly stabbed her 20 times across her body. Guajardo reported to investigators that he intentionally stabbed his wife's belly to make sure that if she lived no one else could raise his child.

Guajardo was denied bond for the charge of capital murder. But a short time later, a general order bond was entered in the case alleging he assaulted Cailtynne, as well as a second general order bond for his DWI charge. The shocking results? If not for the small matter of the capital murder charge, Guajardo would have been released yet again. This case raises the question: Who exactly is looking after the victims?

Problems in Harris County will surely continue to worsen. The number of cases pending before each court are increasing, which is logical given the circumstances. As cases have more failures to appear and are being put on hold, the system is slowing down. However, the county continues to arrest on average the same number of people annually.

As the backlog of pending cases increases, the criminal justice system will be forced to discount punishment and instead resort to some sort of slap on the wrist in order to get cases resolved. This will only work for a time. Eventually, the queue of cases will grow out of control and defendants will realize that they will not be punished for failing to appear. At this point the criminal justice system will begin to deteriorate and finally shut down.

This is what we have to look forward to. Over the coming days, weeks and months, much will be said about the ODonnell settlement. The plaintiffs will argue that the settlement should be used as a blueprint across the United States. Opponents will argue that the settlement violates Texas state law and Texas constitutional law, and does much damage to the Texas criminal justice system. Every county or state may be approached to consider whether to follow this model. The Texas Office of Court Administration already has rejected this model and opposes its use in any other county in the state.

If Harris County's criminal justice system does collapse, the activists who advocated for it will be long gone from the scene. Thereafter, the heavy lifting that will be required to repair the system will be left to law enforcement, the district attorney's office and the private sector.

It is truly unfortunate that the last word in ODonnell v. Harris County is a consent decree that will do far more harm than good. The consent decree is simply a settlement agreement and it grants relief that the trial court could never have granted in a trial on the merits. While supporters claim it will increase public safety in Harris County, those who opposed it have concluded that it is already doing the opposite. For all the bluster and rhetoric that was put forth during the length of the proceedings, the end result is a costly new system — not required by the constitution — that will not serve the public's interests.

Randy Adler serves as a member of the the legislative committee for the Professional Bondsmen of Texas and has specialized in bail law for 42 years, practicing in Dallas.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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