Monday, October 29, 2018

A primer on the current status of bail-reform litigation in Texas

Are you confused about the status bail reform in Texas?

First Judge Lee Rosenthal issued a 193-page injunction in Harris County declaring their pretrial detention system unconstitutional. Then the 5th Circuit modified her order. Then the county made some changes. Then the 5th Circuit stayed part of the injunction it had previously approved. Then another federal judge in Dallas declared their bail system unconstitutional, issuing his own temporary injunction with different recommendations. And there's also litigation sitting out there in Galveston. Meanwhile, Gov. Greg Abbott and Texas Supreme Court Justice Nathan Hecht have proposed that the Texas Legislature enact bail reform. But how does what they want jibe with what the federal courts are saying, to the extent that can be divined? And how should occasionally-maligned risk-assessment tools be used as part of this process?

For a segment in the latest Reasonably Suspicious podcast, your correspondent sat down with Susanne Pringle, legal director of the Texas Fair Defense Project, which is one of the entities suing both Harris and Dallas Counties, to get a front-lines explanation of where Texas is at on bail reform and what all this means.

Because I imagine MANY people are as confused as I was about how all these moving parts fit together, I've pulled out that segment as a stand-alone audio file, and will include the transcript below. You can listen to Ms. Pringle's explanation here. I, for one, understood things a lot better after we talked. Give it a listen:

Find a transcript of our conversation after the jump.

Transcript: Scott Henson interviews Susanne Pringle from the Texas Fair Defense Project about bail-reform litigation in Texas.

Amanda Marzullo: Bail reform has been a hot topic for the last several years in Texas. The litigation results in Houston and Dallas, and a ruling by the Fifth Circuit limiting the Harris County order have complicated the question of exactly what is required for Texas County bail schemes to be deemed constitutional. Recently Scott sat down with Susanne Pringle, Legal Director at the Texas Fair Defense Project, for a front lines explanation of where this issue is at in Texas courts, and the implications for bail reform in 2019.

Scott Henson: Litigation over bail reform and pre-trial detention in Texas of late has had the feel of one of those shell games favored by street hustlers, in which you try to identify which of three cups the ball is under. It's hard to know where to watch, and nearly impossible to keep one's eye on the target. That's especially true in Harris County where the county has implemented certain reforms, while ignoring others. The Fifth Circuit has issued two conflicting rulings, and the full federal appellate court is yet to finally rule. I asked Susanne Pringle to explain the status of Harris County bail litigation, and describe for us when they might reach some conclusion.

Susanne Pringle: Judge Rosenthal issued the injunction which included release after 24 hours if you have been determined able to be released on money bond, but you can't afford it. Released within 24 hours if you haven't had a hearing yet. Required individualized bail determinations, et cetera. The Fifth Circuit on appeal of that particular injunction said generally this okay, 48 hours is more appropriate than 24, and I want you to go back to the drawing board on a couple of other things. So Judge Rosenthal issued a new injunction that was similar to her original injunction that did include a 48-hour instead of a 24-hour window, and on what's called, on an emergency, motion to stay, which is not a full appeal of the injunction. But an emergency motion to stay, a three-member panel of the Fifth Circuit said, "Wait a minute, we're going to stay, which means keep from going into effect, the provisions of the injunction that apply to the first 48 hours."

So that three-person panel, on the basis of an emergency motion to stay, said for now, everything that required release, if you haven't been seen within 48 hours, or release if you've been determined that you could be released on a certain amount of money, but it's been determined that you can't afford it. Those two, which were the two biggest provisions, in terms of getting people out in Harris County, that three-person panel said, "We are going to stay those provisions of the injunction pending an appeal on the injunction." So at this point we are waiting for the Fifth Circuit to actually rule on the appeal of those three provisions. They've been stayed, they're not in place for now, but they haven't actually been ruled on in a way that's appealable. Does that make sense?

Scott Henson: Well no wonder I was confused.

Susanne Pringle: Yes.

Scott Henson: Oh my gosh. Okay, well that is-

Susanne Pringle: Lots of legal complications, but it is bad in that it means that there are ... For the year after the injunction that Judge Rosenthal originally ordered, people were getting released in numbers like 125 to 150 a day, who had been determined that they could be released on money bail, but couldn't afford it. Those folks were getting released. Folks that weren't getting seen in the allotted period of time, which was 24 hours at the time, those folks were getting released. So none of those folks are getting released anymore. So that is bad, from the perspective of bail advocates who thought that folks should be released if they couldn't afford bail, but were determined for release.

Scott Henson: Now Harris County did make some internal changes in response to all this, are none of those still causing at least some of those releases to happen?

Susanne Pringle: Some folks are ... I think the number of personal bonds being issued has increased in Harris County, people are getting lawyers at their hearing, they're getting public defenders.

Scott Henson: That's a big deal.

Susanne Pringle: That's a big deal. That is actually catching on. I mean part of what we're getting at later in this conversation is what's happening across the state, but that is starting to catch on around the state, and I think you're going to see more and more counties adopting that model of getting people appointed counsel or public defenders at that initial hearing. That leads to lower bond amounts, which people are more likely to be able to make. That leads to more personal bonds, because there is somebody at the hearing who can advocate for that. So there are certainly more people being released than there were before the original injunction went into place, but there are fewer people being released now than there were under the initial injunction.

Scott Henson: Got you.

Susanne Pringle: I do want to go back to the ... I said this is bad, and there are bad things about it. But I think it is important to note that we're still waiting for the Fifth Circuit to rule on the question in a final way. This is an emergency motion to stay, I realize that's sort of an insider sounding term, but it is not the final decision of the Fifth Circuit on this issue.

Scott Henson: Got you.

