Depending on a federal court judge’s approval, Harris County may be required to adopt both bail bond and court process policies with far-reaching criminal justice implications.
At a hearing in U.S. District Court in Houston last week, Judge Lee H. Rosenthal allowed select non-parties to testify on the potential impact of a lawsuit settlement narrowly approved by the Harris County Commissioners Court earlier this year.
While both supporters and opponents provided either written or oral testimony, those opposed to the settlement voiced support for bail bond reform in principle. Most also defended county efforts to improve the judicial process for misdemeanor defendants, but urged Judge Rosenthal to reconsider problematic details of the proposed consent decree.
In a 2016 lawsuit, ODonnell v. Harris County, plaintiffs alleged misdemeanor bond policies were unconstitutional and unfair to those unable to afford bond. Judge Rosenthal’s 193-page ruling concluded that the system was indeed unconstitutional, and she issued an injunction for the county to release misdemeanor suspects on unsecured personal bonds within 24 hours of arrest.
The county then adopted “Local Rule 9,” which specifies that secure money bail must not be required as a condition of pretrial release prior to determining a defendant’s ability to pay. The rule also states that with a few exceptions, all misdemeanor arrestees must be released on a personal bond as soon as practical after arrest.
In 2018, the Fifth Circuit Court of Appeals upheld Judge Rosenthal’s finding of an unconstitutional system but called her proposed remedies “overbroad.” The Fifth Circuit vacated Rosenthal’s “24-hour” injunction and remanded the case back for further revision.
But in the interim, the 2018 elections shifted both the commissioners court and the county’s 16 misdemeanor court judges to the control of Democrats. Rather than continuing to negotiate a solution as requested by the Fifth Circuit, Democrat county officials and judges crafted a new 51-page consent decree which county commissioners approved on a 3-2 party-line vote.
The details of that consent decree were the object of contention at last week’s federal court hearing.
The Devil in The Details
Those filing amicus briefs or statements of opposition included Harris County District Attorney Kim Ogg, a Democrat. In August, Ogg wrote that she supported reforms and Local Rule 9, but that the “proposed settlement seeks relief far beyond the scope of the original controversy.”
In addition to allowing the federal court to impose a legislative solution, Ogg says the bond-setting rules undermine the ability of the elected district attorney to recommend case-by-case pre-trial conditions that consider risk to victims and public safety.
Ogg also argues that misdemeanor hearings could be repeatedly postponed without regard to the impact on victims, witnesses, and other stakeholders.
Although the decree states that misdemeanor arrestees may reschedule regular court appearances “two times per case for any reason with no adverse consequences,” it does not limit the court’s discretion to reschedule.
Ogg also notes there is no requirement for judges to issue warrants for non-appearances.
Consequently, the D.A. said these rules give a judge “authority to waive a defendant’s appearance in perpetuity, contrary to Texas law.”
In her amicus brief, Ogg cites five Harris County cases in which judges have already applied these policies and which have had disastrous outcomes.
The most notable involves Alex Guajardo, who was repeatedly released on general order and personal bonds for DWI charges as well as a domestic violence assault charge. While out on bond, on August 3, 2019 Guajardo allegedly murdered his wife and her unborn child.
In lieu of testifying last week, Ogg provided a written statement testifying to the “operational reality” of how personal recognizance (PR) bonds are working in the county.
Although the settlement has not been finalized, Ogg says the county began implementing PR bonds “in earnest” on January 1, 2018.
“On that date, there were 18,890 open cases in Harris County’s sixteen misdemeanor courts. At the close of last week, there were 29,947 open cases, a 59 percent increase.” Ogg continued, “Given the thousands of misdemeanor cases my Administration has diverted pre-charge since January 1, 2017, the reason for the exponential increase in the county court dockets is clear.”
“Simply put, people are not showing up to court,” wrote Ogg.
Although Ogg says at times her office requests bond forfeiture for as many as 30 defendants at a court setting, it is “not uncommon” for none to have bonds forfeited or revoked.
Others testifying against the consent decree included representatives from the Houston Police Officers’ Union, the Texas Attorney General, and Crime Stoppers of Houston, as well as County Commissioner Steve Radack and Kevin Pennell for the Professional Bondsmen of Harris County.
Pennell defended the historic role of bondsmen in compelling defendants to appear in court.
Plaintiff attorney Neal Manne dismissed what he called scare stories, and noted that proceedings were part of a lawsuit, “not a community forum.”
Manne said the data demonstrating a 59 percent increase in open cases was based on an “arbitrary” time frame, but any documented rise would be because arrestees were no longer being “coerced” to plead guilty.
He also decried the role of “for-profit” bondsmen.
Along with other proponents of the consent decree, Manne also referred to a 2016 University of Pennsylvania study that found Harris County misdemeanor arrestees detained pre-trial were more likely to commit crimes in the future. The study claimed that pretrial detention caused 1,600 more felonies and 2,400 more misdemeanors in the county between 2008 and 2013.
Therefore, supporters of the consent decree argue these new policies will make the community safer.
Although a few states have moved to end cash bail, some former supporters have backtracked in response to the practical effects. New Jersey Assemblyman Bob Andrzejczak (D) called his state’s reformed policy “an absolute disaster,” and now the state’s legislature is considering a repeal.
Most of the Democrat presidential candidates support eliminating the cash bail system, although Kamala Harris, a former district attorney and California Attorney General, supports reforming rather than abolishing the system.
Judge Rosenthal has already given preliminary approval to the consent decree and is expected to announce final approval at any time, but she could alter some of the specifics. And with the change in leadership at the county level, there is no longer a defendant to appeal any ruling from the District Court judge.
Bail bond reformers also plan to expand similar rules to felony cases, and the ACLU has filed a lawsuit against Galveston County that includes felony bail procedures.
Update: On November 21, 2019, U.S. District Judge Lee Rosenthal gave final approval to the settlement of ODonnell v. Harris County, Texas.
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Holly Hansen is a freelance writer living in Cypress, Texas. 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.