Case 4:16-cv-01414 Document 1 Filed in TXSD on 05/19/16 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

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MARANDA LYNN ODONNELL,

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On behalf of herself and all others )

similarly situated,

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Plaintiffs,

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v.

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HARRIS COUNTY, TEXAS,

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SHERIFF RON HICKMAN,

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ERIC STEWART HAGSTETTE,

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JOSEPH LICATA III,

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RONALD NICHOLAS,

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BLANCA ESTELA VILLAGOMEZ,

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JILL WALLACE,

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Defendants.

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____________________________________)

Case No. 4:16-cv-1414
Expedited Hearing Requested (Class Action)

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

The named Plaintiff, Maranda Lynn ODonnell, is an impoverished person arrested for a

misdemeanor offense of driving with an invalid license. She is currently being held in a jail cell

solely because she cannot pay what to other people is a small sum of money. Like many other

presumptively innocent people arrested by Harris County and charged with the same offenses

every day, she could walk out of the Harris County Jail immediately if only she could afford to

pay the predetermined amount.

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The Supreme Court has repeatedly articulated the fundamental principle that no person can be kept in a jail cell solely because of her poverty. Although that rule has been applied directly to the issue presented in this case by federal and state courts, the principle is so utterly ignored by local Harris County officials that the jailing of people because they cannot pay a predetermined sum of money to secure their release is a daily routine in Harris County.
The results are devastating. Presumptively innocent people languish in the Harris County Jail in deplorable conditions without any determination that they pose any risk to society. Every year, an average of nine human beings die in the Harris County Jail before they can pay their money bail or contest their case at trial.
Keeping the poor in jail cells because they cannot pay a predetermined sum of money without any inquiry into or findings concerning their ability to pay violates longstanding and fundamental principles of American law. As described in detail below, the scheme enforced by Harris County has been rejected by the courts and by every major panel of legal experts to study the issue over the past fifty years.
Because the named Plaintiff is — and because many others in her situation will continue to be — subjected to imminent jailing solely by virtue of the amount of money that they and their families have, Plaintiff respectfully requests that this Court hold an expedited hearing on this Motion. Following that hearing, this Court should issue a temporary restraining order to protect the rights of the named plaintiff and, after appropriate proceedings, a preliminary injunction preventing the continuation of Harris County’s wealth-based post-arrest detention scheme. The Court should require an inquiry into and findings concerning an arrestee’s ability to pay before imposing a financial condition on an arrestee’s pretrial release. The practice of jailing
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individuals unable to pay a monetary sum without inquiry into or findings concerning their ability to pay has no place in a legal system committed to equal justice.
STATEMENT OF FACTS I. Background The facts of this case are similar to the facts at issue nearly four decades ago, when the Fifth Circuit condemned the jailing of indigent arrestees solely because they could not make small cash payments. See Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc). They are materially identical to the schemes declared unconstitutional by numerous federal courts over the past year in Alabama, Mississippi, Louisiana, Missouri, Tennessee, Kansas, and Georgia. Walker v. City of Calhoun, --- F. Supp. 3d ---, 2016 WL 361612 (N.D. Ga. Jan. 28, 2016) (granting class-wide preliminary injunction to stop the use of money bond to detain new arrestees without an inquiry into the arrestee’s ability to pay); Rodriguez v. Providence Community Corrections, Inc., --- F. Supp. 3d ---, 2015 WL 9239821 (M.D. Tenn. 2015) (granting class-wide preliminary injunction to stop the use of money bond to detain misdemeanor probationers without an inquiry into the arrestee’s ability to pay); Cooper v. City of Dothan, 2015 WL 10013003 (M.D. Ala. 2015) (issuing Temporary Restraining Order and holding that the practice of requiring secured money bond without an inquiry into ability to pay violates the Fourteenth Amendment); Snow v. Lambert, 2015 WL 5071981 (M.D. La. 2015) (issuing a Temporary Restraining Order and holding that the Plaintiff was likely to succeed on the merits of her claim that Ascension Parish’s money bail schedule violated due process and equal protection); Jones on behalf of Varden v. City of Clanton, 2015 WL 5387219 (M.D. Ala. 2015) (declaring secured money bond unconstitutional without an inquiry into ability to pay); Thompson v. City of Moss Point, 2015 WL 10322003 (S.D. Miss. 2015) (same); Pierce et al. v.
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City of Velda City, 2015 WL 10013006 (E.D. Mo. 2015) (issuing a declaratory judgment that the use of a secured bail schedule is unconstitutional as applied to the indigent and enjoining its operation). See Exhibits 1–5.
The Harris County approach to post-arrest procedures has also been condemned by the United States Department of Justice in a recent federal court case challenging the same practices. See Exhibit 6, United States Department of Justice, Statement of Interest, Jones on behalf of Varden v. City of Clanton, 15-cv-34 (M.D. Ala. 2015) (arguing on behalf of the United States government that the use of secured monetary bail schedules to keep indigent arrestees in jail “not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.”). As described below, the same illegalities rejected by these courts and the United States Government pervade Harris County’s treatment of the poor every day.
A. The Named Plaintiff Maranda Lynn ODonnell is a 22-year-old woman. Ms. ODonnell was arrested on May 18, 2016, and taken into the custody of Harris County for allegedly driving while her license was invalid. She was informed that, because of the Harris County bail schedule, she would be released immediately, but only if she paid a money bail of $2,500. She was told that she will be detained by Harris County if she does not pay. See Doc. 1-1, Declaration of Maranda Lynn ODonnell. Ms. ODonnell appeared by video from the jail at a probable cause hearing, and a hearing officer found probable cause for her arrest. She was told by Harris County Sheriffs Deputies not to speak at the hearing. The hearing lasted approximately 60 seconds and, pursuant to the policies and practices described in this Complaint, no inquiry was made into her ability to pay.
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Id. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $2,500. Id.
Ms. ODonnell is the mother of a 4-year-old child. She and her child struggle to meet the basic necessities of life. Id. She receives benefits from the federal government’s Women, Infants, and Children (WIC) program to help meet the nutritional needs of her daughter. Id. Because she cannot afford shelter, she stays with a friend. She obtained a job as a waitress within the past few weeks, but she is unsure if her current jailing will cause her to lose that job. Id.
B. Harris County’s Arrest and Detention Policies and Practices The relevant Harris County policies and practices are simple. When police effect a warrantless arrest of a person for a misdemeanor offense in Harris County, they take the person into custody and place a call to a hotline that is staffed by assistant district attorneys. The police officer describes the basis of the arrest to the prosecutor on duty who decides whether to pursue charges. If no charges are to be filed, the arrestee is released. If the prosecutor decides to pursue charges, law enforcement imposes money bail pursuant to a schedule. See Doc. 1-2. If the arrestee can pay the money bail immediately, she is released, without ever being admitted into the jail. If she cannot pay, she is booked into the jail. See generally Exhibit 7, Declaration of Salil Dudani. Individuals who are arrested pursuant to warrants are subjected to a similar practice. In these cases, the district attorney again makes a charging decision on the basis of allegations by a police officer or another complainant and imposes money bail according to the schedule. The money bail amount is written on the warrant. Id. A judicial officer makes a finding of probable cause based on the allegations in the warrant and then signs the warrant. As a matter of policy,
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the judicial officer imposes the money bail required by the schedule. Thus, when a person is arrested for a misdemeanor offense, pursuant to a warrant or a warrantless arrest, that person can pay the amount of money determined by the bail schedule and be released immediately.1 If the person cannot pay the amount of money required, she is booked into the Harris County Jail.2
Many of Harris County’s arrestees are released almost immediately when they post these small amounts of money. The rest are left to languish in jail until their next court date, or until they or their families produce enough money at some point in the intervening period. Every day, hundreds of people are booked into the jail3 and detained because they are unable to purchase their freedom.
The Harris County Sheriff’s Department, through its jail personnel, assembles groups of roughly 20 to 45 people, many of whom were arrested for minor misdemeanors, throughout the day. Generally within 24 hours of arrest, those arrestees appear via videolink before one of five hearing officers. The hearing officer determines probable cause and ensures that the bail amount

1 Those able to pay that amount of money can avoid arrest on the warrant altogether by paying in advance.

2 The vast majority of arrestees use a bail bond agent to secure their release from jail. Typically, if accepted by a for-profit bail agent, an arrestee will have to pay the for-profit agent a non-refundable fee of 10 percent of the value of the bond to be released, though the industry standard for a $500 money bail is $150. In 2012, the for-profit bail bond industry in Harris County collected at least $34.4 million dollars in fees. See Gerald R. Wheeler & Gerald Fry, Project Orange Jumpsuit Report #2, Harris County’s Two-Tier Justice System: Longitudinal Study of Effects of Harris County Felony and Misdemeanor Defendants’ Legal & Extralegal Attributes on Pretrial Status and Case Outcome (Apr. 23, 2014) at 4, available at http://www.pretrial.org/download/research/Harris%20County's%20Twotier%20Justice%20System%20(Project%20Orange%20Jumpsuit)%20-%20Wheeler%20and%20Fry%202014.pdf [Wheeler & Fry, Report #2]; Michael Barajas, Will Lawmakers Reform the System That Keeps Poor, Legally Innocent People in Lockup? (Sept. 25, 2015), available at http://www.houstonpress.com/news/will-lawmakersreform-the-system-that-keeps-poor-legally-innocent-people-in-lockup-7788583 (quoting bondsman saying that being poor raises a red flag).

3 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County at 9,

http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc

_2015_harris_county_blueprint.authcheckdam.pdf [ABA Report]; Harris County Pretrial Services, 2014 Annual

Report

(2014)

at

3,

available

at

http://www.harriscountytx.gov/CmpDocuments/59/Annual%20Reports/2014%20Annual%20Report.pdf (stating that

52,506 people whose most serious charge was a misdemeanor were admitted to the jail in 2013). [Pretrial Services

2014 Report].

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imposed by the district attorney conforms to the bail schedule. These hearings are referred to locally as “magistrations,” “Article 15.17. hearings,” or “probable cause hearings.” See Ex. 7.
The County strives to hold these hearings within 24 hours of arrest. However, the length of time between arrest and probable cause hearing depends on how long the Sheriff’s booking process takes and the number of arrestees. On occasion, the hearings do not take place within 24 hours of arrest. At any point in the booking process, the arrestee can pay his or her predetermined money bail and be released. If a person pays before a probable cause determination, that determination in her case will be made at a subsequent court appearance.
An assistant district attorney participates in the probable cause hearings by arguing for the hearing officer to make a finding of probable cause and sometimes asking the hearing officer to impose bail in an amount higher than the amount on the schedule or on the warrant. One prosecutor stated recently at a probable cause hearing that, pursuant to Harris County’s bail schedule scheme, if an arrestee “can’t pay, they sit in jail.” The County does not provide defense attorneys at the probable cause hearing.
When the videolink is turned on, arrestees appear on a television screen, sitting in rows of chairs in a room at the jail. The hearing officer, who is in a courtroom in the courthouse, calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An assistant district attorney then reads from the complaint. The hearing officer decides whether there is probable cause, finding probable cause in almost every case, and, almost always, sets bail according to the schedule. Sometimes the hearing officer increases the money bail. The hearings last approximately one minute as a matter of routine. See generally Exhibit 7; see also Doc. 1-1.
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Hearing officers make no attempt to determine an arrestee’s financial situation, and they make no inquiry into or findings concerning an arrestee’s ability to pay the money bail amount they impose pursuant to the bail schedule. In no case is a money bail set with reference to an arrestee’s ability to pay. See Exhibit 7.
In addition to making no affirmative inquiry into or findings concerning ability to pay, hearing officers affirmatively refuse as a matter of policy and practice to hear any argument that an arrestee raises about her ability to pay. If an arrestee tells the hearing officer that she cannot pay the money bail, the hearing officer tells the arrestee that the reduction of money bail from the schedule is not the purpose of that hearing and that the arrestee should have her attorney raise the issue with the County Judge handling her case at her first court date after an attorney is assigned. As one hearing officer explained, probable cause hearings are “not the forum” for discussing a person’s ability to pay money bail or raising any related issues, and hearing officers believe such questions must be addressed in an adversarial setting after appointment of counsel.
Pursuant to policy and practice, it is not possible for arrestees to challenge the constitutionality of their money bail before the hearing officer. Hearing officers determining the question of probable cause refuse to consider deviation from the bail schedule based on indigence and refuse to hear evidence concerning ability to pay. In almost all cases, the hearing officer affirms the money bail that the district attorney set pursuant to the bail schedule.4 If, however, the district attorney erred in setting the money bail (i.e. the monetary amount did not conform to the bail schedule), the hearing officer will alter the money bail — by raising or lowering the bail — so that it meets the schedule and satisfies individual court judges’ instructions.
4 Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), available at http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensuredefenseless-people-stay-in-jail-8058308
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In Harris County, money bail is imposed based solely on the alleged offense and the person’s criminal history and without reference to a person’s ability to pay, resulting in the detention of arrestees based on their poverty. Doc. 1-2. These practices have resulted in the confinement of named Plaintiff Maranda Lynn ODonnell without any inquiry into or findings concerning her ability to pay.
In contrast to Harris County, many American jurisdictions do not keep people in jail on minor offenses because of their poverty. Instead, many other jurisdictions release arrestees with an unsecured bond, on their own recognizance, or with tailored non-financial conditions of release. In jurisdictions where arrestees are released on unsecured bond, the person promises to pay the scheduled amount of money if the person fails to appear in court. When a person is released on her own recognizance, she promises to appear for court, usually on penalty of an additional criminal charge for Failure to Appear. In many places, each of these options is supplemented by the person’s agreement to other reasonable conditions of release. In none of these situations, however, is a person kept in a jail cell solely because she cannot afford a sum of money.
ARGUMENT A preliminary injunction is warranted if the movant demonstrates: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). The named Plaintiff easily satisfies each of these requirements. I. Plaintiff Is Highly Likely to Succeed on the Merits Because the Defendants’
Conduct Violates Basic Equal Protection and Due Process Law
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The constitutional principles at issue in this case are well-established. The Fifth Circuit long ago identified the basic equal protection violation when reviewing Florida’s post-arrest detention procedures: “At the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc). See Walker, 2016 WL 361612 (granting class-wide preliminary injunction to stop the use of money bond to detain new arrestees without an inquiry into the arrestee’s ability to pay); Rodriguez, 2015 WL 9239821 (granting class-wide preliminary injunction to stop the use of money bond to detain misdemeanor probationers without an inquiry into the arrestee’s ability to pay).
A. The Constitution Prohibits Keeping a Person in Jail Solely Because the Person’s Poverty Renders Him Unable to Afford a Monetary Payment
The rule that poverty and wealth status have no place in deciding whether a human being should be kept in a jail cell embodies some of the most fundamental principles in American law. See Williams v. Illinois, 399 U.S. 235, 241 (1970) (“[T]he Court has had frequent occasion to reaffirm allegiance to the basic command that justice be applied equally to all persons.”). In Griffin v. Illinois, 351 U.S. 12, 19 (1956), the Court stated this principle in its simplest form: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” In Douglas v. California, 372 U.S. 353, 355 (1963), the Court applied this principle to an indigent person’s appeal: “For there can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has.”
These principles have been applied in a variety of contexts where the government has sought to keep a person in jail solely because of the person’s inability to make a monetary payment. See, e.g., Tate v. Short, 401 U.S. 395, 398 (1971) (“[T]he Constitution prohibits the
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State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”). In Bearden v. Georgia, 461 U.S. 660, 672–73 (1983), the Supreme Court explained that to “deprive [a] probationer of his conditional freedom simply because, through no fault of his own he cannot pay [a] fine . . . would be contrary to the fundamental fairness required by the Fourteenth Amendment.” For this reason, the Court held that a necessary pre-condition for a state to jail an individual for non-payment is an inquiry into that person’s ability to pay. Id. at 672.
In Williams, 399 U.S. 235, the Supreme Court explained: But, as we said in Griffin, a law nondiscriminatory on its face may be grossly discriminatory in its operation. Here the Illinois statute[] as applied to Williams works an invidious discrimination solely because he is unable to pay the fine. On its face the statute extends to all defendants an apparently equal opportunity for limiting confinement to the statutory maximum simply by satisfying a money judgment. In fact, this is an illusory choice for Williams or any indigent who, by definition, is without funds. Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment . . . . By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment. Id. at 242 (citation and quotation omitted). The holdings of Bearden, Tate, and Williams establish a maxim at the core of the American justice system: an individual cannot be jailed solely because she cannot make a monetary payment. Relying on this Supreme Court precedent, it has long been the law of this Circuit that any kind of pay-or-jail scheme is unconstitutional when it operates to jail the poor. In Frazier v. Jordan, 457 F.2d 726, 728–29 (5th Cir. 1972), the court found that an alternative sentencing scheme of $17 dollars or 13 days in jail was unconstitutional as applied to those who could not immediately afford the fine. Because those people would be sent to jail if they could not pay the
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$17 fine, the local court’s order of imprisonment was unconstitutional. Id. at 728. Put simply, Frazier condemned the municipal court scheme because it created a system in which “[t]hose with means avoid imprisonment [but] the indigent cannot escape imprisonment.” Id.; see also Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir. 1977) (“To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws.”), vacated as moot, 439 U.S. 1041 (1978); United States v. Hines, 88 F.3d 661, 664 (8th Cir. 1996) (“A defendant may not constitutionally be incarcerated solely because he cannot pay a fine through no fault of his own.”); United States v. Estrada de Castillo, 549 F.2d 583, 586 (9th Cir. 1976) (“[I]f a defendant, because of his financial inability to pay a fine, will be imprisoned longer than someone who has the ability to pay the fine, then the sentence is invalid.”).
The court in United States v. Flowers, 946 F. Supp. 2d 1295 (M.D. Ala. 2013), was confronted with an analogous situation: a criminal defendant faced imprisonment because she could not afford the cost of release on home confinement monitoring. The court found — as the U.S. government conceded, id. at 1301 — that keeping a person in jail solely because she could not afford to pay for home confinement monitoring would be “wrong” and that “the Constitution’s guarantee of equal protection is inhospitable to the Probation Department’s policy of making monitored home confinement available to only those who can pay for it.” Id. at 1302.
In Flowers, the court began by acknowledging that “the principle that wealth and poverty have no place in sentencing decisions is nothing new.” Id. The court held that it could not put a person in jail simply because the person could not afford the cost of electronic monitoring services. Id. at 1301. The court recounted the fundamental federal precedent from a variety of contexts, explaining that, just as “it violates the Constitution's guarantee of equal protection
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under the laws to convert a fine-only sentence into a prison term based on inability to pay,” it
would also violate the Constitution to turn a sentence of electronic monitoring into a jail sentence simply because the defendant could not afford to pay for the service. Id. at 1300.5
If poverty status has no place in determining sentencing outcomes, it has no place in
pretrial release decisions. Just as it is unlawful to put a convicted person in jail because of his
inability to make a monetary payment, it is unlawful to put a presumptively innocent person in
jail for the same reason. Rainwater, 572 F.2d at 1057; see generally Exhibit 6, DOJ Statement of
Interest. The fundamental principles in Bearden, Williams, and Flowers thus apply equally to
pretrial and post-trial confinement. In other words, the analysis in Flowers would have been the
same if the question was whether to jail an innocent defendant prior to trial simply because he could not afford the U.S. Probation Department’s pretrial electronic monitoring services.6
In the context of pretrial arrestees, the rights at stake are even more significant because
their liberty is not diminished by criminal conviction — they are presumed innocent. Justice
Douglas, writing at the onset of the successful movement to rid the federal courts of the use of
the kind of poverty jailing now prevalent in Harris County, famously set forth the fundamental
5 As Flowers described the basic violation: “[A] defendant identical to Flowers but with a thicker billfold would receive home confinement, while Flowers would receive prison.” Id. at 1301. Other federal district courts have consistently enforced these fundamental principles. See, e.g., United States v. Waldron, 306 F. Supp. 2d 623, 629 (M.D. La. 2004) (“It is well established that our law does not permit the revocation of probation for a defendant’s failure to pay the amount of fines if that defendant is indigent or otherwise unable to pay. In other words, the government may not imprison a person solely because he lacked the resources to pay a fine.”); De Luna v. Hidalgo County, 853 F. Supp. 2d 623, 647-48 (S.D. Tex. 2012) (“[T]he Court finds that … before a person charged with a … fine-only offense may be incarcerated by Hidalgo County for the failure to pay assessed fines and costs, this deprivation of liberty must be preceded by some form of process that allows for a determination as to whether the person is indigent and has made a good faith effort to discharge the fines, and whether alternatives to incarceration are available.”); Brown v. McNeil, 591 F. Supp. 2d 1245, 1260 (M.D. Fla. 2008) (granting federal habeas petition because “Petitioner did not have the ability to remain current with his supervision payments given his other financial obligations at the time,” which meant that state’s revocation of his conditional release constituted “an unreasonable application of clearly established federal law.”). 6 For example, if a federal magistrate judge began telling all destitute defendants at initial misdemeanor appearances in the Southern District of Texas that they would be jailed unless they could pay $100 cash, this Court would reverse such an order immediately.
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question: “To continue to demand a substantial bond which the defendant is unable to secure raises considerable problems for the equal administration of the law. . . . Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to have enough property to pledge for his freedom?” Bandy v. United States, 81 S. Ct. 197, 197-98 (1960).
This is the question that the former Fifth Circuit answered in Rainwater. The panel opinion, Pugh v. Rainwater, 557 F.2d 1189, 1190 (5th Cir. 1977), had struck down the Florida Rule of Criminal Procedure dealing with money bail because it is unconstitutional to keep an indigent person in jail prior to trial solely because of the person’s inability to make a monetary payment. The en banc court agreed with the constitutional holding of the panel opinion but reversed the panel’s facial invalidation of the entire Florida Rule. Rainwater, 572 F.2d at 1057.
Rainwater’s reasoning is easy to understand and dispositive of this case. The en banc court held that the Florida Rule itself did not require on its face the setting of monetary bail for arrestees and explained that, if such a thing were to happen to an indigent person, it would be unconstitutional. In other words, the court held that the Florida courts could not be expected to enforce the new Rule — which had been amended during the litigation in that case — in a manner that violated the Constitution by requiring monetary payments to secure the release of an indigent person. The Fifth Circuit explained the binding constitutional principles at stake:
We have no doubt that in the case of an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, pretrial confinement for inability to post money bail would constitute imposition of an excessive restraint. We do not read the State of Florida’s new rule to require such a result. Id. at 1058.7 Summing up its reasoning, the en banc court held: “The incarceration of those who cannot [afford a cash payment], without meaningful consideration of other possible alternatives,
7 Rainwater further explained that it refused to require that priority be given in all cases — including those of the non-indigent — to non-monetary conditions of release. The court noted that, at least for wealthier people, some
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infringes on both due process and equal protection requirements.”8 Id. at 1057; see also, e.g., Williams v. Farrior, 626 F. Supp. 983, 985 (S.D. Miss. 1986) (“For the purposes of the Fourteenth Amendment’s Equal Protection Clause, it is clear that a bail system which allows only monetary bail and does not provide for any meaningful consideration of other possible alternatives for indigent pretrial detainee infringes on both equal protection and due process requirements.”).
Harris County’s scheme does exactly what Rainwater and the entire line of precedent on which it relied rejects: it prescribes jail for those who cannot afford to pay the County and reserves freedom for those who can. In no case is an indigent arrestee offered an alternative to posting an immediate payment. The County (and the State of Texas) has determined that people accused of minor misdemeanor offenses (like the Plaintiff and other Class members) are eligible for immediate release after arrest. The County cannot make exercising the right to freedom contingent solely on the ability to pay. Cf. Bearden, 461 U.S. at 667-68 (holding that “if [a] State determines a fine or restitution to be the appropriate and adequate penalty for [a] crime, it may not thereafter imprison a person solely because he lacked the resources to pay it”); see also Walker, 2016 WL 361612 (granting class-wide preliminary injunction to stop the use of money bond to detain new arrestees without an inquiry into the arrestee’s ability to pay); Rodriguez, 2015 WL 9239821 (granting class-wide preliminary injunction to stop the use of money bond to detain misdemeanor probationers without an inquiry into the arrestee’s ability to pay); Cooper, 2015 WL 10013003 (issuing Temporary Restraining Order and holding that the practice of
might actually prefer monetary bail over release with certain other conditions, and that the court would not invalidate a state Rule that allowed for those other conditions in appropriate cases. Id. at 1057. 8 Four circuit judges wrote a powerful dissent in Rainwater. Although they agreed with the constitutional principles announced by the majority that the Constitution forbids jailing the poor when they cannot afford monetary bail, they were concerned about the majority’s faith in the Florida courts not to apply the new state Rule in unconstitutional ways to detain the indigent. Id. at 1067 (“I cannot escape the conclusion that the majority has chosen too frail a vessel for such a ponderous cargo of human rights.”) (Simpson, J., Dissenting).
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requiring secured money bond without an inquiry into ability to pay violates the Fourteenth Amendment); Jones on behalf of Varden, 2015 WL 5387219 (declaring secured money bond unconstitutional without an inquiry into ability to pay); Thompson, 2015 WL 10322003 (same); Piece, 2015 WL 10013006 (issuing a declaratory judgment that the use of a secured bail schedule is unconstitutional as applied to the indigent and enjoining its operation; “If the government generally offers prompt release from custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release from custody to a person because the person is financially incapable of posting such a bond.”); Snow, 2015 WL 5071981 (issuing a Temporary Restraining Order and holding that the Plaintiff was likely to succeed on the merits of her claim that Ascension Parish’s money bail schedule violated due process and equal protection); Exhibit 6, DOJ Statement of Interest (arguing that the use of secured monetary bail schedules to keep indigent arrestees in jail “not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.”).
Harris County’s money-based detention scheme has also been rejected by state courts. In State v. Blake, 642 So. 2d 959, 968 (Ala. 1994), the Alabama Supreme Court struck down a state statute that allowed for indigent arrestees to be held for 72 hours solely because they could not afford monetary payments to secure their release prior to their first appearance. The Court held:
[A]n indigent defendant charged with a relatively minor misdemeanor who cannot obtain release by cash bail, a bail bond, or property bail, must remain incarcerated for a minimum of three days, and perhaps longer, before being able to obtain [recognizance release]. We conclude that, as written, article VII of the Act violates an indigent defendant’s equal protection rights guaranteed by the United States Constitution, because the classification system it imposes is not rationally related to a legitimate governmental objective.
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Id (emphasis added) (quotations removed).9 In Blake, the lower court had expressed outrage at
the system of detention based on poverty that prevailed in Alabama at the time:
The pretrial detention of this defendant accused of a misdemeanor for possibly five or six days because of defendant's lack of resources interferes with the right of liberty, the premise of innocent until proven guilty, and shocks the conscience of this court. If this defendant has $60 cash to pay a bondsman, he walks out of the jail as soon as he is printed and photographed .… Absent property or money, the defendant must wait 72 hours…. Putting liberty on a cash basis was never intended by the founding fathers as the basis for release pending trial.
Id. at 966 (emphases added). The Mississippi Supreme Court long ago condemned the jailing of
the poor based on inability to pay secured monetary bail. See, e.g., Lee v. Lawson, 375 So. 2d
1019, 1023 (Miss. 1979) (“A consideration of the equal protection and due process rights of
indigent pretrial detainees leads us to the inescapable conclusion that a bail system based on
monetary bail alone would be unconstitutional.”). In Lawson, the court explained that
Mississippi law provided for release without payment of money and that, following the
American Bar Association Standards, Mississippi courts should adopt a presumption of release
on recognizance (at least in cases not involving “violent or heinous crimes”). Id. (“There is
incorporated in these standards a presumption that a defendant is entitled to be released on order
9 Blake struck down the scheme holding indigent defendants on small cash bonds for at least 72 hours under even rational basis review. Blake inappropriately applied rational basis review even after correctly stating the legal rule that strict scrutiny must be applied to any government action that deprives a person of a fundamental right. The panel decision in Rainwater, therefore, was correct in its determination that jailing a person — and depriving her of the most fundamental right to liberty, requires that strict scrutiny be applied. See United States v. Salerno, 481 U.S. 739, 750 (1987) (recognizing “fundamental nature of this right” to pretrial liberty and applying heightened scrutiny to pretrial detention scheme); United States v. Montalvo-Murillo, 495 U.S. 711, 716 (1990) (holding that release prior to trial is a “vital liberty interest”); Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (“[A] statutory classification based upon suspect criteria or affecting ‘fundamental rights’ will encounter equal protection difficulties unless justified by a compelling governmental interest.”); see also, e.g., Williams v. Farrior, 626 F. Supp. 983, 986 (S.D. Miss. 1986) (holding that a state’s pretrial detention scheme must meet “strict judicial scrutiny” because of the fundamental rights at issue); Carlisile v. Desoto County., Mississippi, 2010 WL 3894114, at *5 (N.D. Miss. Sept. 30, 2010) (holding that because a “compelling interest” was required for pretrial detention, the plaintiff’s rights were violated if he was jailed without a consideration of non-financial alternatives); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc) (applying strict scrutiny to strike down Arizona law that required detention after arrest without individualized consideration of an arrestee’s circumstances).
The difference is immaterial here, though, because the Alabama courts correctly held that jailing indigent people who are otherwise deemed eligible for release solely because they cannot make small payments is not even rationally related to a legitimate government objective, let alone necessary to achieve a compelling one.
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to appear or on his own recognizance.”). The court declared that this presumption of nonmonetary release “will go far toward the goal of equal justice under law.” Id. at 1024.10
The Supreme Court’s most recent case on wealth-based detention emphasizes the importance of a rigorous inquiry into ability to pay before jailing a person for failing to meet a financial condition. In Turner v. Rogers, 131 S. Ct. 2507, 2519–20 (2011), the Court described the procedural requirements that must be followed if a government attempts to jail a person who has not made a required payment. Turner held that South Carolina’s incarceration of a man for not paying child support was unconstitutional because the court had imprisoned him without an inquiry into his ability to pay. Id. at 2520. Whether in the context of the final revocation proceeding in Bearden, the contempt proceedings in Turner, or the post-arrest, pre-trial detention in this case, the Court explained the basic protections that a government must provide before jailing a person for non-payment:
Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the . . . proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. Id. at 2519. The Court held that Turner’s imprisonment was unconstitutional because the South Carolina court did not comply with the procedures that were essential to “fundamental fairness.” Id. at 2520. In the same way, if the court in Harris County orders an arrestee’s release but conditions that release on a monetary payment, the judge must make an inquiry and “an express finding” that “the defendant has the ability to pay.” Id. at 2519. Otherwise, the order of release
10 See also, e.g., Robertson v. Goldman, 369 S.E.2d 888, 891 (W.Va. 1988) (“[W]e have previously observed in a case involving a “peace bond,” which we said was analogous to a bail bond, that if the appellant was placed in jail because he was an indigent and could not furnish [bond] while a person who is not an indigent can avoid being placed in jail by merely furnishing the bond required, he has been denied equal protection of the law.”) (internal quotes removed).
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would be converted into an order of detention for an indigent person. The County’s only conceivable interest in requiring a person to post money bail is to
achieve the societal benefits of pre-trial release while also giving the arrestee incentive to return to court. But if the monetary amount is more than the person can pay and results in detention, how can it further this governmental interest? A person stuck in detention will never be in a position in which that incentive could operate. Setting a condition of release that is a physical impossibility for the arrestee to meet therefore furthers no governmental interest, let alone a compelling one.
In Bearden, the Supreme Court explained that it would be difficult ever to find a legitimate state reason for jailing a person when she could not pay. In the post-conviction context, the Court explained that the state’s interest in “ensuring that restitution be paid to the victims” is insufficient, because “[r]evoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming.” Bearden, 461 U.S. at 670. Similarly, the State’s interest in removing the defendant “from the temptation of committing other crimes” in order to protect society and rehabilitate him is also insufficient, as this would amount to “little more than punishing a person for his poverty.” Id. at 671. Finally, although the state’s interest in punishment and deterrence of others is a valid interest, it can be “served fully by alternative means.” Id. at 671–72. Indeed, if a person is unable to pay through no fault of her own, she is not deserving of punishment for not paying, and punishing her has no deterrent effect because the non-payment was not intentional. In the pre-trial context, the only valid interest in a money bond is assuring future appearance after release. By definition, that interest cannot be served through a sum greater than the person can afford.
There is nothing wrong, of course, with the concept of giving an already released person
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an additional financial incentive to appear. As the federal Bail Reform Act contemplates, when a person can afford to pay a sum, the thought of later losing that money for nonappearance might create an additional incentive for a released person to appear. But when the amount is set without a finding that the person can pay — and it operates to detain a person simply because the person cannot afford to make the payment through which that incentive to return would have been created — then it fails to serve any legitimate interest. Without that finding, a court cannot be sure that it has not imposed “a financial condition that results in the pretrial detention of the person.” 18 U.S.C. § 3142(c)(2).
Nearly forty years after Rainwater, these basic principles are being ignored by Harris County every day. While some arrestees in Harris County hand money to County employees and are released immediately, poor arrestees charged with the same offenses languish in a crowded jail. No one has even bothered to inquire into their ability to pay, let alone made the required findings on that issue. A county-wide system that jails the poor and frees the rich for no reason other than their wealth is not a system consistent with the “fundamental fairness,” Bearden, 461 U.S. at 673, enshrined in the Fourteenth Amendment.
B. Harris County Has Simple, Constitutional Alternatives to Jailing the Poor “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).11 All over
11 In evaluating the federal Bail Reform Act, which authorized pretrial detention only for people charged with “serious felonies,” under its heightened scrutiny test for fundamental rights, the Supreme Court found that the federal statute survived because it addressed a “compelling” and “overwhelming” interest of preventing additional pretrial criminal activity by operating “only on individuals who have been arrested for a specific category of extremely serious offenses” and who “Congress specifically found” to be especially dangerous and to pose a “particularly acute problem.” Salerno, 481 U.S. at 750; id. at 747 (“The Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes.”). Moreover, the Court relied on the numerous aspects of the federal law that made it narrowly tailored, such as that, even as applied only to the most serious federal offenses, it required “a full-blown adversarial hearing,” the representation of counsel, and a heightened evidentiary burden of proof, id. at 742, 750, before a person could be held in custody prior to trial. The
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the country, in the area of post-arrest procedure, jurisdictions have taken this constitutional obligation seriously and instituted simple alternatives to the odious system of jailing the poor and freeing the rich. For example, in Washington, D.C., arrestees are released on recognizance with appropriate non-financial conditions. See D.C. Code § 23-1321. In Clanton, Alabama, after being confronted with a similar federal suit in January 2015, the city adopted a new policy of releasing all arrestees on a $500 unsecured recognizance bond, allowing every new arrestee to be released on the promise to pay that amount should the person later fail to appear. See Jones on behalf of Varden, 2015 WL 5387219. Similarly, in April 2015, after being confronted with a federal suit, Velda City, Missouri, ended its use of secured bail and implemented a system of recognizance release for all new arrestees. Pierce, 2015 WL 10013006. In so doing, Clanton and Velda City joined many other cities and counties in following the advice of the en banc Fifth Circuit court in Rainwater: “Systems which incorporate a presumption favoring personal recognizance avoid much of the difficulty inherent in the entire subject area.” Rainwater, 572 F.2d at 1057.12 See Walker, 2016 WL 361612; Rodriguez, 2015 WL 9239821; Cooper, 2015 WL 10013003; Thompson, 2015 WL 10322003; Snow, 2015 WL 5071981. Harris County could cure the illegality at the core of this case simply by allowing misdemeanor arrestees to sign unsecured bonds in the same monetary amounts that it currently uses or by releasing them on their own recognizance under penalty of a new charge for failure to appear.
Court ultimately upheld the law because “Congress’ careful delineation” required an individualized finding that a particular “arrestee presents an identified and articulable threat to an individual or the community.” Id. at 751. 12 The en banc court in Rainwater also cited favorably to overwhelming academic authority outlining the unconstitutionality of generic bail schedules, calling the academic consensus “convincing.” Rainwater, 572 F.2d at 1056 (“The punitive and heavily burdensome nature of pretrial confinement has been the subject of convincing commentary.”).
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In Washington, D.C. and many other cities around the United States,13 chaos has not ensued by following Rainwater’s guidance and relying on recognizance or unsecured bond. Some areas have chosen to supplement release on recognizance or unsecured bond with standard conditions of release that place additional non-financial obligations on arrestees. Harris County is free to choose reasonable measures among these options without offending the Fourteenth Amendment, but Harris County’s poverty-based post-arrest detention scheme makes a mockery of the “carefully limited” circumstances, Salerno, 481 U.S. at 755, in which continued detention of a presumptively innocent arrestee is allowed.
Like the courts of this Circuit, other federal courts, and the Department of Justice, the American Bar Association’s seminal Standards for Criminal Justice condemn Harris County’s policies as having no place in American law. American Bar Association Standards for Criminal Justice – Pretrial Release (3rd ed. 2007) (“ABA Standards”).14 The ABA recently reaffirmed its opposition to secured money bail schedules, stating that, “Under our system of justice, the right of any individual to liberty, as well as the right to mount an effective defense to criminal charges, should not depend on that person’s ability to pay.”15 The ABA Standards, which have been

