Appeals court largely upholds ruling against Harris County bail practices, reins back orders

A federal appellate court on Wednesday upheld findings that Harris County’s bail practices unconstitutionally discriminate against poor misdemeanor defendants, but it limited a lower court’s decision on how to address the problem.

After an October hearing held by three judges of the 5th U.S. Circuit Court of Appeals, the conservative-leaning court issued an opinion stating that Texas’ most populous county sets bail in a way that keeps people in jail — often until their cases are resolved days or weeks later — simply because they are too poor to pay their bail bonds.

But the court also asked U.S. District Judge Lee Rosenthal to rein in her April ruling that ordered the Harris County sheriff to release almost all poor misdemeanor defendants from jail within 24 hours of arrest at no cost, regardless of their court-set bond amount.

In the Wednesday opinion, Judge Edith Brown Clement depicted an example of two misdemeanor arrestees with identical charges and criminal backgrounds but different financial abilities. Clement said that in applying the county’s current practice, both arrestees would get the same bail amount. The poor arrestee would sit in the jail while the one with cash would walk out.

“As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration,” she wrote. “The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart.”

Both sides celebrated the ruling. Lawyers for the indigent plaintiffs — poor people who were arrested in Harris County on suspicion of misdemeanor charges — and other local officials highlighted the fact that the conservative court recognized the county practices violated equal protection rights.

“With this decision, the conservative 5th Circuit is telling Harris County that it’s unconstitutional to have two justice systems: one for the rich and one for the poor,” Harris County Commissioner and former state senator Rodney Ellis said in a statement.

Ellis noted that the county has already spent more than $5 million defending its bail system and said the ruling indicated it was time for county judges and other officials to settle the lawsuit and enact meaningful reforms.

But the ruling wasn’t a total win for the plaintiffs. The appellate court still said Rosenthal’s ruling was "overbroad" and asked her to narrow some of the orders against the county.

Perhaps of most significance, the appellate court pushed back on Rosenthal’s order for the sheriff to release at no cost all misdemeanor defendants who claim they can’t afford their bond within 24 hours of arrest, regardless of whether they’ve had their bail reviewed or set at a higher cost. The appellate judges appeared suspicious about Rosenthal’s time limit in their hearing and said Wednesday that it was too strict.

In sending the case back to Rosenthal for a modified ruling, the higher court suggested an injunction that demands that poor defendants who claim they can’t afford their bail be entitled to a hearing within 48 hours of arrest where they can argue for a lower or no-cost bond.

If a judicial officer declines to lower the bond at this hearing, he or she would have to put the reason for their decision in writing, and the arrestee would then get a formal bail review hearing before a judge. If, after those 48 hours, there are no records showing an individualized bail review process took place, the sheriff could release the defendant at no cost.

‘The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention,” Clement wrote.

Robert Soard with the the Harris County Attorney’s Office said the county was pleased the appellate court reaffirmed the responsibility of judicial officers in determining bail and conditions of release.

“The Fifth Circuit agreed that money bail could be used after an assessment of risk in accordance with Texas law,” he said in a statement.

The circuit opinion also removed the Harris County sheriff from the lawsuit, who was previously one of the defendants. The county appealed Rosenthal’s decision to include both the sheriff and the county judges, but the circuit court didn’t bite on the judges.

The county judges, unlike the sheriff, can set bail policies consistent with state law, and yet they participated in an “unwritten, countywide process for setting bail that violated both state law and the Constitution,” Clement wrote.

Alec Karakatsanis, a lawyer for the indigent plaintiffs in the years-long lawsuit, said in a statement after the ruling that his team is evaluating next steps for helping the county “craft a system that does not violate the Constitution and devastate tens of thousands of human beings and their families every year.”

‘The 5th Circuit has strongly reaffirmed the central point of this case: Harris County's cash bail system is unconstitutional,” he said.

Soard said the county has been working to improve the criminal justice system and remains committed to a settlement that increases the amount of people eligible for release at no cost while still regarding victims' rights and public safety.

“We are encouraged the Fifth Circuit’s proposed injunction provides a framework for settlement,” he said.

The case will now go back to Rosenthal for her to modify the ruling. In the meantime, Rosenthal’s original ruling will stand.