The decision, handed down April 28, 2017, comes out of Harris County, home to Houston, Texas. If you decide to read the opinion, ODonnell v. Harris County, be prepared to spend some time with it. The opinion is 193 pages long, and one reading may not be enough. Readers will see similarities and differences between the bail practices in Harris County and North Carolina. This post doesn’t undertake to compare the two and instead does a not-so-brief review of the findings, conclusions, and relief ordered by the judge, Chief District Court Judge Lee H. Rosenthal (if you’re wondering, appointed by President George H.W. Bush in 1992). The bottom line is that the decision enjoins Harris County from “detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail.” Slip op. at 181.
Evidence and Findings
The case involves a civil suit by three people detained before trial on misdemeanor charges. During an eight-day hearing on the plaintiffs’ motion for a preliminary injunction, Judge Rosenthal heard testimony from, among others, hearing officers who initially set bail, judges who review bail determinations, the Sheriff of Harris County, the director of the county’s pretrial services program, and expert witnesses for both the plaintiffs and defendants on prearrest data and procedures. The judge also received 300 written exhibits, depositions and declarations from additional witnesses, and 2,300 video recordings of bail-setting hearings by hearing officers in Harris County during the past year. Id. at 10, 15-19.
Space doesn’t allow extensive review of the evidence and findings, but readers may want to look at the recordings of the initial bail determinations. The hearings are by videolink, connecting the hearing officer’s courtroom, a prosecutor’s office, and a large room in the jail for defendants, who generally do not have counsel at the hearing. Id. at 63. You can read transcripts of these brief proceedings in the decision, id. at 71–75, or watch a few recordings here.
Legal procedures. Texas law does not allow pretrial release without financial conditions, such as a release on a written promise to appear, a nonfinancial form of release in North Carolina. Texas does allow pretrial release on a “personal bond,” which like North Carolina’s unsecured bond requires the defendant to pay a specified amount only if he or she fails to appear for court. Slip op. at 50–51, 127. Unlike a secured bond, the defendant does not have to post cash or pay a premium to a commercial surety or bondsman.
In making bond determinations, hearing officers and judges must consider five statutory factors, including the defendant’s ability to post the bond amount. Id. at 51–52, 127. North Carolina also requires consideration of a person’s financial resources, among several factors. G.S. 15A-534(c).
Bail setting practices. Judge Rosenthal found that about 10% of people arrested in Harris County for misdemeanors received personal, unsecured bonds. About 50% received secured bonds, made their bond, and were released. The remaining 40% were detained until disposition of the case because they were unable to pay the secured bond amount. Slip op. at 69–70. For homeless people, an unwritten rule exists to set a secured bond in all cases. In Judge Rosenthal’s view, this requirement means that defendants so poor as to be homeless are detained because of their poverty. Id. at 90–91, 128. The judge concluded: “Virtually all of the misdemeanor arrestees detained until disposition have a secured bail amount set that, if paid, would result in the prompt release of the arrestee.” Id. at 70.
Judge Rosenthal also found that Harris County hearing officers and judges almost automatically impose secured bond amounts in accordance with the county court’s bond schedule, which itself is a mechanical calculation based on the charge and the defendant’s criminal history. Id. at 76–77, 128. Although hearing officers and judges are supposed to consider the five statutory factors and make individualized assessments of each defendant’s circumstances, including ability to pay, hearing officers and judges adhere to the prescheduled bail amount in almost 90% of the cases. Id. at 68–69, 128.
Misdemeanor defendants are supposed to receive a first appearance in court the next business day after the initial bail determination, but judges adjusted bail amounts or granted personal unsecured bond in less than 1% of the cases. Id. at 77, 129. Judge Rosenthal found that this system “pressures misdemeanor defendants to plead guilty at or near their first appearances because that is the only way to secure timely release from detention.” Id. at 85. At first court appearances, prosecutors routinely offer and judges routinely accept guilty pleas for sentences of “time served,” which results in release. Those who do not plead guilty and want to contest the bail amount remain detained until they have a lawyer who can file a motion to review bond, which is generally heard one to two weeks later. Id. at 77, 129–30.