13 The federal government and the District of Columbia both removed money bail virtually entirely from their court systems after the Department of Justice, Congress, and an overwhelming consensus of legal experts concluded that the old system of post-arrest detention based on money bail was fundamentally unfair and unconstitutional. For example, federal law explicitly forbids obtaining post-arrest detention through the use of money bail that a person cannot meet. See 18 U.S.C. § 3142(c)(2) (“The judicial officer may not impose a financial condition that results in the pretrial detention of the person.”).

14 Available at http://www.americanbar.org/content/dam/aba/publications/criminal_justice_ standards/pretrial_release.authcheckdam.pdf.

15 Amicus Brief, submitted by the ABA in Rodriguez, et al. v. Providence Community Corrections, et al., No. 16-

5058,

Doc.

32

(Apr.

26,

2016),

available

at

https://www.americanbar.org/content/dam/aba/images/abanews/rodriguez_v_pcc_042616.pdf; id. at 13–14

(reaffirming support for the Standards and stating that “inflexible money-bail systems that rely on preset bail

schedules — instead of individualized determinations of the appropriate conditions of release — violate the Due

Process and Equal Protection Clauses of the Fourteenth Amendment”); id. at 22 (“Monetary conditions of release . .

. should never prevent the defendant’s release solely because the defendant is unable to pay.”); id. at 32 n.9 (citing

support for the ABA standards from a wide variety of actors in the legal system, including the National Association

of Counties, the Conference of Chief Justices, the Association of Prosecuting Attorneys, the National Sheriffs’

22

Case 4:16-cv-01414 Document 1 Filed in TXSD on 05/19/16 Page 23 of 34
relied on in more than 100 Supreme Court decisions for decades, first began addressing pretrial
release procedures in 1968. The latest revision of the ABA Standards constitutes one of the most
comprehensive statements available on the issue of post-arrest release, and they set forth clear,
reasonable, and simple alternatives to the unconstitutional scheme used by Harris County.
For example, the ABA Standards call for the presumption of release on recognizance,
followed by release pursuant to the least restrictive non-financial conditions; most importantly,
they condemn the use of generic money schedules like the one used by Harris County:
Consistent with these Standards, each jurisdiction should adopt procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond. Additional conditions should be imposed on release only when the need is demonstrated by the facts of the individual case…. ABA Standards § 10-1.4(a).16
The judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.
ABA Standards at § 10-1.4(e).
Financial conditions other than unsecured bond should be imposed only when no other less restrictive condition of release will reasonably ensure the defendant’s appearance in court. The judicial officer should not impose a financial condition that results in the pretrial detention of the defendant solely due to an inability to pay.
ABA Standards at § 10-5.3(a). According to the ABA Standards, money bail is only to be used
as a last resort, and should never be used in a generic fashion, as they are in Harris County:
Financial conditions should be the result of an individualized decision taking into account the special circumstances of each defendant, the defendant’s ability to
Association among others; stating, “There is no serious dispute among criminal justice stakeholders that inflexible money-bail schemes have no place in the American justice system.”). Attached as Exhibit 5. 16 Moreover, when financial conditions are used, “the least restrictive conditions principle requires that unsecured bond be considered first.” Id. § 10-1.4(c) (commentary) at 43–44. The ABA commentary goes on: “If the court finds that unsecured bond is not sufficient, it may require the defendant to post bail; however, the bail amount must be within the financial reach of the defendant and should not be at an amount greater than necessary to assure the defendant's appearance in court.” Id. at 44.
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meet the financial conditions and the defendant’s flight risk, and should never be set by reference to a predetermined schedule of amounts fixed according to the nature of the charge.
ABA Standards at § 10-5.3(e) (emphasis added). The National Association of Pretrial Services
Agencies (NAPSA) has also issued definitive Standards that condemn the use of generic monetary schedules. See NAPSA, Standards on Pretrial Release (3rd Ed. 2004) at § 2.5(f).17
The ABA Standards are widely viewed as authoritative in a variety of contexts,18 and
they are seen as the seminal text reflecting best practices by the leading commentators on post-
arrest procedures. See Department of Justice, National Institute of Corrections, Fundamentals of
Bail (2014) at 75 (discussing the importance of the ABA Standards and its rejection of
standardized financial conditions of release after arrest). These Standards, which include
detailed treatment of all relevant policies and procedures necessary for creating a lawful and
effective post-arrest release system, have been a model for numerous jurisdictions around the
country to eliminate the antiquated and unlawful practice of detention based on small amounts of
money.
17 Available at, http://www.napsa.org/publications/2004napsastandards.pdf. The NAPSA Standards provide: Financial conditions should be the result of an individualized decision taking into account the special circumstances of each defendant, the defendant’s ability to meet the financial conditions and the risk of the defendant’s failure to appear for court proceedings, and should never be set by reference to a predetermined schedule of amounts based solely on the nature of the charge.
Id. at § 2.5 (f). The Commentary to the NAPSA Standards further explains: Some jurisdictions have historically used a “bail schedule” that establishes set bond amounts for various charge categories and excludes consideration of other factors that may be far more relevant to the risk of nonappearance. The practice of using a bail schedule easily leads to detention for those too poor to post the bail amount and to the release of others for whom the amount is relatively nominal and thus creates no incentive to return to court.
18 See, e.g., Strickland v. Washington, 466 U.S. 668, 688 (1984) (relying on the ABA Standards to ascertain “prevailing norms of practice”). As Chief Justice Burger explained when discussing an earlier version of the ABA Standards, the ABA Standards constitute “the single most comprehensive and probably the most monumental undertaking in the field of criminal justice ever attempted by the American legal profession in our national history.” Warren E. Burger, The ABA Standards for Criminal Justice, 12 Am. Crim. L. Rev. 251 (1974).
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Case 4:16-cv-01414 Document 1 Filed in TXSD on 05/19/16 Page 25 of 34
The Constitution guarantees that the poor will not face a different criminal legal system than the system faced by wealthier people. Because the Plaintiff and the similarly situated impoverished arrestees that she represents are being held, or will be held, based solely on their inability to pay the generic amount of money set by Harris County’s bail schedule, they are highly likely to prevail on the merits of their constitutional claim.
II. Plaintiff and Class Members Will Suffer Irreparable Constitutional Harm If This Court Does Not Issue an Injunction
Without intervention from this Court, the Plaintiff and the class of similarly situated people that she represents will continue to suffer the serious and irreparable harm of being jailed. Imprisoning a human being in a jail cell in violation of her constitutional rights is undoubtedly an irreparable harm to her body and her mind. “Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”).
Even one additional night in jail is a harm to a person that cannot be later undone. See, e.g., United States v. Bogle, 855 F.2d 707, 710–711 (11th Cir. 1988) (holding that the “unnecessary deprivation of liberty clearly constitutes irreparable harm”); Rodriguez, 2015 WL 923982 (finding irreparable harm because plaintiffs were unconstitutionally deprived of their liberty when the defendants “jail[ed] [them] on secured money bonds without an indigency inquiry”); Walker, 2016 WL 361612, at *14 (holding that “an improper loss of liberty” resulting
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from the plaintiffs’ “being jailed simply because [they] could not afford to post money bail” “constitutes irreparable harm”);19
Moreover, even a few days in jail can have devastating consequences in a person’s life, such as the loss of a job or the inability to arrange safe alternate care for minor children. It also exposes arrestees to the risk of unsanitary conditions, infection, and other medical and safety emergencies prevalent in Texas jails.20 The Harris County Jail — the largest jail in Texas and the third largest in the nation — is notorious for its overcrowding, inhumane, and life-threatening conditions. Every year since 2009, an average of nine people being held pretrial have died in the Harris County Jail, including three at the hands of guards. Indeed, physical abuse by guards against inmates is endemic in the jail. The Houston Chronicle recently uncovered stories of a guard choking an inmate so hard that handprints were left on the inmate’s neck, six guards beating an inmate for flashing a mirror at a guard station, and guards who permit and encourage

19 Wanatee v. Ault, 120 F.Supp.2d 784, 789 (N.D. Iowa 2000) (“[U]nconstitutional incarceration generally constitutes irreparable harm to the person in such custody.”); SEC v. Bankers Alliance Corp., 1995 WL 317586, *3 (D.D.C.1995) (“As for the question of irreparable harm in the absence of a stay, clearly Mr. Lee will be harmed by being incarcerated.”); Lake v. Speziale, 580 F. Supp. 1318, 1335 (D. Conn. 1984) (granting preliminary injunction requiring court to inform child support debtors of their right to counsel because unlawful incarceration would be irreparable harm); Cobb v. Green, 574 F.Supp. 256, 262 (W.D. Mich. 1983) (“There is no adequate remedy at law for a deprivation of one’s physical liberty. Thus the Court finds the harm asserted by plaintiff is substantial and irreparable.”). Each jailing also carries with it numerous other indignities for each Class member, including intrusive body searches and cramped, crowded, and unsanitary living conditions.

20 See, e.g., Bureau of Justice Statistics, Sexual Victimization In Prisons And Jails Reported By Inmates, 2011-12-

Update, available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4654 (finding that 3.2% of jail inmates

reported being sexually abused during their current stay in jail); see also, e.g., Conor Friedersdorf, Harris County

Jails

Prove

Impervious

to

Reform

(Dec.

30,

2015),

available

at

http://www.theatlantic.com/politics/archive/2015/12/harris-county-jails/422202/ (discussing the prevalence of abuse

by Harris County guards against inmates, killings and suicides among inmates held pretrial, and “jail administrators

abject[] fail[ure] to bring the system up to acceptable standards” even after a federal Department of Justice

investigation); James Pinkerton, et al., Harris County Jail considered ‘unsafe and unhealthy’ for inmates, public

(Nov. 21, 2015), available at http://www.houstonchronicle.com/news/houston-texas/houston/article/Harris-County-

Jail-is-unsafe-and-unhealthy-for-6649163.php (discussing the prevalence of tuberculosis and inadequate medical

and mental health care in the Harris County Jail; stating that since the DOJ’s investigation in 2009, at least 19

inmates died of treatable or preventable illnesses); Marcia Johnson and Luckett Anthony Johnson, Bail: Reforming

Policies to Address Overcrowded Jails, the Impact of Race on Detention, and Community Revival in Harris County,

Texas, 7 NW J. L. & Soc. Pol’y 42 (2012) (discussing overcrowding and inhumane conditions in the Harris County

Jail).

