Earlier this year we posted an article about a Fifth Circuit Court of Appeals decision that upheld much of a federal district court ruling that dismantled the antiquated Harris County bail system. We made this observation in that post:


“We have railed against the Texas bail system in numerous posts (here, here, here, here, and here). Most county bail systems are borderline criminal shakedown rackets set up and fueled by the bail bond industry, and allowed to practice its dirty business by judges whose campaigns are funded by these bail bondsmen.”


The Fifth Circuit ruling (O’Donnell v. Harris County) was handed down on February 14, 2018. The decision was in response to a federal lawsuit that had been brought against Harris County Judges, Hearing Officers, and the Sheriff challenging the constitutionality of the county’s money bail system.


Harris County Bail System Violates Constitution


Last year U.S. District Court Judge Lee Rosenthal found that the county’s money-bail system violates Texas statutory and constitutional law, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.


While the Fifth Circuit in the O’Donnell decision upheld most of the findings made by Judge Rosenthal, the appeals court found the judge’s injunctive relief went too far. The court instructed Judge Rosenthal to tailor a preliminary injunction consistent with its O’Donnell remand order. In fact, the appeals court attached a “model injunction” it felt the judge should utilize, one that left the judge with the discretion to insert her own specific details.


Federal Judge Orders Injunction


Judge Rosenthal elected to adopt the Fifth Circuit’s model injunction with the addition of four specific provisions in Sections 7, 8, 9, and 16 of the injunction. Specifically, Sections 7 and 8 of the revised injunction stated that indigent misdemeanor defendants could not be held in jail for the 48 hours proceeding their bail hearing if the same defendant would have been released had they been able to post bail. Judge Rosenthal believed that this specific injunctive relief would prevent those who could not make money bail “from being detained longer than those able to pay secured money bail before receiving a hearing and individual assessment.”


Section 9 ordered Harris County judges to implement procedures to comply with Sections 7 and 8.


Section 16 provided injunctive relief to “misdemeanor arrestees who are re-arrested on misdemeanor charges only or on warrants for failing to appear while released before trial on bond (either secured or unsecured). In effect, Judge Rosenthal said that while these facts could be considered at any bail assessment hearing, repeat misdemeanor defendants must be provided the same protections at the hearing as first-time offenders.


14 Harris County Judges Fight Bail Reform


To their credit, Harris County District Attorney Kim Ogg and Sheriff Ed Gonzales had no problem with this revised injunctive relief ordered by Judge Rosenthal.


Fourteen Harris County judges, however, did not appreciate Judge Rosenthal’s continuing erosion of the county’s corrupt money bail system. They collectively filed an “emergency” stay motion with the Fifth Circuit questing that Judge Rosenthal’s four provisions, which were set to take effect on July 31, 2018, be stayed. The appeals court granted the emergency stay motion and conducted a hearing on motion on August 7, 2018.


In an August 14, 2018 decision, the Fifth Circuit granted the fourteen judges’ stay, blocking Sections 7, 8, 9 and 16 from taking effect “pending resolution of this appeal by a merits panel.”


The fourteen judges’ objections to Judge Rosenthal’s provisions were essentially this: that the constitution does not require mandatory release of those who cannot afford bail and those detained more than 48 hours without a hearing. In effect, these fourteen judges want to penalize indigent misdemeanants who cannot afford bail while releasing those who can and keep the corrupt money bail system alive and well.


Fifth Circuit Allows Detention of Indigent


The Fifth Circuit then explained why it believed the fourteen judges are likely to prevail before a merits panel with their objections:


“The O’Donnell I panel clarified that under both the Due Process and Equal Protection Clauses, the precise ‘constitutional defect in the process afforded was the automatic imposition of pretrial detention on indigent misdemeanor arrestees.’ Thus, individualized hearings after which magistrates had to ‘specifically enunciate their individualized case-specific reasons for [imposing bail] is a sufficient remedy.’ The procedures required for such hearings were ‘notice, an opportunity to be heard and submit evidence within 48 hours of arrested and a reasoned decision by an impartial decisionmaker. The panel then provided detailed guidance on how a properly crafted injunction should look, cautioning that it should not ‘amount [] to the outright elimination of secured bail for indigent misdemeanor arrestees.’”


The Fifth Circuit August 14 ruling effectively reinforced the O’Donnell I decision that there is no constitutional right “to be free from any form of wealth-based detention.”


The objections by the fourteen Harris County judges are rooted in their vested political interest in maintaining in what is nationally known as the corrupt money bail system. The money bail industry underwrites the political campaigns of judges across the country. The judges need this corrupt money to get reelected. They can live with modifications to the system, but their need for wealth-based detention is simply too great to find it unconstitutional.


There is absolutely no good reason to have a wealth-based detention system in dealing with the millions of misdemeanor defendants arrested in this country each year.


The fourteen Harris County judges who think otherwise are:


  • Paula Goodhart
  • Bill Harmon
  • Natalie C. Fleming
  • John Clinton
  • Margaret Harris
  • Larry Standley
  • Pam Derbyshire
  • Jay Karahan
  • Analia Wilkerson
  • Dan Spjut
  • Diane Bull
  • Robin Brown
  • Donald Smyth
  • Jean Hughes