Susanne Pringle: So even though it is bad right now, we can't take it as the last word, because it's not. Hopefully we'll have the briefing in the Fifth Circuit is all coming out in the next month or so, and then we'll get an argument date, and hopefully we'll have more of a sense in the coming months of what the Fifth Circuit is actually going to say about those provisions of the injunction, and hopefully it'll be different.

Scott Henson: That actually clarifies a lot, thank you so much. I have to say, I have been almost just overwhelmed with the complexity of the status of what all this meant. Speaking of which, and actually this follows directly along with your comments there about getting lawyers at hearings, to me that takes us to Dallas.

Susanne Pringle: Yes.

Scott Henson: Dallas also has now had, is it an injunction?

Susanne Pringle: Yes, a preliminary injunction.

Scott Henson: All right, tell us the status of what's going on in Dallas. I know the county has ponied up for 24 new employees to start to have lawyers at the bail hearings, give us an update there, and explain to me how this fits in, because they're in the Fifth Circuit too with everything else that's going on.

Susanne Pringle: Yeah, well so there are a couple of ways that Dallas County is different than Harris County. One is that felonies are included, not just misdemeanors. So the actual injunction that has been issued applies to a much larger number of people in Dallas, than it did in Harris County, because felonies are included. It is also different in that the injunction that Judge Godbey issued in Dallas does not apply to that first 48-hour period of time. It much more closely resembles what the Fifth Circuit suggested would be an injunction that they would endorse, which means it requires individualized bail determinations. It requires a consideration of ability to pay. It requires a consideration of a personal bond, or personal recognizance release. It requires notice to defendants about what's going to be an issue at that hearing. But it does not require any of the release pieces that we talked about that Judge Rosenthal's original injunction required.

So there are more people that are getting those individualized bail hearings, that will be getting those individualized bail hearings. The injunction has actually not gone into play yet, it was delayed for 30 days upon Judge Godbey's ruling. It maybe delayed longer, depending upon how long it takes to get things into place, but it will be applying to a much broader number of people. Now Dallas County has said publicly, and the Commissioners Court has voted publicly, that they are going to hire, as she said, up to 24 new employees. They have a public defender's office there, which like Harris County makes them in a position to more quickly, more easily put in place lawyers at bail hearings.

Scott Henson: There's a structure to [crosstalk 00:39:32].

Susanne Pringle: Exactly, there's already a structure, so they're in the process of hiring those employees. I understand that they're trying to get them in place quickly as they can, that it might take a little bit. It might take a couple of months, but that they are committed as a county to putting those positions in place. Then the other piece of the case that is different than Harris County is that there was also a claim about open access to bail hearings, where the plaintiffs were actually magistrations in Texas, which are organizing groups of folks who are often impacted by the criminal justice system. So another piece of what's happening in Dallas County is that they're making an effort to at least make those magistrations accessible by video, if not in person.

Scott Henson: Got you. I spoke to a reporter who, after much effort, finally got in to see some of those.

Susanne Pringle: Great.

Scott Henson: She said it was done in almost a broom closet type room, such a small setting, that it was almost like it was intentional, no, it would just be impossible to have someone there.

Susanne Pringle: I think that's true in a lot of counties, especially because they typically take place in the jail. For example, in Travis County they happen in a similarly small broom closet space, and they would rather people not be there.

Scott Henson: Got you. All right, so we've got litigation in Harris County, we've got litigation in Dallas County, and-

Susanne Pringle: And there's also a case in Galveston County-

Scott Henson: In Galveston.

Susanne Pringle: ... that is pending that we are not on. I'm not a lawyer on that, so I can't speak exclusively about that. I believe that they are still in the ... I don't think they have an injunction in place yet in Galveston County.

Scott Henson: But then at the same time, we see some counties trying to do this in other ways. Corpus Christi created its own risk assessment, instead of using the state's risk assessment. Is this a moment where it would be beneficial for the legislature to step in and create some basic standardized, state-wide rules? It strikes me, it seems like we're either going to have lawsuits, just county by county, or counties are just going to do whatever they think of themselves. Then we sue and see what happens. Or you could just have a new structure that says no, everyone has to have individualized bail hearings. Everyone has to use a risk assessment. Are we at a point yet where we can tell what the legislature should do? Or is it all still to unformed and uncertain?

Susanne Pringle: I think that there are a few things that we know that the legislature could do, and I think counties would appreciate the guidance. There are certainly lots of counties that are trying to do the right thing, and aren't sure exactly what that is, and could use some systemic guidance. So the legislature could make clear that everybody is supposed to get an individualized bail hearing, and that that bail hearing is supposed to take into account ability to pay. That that ability to pay should be a key point in decision making about what bond they're going to set for folks. The legislature could required a validated risk assessment tool be used, and if the legislature is going to do that, I think they also want to dictate that any sort of risk assessment tool is a tool for the judge to figure out what conditions this person could need in order to come back to court, and in order to keep the community safe.

I think the danger of the risk assessment tool is that there are some counties that want to use it as a release or not release decision. All the experts say that if you're going to use a risk assessment tool, and you make sure it's validated and it doesn't have an impact, it's not racist or classist, then once you're using that tool you're using it to decide what can I do to support this person to make sure that they get back in court? Is it a text reminder? Is it a bus pass? Is it that they need an electronic monitoring? Is it that they need some other sort of check in? What do they need to be most likely to come back into court? As opposed to using that risk assessment as a 'we're keeping you, we're not keeping you' decision making tool.

The legislature could absolutely mandate the use of a validated risk assessment tool, along with the presumption of release and the use of the risk assessment tool to determine the best possible conditions upon release. The legislature could absolutely mandate and should mandate that there's a presumption of release on personal bond, and with the least restrictive conditions. Those are all things that the legislature could do right now that would give counties a lot of guidance in what they could be doing right now.

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