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Case 4:16-cv-01414 Document 1 Filed in TXSD on 05/19/16 Page 27 of 34
inmates to attack other inmates.21 Between 2010 and 2015, there were 120 disciplinary actions against Harris County guards who had beaten, kicked, and choked inmates, including 15 inmates who were handcuffed at the time of the assault.22 In only six cases were criminal charges filed.23 Dozens of jail employees have been disciplined for having sex with inmates or bringing in contraband.24 Violence among inmates is also rampant.25 An average of 11 fights break out every day.26
The jail is ridden with disease. Tuberculosis is prevalent and spreads easily among the inmate population.27 A college student, who was struggling with a heroin addiction but was otherwise healthy, contracted bacterial meningitis while in jail and died. At least 19 inmates died of preventable or treatable illnesses between 2009 and 2015.28 In those cases, the jail’s inability or unwillingness to provide proper and timely care may have contributed to the deaths.29 Even when medical neglect does not result in death, inmates suffer. In one case, a guard denied food to an inmate with diabetes as punishment for a fight.30 In another, guards withheld insulin from an individual with diabetes, causing him to become violently ill, almost slipping into a life-
21 James Pinkerton and Anita Hassan, Jailhouse jeopardy: Guards often brutalize and neglect inmates in Harris County Jail, records show (Oct. 3, 2015), available at http://www.houstonchronicle.com/news/specialreports/article/Violence-neglect-by-jailers-common-in-county-6548623.php. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 James Pinkerton, Anita Hassan, and Lauren Caruba, Harris County Jail considered ‘unsafe and unhealthy’ for inmates, public (Nov. 21, 2015), available at http://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-Jail-is-unsafe-and-unhealthy-for-6649163.php. 28 Id. 29 Id. 30 Id.
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threatening coma.31 Inmates wait in line for health care at the jail’s clinic, but those needing routine help are regularly displaced when there is an emergency.32
The County also has proven incapable of keeping pace with the needs of inmates suffering from mental illnesses. One inmate committed suicide almost an hour after guards were required, and failed, to conduct a state-mandated check on the inmate’s well-being.33 The guards later attempted to cover up their breach of protocol by faking cell check logs.34 Thousands of people in the jail take psychiatric medication, but there are only about 400 beds for inmates with mental health problems. Former Sheriff Adrian Garcia recently acknowledged that the jail needs 3,000.35
Forcing people to risk all of these additional harms because they cannot raise several hundred dollars to avoid them would only further contribute to the unnecessary and irreparable harm visited on the Plaintiff and other Class members in this case. The Plaintiff asks this Court to enjoin the County, pending a final resolution of this case on the merits, from keeping them in jail because they cannot afford to pay cash up front to secure their release.
III. An Injunction Will Serve the Public Interest and Will Not Harm Defendants. As numerous courts have emphasized, “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (quoting and citing cases). Overwhelming federal precedent treats the amelioration of constitutional violations to be in the public interest. See Giovani Carandola v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (“The final prerequisite to the grant of a preliminary
31 Id. 32 Id. 33 Id. 34 Id. 35 Id.
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injunction is that it serve the public interest. Again, we agree with the district court that upholding constitutional rights surely serves the public interest.”); G & V Lounge v. Michigan Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir. 1994) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”). It is hard to imagine anything more in the public interest than remedying clear constitutional violations. Freedberg v. United States Dept. of Justice, 703 F. Supp. 107, 111 (D.D.C. 1988) (“And insofar as the public interest is concerned, it was perhaps put best by another judge of this district court, in another case … who said, simply, it is in the public interest to uphold a constitutionally guaranteed right.” (quotations and citation omitted)); see also, e.g., Wiley Mission v. New Jersey, Dep't of Cmty. Affairs, 2011 U.S. Dist. LEXIS 96473, at * 59 (D.N.J. Aug. 25, 2011) (granting permanent injunction against state agency in part because “requiring the Department to abide by the Constitution serves the public interest”). As the Court explained in Glatts v. Superintendent Lockett, 2011 U.S. Dist. LEXIS 1910, at *18-19 (W.D. Pa. 2011), “one must consider the other side of the scale of public interest, which is, having a State’s employees follow the Federal Constitution is also in the public interest.” See also Walker, 2016 WL 361612; Rodriguez, 2015 WL 9239821; Cooper, 2015 WL 10013003.
Nor would an injunction harm the Defendants. The County already offers release to every misdemeanor arrestee — but only if they can pay for it. At worst, the County would be required to do what other cities and counties throughout the country do every day: release both rich and poor after arrest without requiring the poor to remain in jail just because they cannot afford to purchase their release.
Indeed, continuing to keep impoverished arrestees in jail cells because of their poverty has significant negative consequences for the public interest. The overwhelming consensus of
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experts is that the Harris County community will be safer by ceasing needlessly to detain the poor. Since the original ABA Standards and Rainwater condemned post-arrest poverty jailing, law enforcement officials and researchers have learned even more about the negative effects of post-arrest poverty custody. The National Institute of Corrections at the Department of Justice has led the way in highlighting both the unequal nature of generic bail schedules and their negative impacts on community safety. See United States Department of Justice, National Institute of Corrections, Fundamentals of Bail, at 28-29 (2014).36 Although Rainwater, Lawson, and Blake did not consider the devastating effects of the 72-hour detention of indigent people when they struck that system down decades ago, there is now overwhelming evidence that keeping indigent people in jail — even for a few days after an arrest — has tremendous deleterious consequences. First, it is enormously expensive to house people in jail.37 Second, jailing the poor can devastate lives by disrupting stable employment and child custody arrangements. Third, even just 72 hours in jail after an arrest leads to worse outcomes for all involved by increasing poverty, hurting an arrestee’s family, and making it more likely that an arrestee will recidivate.38 See DOJ, National Institute of Corrections, at 24-29;39 see also, e.g.,

36 See also, e.g., Arnold Foundation, The Hidden Costs of Pretrial Detention (2013) at 3, available at:

http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF_Report_hidden-costs_FNL.pdf (studying 153,407

defendants and finding that “when held 2-3 days, low risk defendants are almost 40 percent more likely to commit

new crimes before trial than equivalent defendants held no more than 24 hours”); Arnold Foundation, Pretrial

Criminal

Justice

Research

Summary

(2013)

at

5,

available

at:

http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf (finding that

“low-risk defendants held 2-3 days were 17 percent more likely to commit another crime within two years” and that

those detained “4-7 days yielded a 35 percent increase in re-offense rates.”).

37 See Vera Institute of Justice, The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration (May 2015), available at http://www.safetyandjusticechallenge.org/wp-content/uploads/2015/05/The-Price-of-Jails-report.pdf (explaining that even the reported costs of approximately $50 to $570 per inmate per day in custody at local jails around the country was a significant underestimate of the cost to local jurisdictions of incarceration in local jails); Texas Criminal Justice Coalition, A Blueprint for Criminal Justice Policy Solutions in Harris County (Jan. 2015) at 2 (noting that in fiscal year 2013, Harris County spent almost $500,000 per day to run the jail).

38 For all of these reasons, as well as the issues of fundamental fairness that render pretrial poverty-based custody unconstitutional, opposition to the routine use of generic bail schedules has been incorporated into the policy positions of the major American law enforcement stakeholders. See, e.g., National Sheriffs’ Association, Resolution

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International Association of Chiefs of Police, Resolution (October 2014), 121st Annual Congress
at 15-16 (“[D]efendants rated low risk and detained pretrial for longer than one day before their
pretrial release are more likely to commit a new crime once they are released, demonstrating that length of time until pretrial release has a direct impact on public safety.”).40
IV. The Court Should Use Its Discretion Not to Require the Posting of Security
Federal Rule of Civil Procedure 65(c) normally requires the moving party to post security
to protect the other party from any financial harm likely to be caused by a temporary injunction
if that party is later found to have been wrongfully enjoined. Rule 65(c), however, “vest[s] broad
discretion in the district court to determine the appropriate amount of an injunction bond,” DSE
v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999), including the discretion to require no bond at
all. Steward v. West, 449 F.2d 324, 325 (5th Cir. 1971) (finding that no injunction bond need be
posted when “it is very unlikely that the defendant will suffer any harm”); RoDa Drilling v.
Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009) (“[T]rial courts have wide discretion under Rule
65(c) in determining whether to require security….”); Donohue v. Mangano, 886 F. Supp. 2d
126, 163 (E.D.N.Y. 2012) (“[A] district court has wide discretion to dispense with the bond
requirement of Fed.R.Civ.P. 65(c) where there has been no proof of likelihood of harm….”);
Council on American-Islamic Rels. v. Gaubatz, 667 F. Supp. 2d 67, 81 (D.D.C. 2009) (same).
2012-6 (“[A] justice system relying heavily on financial conditions of release at the pretrial stage is inconsistent with a fair and efficient justice system.”). 39 Available at, http://static.nicic.gov/UserShared/2014-11-05_final_bail_fundamentals_september_8,_2014.pdf. Summarizing the current state of research, the DOJ report, id. at 29, concluded:
[R]esearchers found that low- and moderate-risk defendants held only 2 to 3 days were more likely to commit crimes and fail to appear for court before trial than similar defendants held 24 hours or less. As the time in jail increased, the researchers found, the likelihood of defendant misbehavior also increased. The study also found similar correlations between pretrial detention and long-term recidivism, especially for lower risk defendants. In a field of paradoxes, the idea that a judge setting a condition of bail intending to protect public safety might be unwittingly increasing the danger to the public—both short and long-term—is cause for radically rethinking the way we administer bail. 40 Available at http://www.theiacp.org/Portals/0/documents/pdfs/2014Resolutions.pdf.
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The Court should use its considerable discretion to find that no security (or a nominal security of $1) is required in this case for several important reasons.
First, the likelihood of Defendants suffering any harm from an improperly issued injunction requiring the County to comply with federal law is almost non-existent. See, e.g., Gaubatz, 667 F. Supp. 2d at 81 (requiring no bond where the defendant would not be substantially injured by the issuance of an injunction); 11A Charles A. Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 2954 (2d ed.) (“[T]he court may dispense with security altogether if the grant of an injunction carries no risk of monetary loss to the defendant.”). Indeed, the limited injunction sought in this Motion would not eliminate the County’s ability to release the named Plaintiff or other future arrestees on a signature bond. The County may issue the same bond to the named Plaintiff and other arrestees and charge them the same amount of money should they fail to appear in court. Thus, no financial harm would result from this preliminary injunction.
Second, the named Plaintiff and other Class members are all living in poverty, and the very reason for bringing this case is their lack of financial resources. See, e.g., Mitchell et al. v. City of Montgomery, 14-cv-186-MEF, Doc. 18 at 3, (May 1, 2014) (issuing preliminary injunction without requiring a bond for indigent plaintiffs because they were likely to succeed on the merits and because the City was unlikely to suffer significant financial harm); Swanson v. Univ. of Hawaii Prof. Assembly, 269 F. Supp. 2d 1252, 1261 (D. Hawai’i 2003) (waiving the security requirement for public employees based on ability to pay and also because the injunction sought enforcement of constitutional rights); Johnson v. Bd. of Police Comm’rs, 351 F. Supp. 2d 929, 952 (E.D. Mo. 2004) (requiring no bond for homeless plaintiffs); Wayne Chem. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977) (requiring no bond for indigent
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Case 4:16-cv-01414 Document 1 Filed in TXSD on 05/19/16 Page 33 of 34
person); Bass v. Richardson, 338 F. Supp. 478, 490 (S.D.N.Y.1971) (“It is clear to us that
indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a
bond under Rule 65(c).”); see also 11A Wright & Miller § 2954 (courts can waive the bond
requirement in cases involving poor plaintiffs); Walker, 2016 WL 361612; Rodriguez, 2015 WL
9239821; Cooper, 2015 WL 10013003.
Finally, Plaintiff is overwhelmingly likely to succeed on the merits. The outcome of any
future trial, if necessary, is likely to reaffirm the basic principles that have been repeatedly
reaffirmed by the Supreme Court, the Fifth Circuit, and federal and state courts across the
country.41
CONCLUSION
For the reasons stated above, the Court should grant Plaintiff’s motion for emergency
equitable relief for the named Plaintiff and, after appropriate proceedings, grant preliminary
injunctive relief enjoining Harris County from using post-arrest procedures that keep people in
41 Although this case is a prototypical situation for which the class action vehicle was created, and the class action certification motion was contemporaneously filed with this preliminary injunction motion, this Court need not rule on the Plaintiff’s class certification motion or formally certify a class in order to issue preliminary injunctive relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”); see also, e.g., Lee v. Orr, 2013 WL 6490577 at *2 (N.D. Ill. 2013) (“The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.”); N.Y. State Nat. Org. For Women v. Terry, 697 F. Supp. 1324, 1336 (S.D.N.Y.1988) (holding that “the Court acted in the only reasonable manner it could under the circumstances, ruling on the continuation of [the] temporary restraining order and leaving the question of class certification for another day.”); Leisner v. New York Tel. Co., 358 F. Supp. 359, 371 (S.D.N.Y.1973) (“[R]elief as to the class is appropriate at this time even though when the preliminary injunction motion was heard, the class action had not yet been certified.”); Illinois League of Advocates for the Developmentally, Disabled v. Illinois Dep’t of Human Servs., 2013 WL 3287145 at *4 (N.D. Ill. 2013) (“At this early stage in the proceedings, the class allegations in the Second Amended Complaint are sufficient to establish Plaintiffs’ standing to seek immediate injunctive relief on behalf of the proposed class. At a later stage, we may revisit whether that classwide representation is inappropriate, but until that time, we will preserve the status quo (within the limits set forth in the TRO) with respect to all potential class members.”); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012) (“Simply put, there is nothing improper about a preliminary injunction preceding a ruling on class certification.”).
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its jail solely because they cannot pay a predetermined money bail without any inquiry into or findings concerning their ability to pay.
Respectfully submitted, /s/ Neal S. Manne____________ Neal S. Manne Lexie G. White 1000 Louisiana Street, Suite 5100 Houston, TX 77002 Phone: (713) 651-9366 nmanne@susmangodfrey.com lwhite@susmangodfrey.com Michael Gervais 560 Lexington Avenue, 15th Floor New York, NY 10022 Phone: (212) 336-8330 mgervais@susmangodfrey.com _/s/ Alec Karakatsanis_______________ Alec Karakatsanis (D.C. Bar No. 999294) (Pro Hac Vice Application Pending) Elizabeth Rossi (Pro Hac Vice Application Pending) Attorneys, Equal Justice Under Law 601 Pennsylvania Ave. NW South Building, 9th Floor Washington, DC 20004 (202) 670-1004 alec@equaljusticeunderlaw.org erossi@equaljusticeunderlawl.org Attorneys for Plaintiff
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 Case 4:16-cv-01414 Document 3 Filed in TXSD on 05/19/16 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL,

)

On behalf of herself and all others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF RON HICKMAN,

)

)

ERIC STEWART HAGSTETTE,

)

JOSEPH LICATA III,

)

RONALD NICHOLAS,

)

BLANCA ESTELA VILLAGOMEZ,

)

JILL WALLACE,

)

)

)

)

Defendants.

)

____________________________________)

Case No. 4:16-cv-1414 (Class Action)
Expedited Hearing Requested

CLASS ACTION COMPLAINT

Introduction

This case is about Harris County jailing some of its poorest people because they cannot

afford to make a monetary payment. Named Plaintiff Maranda Lynn ODonnell is currently

being held in the Harris County jail because she cannot pay a $2,500 money bail after being

arrested for Driving While License Invalid. The Named Plaintiff’s money bail was imposed

pursuant to Harris County’s predetermined money bail schedule and without any inquiry into or

findings concerning her ability to pay. Because she is impoverished and cannot afford the

payment required by the County for her release, she will be kept in a Harris County jail cell.

