Harris County bail case argued before federal appeals court in New Orleans

Bail presser

NEW ORLEANS — Amid a stream of pointed questions from the bench, lawyers for Harris County Tuesday asked panel of the 5th U.S. Circuit Court of Appeals to toss a lower court ruling that the county’s criminal justice system violated the constitution by holding poor defendants on low level offenses simply because they could not afford bail.

The arguments challenge an April ruling by Chief U.S. District Judge Lee H. Rosenthal in Houston that the county’s bail system violated due process and equal protection by discriminating against poor misdemeanor defendants, when people with the money to could await trial at home.

A trio of appellate judges heard 30 minutes of oral arguments from the county, which has spent $4.2 million combating the lawsuit, and another 30 minutes from lawyers for a group of indigent defendants who languished in jail for days because they couldn’t afford to post bail.

Hearing the matter at the stately white courthouse on Layfayette Square were Judge Edith Brown Clement, a New Orleans jurist appointed by President George H.W. Bush, and two Texas judges, Judge Catharina Haynes, of Dallas, a former civil court judge in Dallas, and Judge Edward C. Prado, who worked for both the district attorney and public defender’s office in San Antonio, both of whom were tapped for the 5th Circuit by President George W. Bush.

Dubbed “the nation’s most divisive, controversial and conservative appeals court” by the American Bar Association, the New Orleans-based 5th Circuit, hears appellate cases from Texas, Louisiana and Mississippi.

The judges appeared to be questioning whether the bail hearings were substantive for defendants, whether the sheriff had the authority to release people on bond and whether 24-hour limit Rosenthal set for holding indigent defendants without holds or detainers was arbitrary.

Of the three, Haynes commanded the questioning throughout the morning, including when Chuck Cooper, a seasoned appellate lawyer who heads the Washington, D.C. law firm Cooper & Kirk, argued for the county that the bail hearings were not perfunctory.

Haynes interrupted Cooper mid-sentence, with a rhetorical question, “Now they know they’re under scrutiny so they add an extra sentence to their rubber stamp?”
To Alec Karakatsanis, director of the Civil Rights Corps in D.C, who represents the indigent defendants who sued the county, Haynes repeatedly asked about why the defendants needed to be released from jail by the 24-hour mark.

“I’m asking a very specific question you’re not answering,” she said. “Where in the U.S. Constitution does it say you’re required to release… within 24 hours.”
“It doesn’t,” Karakatsanis said.

Haynes also asked what’s the value of the affidavit inmates sign to swear they can’t afford bail.

“What if they’re lying on this affidavit–I don’t know, if they’re a millionaire or something?” she queried.

Karakatsanis said they could face further prosecution for contempt if they misrepresented their means.

The panel of judges is not expected to rule immediately.

Following an eight-day hearing, Rosenthal ruled on April 28 that the county’s bail practices were unconstitutional., and she ordered the county to release indigent inmates arrested on low-level charges within 24 hours if they do not have detainers, holds or competency hearings pending.

Rather than putting cash upfront, these individuals are now permitted to await trial on personal bonds.

The judge found defendants were exposed to rushed hearings and those who tried to speak were commanded not to, shouted down or ignored She said the judges did not do the analysis to conclude that cash bail is better than unsecured bail.

The case was initially brought on behalf of Maranda ODonnell, a young mother who was held in the Harris County Jail because she could not afford to post $2,500 bail after being arrested for driving with a suspended license. The class-action suit will affect other inmates in the jail.

Prior to the morning session, Elizabeth Rossi, an attorney with Civil Rights Corps, said she was ready for the appeals.

“We’re looking forward to answering the panel’s questions and explaining why this is a simple case that upholds fundamental principles of liberty enshrined in the constitution,” she said.

County Attorney Vince Ryan said the 24-hour timeline Rosenthal set was problematic.

“The judge’s order shifts judicial functions—the setting of reasonable bail and conditions of release for misdemeanors—to an affidavit by the defendant which must be accepted by the sheriff,” he said. “The order applies regardless of the number of times a person is arrested and fails to appear for court. A system that promotes speedy release without real accountability over public safety is not a system that Harris County can embrace.”