Impact of practices. Judge Rosenthal considered data about the impact of these policies and practices. As far as case results, the evidence showed significant differences for misdemeanor defendants who were detained until disposition of the case and those released before disposition:
In 2015 and 2016, 84 percent of misdemeanor arrestees detained at case disposition pleaded guilty, while 49 percent of those released before disposition pleaded guilty. Only 13 percent of those still detained at case disposition had their cases dismissed, and 2 percent received deferred adjudications. For those released before case disposition, 32 percent had their cases dismissed and 12 percent received deferred adjudications. Id. at 85 (citations omitted).
As for how defendants do on pretrial release, the evidence showed no meaningful difference in pretrial failures to appear or arrests on criminal activity between misdemeanor defendants released on secured bond and those released on unsecured financial conditions. Id. at 131. The evidence indicated, however, that pretrial detention could make matters worse. “[E]ven a few days in pretrial detention for misdemeanor charges correlates with—and is causally related to—higher rates of failure to appear and new criminal activity [and] is causally related to the snowballing effects of cumulative disadvantage [loss of job, place to live, and family visitation] that are especially pronounced and pervasive for those who are indigent and African-American or Latino.” Id. at 131, 150.
Legal Conclusions and Relief
Judge Rosenthal concluded that Harris County’s bail policies and practices “systematically detain misdemeanor defendants who are otherwise eligible for release before trial but whose indigence makes them unable to pay a secured financial condition of release.” Id. at 171. These de facto detention orders violate both equal protection and due process.
Equal protection. The basic equal protection inquiry for Judge Rosenthal was whether the government denied one class of defendants (indigent defendants unable to pay a secured bond) a substantial benefit (liberty before trial) available to another class of defendants (those able to pay a secured bond). Id. at 133–34. The judge recognized that wealth-based distinctions ordinarily require rational basis review only, the most deferential standard of constitutional review. Judge Rosenthal also found that courts engage in greater scrutiny when wealth-based distinctions result in incarceration. Id. at 137–38. Thus, the constitution ordinarily prohibits the government from imprisoning a person for failing to pay a fine or costs if the person is unable to pay. Detention may only be imposed as a last resort. Bearden v. Georgia, 461 U.S. 660 (1983). Judge Rosenthal observed that “wealth-based classifications for pretrial detention for misdemeanor offenses deserve, if anything, less deference than post-conviction detention.” Slip op. at 138. The judge decided not to use the most exacting form of constitutional scrutiny, strict scrutiny. Because the plaintiffs have the burden of showing likelihood of success on the merits at the preliminary injunction stage, she opted for a more conservative application of precedent and used “intermediate scrutiny.” Id. at 141–42. Under either heightened standard of scrutiny, courts evaluate the government’s interest in a challenged policy and practice and determine whether there is a sufficient fit between the government’s “means and ends.” Id. 139–40.
Judge Rosenthal found that the county has a compelling interest in assuring that defendants appear for court (the ends), but the county’s secured bond policies were not narrowly tailored to meet that interest (the means).
The evidence shows that secured financial conditions of release are not more effective at meeting the County’s interests than unsecured or nonfinancial conditions of release in misdemeanor cases. Instead, secured money bail operates to detain the impoverished while releasing those able to pay. This liberty deprivation based on wealth violates the Equal Protection Clause. Id. at 172.
Due process. Judge Rosenthal also found that the county’s de facto detention orders against indigent misdemeanor defendants violated due process. For guidance on the applicable standards, the judge relied in part on cases reviewing statutes authorizing detention before trial, also known as preventive detention. Thus, in United States v. Salerno, 481 U.S. 739 (1987), the U.S. Supreme Court upheld a preventive detention statute that permitted “pretrial detention of arrestees charged with serious felonies if the government demonstrated by clear and convincing evidence, at an adversarial hearing, that no release conditions would ‘reasonably assure’ the safety of the community.” Slip op. at 142. The Court found that the statute in Salerno satisfied due process because its purpose was regulatory, not punitive; pretrial detention was carefully limited to the most serious offenses; and the statutory procedures, including specific hearing rights, protected the defendant’s interest in liberty. Id. at 142–43.
