Assessing Harris County bail litigation as it nears denouement

In last month's Reasonably Suspicious podcast, I interviewed Susanne Pringle, executive director of the Texas Fair Defense Project, about the denouement of the Harris County bail litigation, in which her organization was one of the plaintiffs. Since we spoke, Galveston County was sued by the ACLU over essentially similar grounds, and Dallas County already faced litigation over its bail system, so the Harris County domino falling may soon take down quite a few other county's pretrial detention regimens.

When Judge Lee Rosenthal issues her revised injunction in light of the 5th Circuit's ruling, in many ways it will be like firing off a starting gun. That document will set the parameters for bail systems throughout Texas, establishing a minimum floor for constitutionality. Any county continuing with a bail schedule or violating other shall-not portions of the injunction will find itself low-hanging fruit for a similar suit. So expect a lot of local-level activity on this front over the coming year, and probably a legislative reaction in 2019.

Here's the excerpt including the interview with Pringle:


Find a transcript below the jump.


Mandy Marzullo: In February the Fifth Circuit Court of Appeals handed down a ruling which upheld Judge Lee Rosenthal's finding that Harris County's bail and pretrial detention practices were unconstitutional. They also upheld most of the remedies Judge Rosenthal had required with one major exception. The court increased the amount of time defendants can be held without setting bond from 24 to 48 hours under Judge Rosenthal's ruling.

Mandy Marzullo: Scott caught up recently with Susanne Pringle from the Texas Fair Defense Project, which initiated the Harris County lawsuit along with civil rights court in Susman Godfrey, a private Houston-based firm. Before Scott and I discuss the case, let's listen to what she has to say.

Scott Henson: All right Susanne, tell us what happened in the litigation. Who won? Who lost and describe the outcome for us.

Susanne Pringle: At this point the Fifth Circuit recently largely upheld the district court ruling, which was that the Harris County bail system as it stood was unconstitutional. The Fifth Circuit did say that they wanted the district court to issue an injunction that allows for 48 hours before release as opposed to 24 hours and that the injunction was perhaps wider than it should have been.

Susanne Pringle: At this point the injunction is still in place until the district court can issue a revised injunction. In the meantime, both sides have filed motions for rehearing. The plaintiff's on a very minor issue, which is that the other loss is that the Fifth Circuit did dismiss the sheriff, the Harris County Sheriff as a defendant. Now the Harris County Sheriff had actually not appealed the lower court's ruling and so was not actually at issue in the case, but while all of that is going on and while the 5th Circuit is deciding what they're going to do, the injunction that the district court issued is still in place.

Scott Henson: What is Harris County doing on the ground now in reaction to this?

Susanne Pringle: Since July of last year there have been lawyers at every bail hearing. They are doing individualized hearings in Harris County and if they are unable to get someone in front of a magistrate for a hearing, they have to release them within 24 hours. That is not true for a few types of cases like domestic violence cases or other situations where it may be appropriate to hold someone for longer, but they're releasing people on bonds that they can afford. They're actually asking, magistrates are actually asking questions about what a defendant can afford and they're actually reviewing what the lawyer tells them about what someone can afford.

Scott Henson: So Harris is not the only county in Texas that is holding people on bail when they can't afford it. In Dallas there's litigation that's begun sort of similar on a parallel track, but then there's 252 other counties where nothing's necessarily going on. What does this mean for the rest of the state? What are you seeing in some of those other counties? How are people reacting to this? If this is going to change how bail is done in Texas, sort of describe how that's going to occur.

Susanne Pringle: What this means for all the other counties is that business as usual is no longer true. They can no longer continue to hold people on bail based on a bond schedule without an individualized hearing and without considering what the defendant can actually pay and whether or not they're actually a risk to not appear or a risk for public safety. What we are seeing in counties across the state, there are counties like Nueces County which is putting in place risk assessment tools and really making an effort to release everybody that can be released on personal bond or on low cost bonds.

Susanne Pringle: Bexar County recently rejected their bond schedule and no longer uses a bond schedule, which leaves room for more individualized determinations. I think you're going to see more counties putting lawyers at bail hearings when they can find the money to pay for that. That is a way to make sure that folks are going to be heard when defendants appear in front of a magistrate at a bail hearing.

Susanne Pringle: So you're going to see more people, pardon, more counties are going to use risk assessment tools. At this point the Office of Court Administration has automated a risk assessment tool and they are beta testing it with counties, so soon that will be available to counties across the state. I know that the Office of Court Administration has heard from lots of counties that they want to use a risk assessment tool and they want to shift towards a risk-based release model rather than a money-based detention system.

Scott Henson: That's great. Well, thank you so much.

Susanne Pringle: Thank you.

Scott Henson: So what strikes me as, one big takeaway from this is how much time did the Harris County judiciary waste in fighting this case. They spent more than 5 million dollars ...

Mandy Marzullo: I know.

Scott Henson: ... fighting this and they just lost really almost completely across the board. The only thing they won pushing it back to 48 from 24 was really a very minor victory. If you told them that was all they'd get for their 5 million no one would have done it. So those judges engaged in so much hubris throughout this. They wasted so much tax payers' money. It turns out that they were misleading the court about how they were setting these bonds.

Scott Henson: They had insisted to the court that they had no involvement in those magistrate decisions and then when the magistrates faced complaints at the State Commission on Judicial Conduct, they turned around and said, "No, we were ordered by these judges." and gave proof, written proof that these judges had actually ordered them to use these bail schedules, completely contrary to what they had told the federal court before. So they have basically gotten themselves in trouble maybe even with the State Commission and certainly they got their magistrates in trouble. They have wasted 5 million dollars. They're still having to implement all the changes. Why did we have this fight? What did they hope to gain? It's such a waste and this all should have been resolved a couple of years ago.

Mandy Marzullo: Yeah. No, it's unfortunate.