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Case 4:16-cv-01414 Document 3 Filed in TXSD on 05/19/16 Page 2 of 30
In Harris County, wealthier arrestees are released from custody almost immediately upon payment of money to the County. Arrestees who are too poor to purchase their release remain in jail because of their poverty. On any given night, over 500 people arrested for misdemeanors languish in the Harris County Jail because of a money bail that they cannot afford. Between 2009 and 2015, 55 human beings died in the Harris County Jail awaiting trial after being unable pay the amount of money demanded by the County for their release.
On behalf of the many other arrestees subjected to Harris County’s unlawful and ongoing post-arrest wealth-based detention scheme, Plaintiff challenges in this action the use of secured money bail to detain only the most impoverished of misdemeanor arrestees. Harris County’s wealth-based pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution. It has no place in modern American law.
By and through her attorneys and on behalf of herself and all others similarly situated, Plaintiff seeks injunctive relief to enjoin the County’s wealth-based post-arrest detention procedures and a declaration that Defendants cannot detain any person pursuant to secured money bail without an inquiry into and findings concerning the person’s ability to pay.
Nature of the Action1 1. It is the policy and practice of Harris County to refuse to release misdemeanor arrestees from custody unless they pay a monetary sum. The amount of money required is determined by a generic offense-based bail schedule, and it is the policy and practice of Harris County officials to detain arrestees in jail pursuant to the scheduled amount without considering the person’s ability to pay. Plaintiff seeks declaratory and injunctive relief prohibiting Defendants’ wealth-based post-arrest detention scheme.
1 Plaintiff makes the allegations in this Complaint based on personal knowledge as to matters in which she has had personal involvement and on information and belief as to all other matters.
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Jurisdiction and Venue 2. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 3. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 4. Maranda Lynn ODonnell is a 22-year-old mother of a 4-year-old daughter. She represents herself as an individual and a Class of similarly situated people subjected to Defendants’ wealth-based post-arrest detention scheme. 5. Defendant Harris County is a municipal corporation organized under the laws of the State of Texas. The Harris County Sheriff’s Department is a division of Harris County and operates the Harris County Jail and several other detention facilities. The Sheriff’s Department detains inmates at the Harris County Jail or one of these other facilities after their arrest. The officers and employees of the Sheriff’s Department are authorized by County policy to accept money bail, release an arrestee, and set a time for an arrestee’s appearance in court. The Sheriff’s Department, by policy and practice, detains arrestees too poor to afford their money bail amount and releases arrestees who pay their money bail. 6. The Sheriff’s Department is run by the Harris County Sheriff, Defendant Ron Hickman. The Sheriff is the final policymaker for all law enforcement decisions in Harris County. He is sued in his official capacity. 7. Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, and Jill Wallace are all Harris County Criminal Law Hearing Officers. They are County employees and are charged with making probable cause determinations and setting bail
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for arrestees pursuant to the County’s money bail schedule. The hearing officers do not conduct any inquiry into or make any findings concerning a person’s ability to pay money bail. They are sued in their individual and official capacities for declaratory relief only.
Factual Background A. The Named Plaintiff Will Be Held in Jail Because She Is Unable To Pay the
Money Bail Demanded for Her Release 8. Maranda Lynn ODonnell is a 22-year-old woman. 9. Ms. ODonnell was arrested on May 18, 2016 and taken into the custody of Harris County for allegedly driving while her license was invalid. She was informed that, because of the Harris County bail schedule, she would be released immediately, but only if she paid a money bail of $2,500. She was told that she will be detained by Harris County if she does not pay. See Exhibit 1, Declaration of Maranda Lynn ODonnell. 10. Ms. ODonnell appeared by video from the jail at a probable cause hearing, and a hearing officer found probable cause for her arrest. She was told by Harris County Sheriff’s Deputies not to speak at the hearing. The hearing lasted approximately 60 seconds and, pursuant to the policies and practices described in this Complaint, no inquiry was made into her ability to pay. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $2,500. 11. Ms. ODonnell is the mother of a 4-year-old child. She and her child struggle to meet the basic necessities of life. She receives benefits from the federal government’s Women, Infants, and Children (WIC) program to help meet the nutritional needs of her daughter. Because she cannot afford shelter, she stays with a friend. She recently obtained a job at a restaurant within the past few weeks, but she is worried that her current jailing will cause her to lose her job.
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B. Defendants’ Wealth-Based Detention System Detains Arrestees Who Cannot Pay Their Money Bail Amount While Releasing Those Who Can Pay i. Arrest and the Initial Money Bail-Setting Process
12. Harris County uses a money bail schedule, promulgated through administrative order by the Harris County Criminal Court at Law Judges, to determine money bail for everyone who is arrested for a Class A or B misdemeanor in Harris County. Ex. 2. The bail schedule is the exclusive means of setting bail “unless otherwise directed by the Judges of the Harris County Criminal Courts at Law.” Id. (“The initial bail amount shall be determined by application of the bail schedule.”).2
13. When a person is arrested without a warrant, the arresting officer calls a hotline that is staffed 24 hours a day, 7 days a week by assistant district attorneys. The arresting officer describes the allegations to the assistant district attorney on duty, who makes a charging decision over the phone. If the district attorney decides to pursue the charges, money bail is imposed pursuant to the bail schedule. See Ex. 1 (“The district attorney shall affix an initial bail amount at the time a complaint is filed in a county criminal court at law.”). At no point does any person perform any inquiry into the arrestee’s ability to pay the money bail amount written on the schedule.
14. If the assistant district attorney does not wish to pursue charges, she tells the officer to release the individual. If the district attorney decides to pursue charges and the arrestee can pay the bail immediately, the arrestee is released without ever being booked into the jail. If the district attorney decides to pursue charges, but the arrestee cannot pay the money bail, the County will book the arrestee into the jail.
2 Texas law gives Harris County the authority to cite and release a person being charged with certain misdemeanor offenses. Tex. C.C.P. Art. 14.06(b)–(d). However, County officials have decided instead as a matter of policy to rely on the Harris County bail schedule for all individuals charged with any misdemeanor. As a matter of policy, Harris County has rejected the cite-and-release option.
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15. Individuals who are arrested pursuant to warrants are also subjected to the money
bail schedule. In these cases, the district attorney again makes a charging decision on the basis
of allegations by a police officer or another complainant and imposes a money bail amount
according to the bail schedule. The money bail amount is written on the warrant. A judicial
officer makes a finding of probable cause based on the allegations in the warrant and then signs
the warrant. As a matter of policy, the judicial officer imposes the monetary bail required by the
schedule.
16. When a person is arrested for a misdemeanor, pursuant to a warrant or pursuant to
a warrantless arrest, that person can pay the secured money bail amount determined by the schedule and be released immediately, prior to booking.3 If the individual is unable to pay, she will be booked into the jail.4
17. These policies have consistently, for years, resulted in the needless and
devastating jailing of impoverished people accused of misdemeanor offenses. In 2012, 81
percent of misdemeanor arrestees were booked into the jail because they were unable to immediately pay for their release.5 Other arrestees were able to pay their money bail and avoid
3 The vast majority of arrestees use a bail bond agent to secure their release from jail. Typically, if accepted by a for-profit bail agent, an arrestee will have to pay the for-profit agent a non-refundable fee of 10 percent of the value of the bond to be released, though the industry standard for low money bail amounts in Harris County exceeds 10 percent. In 2012, the for-profit bail bond industry in Harris County collected at least $34.4 million dollars in fees. See Gerald R. Wheeler & Gerald Fry, Project Orange Jumpsuit Report #2, Harris County’s Two-Tier Justice System: Longitudinal Study of Effects of Harris County Felony and Misdemeanor Defendants’ Legal & Extralegal Attributes on Pretrial Status and Case Outcome (Apr. 23, 2014) at 4, available at http://www.pretrial.org/download/research/Harris%20County's%20Twotier%20Justice%20System%20(Project%20Orange%20Jumpsuit)%20-%20Wheeler%20and%20Fry%202014.pdf [Wheeler & Fry, Report #2]; Michael Barajas, Will Lawmakers Reform the System That Keeps Poor, Legally Innocent People in Lockup? (Sept. 25, 2015), available at http://www.houstonpress.com/news/will-lawmakersreform-the-system-that-keeps-poor-legally-innocent-people-in-lockup-7788583 (quoting bondsman saying that “being poor raises a red flag”). 4 Wheeler & Fry, Report #2, supra note 3, at 1. 5 Gerald R. Wheeler & Gerald Fry, Project Orange Jumpsuit: The Misdemeanor Report #1 (Jan. 22, 2016), available at http://themisresearch.org/files/MISD_2016_REPORT.pdf [Wheeler & Fry, Report #1].
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the booking process altogether. In 2014, 40 percent of misdemeanor arrestees were still sitting in jail cells at the time their case was resolved.
ii. Probable Cause Hearings and Approval of Bail According to the Bail Schedule
18. The Harris County Sheriff’s Department, through its jail personnel, assembles groups of roughly 20 to 45 people, many of them charged with minor misdemeanors, throughout the day.6
19. Generally within 24 hours of arrest, these groups of recent arrestees, dressed in orange jumpsuits or street clothes, appear via videolink before one of five Defendant Harris County hearing officers. The hearing officer determines probable cause for the arrest and reviews the bail amount previously imposed to ensure that it conforms to the bail schedule and the instructions from Harris County Court at Law Judges. Throughout the hearing, the arrestees remain in the Harris County jail, while the hearing officer and a prosecutor are in a courtroom in the Harris County Courthouse.
20. These hearings are referred to locally as “magistrations,” “Article 15.17 hearings,” or “probable cause hearings.”
21. The County strives to hold these hearings within 24 hours of arrest for people charged with misdemeanors. However, the length of time between arrest and probable cause hearing depends on how long the Sheriff’s booking process takes and the number of arrestees. Hearing officers represent that, on occasion, the hearings do not take place within 24 hours of arrest. At any point in the booking process, the arrestee can pay his or her predetermined money
6 In 2014, an average of 144 people were admitted to the jail every day on misdemeanor charges. See Harris County Pretrial Services, 2014 Annual Report (2014) at 3, available at http://www.harriscountytx.gov/CmpDocuments/59/Annual%20Reports/2014%20Annual%20Report.pdf (stating that 52,506 people whose most serious charge was a misdemeanor were admitted to the jail in 2013).
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bail and be released. If a person pays, a probable cause determination in her case will be made at
a subsequent court appearance.
22. An assistant district attorney participates in the probable cause hearings by
arguing for the hearing officer to make a finding of probable cause and sometimes asking the
hearing officer to impose bail in an amount higher than the amount on the schedule or on the
warrant. One prosecutor stated the policy recently at a probable cause hearing: pursuant to
Harris County’s bail schedule procedure, if an arrestee “can’t pay, they sit in jail.”
23. Harris County does not provide defense attorneys at this hearing.
24. Almost one-third of Harris County arrestees lack a high school education and one in five have serious mental health problems.7
25. The prosecutor and hearing officers sometimes engage in ex parte conversations
before the videolink is turned on. For example, during one docket in March, outside the
arrestees’ hearing, the prosecutor and the hearing officer commented on the fact that one of the
arrestees on the docket had been arrested multiple times in a two-week period for trespassing at
the same place. The hearing officer and the prosecutor agreed privately that the individual, who
was homeless, would not be released without a money bail. The hearing officer imposed a
7 Pretrial Services 2014 Report, supra note 6, at 2. Harris County received $150,000 in May 2015 from the MacArthur Foundation to create a proposal that would lead to a more just and effective legal system. See Press Release, MacArthur Announces 20 Jurisdictions to Receive Funding to Reduce Jail Use (May 26, 2015), available at https://www.macfound.org/press/press-releases/macarthur-announces-20-jurisdictions-receive-funding-reduce-jailuse/. Harris County subsequently convened a Criminal Justice Coordinating Council, which investigated ways to reduce incarceration. Among the most important reforms that participants discussed was to provide defense attorneys at the probable cause hearings. Early in January 2016, the Coordinating Counsel submitted its grant proposal to the MacArthur Foundation, seeking $4 million over two years to put its plans into effect. The final document included a proposal for counsel only for individuals who are mentally ill. Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), available at http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensure-defenseless-peoplestay-in-jail-8058308. On April 13, 2016, Harris County was awarded a $2 million MacArthur grant to reform its criminal justice system. See Harris County receives $2 million grant to reform criminal justice system (Apr. 13, 2106), available at http://www.click2houston.com/news/watch-live-harris-county-receives-2-million-grant-toreform-criminal-justice-system.
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$5,000 money bail. After the hearing, the hearing officer said, “He’s a pest to society.” Unable to pay the money bail, the man appeared several days later at his first court date and pled guilty.
26. In no case is a money bail determined with consideration for an arrestee’s ability to pay.
27. When the videolink is turned on, arrestees appear on a television screen, sitting in rows of chairs in a room at the jail. The hearing officer calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An assistant district attorney then reads from the complaint. The hearing officer decides whether there is probable cause, finding probable cause in almost every case, and, almost always, sets money bail according to the schedule. Sometimes the hearing officer increases the money bail from that applied earlier at the Harris County jail, where it was imposed pursuant to the schedule.
28. The process of setting bail and finding probable cause is a rote exercise, and the hearings last approximately one minute as a matter of routine.
29. As a matter of policy and practice, hearing officers make no attempt to determine an arrestee’s financial situation, and they make no inquiry into or findings concerning an arrestee’s ability to pay the money bail amount that they impose.
30. In addition to making no affirmative inquiry into or findings concerning ability to pay, hearing officers affirmatively refuse to hear any argument that an arrestee raises about her ability to pay. If an arrestee tells the hearing officer that she cannot pay the money bail, the hearing officer, as a matter of policy and practice, tells the arrestee that considering a reduction of money bail from the schedule is not the purpose of that hearing and that the arrestee should have her attorney raise the issue with the County Judge handling her case at her first court date
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after an attorney is assigned. As one hearing officer stated recently, probable cause hearings are “not the forum” for discussing a person’s ability to pay money bail or raising any related issues, and hearing officers believe that such questions must be addressed in an adversarial setting after appointment of counsel.
31. On one recent occasion that is typical of standard policy, after a hearing officer made a bail decision according to the money bail schedule, the arrestee asked the hearing officer, “Can I say something?” The hearing officer responded, “You can talk to me all you want, but it’s not going to change the outcome. I’m setting it according to the schedule. Talk to your lawyer about it in the morning.”
32. After completing a docket of probable cause hearings in March, another hearing officer was asked by an observer whether the officer is allowed to consider an arrestee’s ability to pay when setting the money bail. The hearing officer responded, “What can I do about that? They have a bail schedule. I can’t do anything about that.”
33. Pursuant to policy and practice, it is not possible for arrestees to challenge the constitutionality of their money bail before the hearing officer. Hearing officers determining the question of probable cause refuse to consider deviation from the bail schedule based on indigence and refuse to hear evidence concerning ability to pay.
34. In almost all cases, the hearing officer affirms the money bail previously set pursuant to the bail schedule.8 If, however, the district attorney or arresting officer erred in setting the money bail (i.e., the monetary amount did not conform to the bail schedule), the hearing officer will alter the money bail — by raising or lowering the monetary amount — so that it meets the schedule.
8 Flynn, supra note. 7.
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35. Sometimes district attorneys will argue for a money bail that exceeds what the schedule requires. One district attorney recently gave the following example: If someone is charged with unauthorized use of a vehicle, but is also being investigated for armed robbery of the same vehicle, the district attorney will ask the judge to impose a money bail commensurate with the more severe charge. The district attorney stated that she would ask for the higher bail to ensure that the person will be detained because a person suspected of “something like armed robbery” should not be released on a low money bail like $2,000.
36. If an individual does not appear at the probable cause hearing due to medical reasons, the hearing officer will make a finding of probable cause and set money bail in that person’s absence according to the schedule.
37. In Harris County, money bail is imposed based solely on the alleged offense and the person’s criminal history and without reference to a person’s ability to pay, resulting in the detention of arrestees based on their poverty.
iii. The Use of Personal Bonds 38. Hearing officers sometimes recommend arrestees for release on “personal bonds,” which means release without any financial conditions. 39. Recommendations for release on personal bonds are based solely on the person’s criminal charge and criminal history — they have nothing to do with indigence or a person’s ability to pay a money bail. The vast majority of arrestees, due to the charge against them or their criminal history, are deemed ineligible for personal bonds as a matter of policy. 40. Only about 8 percent of misdemeanor arrestees were recommended for personal bonds in 2014.9 According to County policies, 92% of misdemeanor arrestees were deemed
9 Pretrial Services 2014 Report, supra note 6, at 9.
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ineligible for such release. Personal bonds are not based on any inquiry into ability to pay, and hearing officers refuse to conduct such inquiries.
41. Even when individuals are recommended for personal bonds, they are not released immediately, and they may not be released at all. Pretrial Services must first “verify” the person’s references. Sometimes, references cannot be verified for days or a week. Sometimes they cannot be verified at all. In those cases, the person will not be released on a personal bond and will be detained unless she can pay the money bail.
42. At any point in the verification process, the arrestee can pay the money set by the schedule and be released immediately.
43. Recommendations for personal bonds are further constrained by the instructions of the County and District Court Judges, who provide strict directives to the hearing officers about the money bail-setting process.
44. For example, hearing officers are instructed that they may never recommend homeless individuals for personal bonds. Some judges have told hearing officers never to issue personal bonds for any defendant who is assigned to their courtroom at all,10 or for individuals who have previously been given personal bonds in other cases. Other judges have told hearing officers to consider personal bonds only for “students.”11
45. In all cases, personal bonds are not granted on the basis of inability to pay. 46. One hearing officer, pursuant to policy, recently told a group of arrestees: “Don’t ask me for a personal bond.” He informed them that he would consider release on a personal
10 James Pinkerton and Laura Caruba, Tough bail policies punish the poor and the sick, critics say (Dec. 26, 2015), available at http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-policies-punish-thepoor-and-the-sick-6721984.php?t=373b57d418&cmpid=email-premium. 11 Id.
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bond if he was authorized to consider it, and “if I’m going to give you one, I will,” warning them again, “Don’t ask.”
47. An arrestee’s indigence or ability to pay is never a factor in determining whether to recommend or approve a personal bond, and arrestees are not permitted to raise that issue.
iv. First Appearances 48. If, after the probable cause hearing, an arrestee is still unable to purchase her release from jail, she will be taken to the County Court, usually within 24 to 48 hours of the probable cause hearing. However, arrestees who have their probable cause hearings on Friday will not see a County Court Judge until the following Monday at the earliest. Individuals who attend probable cause hearings on Friday afternoon or evening or over the weekend are unlikely to see a Judge until the following Tuesday. 49. Some arrestees cannot be contacted, even by attorneys, between magistration and first appearance. A sheriff’s deputy at the jail building at 1201 Commerce Street was recently asked to produce for attorney visits several individuals who had had their probable cause hearings within the previous 24 hours. After looking for the men for an hour, the deputy stated that the men could not be seen, even by an attorney, until after they had been assigned to a housing unit in the jail. He said that the individuals were all in the basements of one of four buildings, but he did not know which one. 50. Shortly after that conversation, a sheriff’s deputy at the jail building at 1200 Baker Street confirmed that the same men could not be contacted until after they had been assigned to a housing unit. 51. The deputies stated that it would take 24 to 36 hours for that to happen, during which time no one would be able to reach these men, including any attorney. The sheriff’s
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deputy said that they could not be found for the purpose of an attorney visit, but they would be found and released if bond was posted.
52. Detained individuals are assigned court-appointed attorneys at the first appearance hearing, but there is, as a matter of practice, no review of the money bail amount previously imposed. County Judges reduce money bail amounts previously imposed in less than 1 percent of cases.12
53. Detained individuals remain in lock-up outside of the courtroom and are usually not even brought into the courtroom on this court date unless they are pleading guilty, which many do because they are told that they can get out of custody more quickly by pleading guilty if they cannot afford to pay their money bail.
54. One of the purposes and effects of Harris County’s post-arrest detention is to coerce and process large numbers of guilty pleas prior to any person conducting any legal or factual investigation into the charges, let alone the complete and zealous defense required by professional standards and the Sixth Amendment to the United States Constitution.
55. On one typical morning in March 2016, County Judge Pam Derbyshire accepted four guilty pleas from detained individuals in six minutes. These individuals had just met their attorneys, and their attorneys had conducted no meaningful investigation into the facts or circumstances of the cases. None of the defendants had been able to pay the scheduled money bail since their arrest several days prior. They appeared before the judge in orange jumpsuits, handcuffed together. Several of them were sentenced to three days in jail with credit for the three days they served between their arrest and guilty plea. This is a routine, everyday occurrence in Harris County’s misdemeanor criminal legal system. Almost 80 percent of
12 Pinkerton & Caruba, supra note 10.
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individuals detained pretrial plead guilty, while only 56 percent of individuals who are released pretrial plead guilty.
56. If a defendant does not plead guilty at this appearance, a defense attorney can file a motion for a reduction of the money bail amount. It typically takes at least one week for that motion to be heard.
57. This pretrial detention scheme means that an individual without financial means will be detained solely because of her inability to make a monetary payment for at least two days and usually three or four days without any opportunity for release or to raise any issues concerning her ability to pay. Most impoverished arrestees are detained far longer. At any moment in this process, an arrestee who can pay the money bail set by the schedule can walk out of the doors of the jail.
58. In 2012, 22 percent of the most impoverished misdemeanor arrestees — those who were unable to pay even a $500 money bail — were detained at disposition, having been in jail an average of almost 9 days.13
59. In 2014, 40 percent of misdemeanor arrestees with money bail imposed were still in jail when their case was disposed of.14 Individuals detained pretrial were more likely to be sentenced to jail, less likely to be sentenced to probation, and were given sentences more than twice as long as those received by individuals who were released pretrial.
C. The Harris County Jail
13 See Wheeler & Fry, Report #2, supra note 3, at 9. Only 9.7 percent of individuals detained at disposition are not convicted, compared with 44.2 percent of individuals who are free when their case is resolved. Moreover, for people given a $500 bail, 80.6 percent of people detained at disposition were given jail sentences, compared to 25.6 percent of defendants released on bail at disposition. Id. 14 Pretrial Services 2014 Report Report, supra note 6, at 8 (showing in Table B.1 that roughly 60 percent of misdemeanor arrestees post money bail); Pinkerton & Caruba, supra note 10 (stating that of arrestees pay bondsmen for their release).
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60. The Harris County Jail is the largest jail in Texas and the third largest jail in the United States.15 It books on average 120,000 individuals per year and 330 individuals per day.16

Most individuals arrested in Harris County are taken to the Harris County Jail, though others

may be held at other Harris County-run facilities or a brief period of time before being

transferred to the Jail.

61. The vast majority of human beings in Harris County Jail cells are not there because they have been convicted of a crime.17 Instead, most inmates — 77 percent — are being

kept in jail cells prior to trial, despite the presumption of innocence, because they cannot afford

to pay money bail. If they could pay the money bail assigned to them, they could walk out of the

doors of the jail at any time.

62. In March 2016, a typical month, the average daily population of the Harris

County Jail was 8,579 individuals, 6,841 of whom were pretrial detainees. About 8 percent of

those pretrial detainees — 545 individuals — had been arrested for misdemeanors. Almost all of

these individuals were there only because they were unable to afford money bail of $5,000 or less.18

63. Although the jail population fell by 2,500 individuals between 2009 and 2014, the pretrial population fell by only 15 inmates.19

64. percent.20

In the past year, the population of pretrial misdemeanor detainees grew by 29

15 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County at 1, http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc _2015_harris_county_blueprint.authcheckdam.pdf [ABA Report].
16 Id. at 9.
17 Office of Criminal Justice Coordination, Harris County–Jail Population March 2016 Report (April 4, 2016) at 1, on file with undersigned counsel.
18 Jail Population Report, supra note 18, at 3, 1.
19 ABA Report, supra note 16, at 3.

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65. Eight percent of the pretrial population regularly consists of misdemeanor offenders. These individuals are in jail solely because they cannot afford their money bail.
66. In 2008, the Department of Justice investigated the Harris County Jail and launched an era of federal oversight because of the serious and systemic violations of constitutional rights that pervaded the facility.21 The investigation led the County to form the Harris County Criminal Justice Coordinating Council in an effort to address the overcrowding in the jail.22 Since then, Harris County has struggled to stay within its operating capacity.23 In 2013, taxpayers spent almost $500,000 per day to operate the jail.24
67. Between 2009 and 2015, 55 human beings died while in pretrial custody in the Harris County Jail.25
68. Most recently, on April 5, 2016, arrestee Patrick Brown — who was being held on a $3,000 bail he could not afford after being charged with misdemeanor theft — died in the Harris County Jail.26
69. In March 2016, 26 percent of the average daily population had a documented mental health history.27
20 Jail Population Report, supra note 18 at 1. 21 ABA Report, supra note 16, at 2. 22 Id. 23 Id. 24 Id. 25 Pinkerton & Caruba, supra note 10. 26 Ebenezer Nah, one of the inmates charged with aggravated assault in connection with the death, was eligible for release solely because he could afford to pay for his release. He had just posted money bail and was being processed out of the jail at the time of the fatal assault. Meagan Flynn, Inmate Beaten To Death After Spending Less Than 48 Hours In Harris County Jail (Apr. 13, 2016), available at http://www.houstonpress.com/news/inmatebeaten-to-death-after-spending-less-than-48-hours-in-harris-county-jail-8319129. 27 Jail Population Report, supra note 18, at 3.
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70. There is a documented history of inmate abuse by jail guards, deaths and suicides

in the jail, inadequate training of jail staff, and lack of access to medications and medical

services. For years, the County has been aware of these intolerable conditions, which exist

largely because of the overcrowding resulting from the volume of inmates who cannot afford to pay money bail. It has failed to remedy them.28

71. On a typical day, hundreds of new arrestees, presumed innocent, are arrested and booked into this jail.29 Between 40 and 50 percent of them will be unable to afford their money bail.30 Thus, at any given moment, there are hundreds of people charged only with

misdemeanors who are being detained by Harris County solely because they cannot afford money bail.31 Every single one of these individuals could walk out of the jail if they were

wealthy enough to pay their money bail amount. None of them received any inquiry into their

ability to pay. Only those individuals who are too poor to purchase their release are subjected to

these conditions and the health and safety risks of pretrial jailing.

D.

Defendant’s Wealth-Based Detention Scheme Will Cause Plaintiff To Be

Jailed Solely Due To Her Inability To Pay Bail

72. The named Plaintiff would not have to endure a minute of incarceration if she

paid the amount of money required by Defendants.

28 The Houston Chronical, Jailhouse Jeopardy: Uncovering abuses at Harris County’s jail (Oct. 3, 2015–Mar. 6, 2016), available at http://www.houstonchronicle.com/local/investigations/jailhouse-jeopardy/ (providing links to a series of articles written by several reporters). 29 ABA Report, supra note 16, at 13 (stating that there are 330 bookings per day); Pretrial Service 2014 Report (stating that, in 2014, 52,506 people were arrested on misdemeanor charges, which averages 144 per day). 30 Pretrial Services 2014 Report, supra note. 6, at 8 (Table B.1.). 31 See ABA Report, supra note 16, at 15 (noting that, in 2013 alone, there were 3,120 misdemeanor arrestees who could not post the $500 money bail that Harris County demanded of them).
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73. Individuals with outstanding warrants are frequently contacted by for-profit bonding agencies who offer them the opportunity to pay for “non-arrest bonds” approved and used by the County which allow them to avoid arrest altogether.32
74. For individuals who are aware of outstanding warrants for their arrest and able to afford to hire counsel, lawyers are sometimes able to arrange “walk-throughs” for their clients, whereby the person charged with a crime goes to the courthouse, pays the money bail, and gets a court date without ever going through the arrest and booking process. Arrestees able to pay for an attorney or for a non-arrest bond are able to pay to avoid detention.
75. Arrestees are given a right to release pending trial, but Defendant’s wealth-based detention system conditions their release on their ability to afford money bail, thus tying their pretrial freedom to their wealth status.
76. As a matter of policy and practice, when a new arrestee is brought to the Harris County Jail, county employees inform the arrestee that she will be released from jail immediately if she pays her money bail amount. The arrestee is told that she will remain in jail if she is not able to make that payment.
77. The Harris County Sheriff’s Department collects arrestees’ money bail payments. It is the policy and practice of the Harris County Sheriff’s Department to release only those arrestees who pay their money bail amount.
78. In a typical week, the Sheriff’s Department releases hundreds of individuals who pay their money bail amount.
32 All About Bail Bonds, Services for Non-Arrest Bonds in Houston, available at http://www.allaboutbailbondshouston.com/services/non-arrest-bail-bonds/; All Access Bail Bonds, Services, available at http://www.allaccessbailbonds.com/index.php/services (“A ‘Non-Arrest’ Bond lifts the warrant and initiates the process of scheduling your day in court. This relieves the stress and worry about being arrested.”).
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79. It is the policy and practice of the Sheriff’s Department to detain individuals who do not pay their money bail amount. Before an individual’s probable cause hearing, it is the policy and practice of the Sheriff’s Department to detain the individual based on a money bail amount set pursuant to a bail schedule. After a probable cause hearing, it is the policy and practice of the Sheriff’s Department to detain the individual based on a money bail amount approved by a hearing officer pursuant to the County’s bail schedule.
80. If a person cannot pay her money bail after her first court appearance before a County Court Judge, it is the policy and practice of the Sheriff’s Department to continue to detain that individual unless and until she makes a monetary payment.
81. Under Defendants’ wealth-based procedures, those wealthy enough to pay are released from the County jail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending hours, days, or weeks in jail.33 And many others who are poorer still are left to languish in jail until the resolution of their case. E. Harris County’s Use of Money Bail Is Not Narrowly Tailored — Nor Is It as
Effective as Many Other Methods — in Securing Court Attendance or Public Safety 82. The empirical evidence is that there is no relationship between requiring money bail as a condition of release and defendants’ rates of appearance in court.34 83. While tying pretrial freedom to wealth status is the norm in Harris County, other jurisdictions throughout the country do not hold people in jail because of their poverty. Instead
33 Because of the common availability of commercial bail bonds, those who remain in the custody of Harris County are typically those that cannot even afford to pay a third-party bonding agent. The amount charged by a bonding agent to post a $500 cash bail is typically $150, although such agents are free to refuse to pay for the release of an arrestee for any reason or for no reason. Thus, the availability of third-party agents, at least for those arrestees who can afford $50 but not $500, is no guarantee. The Named Plaintiffs cannot afford such a bail. 34 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (May 2, 2016) at 19, available at http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf; Wheeler & Fry, Report #1, supra note 5, at 4.
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of relying on money, other jurisdictions release arrestees with pretrial supervision practices and procedures that can help increase court attendance and public safety without requiring detention.
84. Other jurisdictions employ numerous less restrictive methods of maximizing public safety and court appearances when necessary to guard against a particular risk. These include: unsecured bond, reporting obligations, phone and text message reminders of court dates, rides to court for those without transportation or a stable address, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
85. Other jurisdictions also employ non-monetary conditions of release, including unsecured or “signature” bonds (which do not require payment up front for release but instead allow immediate release upon a promise to pay the monetary amount if the person does not appear as required), stay-away orders, curfews, or even home detention.
86. Harris County is permitted by law to use these alternatives but, as a matter of routine, choose not to for impoverished misdemeanor arrestees. The vast majority of Harris County arrestees are processed and detained through Harris County’s money bail scheme rather than non-monetary supervision methods. As a matter of policy and practice, Harris County does not consider less restrictive alternatives rather than detention based on money bail that a person cannot afford.
87. Jurisdictions with robust pretrial services and non-monetary conditions of release achieve court-appearance rates over 90 percent, with more than 85 percent of those released pretrial remaining arrest-free (and 98-99 percent remaining arrest-free for violent crimes).
88. Empirical evidence proves that unsecured bond alone is just as effective at ensuring appearance in court as secured money bail.
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89. Detention on money bail increases the likelihood of conviction. A person who is detained pretrial is 13 percent more likely to be convicted and 21 percent more likely to plead guilty.35 Additionally, individuals detained pretrial will be given longer jail sentences.36 Money bail is disproportionately imposed on non-white arrestees.37
90. Individuals who are detained — instead of released on money bail or on a personal bond — when their case is resolved have worse case outcomes. 38 For example, 7.2 percent of individuals who are detained at disposition in Harris County are not convicted, while 34.1 percent of individuals who are free at disposition resolve their case without a conviction. Additionally, individuals who are being confined on $500 money bail when their case is resolved will spend a median of three days in jail (which costs the County about $1,000), while individuals who are able to pay the $500 bail in cash (or the $150 non-refundable fee to a

35 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (May 2, 2016) at 18, available at https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al, supra note 34, at 13 (finding a 12 percent increase in the likelihood of conviction using the same data).

36 Stevenson, supra note 35 at 18; see also Gupta, et. al, supra note 34, at 18–19 (“Criminal defendants assessed bail amounts appear frequently unable to produce the required bail amounts, and receive guilty outcomes as a result. Entered guilty pleas by defendants unwilling to wait months prior to trial and unable to finance bail likely contribute to this result.”).

37 Gupta, et. al, supra note 34, at 18.

38 Id. at 7; See ABA Report, supra note 16, at 13 (“[D]efendants who are not released pre-trial are more likely to be

incarcerated following a conviction, and they generally receive longer sentences upon conviction.”); Lise Olson,

Study: Inmates who can’t afford bond face tougher sentences (Sept. 15, 2013), available at

http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-Inmates-who-can-t-afford-bond-face-

tougher-4817053.php (discussing Carlos Mathis, an African-American man, who was held in jail for seven months

on minor drug and theft charges because he could not afford money bail, and whose charges were dismissed); Isami

Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and the Effects of Pretrial Services Programs

(Mar.

11,

2013),

available

at

http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and

%20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones,

“Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013);

Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, American Journal of Criminal Justice (2010),

available at http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.

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commercial bonding agent) and are free at disposition will spend an average of only one day in jail.39
91. Setting a secured money bail without an inquiry into ability to pay and in an amount higher than a person can afford by definition defeats the entire purpose of money bail and removes any legitimate (let alone compelling) state interest in the setting of a financial condition. Nor is setting money bail without findings concerning ability to pay the most narrowly tailored way to meet any other legitimate or compelling government interest.40
92. Harris County’s money bail schedule leads disproportionately to the detention of people of color as compared to whites. Regardless of the amount of money bail imposed, people of color are more likely to be detained at disposition than whites.41
93. Unnecessary pretrial detention causes instability in employment, housing, and care for dependent relatives. Studies show that those detained pretrial face worse outcomes at trial and sentencing than those released pretrial, even when charged with the same offenses. Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are innocent. They have a harder time preparing for their defense, gathering evidence and witnesses, and meeting with their lawyers. Studies also show that just two days of pretrial detention increases the likelihood of future arrests and increases the future risk level of low level offenders.