In evaluating whether the county provided due process in setting bail for indigent misdemeanor defendants, Judge Rosenthal again focused on the county’s failure to consider their inability to pay. She found that the county did not provide misdemeanor defendants notice of the significance of financial information for release on unsecured conditions; did not provide timely hearings at which misdemeanor defendants could be heard and present evidence of their inability to pay; and did not provide reasoned opinions with written findings on why a secured financial condition of release, and not a less restrictive condition, was the only reasonable means to assure their appearance at trial or law-abiding conduct before trial. “The lack of adequate procedures violates the Due Process Clause.” Id. at 173.
One judge’s practice. Judge Rosenthal noted that one Harris County judge, Judge Darrell Jordan, took a different, constitutionally sound approach in setting bail for indigent misdemeanor defendants. She found that Judge Jordan does not set bail on a secured basis if it would operate to detain an indigent misdemeanor defendant. Judge Jordan still considers the five statutory factors for setting bail but within an amount the defendant can pay. For those who can’t pay, Judge Jordan sets the bail amount on an unsecured basis and orders nonfinancial conditions of pretrial supervision to address the defendant’s risk of nonappearance or new criminal activity. Judge Rosenthal found that this practice, when timely, is consistent with equal protection and due process. The practice was the exception, not the rule, in Harris County. Id. at 163–64.
Relief. To address the equal protection and due process violations, Judge Rosenthal entered a preliminary injunction with several conditions, id. at 181–87, including:
- The county, through its pretrial services program, must obtain a verified affidavit of an arrestee’s ability to pay a secured bail and must explain to the arrestee the significance of the information.
- The affidavit must give the arrestee the opportunity to declare under penalty of perjury the maximum amount of money the arrestee can pay, by cash or premium to a surety, within 24 hours of arrest, including contributions from other sources such as family and friends. The purpose is to give hearing officers and judges on a timely basis the sort of information they use in appointing counsel for indigent defendants.
- If a misdemeanor defendant has executed an affidavit showing an inability to pay secured bail and the hearing officer does not authorize release on an unsecured bond or on a secured bond for which the defendant can pay a commercial surety’s premium, the sheriff must treat the bond as unsecured in the amount set by the hearing officer and release the defendant promptly. Nonfinancial conditions of release ordered by hearing officers, such as protective orders, drug testing, alcohol ignition locks, or GPS monitoring, remain in effect. These requirements do not apply to misdemeanor defendants held for lawful reasons, such as defendants held for a capacity examination or under Texas law allowing preventive detention in certain family violence cases.
- If a misdemeanor defendant has not received a bail setting hearing within 24 hours, the sheriff must release the defendant on an unsecured bond (unless the defendant falls within one of the exceptions for lawful holds). The bail amount is in accordance with the county bail schedule but is on an unsecured basis. The 24-hour requirement is intended to address the problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure their release from pretrial detention.
- The relief also applies to misdemeanor defendants who are rearrested for failing to appear on their misdemeanor charges or on new misdemeanor charges. Misdemeanor defendants who engage in pretrial misconduct face additional charges and exposure to longer sentences as well as additional nonfinancial conditions of release, such as stricter supervision. But, those unable to pay a secured financial condition of release do not lose their liberty interest in release before trial by failing to appear or by committing new misdemeanors.
Judge Rosenthal concluded by addressing the county’s argument that it needs to use secured bail as a de facto detention mechanism because Texas law does not allow preventive detention of misdemeanor defendants except in limited instances. The judge acknowledged that such detention may be wise for risky defendants, including some misdemeanor defendants, but the remedy is to seek a change in Texas law to authorize preventive detention under appropriate conditions. It is not to accomplish a de facto change in the law “through imposing secured financial conditions of release that operate as detention orders only against those who cannot pay.” Id. at 190.