The request stems from Russell v. Harris County, a federal lawsuit filed in 2019 over the constitutionality of felony bail practices. The plaintiffs are represented by attorneys with the Civil Rights Corps, including founder Alec Karakatsanis and Elizabeth Rossi, who have filed federal lawsuits on state bail standards in other Texas counties and across the country in a quest to end cash bail and pretrial detentions.
In a motion for summary judgment filed with Chief U.S. District Court Judge Lee H. Rosenthal last week, the attorneys argued that current bail-setting procedures keep people in the county jail “solely because they cannot afford to pay money bail.”
Under the Texas Code of Criminal Procedure, within 48 hours of arrest, suspects must be brought before a magistrate either in person or through videoconference for an individualized bail hearing. Magistrates are required to consider a defendant’s criminal history, the risk to public safety if released, and ability to pay bond. The district criminal court judges review bail orders and may either reduce or increase the amounts required for release, and on request from either defense attorneys or prosecutors may hold additional hearings to reconsider a defendant’s bail.
Records obtained earlier this year by The Texan indicate that the magistrates conducting bail hearings are selected by a panel of nine elected criminal court judges.
Following public outcry over lenient bail policies in Harris County that many observers associate with the county’s rise in crime beginning in 2019, the Texas legislature passed Senate Bill (SB) 6 last year prohibiting the release of certain violent or repeat suspects on personal recognizance (PR) bonds. The legislation also requires additional training for judges and magistrates and created an online public safety report to provide a more robust criminal history.
Russell’s attorneys now say these bond hearings are insufficient and complain that SB 6 requirements are further slowing down the court system. They argue that every suspect should have a full “evidentiary and adversarial” bail bond hearing with a judge prior to being detained, but they also assert that defense attorneys do not have sufficient time to prepare for such hearings within 48 hours.
Unless the county can hold such hearings immediately, plaintiffs assert that the county should not detain suspects with a cash bail system and have asked the judge to enjoin the sheriff and the county.
Along with other arguments opposing pretrial incarceration, the motion also cites overcrowding and dangerous conditions at the Harris County jail, blaming the issue on SB 6.
Last year, however, months before the implementation of SB 6 on January 1, 2022, the Harris County Deputies’ Organization sued the county in federal court for not providing sufficient resources to the jail and creating dangerous conditions for workers as well as inmates. Not only have multiple inmates died in custody, but in 2021, an inmate allegedly brutally assaulted a female guard within the confines of the jail.
The Russell request is only the latest volley in a years-long effort to dismantle the criminal justice system in Harris County and across the nation. Karakatsanis describes all incarcerations for criminal activity, whether pretrial or post-conviction, as “human caging.” He also claims that “over the course of the last hundred years, police have systematically organized to prevent progressive social change” and blames crime on social issues such as “toxic masculinity.”
In March 2020, his team filed an emergency motion in Russell asking Rosenthal to order either immediate hearings or immediate release of inmates in the jail due to COVID-19 concerns. This happened at the same time Harris County Judge Lina Hidalgo planned to issue emergency orders to release most inmates.
Although not originally a party to the case, Texas Attorney General Ken Paxton obtained intervenor status in the suit and argued against the motion. Days later, Gov. Greg Abbott issued executive orders prohibiting the release of violent suspects, and Rosenthal denied the request “without prejudice.”
Karakatsanis and Rossi also represented plaintiffs in the ODonnell v Harris County federal lawsuit over misdemeanor bail reform. Although partially upheld in the US. Fifth Circuit Court of Appeals, after Democrats won control of county government in 2018, they quickly moved to settle with a controversial consent decree that now largely governs misdemeanor bail in the county.
Russell plaintiffs have heavily relied on ODonnell to make their case against cash bail for felony offenders. But earlier this year, in an unusual en banc hearing regarding a similar case in Dallas County also filed by Karakatsanis, the Fifth Circuit undermined the legal foundation for the ODonnell decision. It now seems poised to overturn the entire case sometime in the coming months based on the “Younger Abstention Doctrine” which prohibits federal courts from intervening in the state criminal process.
Bail and pretrial release policies have been top news stories for the past few years in the Houston region, and even suspects charged with Capital Murder have been released on bond amounts as little as $9,000. In a recent high-profile example, two men charged in the August murder of off-duty Deputy Constable Omar Ursin were out on bond for murder and capital murder and wearing ankle monitors at the time.
Although reformers like Karakatsanis have made inroads in recent years, the University of Houston this week removed self-described “prison abolitionist” Alan Detlaff from his role as dean of the university’s Graduate School of Social Work.
As of December 14, there were more than 10,000 inmates held in the Harris County jail with 60 percent facing charges of “violent” or “serious” crimes. Under the terms of ODonnell, suspects accused of low-level crimes are not detained.
Harris County and Sheriff Ed Gonzalez are the named defendants in the Russell lawsuit. Gonzalez is represented by attorney Murray Fogler of the Arnold Foundation, a philanthropic organization founded by Texas billionaire John Arnold that advocates for ending cash bail and most pretrial incarcerations.
Rosenthal’s court has scheduled hearings to consider the new motion this March, but subsequent orders could be appealed by Paxton to the Fifth Circuit for further consideration.
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Holly Hansen
Holly Hansen is a regional reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.