39 Wheeler & Fry, Report #1, supra note 5, at 6–7; Lowenkamp, et al., The Hidden Costs of Pretrial Detention at 3,

19

(Nov.

2013),

available

at

http://www.pretrial.org/download/research/The%20Hidden%20Costs%20of%20Pretrial%20Detention%20-

%20LJAF%202013.pdf (studying 153,407 defendants and finding that “when held 2-3 days, low risk defendants are

almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24

hours”); Arnold Foundation, Pretrial Criminal Justice Research Summary (2013) at 5, available at:

http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf (finding that

“low-risk defendants held 2-3 days were 17 percent more likely to commit another crime within two years” and that

those detained “4-7 days yielded a 35 percent increase in re-offense rates.”).

40 Independently, none of the robust procedures required for a valid order of preventative detention exists, including
that there is no inquiry, let alone an inquiry with counsel and basic evidentiary norms, into whether a compelling
interest exists to detain a particular defendant, whether any particular identifiable danger or risk exists, and whether
there are alternatives to the use of secured money bail that could mitigate any particularized risk. 41 Id.; see also Wheeler & Fry, Report #1, supra note 5, at 3.

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94. Pretrial detention is more than ten times more expensive than effective pretrial supervision programs. Through non-monetary tools, pretrial supervision programs can save taxpayer expense while maintaining high public safety and court appearance rates.
Class Action Allegations 95. The named Plaintiff brings this action, on behalf of herself and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 96. A class action is a superior means, and the only practicable means, by which the named Plaintiff and unknown Class members can challenge the County’s unlawful wealth-based post-arrest detention scheme. 97. This action is brought and may properly be maintained as a Class action pursuant to Rule 23(a)(1)-(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure. 98. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 99. The Plaintiff proposes a single Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: All individuals who are or will be detained by Harris County for any amount of time after arrest because they are unable to pay money bail. A. Numerosity. Fed. R. Civ. P. 23(a)(1) 100. In March 2016, the average daily population of misdemeanor arrestees being held pretrial on money bails they could not afford was 545 individuals.42 This was a typical month. The population of pretrial misdemeanor detainees grew by 29 percent in the past year.43 Eight percent of the pretrial population, which numbers in the thousands on any given day, regularly consists of misdemeanor offenders unable to pay a money bail.
42 Jail Population Report, supra note 18, at 1. 43 Id.
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101. On any given day, there are thousands of outstanding misdemeanor arrest warrants issued by Harris County, and every day the County issues dozens more.
102. Arrestees are held in jail for varying lengths of time depending on how long it takes them to make the cash payment that the County requires for their release.
103. Some arrestees are able to pay immediately for their release. Others are forced to wait one or two days until they or family members can make the payment. Others will never be able to come up with any amount of money to pay for their release.
104. The number of current and future arrestees subject to this policy — if it is not enjoined — numbers well into the thousands.
B. Commonality. Fed. R. Civ. P. 23(a)(2). 105. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiff seeks relief concerning whether the County’s policies, practices, and procedures violate the rights of the Class members and relief mandating that the County change its policies, practices, and procedures so that the constitutional rights of the Class Members will be protected in the future. 106. Common legal and factual questions arise from one central scheme and set of policies and practices: the County’s post-arrest wealth-based detention scheme. The County operates this scheme openly and in materially the same manner every day. The material components of the scheme do not vary from Class Member to Class Member, and the resolution of these legal and factual issues will determine whether all of the members of the class are entitled to the constitutional relief that they seek. Among the most important, but not the only, common questions of fact are:
 Whether Harris County has a policy and practice of using a predetermined schedule to determine the amount of money required to secure post-arrest release;
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 Whether Harris County requires that scheduled amount of money to be paid up front before it will release a person from its jail;
 What standard post-arrest procedures Harris County performs on misdemeanor arrestees; for example, whether Harris County uses any other alternate procedures for promptly releasing indigent people determined otherwise eligible for release but who are unable to afford a monetary payment.
107. Among the most important common questions of law is:  Whether a secured “bail schedule” setting generic amounts of money required up
front to avoid post-arrest detention without any inquiry or findings into a person’s ability to pay violates the Fourteenth Amendment’s Due Process and Equal Protection provisions. C. Typicality. Fed. R. Civ. P. 23(a)(3). 108. The named Plaintiff’s claims are typical of the claims of the other members of the Class, and she has the same interests in this case as all other Class Members. Each Class Member is threatened with imminent and/or ongoing confinement in jail because she cannot afford to pay the County’s standardized cash bail amount. The answer to whether the County’s wealth-based detention scheme is unconstitutional will determine the claims of the named Plaintiff and every other Class member. 109. If the named Plaintiff succeeds in the claim that the County’s policies and practices concerning post-arrest detention violate her constitutional rights, that ruling will likewise benefit every other member of the Class. D. Adequacy. Fed. R. Civ. P. 23(a)(4). 110. The named Plaintiff is an adequate representative of the Class because her interest in the vindication of the legal claims that she raises is entirely aligned with the interests of the other Class members, each of whom has the same basic constitutional claims. She is a member of the Class, and her interests do not conflict with those of the other Class members. 111. There are no known conflicts of interest among members of the proposed Class,
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all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-freedom post-arrest detention system.
112. Plaintiff is represented by attorneys from Equal Justice Under Law and Susman Godfrey who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification.
113. The combined efforts of Class counsel have so far included extensive investigation into fixed money bail schemes over a period of months, including numerous interviews with witnesses, court employees, jail inmates, families, judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
114. Class counsel has a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
115. As a result, counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ scheme and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel has also developed relationships with many of the individuals and families most victimized by unlawful wealth-based pretrial detention practices. The interests of the members of the Class will be fairly and adequately protected by the Plaintiff and her attorneys.
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E. Rule 23(b)(2) 116. Class action status is appropriate because the County, through the policies, practices, and procedures that make up its wealth-based post-arrest detention scheme, has acted in the same unconstitutional manner with respect to all class members. The County enforces a wealth-based system of pretrial justice: some arrestees can purchase their immediate release, while other arrestees must remain in jail solely because they cannot pay. 117. The Class therefore seeks declaratory and injunctive relief to enjoin the County from detaining arrestees who cannot afford cash payments. Because the putative Class challenges the County’s scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class, Rule 23(b)(2) is appropriate and necessary. 118. Injunctive relief compelling the County to comply with these constitutional rights will similarly protect each member of the Class from being subjected to the City’s unlawful policies and practices. A declaration and injunction stating that Defendants cannot detain arrestees due to their inability to make a monetary payment would provide relief to every Class Member. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate. 119. Plaintiff seeks the following relief.
Claim for Relief Count One: Defendants Violate Plaintiff’s Rights By Jailing Her Because She Cannot Afford A Monetary Payment. 120. Plaintiff incorporates by reference the allegations in paragraphs 1-119. 121. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit jailing a person because of her inability to make a monetary payment. Defendants violate
28

Case 4:16-cv-01414 Document 3 Filed in TXSD on 05/19/16 Page 29 of 30
Plaintiff’s fundamental right to pretrial liberty by keeping her in jail solely because she cannot
afford to pay money bail without providing any inquiry into or findings concerning her ability to
pay.
Request for Relief
WHEREFORE, Plaintiff and the other Class members request that this Court issue the
following relief:
a. A declaratory judgment that the Defendants violate the named Plaintiff’s and Class Members’ constitutional rights by keeping them in jail solely because they cannot make a monetary payment without an inquiry into and findings concerning their ability to pay;
b. An order and judgment preliminarily and permanently enjoining the Defendants — including all officers, employees, and agents of Harris County — from using money bail to detain any person without procedures that ensure an inquiry into and findings concerning the person’s ability to pay any monetary amount set.
c. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.
Respectfully submitted,
/s/ Lexie G. White____________ Neal S. Manne Lexie G. White 1000 Louisiana Street, Suite 5100 Houston, TX 77002 Phone: (713) 651-9366 nmanne@susmangodfrey.com lwhite@susmangodfrey.com Michael Gervais (Pro Hac Vice Pending) 560 Lexington Avenue, 15th Floor New York, NY 10022 Phone: (212) 336-8330 mgervais@susmangodfrey.com
/s/ Alec Karakatsanis_______________ Alec Karakatsanis (D.C. Bar No. 999294) (Pro Hac Vice Application Pending) Elizabeth Rossi (Pro Hac Vice Application Pending) Attorneys, Equal Justice Under Law 601 Pennsylvania Ave. NW
29

Case 4:16-cv-01414 Document 3 Filed in TXSD on 05/19/16 Page 30 of 30 South Building, 9th Floor Washington, DC 20004 (202) 670-1004 alec@equaljusticeunderlaw.org erossi@equaljusticeunderlawl.org Attorneys for Plaintiff
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Longitudinal Study of Effects of Harris County Felony and Misdemeanor Defendants’ Legal & Extralegal Attributes on Pretrial Status and Case Outcome $SU   DW  DYDLODEOH DW KWWSZZZSUHWULDORUJGRZQORDGUHVHDUFK+DUULV&RXQW\
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Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 13 of 128

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 6DUDK 5 *XLGU\ HW DO A Blueprint for Criminal Justice Policy Solutions in Harris County DW  KWWSZZZDPHULFDQEDURUJFRQWHQWGDPDEDHYHQWVOHJDOBDLGBLQGLJHQWBGHIHQGDQWVOVBVFODLGBVXPPLWBBWFMF BBKDUULVBFRXQW\BEOXHSULQWDXWKFKHFNGDPSGI>$%$5HSRUW@
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Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 28 of 128
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Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 43 of 128

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Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 44 of 128

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 45 of 128

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 46 of 128

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 47 of 128

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 48 of 128

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 49 of 128

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 50 of 128

RULE 9. 9.1.

SETTING AND MODIFYING BAIL SCHEDULE
Pursuant to the agreed final judgment and order of the federal court in Roberson v. Richardson (No. H-84-2974), Southern District of Texas (1987)), the Harris County Criminal Court at Law Judges promulgate this initial bail schedule. The district attorney shall affix an initial bail amount at the time a complaint is filed in a county criminal court at law. The initial bail amount shall be determined by either presenting relevant information in the possession of the district attorney to a county criminal court at law judge, or Harris County Hearing Officer, or by applying the initial bail schedule. The district clerk shall record the bail amount set by the judicial officer or applied by the district attorney from the initial bail schedule in the case file. This shall be the exclusive means of setting the initial amount of bail, unless otherwise directed by the Judges of the Harris County Criminal Courts at Law.

Class: Class: Class: Class: Class:

Misdemeanor Bail Schedule

B, Standard Offense 1st Offense

$500

2nd Offense

$500, plus $500 for each prior misdemeanor conviction, plus $1,000 for each prior felony conviction (not to exceed $5,000)

A, Standard Offense 1st Offense 2nd Offense

$1,000
$1,000, plus $500 for each prior misdemeanor conviction, plus $1,000 for each prior felony conviction (not to exceed $5,000)

Family Violence or Threat of Violence 1st Offense 2nd Offense

$1,500
$1,500, plus $2,000 for each prior conviction for a violent offense or threat of violence

DWI First Offense Subsequent Offense

$500
$2,500, plus $1,000 for each prior conviction not to exceed $5,000

Any offense committed while on bond, community supervision, intervention, or parole
Any motion to adjudicate or revoke community supervision

$5,000 $5,000

9.2. 9.3. 

The initial bail amount shall be determined by application of the bail schedule. In any case where the district attorney desires a bond higher than that on the bail schedule, the district attorney shall make a request to a judge of the county criminal court at law or a criminal law hearing officer. The order, when signed by the judge or hearing officer shall be provided to the district clerk along with the complaint and information for filing.
The district clerk shall apply the amount of bond from the bail schedule except in cases where the district attorney has provided the clerk with an order setting bail signed by a judge of a county criminal court at law or a criminal law hearing officer, in which case the clerk will apply the amount of bail provided for in the order setting bail.

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 51 of 128 March 2016 Report

Comparison of Daily Average Jail Population

Category 1

1st Mtg of
Council
Aug-09

1 Year Ago
Mar-15

Last Month
Feb-16

Current Month
Mar-16

Aug-09 -
Mar-16

Mar-15 -
Mar-16

Feb-16 -
Mar-16

Pretrial Detainees (By Highest Charge)

Inmates

Percent Change

DistrictCourtsͲOtherthanStateJailFelonies

4,582 5,086 5,108

11%

0%

DistrictCourtsͲStateJailFelonies

1,286 1,142 1,134

Ͳ12%

Ͳ1%

CountyCourts

422

513

545

29%

6%

OtherHarrisCoCourtdetainees(eg:JP,Family,Civil)

52

53

54

4%

2%

Pretrial Detainees

6,151 6,342 6,794 6,841

11%

8%

1%

% of total in Custody

54%

73%

78%

77%

Probationers (no pending charges):

DistrictCourts

855

308

316

391

27%

24%

CountyCourts

55

24

24

25

4%

4%

Probationers

919

332

340

416 Ͳ55%

25%

22%

% of total in Custody

8%

4%

4%

5%

Prisoners Serving County Time: Post-Adjudication

SentencedinCountyCourts

363

319

339

Ͳ7%

6%

SentencedinDistrictCourtsͲStateJailFelons12.44A

13182

172

86

109

Ͳ37%

27%

SentencedinDistrictCourtsͲOther

234

251

272

16%

8%

SentencedinJPCourts

13

17

19

46%

12%

Prisoners Serving County Time: Post-Adjudication

2,919

782

673

739 Ͳ75%

Ͳ5%

10%

% of total in Custody

26%

9%

8%

8%

Sentenced to TDC/State Jail: Post-Adjudication

SentencedtoTDC

455

365

384

Ͳ16%

5%

SentencedtoStateJail

111

112

103

Ͳ7%

Ͳ8%

PendingAppeals

145

92

99

Ͳ32%

8%

Sentenced to TDC/State Jail: Post-Adjudication

632

711

569

586

Ͳ7% Ͳ18%

3%

% of total in Custody

6%

8%

7%

7%

Others: BoardofPardons&Paroles(BOPP) Witnesses NonͲHarrisCountyPrisoners Others

% of total in Custody

3Received, Uncategorized in JIMS % of total in Custody

542 71 99
674 6%
0.0%

265 32 52
349 4%
125 1.4%

278 39 41
358 4%
4 0.0%

264 34 42
340 4%
0 0.0%

Ͳ50%

0% 6% Ͳ19% Ͳ3%

Ͳ5% Ͳ13%
2% Ͳ5%

Total in Harris County Sheriff's Custody 3AverageinInmateProcessingCenter(IPC) Total Housed in Harris County Jail

11,295 8,641 8,738 8,922

Ͳ21%

3%

2%

354 358 248 343

Ͳ3%

Ͳ4%

38%

10,941 8,283 8,490 8,579

Ͳ22%

4%

1%

Total Awaiting Transfer to TDCJ-ID (Paper-Ready)

461

474

308

362

% of total in Custody

4%

5%

4%

4%

1 TheinmateCategoryDefinitionsforthisreportwerechangedeffectiveJanuary2011.DataforAugust 2009hasbeenreallocatedtofitthenewcategories. 2 ValuetakendirectlyfromAugust2009report. 3 IPCIncludesthoseinintakeandreceiving.

Prepared by the Office of Criminal Justice Coordination

04/04/2016

Ͳ21%

Ͳ24%

18% Page 1 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 52 of 128 March 2016 Report

Month/Year

Comparison of Daily Average Jail Population vs. Facility Capacity

1st mtg of Council
Aug-09

1 Year Ago Last Month
Mar-15 Feb-16

Current Month
Mar-16

Aug-09
Mar-16

Mar-15
Mar-16

Feb-16
Mar-16

Total in HCSO custody Less IPC1daily average
Total Housed by HCSO Harris County Jail Facilities Total Design Capacity Total over/(under) design capacity Percent over/(under) design capacity
Harris County Jail Facilities Total Design Capacity TCJS Approved Variance Beds3
Harris County Jail Total Capacity approved by TCJS less 7%
Effective Housing Capacity (93%)2

11,295 354
10,941 9,434 1,507
16%

8,641 358
8,283 9,434 (1,151)
-12%

9,434 1,612 11,046
(773) 10,273

9,434 680
10,114 (708)
9,406

8,738 248
8,490 9,434
(944) -10%
9,434 580
10,014 (701)
9,313

8,922 343
8,579 9,434
(855) -9%
9,434 580
10,014 (701)
9,313

-21%

3%

2%

-3%

-4%

38%

-22%

4%

1%

without variance beds
9,434 -
9,434 (660)
8,774

Total Housed by HCSO Total over/(under) Effective Housing Capacity
Percent over/(under) Effective Housing Capacity

10,941 668 7%

8,283 (1,123)
-12%

8,490 (823) -9%

8,579 (734) -7.9%

8,579 (195) -2.2%

1 IPC Includes those in intake and receiving.

2 Effective Housing Capacity is equivalent to 93% of the total number of beds available. At any given time, seven percent of beds are unavailable due to classification issues, repairs, construction, etc. thus preventing 100% utilization of all beds in the facility.

3 As of November 6, 2014 the number of approved variance beds was reduced from 680 to 580 beds.

12,000 11,500 11,000 10,500 10,000
9,500 9,000 8,500 8,000 7,500

TotalInmatesHoused
Harris County Jail Facilities Effective Housing Capacity 9,313
Aug-09 to Mar-16: -22%

DailyAverage

Prepared by the Office of Criminal Justice Coordination

04/04/2016

Page 2 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 53 of 128 March 2016 Report

Observations
 InMarch2016theaveragedailyjailpopulationhousedstoodat8,579reflectinganetincreaseof89personsfrom lastmonth,withincreasesineachmajorcategoryofinmates.  Theaveragedailyjailpopulationhousedisdown22%fromthefirstmeetingoftheCouncilinSeptember2009 when the population totaled 10,941 inmates, which was 16% over design capacity and 7% over TCJS approved capacity.Includingapprovedvariancebeds,theaveragedailyjailpopulationhousedforMarchwas7.9%below theeffectivehousingcapacity.Withouttheuseofvariancebeds,averagedailyjailpopulationhousedwas2.2% beloweffectivehousingcapacity.  Pretrialdetaineesrepresent77%(6,841persons)ofthetotaljailpopulation,upslightlyfromthepreviousmonth and8%higher(499persons)thanoneyearago.Thepretrialstatejailfelonydetaineepopulationdeclinedslightly to1,134persons,12%fewer(152persons)thanoneyearago.Thenumberofpretrialfelonydetainees(excluding state jail felonies) remains essentially the same as last month, up 11% from one year ago. The misdemeanor pretrialdetaineepopulationincreasedby32personsfromlastmonthandis29%higher(123persons)thanone yearago.  Thenumberofprobationerswithnopendingchargesincreasedby76personsfromlastmonthto416,andis25% higherthanoneyearago.  PostͲadjudicated County prisoners represent 8% of the total jail population, up 10% from last month to 739 persons.Thiscategoryisdown5%(43persons)fromoneyearagoduetofewer12.44astatejailfelonsserving timelocally.586personsor7%ofthetotalpopulationarepostͲadjudicatedprisonerssentencedtoTDCorstate jail,down18%(125persons)fromoneyearago.  ThenumberofparoleviolatorsandnonͲHarrisCountyprisonersdeclinedby18personsfromlastmonthto340, andisdown7%(9persons)fromoneyearago.  ThenumberofinmatesawaitingtransfertoTDCJͲID(i.e.PaperReady)averaged362,down31%fromoneyear ago.  In March 2016, 26% (2,289 persons) of the average daily jail population housed had a mental health history (previously diagnosed or prescribed psychotropic medication).  775 of these 2,289 had either selfͲidentified as being homeless or had received homeless services in the community prior to incarceration. An additional 12% (1,044persons)oftheaveragedailyjailpopulationhousedmetthesamehomelesscriteria. 

Note:Fluctuationinthejailpopulationasreportedhereisinfluencedbyavarietyoffactorssuchasthenumberofcasesfiled,thenumberofpeoplewhoare

releasedonbond,thelengthoftimetocompleteacase,holdsplacedonHarrisCountyinmatesbyotherjurisdictions,lengthofsentenceshandeddown,the

effectofearlyreleaseprograms,paroleboardprocessingofcases,andthelistgoeson.Thechangesobservedinthejailpopulationcategoriesfrommonth

tomonthareimpactedbyanynumberofthesefactorsandcannotbeattributedtoasinglecauseandeffect.



Note: Effective Housing Capacity is equivalent to 93% of the total number of beds available. At any given time, approximately seven percent of beds are

unavailableduetoclassificationissues,repairs,construction,etc.thuspreventing100%utilizationofallbedsinthefacility.TheTexasCommissiononJail

Standards(TCJS)hasapprovedtheuseof580variancebedsintheHarrisCountyJail.Whenthisadditionalcapacityisaddedtothedesigncapacity,thetotal

numberofbedsrisesto10,014,but7%(701beds)mustbesubtractedfromthisnumbertodeterminetheeffectivehousingcapacitywhichis9,313.(The

numberofvariancebedsissubjecttoperiodicreviewbyTCJS.)

