A case heard by the U.S. Fifth Circuit Court of Appeals this week could change the landscape of American bail practices.
On October 1, 2016, police arrested Andrew Goodson for carrying a knife just short of 6 inches long, a Class A misdemeanor in Texas. The next day, guards brought him and dozens of other inmates into a large room at the Harris County Jail, the nation’s third largest county lockup. One by one they walked to a red square tile situated below a screen that linked them, via video conference, to a prosecutor and a hearing officer who sets bail for the county’s misdemeanor courts.
According to court records, Goodson, 46, was living out of his car at the time and had only $29 to his name. He simply couldn’t afford the $250 bail bond payment that would buy his freedom.
In a video recording of the hearing, Goodson asked hearing officer Jill Wallace for a personal recognizance bond — an option for defendants too poor to make bail — but Wallace shut him down before he could even finish the sentence, citing a quarter-century-old arrest record out of Florida. (Court documents indicate he’s never been convicted of a felony, nor had he ever before been arrested in Harris County.) Wallace grew agitated when the defendant again tried to talk, telling him, “I’m not letting you talk because I’m going by what I feel is best for the community.” When he asked again if he could speak, Wallace yelled “No!” Wallace’s demeanor shifted once Goodson was out of sight. She laughed with the prosecutor after quipping that sending him back to jail “makes me feel better.”
Until recently, the bail process for low-level arrestees in Harris County functioned with the efficiency of an assembly line, sending poor defendants back to jail, sometimes for days or weeks, until they could resolve their cases. Last year, civil rights groups sued the county on behalf of those arrestees. In April, Lee Rosenthal, the chief federal judge for the Southern District of Texas, declared the county’s practice of using cash bail as de facto detention orders, regardless of someone’s ability to pay, an unconstitutional violation of poor people’s right to due process and equal protection.
Citing hearings like Goodson’s, Rosenthal found that Harris County’s attempts to reform the system haven’t gone far enough and this summer ordered that the jail release almost all misdemeanor arrestees on personal bonds after 24 hours if they can’t make bail. On Tuesday, lawyers for the county went to the U.S. Fifth Circuit Court of Appeals in New Orleans to argue there’s no constitutional right to “affordable bail” and that Rosenthal’s ruling risks throwing pretrial systems across the country into disarray. The case could change the landscape of American bail practices in ways that reverberate throughout the criminal justice system. Some even say Rosenthal’s ruling could be the beginning of the end of cash bail in America as we know it.
“Wealth-based pretrial detention is a key driver of mass incarceration,” said Elizabeth Rossi, an attorney for Civil Rights Corps, one of the groups that filed the lawsuit. “Ending the practice of keeping people in jail due to their poverty would make it more difficult for prosecutors to coerce guilty pleas and would help ensure that, whether rich or poor, arrestees can exercise their right to a fair trial and the presumption of innocence.”
In her exhaustive 193-page opinion, Rosenthal found that Harris County jailed hundreds of legally innocent people because they were too poor to pay a bondsman. Rosenthal concluded that the practice “exacerbates the racial disparities” that already exist in the criminal justice system. She cited research showing that defendants who fight their cases from behind bars are much more likely to plead guilty, be sentenced to jail and face longer jail sentences than people who can afford to pay for their pretrial release. Rosenthal labeled it “sentence first, conviction after.”
In Harris County, there’s ample evidence of those perverse incentives. For instance, starting in 2013, local prosecutors began notifying hundreds of defendants who took plea deals on drug possession charges that lab tests conducted months and even years after their convictions proved negative for drugs. In her ruling, Rosenthal found that Harris County prosecutors even sometimes threatened to seek harsher sentences if defendants wouldn’t take a guilty plea.
It’s obvious why someone would want to get out of jail as fast as possible, even if that means eating a criminal conviction that could cost them their job, public housing or scholarships. Consider the case of Patrick Joseph Brown, the 46-year-old man beaten to death in the Harris County Jail two days after he was booked for allegedly stealing a guitar. As the Houston Press reported, Brown got stuck in jail because he couldn’t pay the $300 premium on his $3,000 bond and, like 90 percent of the county’s misdemeanor defendants, wasn’t given a personal bond.
Against this backdrop, Harris County has made reforms in recent years that Rosenthal called laudable, such as giving bail hearing officers a more objective risk-assessment tool and providing public defenders at bail hearings. However, Rosenthal also called those reforms insufficient. It’s ultimately still up to individual hearing officers to decide whether poor people get personal bonds. Hearing officers and county judges regularly give people charged with crimes that indicate poverty — begging, trespassing or sleeping under a bridge — bond amounts that are clearly beyond their reach. Rosenthal said courts had an “unwritten custom” to deny all homeless people personal bonds, even for the pettiest of charges.
Even some local judges are fed up. Judge Darrell Jordan of Harris County Criminal Court 16 says that too many courts automatically equate poverty with risk and set unattainable bonds that keep poor people in jail. Jordan, who was elected to his seat last year after the bail lawsuit was already filed, testified on behalf of the plaintiffs that the county cannot fix the problem on its own. Since taking the bench in November, Jordan says he’s granted personal bonds to almost every defendant who appeared before him and couldn’t afford bail.
“Other judges are basically saying that a person is potentially violent or unsafe to the community if they’re unable to come up with that $500 to pay on a $5,000 bond,” Jordan told the Observer. “Somehow, that’s what all of a sudden makes them too unsafe to release. So I guess around income tax time, when everybody has a little bit of extra money, everyone becomes safe then, huh?”
At the Fifth Circuit appeals court Tuesday, lawyers for Harris County argued that Rosenthal’s order went too far. Charles Cooper, the county’s appellate attorney, spent much of his time telling the judges that misdemeanor defendants can still contest their bail-setting through the proper legal channels.
Judge Catharina Haynes, one of three Fifth Circuit judges who heard the case, seemed to dismiss that argument, saying the lengthy process to contest bail would last longer than most jail sentences for misdemeanor convictions. “How can that really be a remedy?” she asked.
The Fifth Circuit could affirm Rosenthal’s decision, overturn it or send it back to her court for further evidentiary hearings on the impact of her ruling on the county’s ongoing reforms. Trisha Trigilio, a senior staff attorney with the ACLU of Texas, told the Observer that Rosenthal’s ruling, if it stands, should lead to fundamental changes beyond Houston. “The legal issues that are raised in the Harris County bail case are the same constitutional issues that we run into in jurisdictions across the state,” she said.
Correction: A previous version of this story said Haynes was “shocked” by Rosenthal’s order and called it “chaotic.” She was in fact referencing a narrow issue of liability for county. The Observer regrets the error.