This story originally appeared 10/3/2017 in the Houston Chronicle.

How Black Women Are Leading The Way On Bail Reform


Money bail, or what essentially amounts to modern day debtors prisons, disproportionately affect Black women. But reform is also being led by them.

Sen. Kamala Harris took a bold step for criminal justice reform recently by introducing legislation that encourages alternatives to money bail.

Money bail is one of the engines of the mass incarceration of Black communities, essentially criminalizing poverty by jailing poor people who cannot to pay bail—even when these people have not been convicted of a crime.

While many have praised Harris, her bill has made her a target of one of the leading profiteers of mass incarceration: the commercial bail industry. Led by unsavory figures like Beth Chapman—the wife of infamous racist reality TV star Dog the Bounty Hunter—the multi-billion dollar bail industry is committed to defending its bottom line through the exploitation of Black folks in poverty.

To stop them, it’s crucial to support Black women like Kamala Harris who are working to reform our bail system.

Over the past several decades, the bail industry has expanded its impact on the criminal justice system. Every day, an average of 700,000 people—who are legally presumed innocent and have not been convicted of a crime—are locked up and separated from their families simply because they can’t afford to purchase their freedom.

The cost of money bail falls disproportionately on Black women. Nearly 80 percent of women in jails are mothers, and most of them have only been accused—not found guilty—of minor drug or “public order” offenses.

When mothers languish in jail because of money bail, our families and communities suffer. The costs are devastating. Women often lose their jobs, housing, or even children, only to be found innocent. Some women, like Sandra Bland, have lost their lives. And the cost to the children they nurture, the partners they love, and the communities they hold is incalculable.

But across the country, Black women are stepping up to lead the fight to #EndMoneyBail.

Women like Tasha Jackson, an Organizing Director for the Texas Organizing Project. In Houston, Jackson has collaborated with my organization, Color Of Change, to organize communities for bail reform, including removing the former pro-bail district attorney and pressuring the current D.A. and sheriff to commit to bail reform.

Meanwhile in California the Essie Justice Group—led by Gina Clayton—is organizing women with incarcerated loved ones for statewide reform of the bail and criminal justice system. Through training, storytelling and direct action, they are putting those most impacted by the system—our families—at the forefront of this fight.

Black femmes are also leading a powerful effort to educate people about bail while getting our loved ones out of what amount to modern day debtors prisons. In May, Color Of Change and Black organizers around the country answered the call by Mary Hooks of Southerners on New Ground to bail Black mamas out of jail for Mother’s Day.

Together, we bailed out more than 100 mothers, and that effort continued last month with our Black August Bail Out.

The bail industry has declared war on Black women and our families. But we’re not fighting against them—we’re fighting for our communities and loved ones. Join us by finding a way to transform the bail system in your community. Whether it’s by donating to a bail fund, knocking on doors for an organization that’s advocating for bail reform, or starting your own petition with Color Of Change’s OrganizeFor platform, the best way to see change is to be part of it.

This story originally appeared 9/26/2017 on Essence.

Mamas Bail Out Day

Mamas Bail Out Day feature

Mothers should be with their families on Mother’s Day, not in jail waiting for a trial simply because they’re too poor to post bond.

This week, TOP and the Right2Justice coalition are partnering with organizations across the country to bail out mamas in time for Mother’s Day. Pitch in now to help us free mothers so they can be reunited with their families!

Every day, dozens of mothers languish in the Harris County Jail simply because they can’t afford bail. They haven’t been convicted of anything, and many are accused of minor infractions.

The judges that set bond in Harris County, however, like in so many other jurisdictions across the country, simply don’t care about poor people. To them, being poor equates to being dangerous.

Last week a federal judge ordered Harris County to stop jailing people for being poor. The order goes into effect May 15, but meanwhile, we are going to post bond for mothers so they can spend Mother’s Day at home with their families.

Pitch in $20 today, or any amount, so we can let these women know that being poor isn’t a jailable offense, that they deserve to be free while awaiting trial so they can take care of their families. We will begin bailing mothers out this week!

Justice shouldn’t be available only to those who can afford it.