  Prepared by the Office of Criminal Justice Coordination

04/04/2016

Page 3 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 54 of 128 March 2016 Report

Sentencedto TDC/StateJail
586 7%
PrisonersServing CountyTime 739 8%

BOPPViolators 264 3%

Others (Witnesses, Appeal,JP, Family,Civil)
130 1%

Total Daily Average Population In Custody 8,922
InCustodyͲ Receiving 0 0%

Probationers 416 5%
PretrialCounty Court
Misdemeanors 545 6%

PretrialDistrictCourt Felonies 5,108 57%

PretrialDistrictCourt StateJailFelonies 1,134 13%

HARRISCOUNTYJAILͲ PopulationHousedbyHCSO
excludesInmateProcessingCenter(IPC)
2009Ͳ 2016

11300

10800

10,941
2009

11,099

10,939 10,897

DailyAveragePopulation

103002010 10,139
2011
9800

9,996

9300 HarrisCountyJailFacilitiesEffectiveHousingCapacity9,313 9,064

8800

2012 2013 2014
83002016

8,576 8,358
8,235

20158,205

8,490

8,579

8,283

8,648

8,950 8,824
8,565

10,161

10,377

9,758

2009 2010 2011 2012 2013 2014 2015 2016

8,417 8,308 8,181

7800

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Prepared by the Office of Criminal Justice Coordination

04/04/2016

Page 4 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 55 of 128 March 2016 Report

MentalHealth History,NoHomeless Designation;1,514;
17%
MentalHealthHistory andHomeless;775; 9%

Total AverageDaily Population InCustody 8,922

NoMentalHealth History,Homeless;
1,042;12%

NoMentalHealth HistoryandNo Homeless
Designation;5,591;
62%

InCustodyͲ Receiving (StatusUnknown);0;
0%
MentalHealthHistoryand/orHomeless

Sentencedto TDC/StateJail PrisonersServing CountyTime
Probationers
PretrialCountyCourt Misdemeanors

BOPP Other InCustodyͲ Receiving
Total AverageDaily Population InCustody 8,922
PretrialDistrictCourt FeloniesͲ Otherthan
StateJail

PretrialDistrict CourtStateJail
Felonies

MentalHealthHistoryand/orHomeless

Prepared by the Office of Criminal Justice Coordination

04/04/2016

Page 5 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 56 of 128 March 2016 Report
PretrialDetainees

DailyAverage

6000
DistrictCourtsͲ OtherthanStateJailFelonies
5000
4000
3000
2000
MarͲ14toMarͲ16:20%
1000
0

MarͲ14 AprͲ14 MayͲ14 JunͲ14 JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 DistrictCourtFelonies 4246 4310 4365 4452 4486 4515 4543 4549 4565 4584 4689 4,652 4,582 4,731 4,753 4,879 4,946 4925 4930 4885 4885 4941 5078 5086 5108
1600
DistrictCourtsͲ StateJailFelonies
1500
1400
1300
1200
1100
1000
MarͲ14toMarͲ16:17%
900
800

DailyAverage

MarͲ14 AprͲ14 MayͲ14 JunͲ14 JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 StateJailFelonies 973 1023 1082 1094 1042 1022 1057 1059 1087 1055 1112 1,187 1,286 1,377 1,410 1,492 1,485 1425 1329 1233 1181 1153 1094 1142 1134

600

550

CountyCourts

500

DailyAverage

450

400

MarͲ14toMarͲ16:6%

350
MarͲ14 AprͲ14 MayͲ14 JunͲ14 JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 CountyCourts 516 530 469 464 473 458 445 464 452 412 438 418 422 483 453 461 505 497 512 503 482 493 498 513 545

Prepared by the Office of Criminal Justice Coordination

04/04/2016

Page 6 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 57 of 128 June 2016 Report
Comparison of Daily Average Jail Population

Category 1

1st Mtg of
Council
Aug-09

1 Year Ago
Jun-15

Last Current Month Month
May-16 Jun-16

Aug-09 -
Jun-16

Jun-15 -
Jun-16

May-16 -
Jun-16

Pretrial Detainees (By Highest Charge)

Inmates

Percent Change

DistrictCourtsͲOtherthanStateJailFelonies

4,879 5,166 5,213

7%

1%

DistrictCourtsͲStateJailFelonies

1,492 1,426 1,396

Ͳ6%

Ͳ2%

CountyCourts

461

527

508

10%

Ͳ4%

OtherHarrisCoCourtdetainees(eg:JP,Family,Civil)

51

49

46

Ͳ10%

Ͳ6%

Pretrial Detainees

6,151 6,883 7,168 7,163

16%

4%

0%

% of total in Custody

54%

75%

76%

75%

Probationers (no pending charges):

DistrictCourts

855

354

359

351

Ͳ1%

Ͳ2%

CountyCourts

55

23

27

25

9%

Ͳ7%

Probationers

919

377

386

376 Ͳ59%

0%

Ͳ3%

% of total in Custody

8%

4%

4%

4%

Prisoners Serving County Time: Post-Adjudication

SentencedinCountyCourts

352

337

309

Ͳ12%

Ͳ8%

SentencedinDistrictCourtsͲStateJailFelons12.44A

13182

175

166

189

8%

14%

SentencedinDistrictCourtsͲOther

231

237

245

6%

3%

SentencedinJPCourts

15

15

16

7%

7%

Prisoners Serving County Time: Post-Adjudication

2,919

773

755

759 Ͳ74%

Ͳ2%

1%

% of total in Custody

26%

8%

8%

8%

Sentenced to TDC/State Jail: Post-Adjudication

SentencedtoTDC

461

437

526

14%

20%

SentencedtoStateJail

118

110

143

21%

30%

PendingAppeals

140

94

88

Ͳ37%

Ͳ6%

Sentenced to TDC/State Jail: Post-Adjudication

632

719

641

757

20%

5%

18%

% of total in Custody

6%

8%

7%

8%

Others: BoardofPardons&Paroles(BOPP) Witnesses NonͲHarrisCountyPrisoners NotGuiltybyReasonofInsanity(NGRI) Others
% of total in Custody 3Received, Uncategorized in JIMS
% of total in Custody

542

250

327

340

36%

4%

71

47

41

37

Ͳ21% Ͳ10%

59

52

57

99

7

6

0%

Ͳ11%

674

356

427

440 Ͳ35%

24%

3%

6%

4%

5%

5%

108

0

0

1.2% 0.0% 0.0%

Total in Harris County Sheriff's Custody

11,295 9,216 9,377 9,495

Ͳ16%

3%

1%

3AverageinInmateProcessingCenter(IPC) 354 392 372 386

9%

Ͳ2%

4%

Total Housed by HCSO

10,941 8,824 9,005 9,109

Ͳ17%

3%

1%

Total Outsourced 1,040 Ͳ 217 232

Ͳ78%

0%

7%

Total Housed in Harris County Jail Facilities

9,901 8,824 8,788 8,877

Total Awaiting Transfer to TDCJ-ID (Paper-Ready)

461

465

411

499

8%

7%

21%

% of total in Custody

4%

5%

4%

5%

1 TheinmateCategoryDefinitionsforthisreportwerechangedeffectiveJanuary2011. DataforAugust2009hasbeenreallocatedtofitthenewcategories. 2 ValuetakendirectlyfromAugust2009report. 3 IPCIncludesthoseinintakeandreceiving.

Prepared by the Office of Criminal Justice Coordination

07/19/2016

Page 1 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 58 of 128 June 2016 Report

Month/Year

Comparison of Daily Average Jail Population vs. Facility Capacity

1st mtg of Council
Aug-09

1 Year Ago Last Month
Jun-15 May-16

Current Month
Jun-16

Aug-09
Jun-16

Jun-15
Jun-16

May-16
Jun-16

Total in HCSO custody

11,295 9,216

9,377 9,495 -16%

3%

1%

Less IPC1daily average

354

392

372

386 9%

-2%

4%

Total Housed by HCSO

10,941 8,824

9,005 9,109 -17%

3%

1%

Less Outsourced

1,040

-

217

232

Total Housed in Harris County Jail Facilities

9,901 8,824

8,788 8,877

Harris County Jail Facilities Total Design Capacity Total over/(under) design capacity
Percent over/(under) design capacity

9,434 467 5%

9,434 (610) -6%

9,434 (646) -7%

9,434 (557) -6%

Harris County Jail Facilities Total Design Capacity TCJS Approved Variance Beds2
Harris County Jail Total Capacity approved by TCJS
less 7% Effective Housing Capacity (93%)3

9,434 1,612 11,046 (773) 10,273

9,434 680
10,114 (708) 9,406

9,434 580
10,014 (701)
9,313

9,434 580
10,014 (701) 9,313

without variance beds 9,434 9,434 (660) 8,774

Total Housed in Harris County Jail Facilities Total over/(under) Effective Housing Capacity
Percent over/(under) Effective Housing Capacity

9,901 (372) -3.6%

8,824 (582) -6.2%

8,788 (525) -5.6%

1 IPC Includes those in intake and receiving. 2 As of November 6, 2014 the number of approved variance beds was reduced from 680 to 580 beds.

8,877 (436) -4.7%

8,877 104 1.2%

3 Effective Housing Capacity is equivalent to 93% of the total number of beds available. At any given time, seven percent of beds are unavailable due to classification issues, repairs, construction, etc. thus preventing 100% utilization of all beds in the facility.

TotalInmatesHoused
12,000

11,500

11,000

10,500

10,000

9,500 Harris County Jail Facilities
9,000 Effective Housing Capacity 9,313

8,500

8,000 7,500

Aug-09 to Jun-16: -17%

DailyAverage

Prepared by the Office of Criminal Justice Coordination

07/19/2016

Page 2 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 59 of 128 June 2016 Report
Observations
In June 2016 the average daily jail population housed stood at 9,109, a net increase of 104 persons from the previousmonth.IncreaseswereobservedinthosesentencedtoTDC/StateJailandparoleviolators.
Theaveragedailyjailpopulationhousedisdown18%fromthefirstmeetingoftheCouncilinSeptember2009 when the population totaled 10,941 inmates, which was 16% over design capacity and 7% over TCJS approved capacity.Includingapprovedvariancebeds,theaveragedailyjailpopulationhousedforJunewasϮ%belowthe effectivehousingcapacity.Anaverageof232inmateswerehousedinotherTexascounties.
Pretrialdetaineesrepresent75%(7,163persons)ofthetotaljailpopulation,essentiallythesameastheprevious monthand4%higher(280persons)thanoneyearago.Thepretrialfelonypopulation(excludingstatejailfelonies) increasedby47personsto5,213,7%higherthanoneyearago.Thenumberofpretrialstatejailfelonydetainees declinedby30personsfromlastmonth,6%lessthanoneyearago.Themisdemeanorpretrialdetaineepopulation declinedby19personsfromlastmonthandis10%higher(47persons)thanoneyearago.
Thenumberofprobationerswithnopendingchargesdeclined3%fromlastmonthto351,essentiallythesame asoneyearago.
PostͲadjudicatedCountyprisonersrepresent8%ofthetotaljailpopulation,unchangedfromlastmonth,and2% (14persons)lessthanoneyearago.757personsor8%ofthetotalpopulationarepostͲadjudicatedprisoners sentencedtoTDCorstatejail,up5%fromoneyearago.
Thenumberofparoleviolatorsincreased4%(13persons)fromlastmonthto340,36%higherthanoneyearago.
ThenumberofinmatesawaitingtransfertoTDCJͲID(i.e.PaperReady)averaged499,up7%fromoneyearago.
InJune2016,27%(2,453persons)oftheaveragedailyjailpopulationhousedhadamentalhealthhistory (previously diagnosed or prescribed psychotropic medication).  825 of these 2,453 had either selfͲidentified as being homeless or had received homeless services in the community prior to incarceration. An additional 11% (1,004persons)oftheaveragedailyjailpopulationhousedmetthesamehomelesscriteria.

Note:Fluctuationinthejailpopulationasreportedhereisinfluencedbyavarietyoffactorssuchasthenumberofcasesfiled,thenumberofpeoplewhoare releasedonbond,thelengthoftimetocompleteacase,holdsplacedonHarrisCountyinmatesbyotherjurisdictions,lengthofsentenceshandeddown,the effectofearlyreleaseprograms,paroleboardprocessingofcases,andthelistgoeson.Thechangesobservedinthejailpopulationcategoriesfrommonth tomonthareimpactedbyanynumberofthesefactorsandcannotbeattributedtoasinglecauseandeffect.

Note: Effective Housing Capacity is equivalent to 93% of the total number of beds available. At any given time, approximately seven percent of beds are unavailableduetoclassificationissues,repairs,construction,etc.thuspreventing100%utilizationofallbedsinthefacility.TheTexasCommissiononJail Standards(TCJS)hasapprovedtheuseof580variancebedsintheHarrisCountyJail.Whenthisadditionalcapacityisaddedtothedesigncapacity,thetotal numberofbedsrisesto10,014,but7%(701beds)mustbesubtractedfromthisnumbertodeterminetheeffectivehousingcapacitywhichis9,313.(The numberofvariancebedsissubjecttoperiodicreviewbyTCJS.)

Prepared by the Office of Criminal Justice Coordination

07/19/2016

Page 3 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 60 of 128 June 2016 Report

Sentencedto TDC/StateJail
757 8%

BOPPViolators 340 4%

Others(Witnesses, Appeal,JP,Family,Civil)
146 1%

Total Daily Average Population In Custody 9,495

PrisonersServing CountyTime 759 8%
Probationersw/o LawViolations 376 4%
PretrialCounty Court
Misdemeanors 508 5%

PretrialDistrictCourt Felonies 5,213 55%

PretrialDistrictCourt StateJailFelonies 1,396 15%

HARRISCOUNTYJAILͲ PopulationHousedbyHCSO excludesInmateProcessingCenter(IPC) 2013Ͳ 2016
9,400

DailyAveragePopulation

HarrisCountyJailFacilitiesEffectiveHousingCapacity9,313
9,200

9,000

9,005

9,109 9,064

8,950

9,262 9,024

8,800
2013

8,770

8,600 8,400 8,200

8,576

2014

8,490

8,358
2016
8,235
8,205
2015

8,352

8,579 8,423
8,283

8,648

8,824 8,565

8,730

8,638

8,592

8,658

8,424

8,440

8,417

8,308

2013 2014 2015 2016

8,181

8,000

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Prepared by the Office of Criminal Justice Coordination

07/19/2016

Page 4 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 61 of 128 June 2016 Report

MentalHealth History,NoHomeless Designation;1,728;
18%

Total AverageDaily Population InCustody 9,495

MentalHealthHistory andHomeless;849; 9%
NoMentalHealth History,Homeless;
1,044;11%

NoMentalHealth HistoryandNo Homeless
Designation;5,874;
62%

MentalHealthHistoryand/orHomeless

Sentencedto TDC/StateJail
PrisonersServing CountyTime
Probationers w/oLaw Violations
PretrialCountyCourt Misdemeanors

BOPP

Other

Total AverageDaily Population InCustody 9,495
PretrialDistrict CourtFeloniesͲ
Otherthan StateJail

PretrialDistrict CourtStateJail
Felonies

MentalHealthHistoryand/orHomeless

Prepared by the Office of Criminal Justice Coordination

07/19/2016

Page 5 of 6

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 62 of 128 June 2016 Report
PretrialDetainees

DailyAverage

5400

5200

DistrictCourtsͲ OtherthanStateJailFelonies

5000

4800

4600

4400
JunͲ14toJunͲ16:17%
4200

4000

JunͲ14 JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 DistrictCourtFelonies 4452 4486 4515 4543 4549 4565 4584 4689 4,652 4,582 4,731 4,753 4,879 4,946 4925 4930 4885 4885 4941 5078 5086 5108 5046 5166 5213

1600

1500

DistrictCourtsͲ StateJailFelonies

1400

1300

1200

DailyAverage

1100

1000

900

JunͲ14toJunͲ16:28%

800

JunͲ14 JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16

Series2

0

StateJailFelonies 1094 1042 1022 1057 1059 1087 1055 1112 1,187 1,286 1,377 1,410 1,492 1,485 1425 1329 1233 1181 1153 1094 1142 1134 1365 1426 1396

600

550

CountyCourts

500

DailyAverage

450

400
JunͲ14toJunͲ16:9%
350

JunͲ14 JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16

Series2

0

CountyCourts 464 473 458 445 464 452 412 438 418 422 483 453 461 505 497 512 503 482 493 498 513 545 546 527 508

Prepared by the Office of Criminal Justice Coordination

07/19/2016

Page 6 of 6

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 63 of 128

Comparison of Daily Average Jail Population

Category 1
Pretrial Detainees (By Highest Charge) DistrictCourtsͲOtherthanStateJailFelonies DistrictCourtsͲStateJailFelonies CountyCourts OtherHarrisCoCourtdetainees(eg:JP,Family,Civil) Pretrial Detainees
% of total in Custody

1st Mtg of
Council Aug-09
6,151 54%

1 Year Last Current Ago Month Month

Jul-15 Jun-16

Inmates

4,946 5,213

1,485 1,396

505

508

53

46

6,989 7,163

75%

75%

Jul-16
5,257 1,361
486 41
7,145 76%

Aug-09 Jul-15 Jun-16

Jul-16

Jul-16

Jul-16

Percent Change

6% Ͳ8% Ͳ4% Ͳ23%

1% Ͳ3% Ͳ4% Ͳ11%

16%

2%

0%

Probationers (no pending charges):

DistrictCourts

855

332

351

403

21%

15%

CountyCourts

55

23

25

24

4%

Ͳ4%

Probationers

919

355

376

427 Ͳ54%

20%

14%

% of total in Custody

8%

4%

4%

5%

Prisoners Serving County Time: Post-Adjudication

SentencedinCountyCourts

348

309

293

Ͳ16%

Ͳ5%

SentencedinDistrictCourtsͲStateJailFelons12.44A

13182

163

189

157

Ͳ4% Ͳ17%

SentencedinDistrictCourtsͲOther

239

245

240

0%

Ͳ2%

SentencedinJPCourts

16

16

12

Ͳ25% Ͳ25%

Prisoners Serving County Time: Post-Adjudication

2,919

766

759

702 Ͳ76%

Ͳ8%

Ͳ8%

% of total in Custody

26%

8%

8%

7%

Sentenced to TDC/State Jail: Post-Adjudication SentencedtoTDC SentencedtoStateJail PendingAppeals Sentenced to TDC/State Jail: Post-Adjudication
% of total in Custody

496

526

472

132

143

129

139

88

83

632

767

757

684

6%

8%

8%

7%

Ͳ5% Ͳ10%

Ͳ2% Ͳ10%

Ͳ40%

Ͳ6%

8% Ͳ11% Ͳ10%

Others: BoardofPardons&Paroles(BOPP) Witnesses NonͲHarrisCountyPrisoners NotGuiltybyReasonofInsanity(NGRI) Others
% of total in Custody 3Received, Uncategorized in JIMS
% of total in Custody

542

271

340

311

15%

Ͳ9%

71

35

37

39

11%

5%

56

57

44

99

6

5

0%

Ͳ16%

674

362

440

399 Ͳ41%

10%

Ͳ9%

6%

4%

5%

4%

100

0

4

1.1% 0.0% 0.0%

Total in Harris County Sheriff's Custody

11,295 9,339 9,495 9,361

3AverageinInmateProcessingCenter(IPC) 354 389 386 302

Ͳ17%

0%

Ͳ1%

Total Housed by Harris County Sheriff

10,941 8,950 9,109 9,059

Ͳ17%

1%

Ͳ1%

Total Outsourced 1,040 Ͳ 232 230

Total Housed in Harris County Jail Facilities

9,901 8,950 8,877 8,829 Ͳ11%

Ͳ1%

Ͳ1%

Total Awaiting Transfer to TDCJ-ID (Paper-Ready)

461

515

499

424

Ͳ8% Ͳ18% Ͳ15%

% of total in Custody

4%

6%

5%

5%

1 TheinmateCategoryDefinitionsforthisreportwerechangedeffectiveJanuary2011. DataforAugust2009hasbeenreallocatedtofitthenewcategories. 2 ValuetakendirectlyfromAugust2009report. 3 IPCIncludesthoseinintakeandreceiving.

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 64 of 128

Comparison of Daily Average Jail Population vs. Facility Capacity

Month/Year

1st mtg of Council
Aug-09

1 Year Ago Last Month
Jul-15 Jun-16

Current Month
Jul-16

Aug-09
Jul-16

Jul-15
Jul-16

Jun-16
Jul-16

Total in HCSO custody

Less IPC1daily average

Total Housed by HCSO

Less Outsourced

Total Housed in Harris County Jail Facilities

11,295 354
10,941 1,040 9,901

9,339 389
8,950 -
8,950

9,495 386
9,109 232
8,877

9,361 302
9,059 230
8,829

-17% -15% -17%

0% -22% 1%

-1% -22% -1%

Harris County Jail Facilities Total Design Capacity Total over/(under) design capacity
Percent over/(under) design capacity

9,434 467 5.0%

9,434 (484) -5.1%

9,434 (557) -5.9%

9,434 (605) -6.4%

Harris County Jail Facilities Total Design Capacity TCJS Approved Variance Beds2
Harris County Jail Total Capacity approved by TCJS
less 7% Effective Housing Capacity (93%)3

9,434 1,612 11,046 (773) 10,273

9,434 680
10,114 (708) 9,406

9,434 580
10,014 (701) 9,313

9,434 580
10,014 (701) 9,313

without variance beds 9,434 9,434 (660) 8,774

Total Housed in Harris County Jail Facilities Total over/(under) Effective Housing Capacity
Percent over/(under) Effective Housing Capacity

9,901 (372) -3.6%

8,950 (456) -4.8%

8,877 (436) -4.7%

8,829 (484) -5.2%

8,829 56
0.6%

1 IPC Includes those in intake and receiving. 2 As of November 6, 2014 the number of approved variance beds was reduced from 680 to 580 beds.
3 Effective Housing Capacity is equivalent to 93% of the total number of beds available. At any given time, seven percent of beds are unavailable due to classification issues, repairs, construction, etc. thus preventing 100% utilization of all beds in the facility.

TotalInmatesHoused
12,000

11,500

11,000

10,500

10,000

9,500

9,000

Harris County Jail Facilities Effective Housing Capacity 9,313

8,500

8,000 7,500

Aug-09 to Jul-16: -17%

DailyAverage

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 65 of 128

Observations
 InJuly2016theaveragedailyjailpopulationhousedstoodat9,059,down50personsfromthepreviousmonth. Therewerefewerpostadjudicatedcountyprisoners,TDC/statejailprisoners,andparoleviolators.   Theaveragedailyjailpopulationhousedisdown17%fromthefirstmeetingoftheCouncilinSeptember2009 whenthepopulationtotaled10,941inmates.DuringthemonthofJulyanaverageof230inmateswerehoused in other Texas counties. Including approved variance beds, the average daily jail population housed in Harris Countyjailfacilitieswas8829,5.2%belowtheeffectivehousingcapacity.   Pretrialdetaineesrepresent76%(7,145persons)ofthetotaljailpopulation,essentiallythesameastheprevious monthand4%higher(280persons)thanoneyearago.Thepretrialfelonypopulation(excludingstatejailfelonies) increasedby47personsto5,213,7%higherthanoneyearago.Thenumberofpretrialstatejailfelonydetainees declinedby30personsfromlastmonth,6%lessthanoneyearago.Themisdemeanorpretrialdetaineepopulation declinedby19personsfromlastmonthandis10%higher(47persons)thanoneyearago.  Thenumberofprobationerswithnopendingchargesincreased15%fromlastmonthto403,up21%fromone yearago.  PostͲadjudicatedCountyprisonersrepresent7.5%ofthetotaljailpopulation,down57personsfromlastmonth, and8%(64persons)lessthanoneyearago.684personsor7.3%ofthetotalpopulationarepostͲadjudicated prisonerssentencedtoTDCorstatejail,down11%fromoneyearago.  Thenumberofparoleviolatorsisdown9%(29persons)fromlastmonthto311,15%higherthanoneyearago.  ThenumberofinmatesawaitingtransfertoTDCJͲID(i.e.PaperReady)averaged499,up7%fromoneyearago.  In July 2016, 27% (2,470 persons) of the average daily jail population housed had a mental health history (previously diagnosed or prescribed psychotropic medication).  795 of these 2,470 had either selfͲidentified as being homeless or had received homeless services in the community prior to incarceration. An additional 11% (959persons)oftheaveragedailyjailpopulationhousedmetthesamehomelesscriteria. 
Note:Fluctuationinthejailpopulationasreportedhereisinfluencedbyavarietyoffactorssuchasthenumberofcasesfiled,thenumberofpeoplewhoare releasedonbond,thelengthoftimetocompleteacase,holdsplacedonHarrisCountyinmatesbyotherjurisdictions,lengthofsentenceshandeddown,the effectofearlyreleaseprograms,paroleboardprocessingofcases,andthelistgoeson.Thechangesobservedinthejailpopulationcategoriesfrommonth tomonthareimpactedbyanynumberofthesefactorsandcannotbeattributedtoasinglecauseandeffect.

Note: Effective Housing Capacity is equivalent to 93% of the total number of beds available. At any given time, approximately seven percent of beds are unavailableduetoclassificationissues,repairs,construction,etc.thuspreventing100%utilizationofallbedsinthefacility.TheTexasCommissiononJail Standards(TCJS)hasapprovedtheuseof580variancebedsintheHarrisCountyJail.Whenthisadditionalcapacityisaddedtothedesigncapacity,thetotal numberofbedsrisesto10,014,but7%(701beds)mustbesubtractedfromthisnumbertodeterminetheeffectivehousingcapacitywhichis9,313.(The numberofvariancebedsissubjecttoperiodicreviewbyTCJS.)
 

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 66 of 128

Sentencedto TDC/StateJail
684 7%
PrisonersServing CountyTime 702 8%
Probationersw/o LawViolations 427 5%
PretrialCounty Court
Misdemeanors 486 5%
PretrialDistrictCourt StateJailFelonies 1,361 15%

BOPPViolators 311 3%

Others(Witnesses, Appeal,JP,Family,Civil)
129 1%

Total Daily Average Population In Custody 9,361
IncludesInmate ProcessingCenter andOutsourced
Inmates

PretrialDistrictCourt Felonies 5,257 56%

DailyAveragePopulation

HARRISCOUNTYJAILͲ PopulationHousedbyHCSO
includesOutsourcedInmates,excludesInmateProcessingCenter(IPC)
2009Ͳ 2016

11300

10800

10,941
2009

11,099

10,939 10,897

103002010 10,139
2011
9800

9,996

9300 HarrisCountyJailFacilities EffectiveHousingCapacity9,313

8800
2012 2013 2014 83002016
2015

8,576 8,358
8,235 8,205

8,490

8,579

8,770

9,005

9,064 9,109
8,565

9,059

10,161

10,377

9,758

2009 2010 2011 2012 2013 2014 2015 2016

8,417 8,308
8,181

7800

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 67 of 128

MentalHealth History,NoHomeless Designation;1,705;
18%
MentalHealthHistory andHomeless;811; 9%
NoMentalHealth History,Homeless;
991;11%

Total AverageDaily Population InCustody 9,361
IncludesInmate ProcessingCenter andOutsourced
Inmates
NoMentalHealth HistoryandNo Homeless
Designation;5,850; 62%

MentalHealthHistoryand/orHomeless

Sentencedto TDC/StateJail PrisonersServing CountyTime
Probationers w/oLaw Violations
PretrialCountyCourt Misdemeanors

BOPP

Other

Total AverageDaily Population InCustody 9,361

PretrialDistrict CourtFeloniesͲ
Otherthan StateJail

IncludesInmate ProcessingCenter andOutsourced
Inmates

PretrialDistrict CourtStateJail
Felonies
MentalHealthHistoryand/orHomeless

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 68 of 128 July 2016 Report

PretrialDetainees DistrictCourtFelonies

MH 20%
MH& Homeless
8%
Homeless 9%

Not Homeless,No MHHistory
63%

PretrialDetainees DistrictCourtStateJailFelonies
MH 14%

MH& Homeless
14%

Not Homeless,No MHHistory
54%

Homeless 18%

Probationers
MH 19%
MH& Homeless
7%
Homeless 9%

Not Homeless,No MHHistory
65%

ParoleViolators
MH 21%
MH& Homeless
11%
Homeless 15%

Not Homeless,No MHHistory
53%

PretrialDetainees CountyCourtMisdemeanors

MH 17%
MH& Homeless
10%

Not Homeless,No MHHistory
63%

Homeless 10%

PrisonersServingCountyTime

MH

13% MH&

Homeless

7%

Not

Homeless,No

Homeless 11%

MHHistory 69%

Others(Witnesses,Appeal, JP,Family,Civil)

MH 26%
MH& Homeless
10%

Not Homeless,
NoMH History
49%

Homeless 15%

SentencedtoTDC/StateJail
MH 13%

MH& Homeless
5%
Homeless 10%

Not Homeless,No MHHistory
72%

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 6 of 16

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 69 of 128 July 2016 Report
PretrialDetainees

DailyAverage

5400

5200

DistrictCourtsͲ OtherthanStateJailFelonies

5000

4800

4600

4400
JulͲ14toJulͲ16:17%
4200

4000

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 JulͲ16 DistrictCourtFelonies 4486 4515 4543 4549 4565 4584 4689 4652 4,582 4,731 4,753 4,879 4,946 4,925 4930 4885 4885 4941 5078 5086 5108 5046 5166 5213 5257

1600

1500

DistrictCourtsͲ StateJailFelonies

1400

1300

1200

DailyAverage

1100

1000

900

JulͲ14toJulͲ16:31%

800

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 JulͲ16

Series2

0

StateJailFelonies 1042 1022 1057 1059 1087 1055 1112 1187 1,286 1,377 1,410 1,492 1,485 1,425 1329 1233 1181 1153 1094 1142 1134 1365 1426 1396 1361

600

550

CountyCourts

500

DailyAverage

450

400
JulͲ14toJulͲ16:3%
350

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 JulͲ16

Series2

0

CountyCourts 473 458 445 464 452 412 438 418 422 483 453 461 505 497 512 503 482 493 498 513 545 546 527 508 486

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 7 of 16

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 70 of 128

TotalHousedbyHCSO

DailyAverage

10,000

9,500

9,000

HarrisCountyJailFacilitiesEffectiveHousingCapacity9,313

8,500

8,000

7,500

Jul-14 to Jul-16: 8%

7,000

TotalOutsourced

JulͲ14

TotalHousedinHarrisCounty 8439

AugͲ14 SepͲ14 8349 8,424

OctͲ14 NovͲ14 DecͲ14 8,476 8449 8181

JanͲ15 8205

FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 7
8352 8283 8424 8648 8817

JulͲ15 154 8796

AugͲ15 SepͲ15 19 8711 8638

OctͲ15 NovͲ15 DecͲ15 8592 8439 8308

JanͲ16 8235

FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 217 232
8490 8579 8770 8788 8877

JulͲ16 230 8829

DailyAverage

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 71 of 128

Harris County - Jail Population July 2016 Report

Probationers

withNoNewCharges
DistrictCourts CountyCourts
1,000

900

800

700

600

500

400

300

200

100

Jul-14 to Jul-16: -6%

0

TotalProbationers CountyCourts DistrictCourts

JulͲ14 456 40 416

AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 443 387 354 324 308 316

40

33

22

26

21

30

403 354 332 298 287 286

FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 347 332 330 359 377

29

24

26

23

23

318 308 304 336 354

JulͲ15 355 23 332

AugͲ15 SepͲ15 346 366 22 25 324 341

OctͲ15 NovͲ15 DecͲ15 444 465 363 21 19 20 423 446 343

JanͲ16 311 22 289

FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 340 416 412 386 376

24

25

23

27

25

316 391 389 359 351

JulͲ16 427 24 403

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 9 of 16

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 72 of 128

Harris County - Jail Population July 2016 Report

PostAdjudicatedͲ ServingCountyTime

SentencedinJPCourts

SentencedinCountyCourts

DistrictCourtsͲStateJailFelons

DistrictCourtsͲOther

2,500

2,000

Jan-11 to D

1,500

1,000

500
Jul-14 to Jul-16: -32%
0

DailyAverage

TotalInmatesServingCountyTime DistrictCourtsͲOther DistrictCourtsͲStateJailFelons SentencedinCountyCourts SentencedinJPCourts

JulͲ14 1034 273 292 454
15

AugͲ14 SepͲ14 1028 1016

279 278

304 310

430 415

15

13

OctͲ14 NovͲ14 DecͲ14 1078 1041 907

289 278 249

333 319 284

442 431 363

14

13

11

JanͲ15 828 236 248 332 12

FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 853 782 784 795 773

231 234 221 222 231

226 172 179 199 175

382 363 375 361 352

14

13

9

13

15

JulͲ15 766 239 163 348 16

AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 715 734 751 692 654

236 242 250 250 235

146 138 137 120 108

315 336 341 303 294

18

18

23

20

17

JanͲ16 640 231 91 297 21

FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 673 739 726 755 759

251 272 224 237 245

86 109 165 166 189

319 339 320 337 309

17

19

17

15

16

JulͲ16 702 240 157 293 12

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 10 of 16

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 73 of 128

Harris County - Jail Population July 2016 Report

PostͲAdjudicatedͲ SentencedtoTDC/StateJail

SentencedtoStateJail PendingAppeals SentencedtoTDC
1,800

1,600

1,400

1,200

1,000

800

600

400

Jul-14 to Jul-16: -11%

200

0

DailyAverages

JulͲ14 AugͲ14 SepͲ14 OctͲ14

NovͲ 14

DecͲ14 JanͲ15 FebͲ15

MarͲ 15

AprͲ15

MayͲ 15

JunͲ15

JulͲ15 AugͲ15 SepͲ15 OctͲ15

NovͲ 15

DecͲ15 JanͲ16 FebͲ16

MarͲ 16

AprͲ16

MayͲ 16

JunͲ16

JulͲ16

TOTAL

768 708 789 796 775 751 689 744 711 673 749 719 767 706 654 632 599 552 472 569 586 646 641 757 684

SentencedtoTDC

470 444 479 510 501 488 420 453 455 422 494 461 496 457 427 420 401 346 289 365 384 430 437 526 472

PendingAppeals

147 138 141 151 147 146 146 141 145 136 149 140 139 131 111 88 90 97 82 92 99 94 94 88 83

SentencedtoStateJail 151 126 169 135 127 117 123 150 111 115 106 118 132 118 116 124 108 109 101 112 103 122 110 143 129

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 11 of 16

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 74 of 128

Harris County - Jail Population July 2016 Report

OtherNonͲHarrisCountyPrisoners
NotGuiltybyReasonofInsanity(NGRI) NonͲHarrisCountyPrisoners Witnesses BoardofPardons&Parole(BOPP)
1,000 900 800 700 600 500 400 300 200
Jul-14 to Jul-16: 24%
100 0

DailyAverage

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 JulͲ16

TOTAL

384 379 387 354 326 280 282 339 349 292 306 356 361 357 360 361 321 325 350 358 340 356 427 440 399

BoardofPardons&Parole(BOPP)

286 263 280 264 236 183 196 251 265 205 199 250 271 265 297 305 261 274 282 278 264 265 327 340 311

Witnesses

37 61 52 44 43 44 42 38 32 33 48 47 35 34 35 39 46 41 39 39 34 35 41 37 39

NonͲHarrisCountyPrisoners

61 55 55 46 47 53 44 50 52 54 59 59 56 58 28 17 14 10 29 41 42 53 52 57 44

NotGuiltybyReasonofInsanity(NGRI)

2.72414 7

6

5

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 12 of 16

DailyAverage

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 75 of 128

Harris County - Jail Population July 2016 Report
AwaitingTransfertoTDCJ PaperReady
700
600
500
400
300
200
Jul-14 to Jul-16: 5%
100
Jul-15 to Jul-16: -1%
0
JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 JulͲ16 PaperReady 469 431 467 506 506 486 418 446 474 394 487 465 515 466 424 417 423 340 252 308 362 370 411 499 424

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 13 of 16

DailyAverage

Case 4:16-cv-01414 DHoacrurmiseCnto5u4ntFyil-edJainilTPXoSpDuolanti0o9n/01/16 Page 76 of 128 July 2016 Report
StateJailFelons

1600

1500

PretrialStateJailFelons

1400

1300

1200

1100

1000
JulͲ14toJulͲ16:31%
900

800

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 JulͲ16 PretrialSJFs 1042 1022 1057 1059 1087 1055 1112 1187 1,286 1,377 1,410 1,492 1,485 1,425 1329 1233 1181 1153 1094 1142 1134 1365 1426 1396 1361

400

350

SentencedinDistrictCourtsͲ StateJailFelons12.44A

300

250

200

150

100

50

JulͲ14toJulͲ16:Ͳ46%

0

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15

MarͲ 15

AprͲ15

MayͲ 15

JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16

MarͲ 16

AprͲ16

MayͲ 16

JunͲ16 JulͲ16

SentencedinDistrictCourts 292 304 310 333 319 284 248 226 172 179 199 175 163 146 138 137 120 108 91 86 109 165 166 189 157

400

350

SentencedtoStateJail

300

250

200 150

100
JulͲ14toJulͲ16:Ͳ15%
50

0

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15

MayͲ 15

JunͲ15

JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16

MayͲ 16

JunͲ16

JulͲ16

SentencedtoStateJail 151 126 169 135 127 117 123 150 111 115 106 118 132 118 116 124 108 109 101 112 103 122 110 143 129

DailyAverage

DailyAverage

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 14 of 16

Harris County - Jail Population July 2016 Report

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 77 of 128

DailyAverages
Date

2012

2013

2014

AprͲ12 MayͲ12 JunͲ12 JulͲ12 AugͲ12 SepͲ12 OctͲ12 NovͲ12 DecͲ12 JanͲ13 FebͲ13 MarͲ13 AprͲ13 MayͲ13 JunͲ13 JulͲ13 AugͲ13 SepͲ13 OctͲ13 NovͲ13 DecͲ13 JanͲ14 FebͲ14 MarͲ14 AprͲ14 MayͲ14 JunͲ14

Pre-Trial Detainees (By Highest Charge) DistrictCourtsͲOtherthanStateJailFelonies DistrictCourtsͲStateJailFelonies CountyCourts OtherHarrisCoCourtdetainees(eg:JP,Family,Civil) Pre-Trial Detainees

4232 870 559 74 5735

4297 895 543 56 5791

4283 942 573 63 5861

4270 909 575 63 5817

4234 922 568 81 5805

4252 946 582 84 5864

4181 918 551 89 5739

4172 932 523 80 5707

4182 904 542 73 5701

4390 909 577 76 5952

4426 922 537 87 5972

4274 948 520 96 5838

4264 966 544 83 5857

4280 1,031
595 83 5989

4382 1,003
556 79 6020

4467 987 590 76 6120

4401 986 574 76 6037

4385 1001 577
82 6045

4328 977 546 88 5939

4236 972 519 86 5813

4244 964 509 73 5790

4297 1,019
554 69 5939

4295 991 503 62 5851

4,246 973 516 60 5795

4,310 1,023
530 57 5920

4,365 1,082
469 61 5977

4,452 1,094
464 59 6069

% of total in Custody 64% 64% 64% 65% 64% 65% 65% 65% 66% 67% 66% 66% 65% 65% 64% 65% 64% 63% 64% 65% 67% 69% 67% 68% 68% 68% 68%

Probationers (no pending charges):

DistrictCourts

649 655 673 664 677 659 630 635 647 612 611 582 590 548 569 563 613 559 562 538 502 466 454 478 452 438 427

CountyCourts

56 53 53 56 59 56 58 59 52 47 46 45 41 43 50 48 43 39 39 34 31 31 33 37 46 47 46

Probationers

705 708 726 720 736 715 688 694 699 659 657 627 631 591 619 611 656 598 601 572 533 497 487 515 498 485 473

% of total in Custody 8% 8% 8% 8% 8% 8% 8% 8% 8% 7% 7% 7% 7% 6% 7% 6% 7% 6% 6% 6% 6% 6% 6% 6% 6% 6% 5%

Post-Adjudication:
PrisonersServingCountyTime:PostͲAdjudication SentencedinCountyCourts SentencedinDistrictCourtsͲStateJailFelons12.44A SentencedinDistrictCourtsͲOther SentencedinJPCourts PrisonersServingCountyTime:PostͲAdjudication
% of total in Custody

598 361 316 14 1289 14%

627 380 327 15 1349 15%

616 365 347 15 1343 15%

603 342 329 15 1289 14%

648 367 315 17 1347 15%

634 378 306 17 1335 15%

623 385 343 15 1366 15%

606 371 338 13 1328 15%

556 353 315 12 1236 14%

560 349 295 17 1221 14%

597 392 302 18 1309 14%

551 436 319 19 1325 15%

523 501 325 16 1365 15%

574 558 313 20 1465 16%

602 577 329 18 1526 16%

560 512 341 19 1432 15%

576 503 339 22 1440 15%

579 501 347 22 1449 15%

512 418 345 18 1293 14%

483 336 322 14 1155 13%

432 282 283 13 1010 12%

419 435 273 299 249 256 15 19 956 1009 11% 12%

388 428 436 456 296 317 310 316 258 263 320 265 18 19 15 17 960 1027 1081 1054 11% 12% 12% 12%

PrisonersaxaitingTransport:PostAjudication SentencedtoTDC SentencedtoStateJail

435 462 447 439 438 435 418 379 384 370 409 410 408 440 469 496 507 563 635 616 623 520 581 543 535 526 500 134 122 145 143 129 132 136 121 119 128 134 140 143 134 121 100 113 121 119 140 120 134 148 125 136 127 157

Appeals PrisonersAwaitingTransport:PostAjudication

169 168 158 158 154 149 136 121 123 118 123 132 134 144 142 136 133 139 139 142 141 130 135 140 141 156 151 738 752 750 740 721 716 690 621 626 616 666 682 685 718 732 732 753 823 893 898 884 784 864 808 812 809 808

% of total in Custody 8% 8% 8% 8% 8% 8% 8% 7% 7% 7% 7% 8% 8% 8% 8% 8% 8% 9% 10% 10% 10% 9% 10% 9% 9% 9% 9%

Others:

BOPP

328 330 318 281 274 261 241 249 237 258 281 275 277 291 295 343 369 457 373 309 292 290 276 260 276 277 294

Witnesses

33 34 34 33 33 38 34 33 32 28 36 30 25 29 27 30 33 40 53 54 49 43 44 50 49 52 53

NonͲHarrisCountyPrisoners NotGuiltybyReasonofInsanity(NGRI)

52 51 56 46 55 53 63 50 50 41 62 48 55 54 60 53 52 56 56 47 42 50 54 55 56 56 57

Others

413 415 408 360 362 352 338 332 319 327 379 353 357 374 382 426 454 553 482 410 383 383 374 365 381 385 404

% of total in Custody 5% 5% 4% 4% 4% 4% 4% 4% 4% 4% 4% 4% 4% 4% 4% 5% 5% 6% 5% 5% 4% 4% 4% 4% 4% 4% 5%

Received, Uncategorized in JIMS

35 47 40 51 62 58 68 62 52 57 77 75 49 36 65 85 64 95 133 101 60 69 98 104 89 80 76

% of total in Custody 0.4% 0.5% 0.4% 0.6% 0.7% 0.6% 0.8% 0.7% 0.6% 0.6% 0.8% 0.8% 0.5% 0.4% 0.7% 0.9% 0.7% 1.0% 1.4% 1.1% 0.7% 0.8% 1.1% 1.2% 1% 1% 1%

Total in Harris County Sheriff's Custody 1AverageinInmateProcessingCenter(IPC)(RCVCount)
Total Housed by HCSO Total Outsourced
Total Housed in Harris County Jail Facilities

8915 9062 9128 8977 9033 9040 8889 8744 8633 8832 9060 8900 8944 9173 9344 9406 9404 9563 9341 8949 8660 8628 8683 8547 8,727 8,817 8,884 219 263 245 249 260 269 268 248 233 256 303 288 277 292 280 272 276 301 317 291 243 270 286 304 313 292 319
8696 8799 8883 8728 8773 8771 8621 8496 8400 8576 8757 8612 8667 8881 9064 9134 9128 9262 9024 8658 8417 8358 8397 8243 8,414 8,525 8,565
8696 8799 8883 8728 8773 8771 8621 8496 8400 8576 8757 8612 8667 8881 9064 9134 9128 9262 9024 8658 8417 8358 8397 8243 8414 8525 8565

Harris County Jail Capacity Total Awaiting Transfer to TDCJ-ID (Paper-Ready)
% of total in Custody

9434 283 3%

9434 322 4%

9434 289 3%

9434 287 3%

9434 304 3%

9434 317 4%

9434 318 4%

9434 285 3%

9434 242 3%

9434 265 3%

9434 295 3%

9434 297 3%

9434 291 3%

9434 297 3%

9434 328 4%

9434 398 4%

9434 432 5%

9434 497 5%

9434 654 7%

9434 634 7%

9434 627 7%

9434 516 6%

9434 579 7%

9434 535 6%

9434 448 5%

9434 527 6%

9434 490 6%

1IPCIncludesthoseinintakeandreceiving.

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 15 of 16

Harris County - Jail Population July 2016 Report

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 78 of 128

DailyAverages
Date Pre-Trial Detainees (By Highest Charge) DistrictCourtsͲOtherthanStateJailFelonies DistrictCourtsͲStateJailFelonies CountyCourts OtherHarrisCoCourtdetainees(eg:JP,Family,Civil) Pre-Trial Detainees
% of total in Custody
Probationers (no pending charges): DistrictCourts CountyCourts Probationers
% of total in Custody
Post-Adjudication: PrisonersServingCountyTime:PostͲAdjudication SentencedinCountyCourts SentencedinDistrictCourtsͲStateJailFelons12.44A SentencedinDistrictCourtsͲOther SentencedinJPCourts PrisonersServingCountyTime:PostͲAdjudication
% of total in Custody
PrisonersaxaitingTransport:PostAjudication SentencedtoTDC SentencedtoStateJail Appeals PrisonersAwaitingTransport:PostAjudication
% of total in Custody
Others: BOPP Witnesses NonͲHarrisCountyPrisoners NotGuiltybyReasonofInsanity(NGRI) Others
% of total in Custody
Received, Uncategorized in JIMS % of total in Custody
Total in Harris County Sheriff's Custody 1AverageinInmateProcessingCenter(IPC)(RCVCount)
Total Housed by HCSO Total Outsourced
Total Housed in Harris County Jail Facilities

2014

2015

2016

JulͲ15

JulͲ14 AugͲ14 SepͲ14 OctͲ14 NovͲ14 DecͲ14 JanͲ15 FebͲ15 MarͲ15 AprͲ15 MayͲ15 JunͲ15 JulͲ15 AugͲ15 SepͲ15 OctͲ15 NovͲ15 DecͲ15 JanͲ16 FebͲ16 MarͲ16 AprͲ16 MayͲ16 JunͲ16 JulͲ16 %

4,486 1,042
473 55
6056 69%
416 40
456 5%
454 292 273
15 1034 12%
470 151 147 768 9%
286 37 61
384 4%
48 1%
8,746 307
8,439
8439

4,515 1,022
458 57 6052 70%
403 40 443 5%
430 304 279 15 1028 12%
444 126 138 708 8%
263 61 55
379 4%
43 0%
8,653 304
8,349
8349

4,543 1,057
445 64 6109 70%
354 33 387 4%
415 310 278 13 1016 12%
479 169 141 789 9%
280 52 55
387 4%
53 1%
8,741 317
8,437
8437

4,549 1,059
464 64 6136 70%
332 22 354 4%
442 333 289 14 1078 12%
510 135 151 796 9%
264 44 46
354 4%
62 1%
8,780 304
8,476
8476

4,565 1,087
452 54 6158 71%
298 26 324 4%
431 319 278 13 1041 12%
501 127 147 775 9%
236 43 47
326 4%
75 1%
8,699 250
8,449
8449

4,584 1,055
412 47 6098 72%
287 21 308 4%
363 284 249 11 907 11%
488 117 146 751 9%
183 44 53
280 3%
95 1%
8,439 258
8,181
8181

4,689 1,112
438 45 6284 74%
286 30 316 4%
332 248 236 12 828 10%
420 123 146 689 8%
196 42 44
282 3%
122 1%
8,521 316
8,205
8205

4652 1187 418
52 6309 72%
318 29 347 4%
382 226 231 14 853 10%
453 150 141 744 9%
251 38 50
339 4%
139 2%
8,731 379
8,352
8352

4582 1286 422

4731 1377 483

4753 1410 453

4879 1492 461

4946 1485 505

52 45 52 51 53

6342 6636 6668 6883 6989

73% 75% 74% 75% 75%

















308 304 336 354 332

24 26 23 23 23

332 330 359 377 355

4% 4% 4% 4% 4%

























363 375 361 352 348

172 179 199 175 163

234 221 222 231 239

13

9 13 15 16

782 784 795 773 766

9% 9% 9% 8% 8%

















455 422 494 461 496

111 115 106 118 132

145 136 149 140 139

711 673 749 719 767

8% 8% 8% 8% 8%

















265 205 199 250 271 32 33 48 47 35 52 54 59 59 56

349 292 306 356 362

4% 3% 3% 4% 4%









125 87 123 108 100

1% 1% 1% 1% 1%









8,641 8,801 9,000 9,216 9,339

358 378 352 392 389

8,283 8,423 8,648 8,824 8,950

7 154

8283 8423 8648 8817 8796

4925 1425 497
56 6903 76%
324 22 346 4%
315 146 236 18 715 8%
457 118 131 706 8%
265 34 58
357 4%
90 1%
9,117 387
8,730 19
8711

4930 1329 512
56 6827 76%
341 25 366 4%
336 138 242 18 734 8%
427 116 111 654 7%
297 35 28
360 4%
94 1%
9,035 397
8,638
8638

4885 1233 503
59 6680 75%
423 21 444 5%
341 137 250 23 751 8%
420 124
88 632 7%
305 39 17
361 4%
92 1%
8,960 368
8,592
8592

4885 1181 482
55 6603 76%
446 19 465 5%
303 120 250 20 693 8%
401 108 90 599 7%
261 46 14
321 4%
58 1%
8,739 299
8,440
8440

4941 1153 493
49 6636 77%
343 20 363 4%
294 108 235 17 654 8%
346 109 97 552 7%
274 41 10
325 4%
100 0%
8,630 322
8,308
8308

5078 1094 498
48 6718 78%
289 22 311 4%
297 91
231 21 640 7%
289 101 82 472 6%
282 39 29
350 4%
81 1%
8,572 337
8,235
8235

5086 1142 513
53 6794 78%
316 24 340 4%
319 86 251 17 673 8%
365 112 92 569 7%
278 39 41
358 4%
4 0%
8,738 248
8,490
8490

5108 1134 545
54 6841 77%
391 25 416 5%
339 109 272 19 739 8%
384 103 99 586 7%
264 34 42
340 4%
0 0%
8,922 343
8,579
8579

5046 1365 546
60 7017
77%

5166 1426 527
49 7168
76%

5213 1396 508
46 7163
75%

5257 1361 486
41 7145
76%

389 359 351 403 23 27 25 24 412 386 376 427 4% 4% 4% 5%

320 337 309 293 165 166 189 157 224 237 245 240 17 15 16 12 726 755 759 702 8% 8% 8% 7%

430 437 526 472 122 110 143 129 94 94 88 83 646 641 757 684
7% 7% 8% 7%

265 327 340 311

35 41 37 39

53 52 57 44

3

7

6

5

356 427 440 399

4% 5% 5% 4%

0

0 1EͲ04 4

0% 0% 0% 0%

9,157 9,377 9,495 9,361 387 372 386 302
8,770 9,005 9,109 9,059 217 232 230
8770 8788 8877 8829

2%
20%
Ͳ8%
Ͳ11%
10% Ͳ96% 0% Ͳ22% 1%

JulͲ16 #
311 (124) (19) (12) 156 0
71 1 72
(55) (6) 1 (4) (64)
(24) (3) (56) (83)
40 4 (6) 5 37
(96)
22 (87) 109

Harris County Jail Capacity Total Awaiting Transfer to TDCJ-ID (Paper-Ready)
% of total in Custody

9434 469 5%

9434 431 5%

9434 467 5%

9434 506 6%

9434 506 6%

9434 486 6%

9434 418 5%

9434 446 5%

9434 474 5%

9434 9434 9434 9434 394 487 465 515 4% 5% 5% 6%

9434 466 5%

9434 424 5%

9434 417 5%

9434 423 5%

9434 340 4%

9434 252 3%

9434 308 4%

9434 9434 362 370 4% 4%

9434 411 4%

9434 499 5%

9434 424 Ͳ18% 5%

(91)

1IPCIncludesthoseinintakeandreceiving.

Prepared by the Office of Criminal Justice Coordination

08/05/2016

Page 16 of 16

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 79 of 128 

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL,

)

LOETHA MCGRUDER,

)

ROBERT RYAN FORD

)

On behalf of herselfthemselves and all

)

others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

Case No. 16-cv-01414

HARRIS COUNTY, TEXAS,

)

(Consolidated Class Action)

)

The Honorable Lee H. Rosenthal

SHERIFF RON HICKMAN,

)

U.S. District Judge

)

Expedited Hearing Requested

ERIC STEWART HAGSTETTE,

)

JOSEPH LICATA III,

)

RONALD NICHOLAS,

)

BLANCA ESTELA VILLAGOMEZ,

)

JILL WALLACE,

)

)

)

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,

)

DON SMYTH,

)

MIKE FIELDS,

)

JEAN HUGHES,

)

LINDA GARCIA

)

)

Defendants.

)

____________________________________)

1

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 80 of 128 
FIRST AMENDED CLASS ACTION COMPLAINT Introduction
This case is about Harris County jailing some of its poorest people because they cannot afford to make a monetary payment. Named Plaintiff Maranda Lynn ODonnell is currently being held in the Harris County jail because she cannot pay a $2,500 money bail after being arrested for Driving While License Invalid. The Named Plaintiff’s money bail was imposed pursuant to Harris County’s predetermined money bail schedule and without any inquiry into or findings concerning her ability to pay. Because she is impoverished and cannot afford the payment required by the County for her release, she will be kept in a Harris County jail cell.1
In Harris County, wealthier arrestees are released from custody almost immediately upon payment of money to the County. Arrestees who are too poor to purchase their release remain in jail because of their poverty. On any given night, over 500 people arrested for misdemeanors languish in the Harris County Jail because of a money bail that they cannot afford. Between 2009 and 2015, 55 human beings died in the Harris County Jail awaiting trial after being unable to pay the amount of money demanded by the County for their release.
On behalf of the many other arrestees subjected to Harris County’s unlawful and ongoing post-arrest wealth-based detention scheme, Plaintiff challengesPlaintiffs challenge in this action the use of secured money bail to detain only the most impoverished of misdemeanor arrestees.

1 At the time of filing related case 16-cv-01436 (now administratively closed and consolidated with 16-cv-01414), Named Plaintiffs Loetha Shanta McGruder, a 22-year-old pregnant mother of two, and Robert Ryan Ford, 26 years old, were in jail because they could not pay a $5,000 money bail after each was arrested for a misdemeanor offense. Like Ms. ODonnell, their money bail amounts were imposed pursuant to Harris County’s predetermined money bail schedule and without any inquiry into or findings concerning their ability to pay. Because they are impoverished and cannot afford the payment required by the County for their release, they were kept in a Harris County jail cell and were in jail when their case, 16-cv-01436, was filed.
2

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 81 of 128 
Harris County’s wealth-based pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution. It has no place in modern American law.
By and through hertheir attorneys and on behalf of herselfthemselves and all others similarly situated, Plaintiff seeksPlaintiffs seek injunctive relief to enjoin the County’s wealthbased post-arrest detention procedures and a declaration that Defendants cannot detain any person pursuant toemploy a system of wealth-based detention by imposing and enforcing secured money bailfinancial conditions of pre-trial release without an inquiry into and findings concerning the person’sarrestee’s present ability to pay.
Nature of the Action2 1. It is the policy and practice of Harris CountyDefendants to refuse to release misdemeanor arrestees from custody unless they pay a monetary sum. The amount of money required is determined by a generic offense-based bail schedule, and it is the policy and practice of Harris County officials to detain arrestees in jail pursuant toimpose the scheduled amount without considering the person’s ability to pay. Plaintiff seeks, a practice that results in the systemic wealth-based detention of those arrestees who are too poor to pay their money bail. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants’ wealth-based post-arrest detention scheme.
Jurisdiction and Venue 2. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

2 Plaintiff makesPlaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which she hasthey have had personal involvement and on information and belief as to all other matters.
3

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 82 of 128 

3. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.

Parties 4. Maranda Lynn ODonnell is a 22-year-old mother of a 4-year-old daughter. She

represents herself as an individual and a Class of similarly situated people subjected to Defendants’

wealth-based post-arrest detention scheme. 5. Loetha Shanta McGruder is a 22-year-old woman who is the mother of a 4-year-

old son and a 9-month-old son. She is seven weeks pregnant. She represents herself as an

individual and a Class of similarly situated people subjected to Defendants’ wealth-based post-

arrest detention scheme. 6. Robert Ryan Ford is a 26-year-old man. He represents himself as an individual and

a Class of similarly situated people subjected to Defendants’ wealth-based post-arrest detention

scheme. 7.

Defendant Harris County is a municipal corporation organized under the laws of

the State of Texas. The Harris County Sheriff’s Department is a division of Harris County and

operates the Harris County Jail and several other detention facilities. 8. The Sheriff’s Office is itself responsible for 27 percent of arrests within Harris

County. The Sheriff’s Department also transports arrestees from field stations run by various other

authorities with arresting power to the Harris County Jail, which houses all inmates to be held

pending prosecution within the Harris County courts. The Sheriff’s Department detains

inmatesarrestees at the Harris County Jail or one of theseand several other facilities after their

arrest. The officers and employees of the Sheriff’s Department are authorized by County policy

to accept money bail as determined by the schedule, release an arrestee, and set a time for an

arrestee’s appearance in court.

4

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 83 of 128 
9. After arrest, Sheriff’s Department employees and agents bring arrestees held on money bail to a room inside the jail for probable cause hearings and bail setting. Sheriff’s Department employees and agents supervise, monitor, and give instructions to the arrestees during the hearing. The Sheriff therefore has knowledge that secured financial conditions of release are imposed without any inquiry into or findings concerning a person’s ability to pay the amount set.
10. The Sheriff is aware of who is in the jail that the Sheriff runs and the basis for each inmate’s detention, including whether any inmate is subject to any detainers or otherwise ineligible for pretrial release, and the amount of money bail any inmate is required to pay for immediate release. The Sheriff therefore has knowledge that the imposition of secured money bail results in systemic, wealth-based detention, and that there are hundreds of people in his jail every night, charged only with misdemeanors, who would be released but for their inability to pay a money bail amount imposed pursuant to the bail schedule used by Harris County.
)"11. The Sheriff’s Department, by policy and practice, detains arrestees too poor to afford theirthe money bail amount imposed without inquiry into and findings concerning ability to pay and releases arrestees who pay their money bail.
*"12. The Sheriff’s Department is run by the Harris County Sheriff, Defendant Ron Hickman. The Sheriff is the final policymaker for all law enforcement decisions in Harris County. He is sued in his individual and official capacitycapacities.
+"13. Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, and Jill Wallace are all Harris County Criminal Law Hearing Officers. They are County employees, who are appointed and are charged with making can be terminated by a twothirds vote of a Harris County board composed of three judges of the District Courts of Harris
5

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 84 of 128 
County, three judges of the County Criminal Courts at Law, and three justices of the peace.3 They make probable cause determinations and settingset bail for arrestees pursuant to the County’s money bail schedule. The hearing officersHearing Officers do not conduct any inquiry into or make any findings concerning a person’s ability to pay money bail. before imposing secured financial conditions of release, which results in the detention of only those individuals who are too poor to pay the money bail amount set. They are sued in their individual and official capacities for declaratory relief only.4
14. 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, Don Smyth, Mike Fields, Jean Hughes, and Linda Garcia are the 16 Harris County Criminal Courts at Law Judges.
15. Sitting en banc, they promulgate Harris County’s post-arrest procedures, including the generally applicable Harris County Bail Schedule applied systemically to all misdemeanor arrestees.
16. Each judge knows that, pursuant to the bail schedule, the Sheriff’s Department imposes and enforces secured financial conditions of release on every individual the Sheriff’s Department arrests or accepts into custody, without an inquiry into or findings concerning an arrestee’s present ability to pay the predetermined amount set.

3 Tex. Code Ann. § 54.852. 4 Because declaratory relief is unavailable on an emergency, preliminary basis, and because Plaintiffs are suffering ongoing irreparable harm, Plaintiffs are simultaneously seeking a preliminary injunction against the Hearing Officers, even though the final judgment Plaintiffs seek is a declaration that the Hearing Officers’ conduct is unconstitutional.
6

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 85 of 128 
17. Each judge is aware of the Hearing Officers’ systemic custom of setting secured financial conditions of release based on the bail schedule without any inquiry into or findings concerning an arrestee’s present ability to pay the amount set.
18. Each judge has knowledge that hundreds of individuals charged with misdemeanors are detained in Harris County every day solely because they are too poor to pay the money bail amounts imposed pursuant to the predetermined bail schedule that they promulgated. Each judge is further aware that Hearing Officers refuse to consider ability to pay during the initial magistration hearings, which are recorded on video and audio and kept by the County and the clerk’s office.
19. Each judge provides blanket generic instructions to the Hearing Officers about how to set bail and when to approve release on personal bonds for individuals assigned to that judge’s court. Hearing Officers are required to follow each judge’s instructions about whether and when to release arrestees without secured financial conditions. Each judge has acquiesced in the Hearing Officers’ open and notorious custom of failing and refusing to consider ability to pay.
20. The County Courts at Law Judges are sued in their individual and official capacities for injunctive and declaratory relief.
Factual Background A. The Named PlaintiffPlaintiffs Will Be Held in Jail Because She IsThey Are
Unable To Pay the Money Bail Demanded for HerTheir Release ,"21. Maranda Lynn ODonnell is a 22-year-old woman. -"22. Ms. ODonnell was arrested on May 18, 2016 and taken into the custody of Harris County for allegedly driving while her license was invalid. She was informed that, because of the Harris County bail schedule, she would be released immediately, but only if she paid a money bail
7

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 86 of 128 
of $2,500. She was told that she will be detained by Harris County if she does not pay. See Exhibit 1, Declaration of Maranda Lynn ODonnell.
%$"23. Ms. ODonnell appeared by video from the jail at a probable cause hearing, and a hearing officerHearing Officer found probable cause for her arrest. She was told by Harris County Sheriff’s Deputies not to speak at the hearing. The hearing lasted approximatelyless than 60 seconds and, pursuant to the policies and practices described in this Complaint, no inquiry was made into her present ability to pay. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $2,500.
%%"24. Ms. ODonnell is the mother of a 4-year-old child. She and her child struggle to meet the basic necessities of life. She receives benefits from the federal government’s Women, Infants, and Children (WIC) program to help meet the nutritional needs of her daughter. Because she cannot afford shelter, she stays with a friend. She recently obtained a job at a restaurant within the past few weeks, but she is worried that her current jailing will cause her to lose her job.
25. Loetha Shanta McGruder is a 22-year-old woman. 26. Ms. McGruder was arrested on May 19, 2016, for a misdemeanor offense and taken into the custody of Harris County. She was informed that she would be released immediately, but only if she paid a money bail of $5,000. She was told that she will be detained by Harris County if she does not pay. See Exhibit 2, Declaration of Loetha Shanta McGruder. 27. Ms. McGruder appeared by video from the jail at a probable cause hearing, and a Hearing Officer found probable cause for her arrest. The hearing last one minute and 20 seconds, and pursuant to the policies and practices described in this Complaint, no inquiry was made into her ability to pay. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $5,000.
8

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 87 of 128 
28. Ms. McGruder is the mother of two young children. She and her children struggle to meet the basic necessities of life. She receives benefits from the federal government’s social security program to help meet the needs of her older son, who has Downs Syndrome and other medical needs. She also supports her children using child support payments. She is not currently working, and lives with her boyfriend. She helps with household expenses when she has a job and is able.
29. Robert Ryan Ford is a 26-year-old man. 30. He was arrested on May 18, 2016, for a misdemeanor offense and taken into the custody of Harris County. See Exhibit 3, Declaration of Robert Ryan Ford. 31. Mr. Ford appeared by video from the jail at a probable cause hearing, and a Hearing Officer found probable cause for his arrest. The hearing lasted 60 seconds, and pursuant to the policies and practices described in this Complaint, no inquiry was made into his ability to pay. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $5,000. 32. Mr. Ford struggles to meet the basic necessities of life. He is not working and lives with his girlfriend’s parents. He helps with household responsibilities to compensate her family for giving him a place to live. B. Defendants’ Wealth-Based Detention System Detains Arrestees Who Cannot
Pay Their Money Bail Amount While Releasing Those Who Can Pay i. Arrest and the Initial Money Bail-Setting Process %&"33. Harris County uses a predetermined money bail schedule, promulgated through administrative order by the Harris County Criminal CourtCourts at Law Judges, to determine money bail for everyone who is arrested for a Class A or B misdemeanor in Harris County. Ex. 2.See Exhibit 4, Harris County Bail Schedule. The bail schedule is the exclusive means of setting
9

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 88 of 128 
bail “unless otherwise directed by the Judges of the Harris County Criminal Courts at Law.” Id. (“The initial bail amount shall be determined by application of the bail schedule.”).5
34. Harris County itself made 27.9 percent of misdemeanor arrests within the County in 2015. There are roughly 100 additional agencies within Harris County that have the authority to make arrests. For example, the City of Houston Police Department made 45.9 percent of arrests in 2015.6
35. When a person is arrested within Harris County, she will be taken to a “field station” run by the arresting authority. If she is arrested by Harris County, she will be taken either to a field station or directly to the jail. These field stations vary in size and their capacity to hold and process arrestees. Some include holding cells. In others, arrestees are made to sit shackled to a bench while initial post-arrest procedures are conducted.
36. Once at a field station, if the person was arrested without a warrant, the arresting officer callswill determine whether the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline that is staffed 24 hours a day, 7 days a week by Harris County’s assistant district attorneys. The arresting officer describes the allegations to the assistant district attorney on duty, who makes a charging decision over the phone.
37. If the assistant district attorney on hotline duty does not wish to pursue charges, she tells the officer to release the individual.
%'"38. If the district attorney decides to pursue the charges, she instructs the arresting officer to impose money bail is imposed pursuant to the bail schedule. See Ex. 14 (“The district 
5 Texas law gives Harris County the authority to cite and release a person being charged with certain misdemeanor offenses. Tex. C.C.P. Art. 14.06(b)–(d). However, County officials have decided instead as a matter of policy to rely on the Harris County bail schedule for all individuals charged with any misdemeanor. As a matter of policy, Harris County has rejected the cite-and-release option. 6 Harris County Pretrial Services, 2015 Annual Report (2015) at 8, available at https://pretrial.harriscountytx.gov/Pages/Annual-Reports.aspx.
10

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 89 of 128 
attorney shall affix an initial bail amount at the time a complaint is filed in a county criminal court at law.”). At no point does any person perform any inquiry into the arrestee’s ability to pay the money bail amount written on the schedule.
39. IfFrom the assistant district attorney does not wish to pursue charges, she tells the officer to moment a secured bail amount is imposed, all misdemeanor arrestees are eligible for release if they can pay the money bail amount listed in the individual. Ifpredetermined schedule, unless they are subject to certain holds (e.g., immigration or probation).
40. The ADA setting bail, the district attorney decides to pursue chargesagencies processing individuals for release from field stations, and the Harris County Sheriff’s Department all have access to information about whether any given arrestee can pay the bail is subject to any of a variety of non-monetary holds. These entities therefore know whether a financial condition of release is the only reason a person is being detained.
41. Arrestees free from other non-monetary holds can post bail themselves, make a phone call to ask a friend or family member to post bail on their behalf, or contact a bonding agent to assist in posting bail. A person who can afford to pay will be released from the field station, and will never be transported to the Harris County Jail.
%("42. The imposition of money bail is the moment of differential treatment: a person with financial resources will be released almost immediately, the arrestee is released without ever being booked into the jail. If the district attorney decides to pursue charges after bail is imposed, but Defendants will continue to require the arresteedetention of a person who cannot pay the money bail, the County will book the arrestee into the jailafford to pay her bail. This policy and practice results in systemic and automatic wealth-based detention in Harris County.
11

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 90 of 128 
%)"43. Individuals who are arrested pursuant to warrants are also subjected to the money bail schedule. In these cases, the district attorney again makes a charging decision on the basis of allegations by a police officer or another complainant and imposes a money bail amount according to the bail schedule. The money bail amount is written on the warrant. A judicial officerA Hearing Officer or County Court at Law Judge makes a finding of probable cause based on the allegations in the warrant and then signs the warrant. As a matter of policy, the judicial officerHearing Officer or Judge imposes the monetary bail required by the schedule.
%*"44. WhenWhether a person is arrested for a misdemeanor, pursuant to a warrant or pursuant to a warrantless arrest, that person can pay the secured money bail amount determinedpredetermined by the schedule and be released immediately, from the field station,7 prior to formal booking.8 Those who know about active warrants for their arrest can avoid even


7 Individuals arrested by Harris County officers are generally taken directly to the Harris County Jail. However, as
noted, Harris County itself is only one of roughly 100 agencies with arresting authority in the County.

8 The vast majority of arrestees use a bail bond agent to secure their release from jail. Typically, if accepted by a for-

profit bail agent, an arrestee will have to pay the for-profit agent a non-refundable fee of 10 percent of the value of the

bond to be released, though the industry standard for low money bail amounts in Harris County exceeds 10 percent.

In 2012, the for-profit bail bond industry in Harris County collected at least $34.4 million dollars in fees. See Gerald

R. Wheeler & Gerald Fry, Project Orange Jumpsuit Report #2, Harris County’s Two-Tier Justice System: Longitudinal

Study of Effects of Harris County Felony and Misdemeanor Defendants’ Legal & Extralegal Attributes on Pretrial

Status

and

Case

Outcome

(Apr.

23,

2014)

at

4,

available

at

http://www.pretrial.org/download/research/Harris%20County's%20Two-

tier%20Justice%20System%20(Project%20Orange%20Jumpsuit)%20-%20Wheeler%20and%20Fry%202014.pdf

[Wheeler & Fry, Report #2]; Michael Barajas, Will Lawmakers Reform the System That Keeps Poor, Legally Innocent

People in Lockup? (Sept. 25, 2015), available at http://www.houstonpress.com/news/will-lawmakers-reform-the-

system-that-keeps-poor-legally-innocent-people-in-lockup-7788583 (quoting bondsman saying that “being poor

raises a red flag”).

12

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 91 of 128 
being arrested if they pay a “non-arrest” bond, see infra ¶ 123 & n.45.9 If the individual is unable to pay, she will be transported to and booked into the jail.10
45. The time it takes for an arrestee to be transported to the Harris County Jail varies depending on a variety of factors, including where the person was arrested.
46. Harris County is a large county, and individuals arrested within its borders can be taken initially to field stations as geographically close to the Harris County Jail as the Houston Police Stations located a little over a mile from the jail, or as far away as, for example, the City of Lakeview, which is more than 30 miles away.
47. Recently, many people arrested for misdemeanors have been held on money bail imposed pursuant to the predetermined bail schedule for as long as two or three days or more before being transferred to the Harris County Jail for a videolink probable cause hearing.11



9 The vast majority of arrestees use a bail bond agent to secure their release from jail. Typically, if accepted by a for-

profit bail agent, an arrestee will have to pay the for-profit agent a non-refundable fee of 10 percent of the value of the

bond to be released, though the industry standard for low money bail amounts in Harris County exceeds 10 percent.

In 2012, the for-profit bail bond industry in Harris County collected at least $34.4 million dollars in fees. See Gerald

R. Wheeler & Gerald Fry, Project Orange Jumpsuit Report #2, Harris County’s Two-Tier Justice System: Longitudinal

Study of Effects of Harris County Felony and Misdemeanor Defendants’ Legal & Extralegal Attributes on Pretrial

Status

and

Case

Outcome

(Apr.

23,

2014)

at

4,

available

at

http://www.pretrial.org/download/research/Harris%20County's%20Two-

tier%20Justice%20System%20(Project%20Orange%20Jumpsuit)%20-%20Wheeler%20and%20Fry%202014.pdf

[Wheeler & Fry, Report #2]; Michael Barajas, Will Lawmakers Reform the System That Keeps Poor, Legally Innocent

People in Lockup? (Sept. 25, 2015), available at http://www.houstonpress.com/news/will-lawmakers-reform-the-

system-that-keeps-poor-legally-innocent-people-in-lockup-7788583 (quoting a bondsman saying that “being poor

raises a red flag”).

10 Wheeler & Fry, Report #2, supra note 38, at 1.

11 For example, according to the case records on the Harris County District Clerk’s website and the Houston Police Department’s website, as of about 7:30 a.m. EST on August 30, 2016, the following individuals were among those individuals being detained on money bail and awaiting transfer to the jail for a probable cause hearing for at least two or three days after arrest: Julio Ruiz, arrested on August 28 for possession of marijuana under two ounces and held on a $500 bail; Blanchard B. Stewart, arrested on August 25 for possession of marijuana under two ounces and held on a $5,000 bail; Michael Ray Mata, arrested on August 28 for interfering with the duties of a public servant and held on a $4,500 bail; and Oscar Balarbo, arrested on August 28 for trespass and held on a $5,000 bail. According to Harris County’s website, these individuals had no non-monetary holds and were in custody solely because they had not paid their money bail. None had seen a Hearing Officer.

13

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 92 of 128 
48. Sometime after arrest, an arrestee’s case documents become publicly available on the District Court Clerk’s website. Once the arrestee is in Harris County custody, the arrestee’s online case records will indicate that fact. The arrestee’s specific location will be listed as “in processing” at 1201 Commerce Street.
49. While the individual is in processing, she is completely unavailable for an attorney (or other) visit and cannot be contacted. Jail officials state that individuals who are in processing are actually located in the basement of one of four jail buildings, and the only way to find a specific person is for a guard to walk through the cell blocks and call the person’s name.
50. However, jail officials also state that if a person who is in processing is able to pay the scheduled money bail, she will be found and released. Thus, during this period of time, poor arrestees are held incommunicado, but an individual who has money can purchase her release from jail.
51. Sometime after a person arrives at the Jail — and usually before she is assigned to a housing unit — she will be taken by Sheriff’s Department employees to a room in the jail with several dozen other new arrestees to appear before a Hearing Officer, who will determine probable cause. This appearance takes place by videolink. It usually takes between 8 and 24 hours for a person arrested in Harris County to be given a probable cause hearing, but hundreds of people every month must wait several days as a matter of practice.
%+"52. These policies have consistently, for years, resulted in the needless and devastating jailing of impoverished people accused of misdemeanor offenses. In 2012, 81 percent of misdemeanor arrestees were booked into the jail because they were unable to immediately pay for
14

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 93 of 128 
their release.12 Other arrestees with financial means were able to pay their predetermined money
bail and avoid the booking process altogether. In 2014, 40 percent of misdemeanor arrestees were
still sitting in jail cells at the time their case was resolved. 53. In 2014 and 2015, about 40 percent of misdemeanor arrestees were still sitting in
jail cells at the time their misdemeanor case concluded because of their inability to afford the secured financial condition set for their release.13
ii. Probable Cause Hearings and Approval of Bail According to the Bail Schedule
%,"54. The Harris County Sheriff’s Department, through its jail personnel, assembles
groups of roughly 20 to 45 people, many of them charged with minor misdemeanors, throughout the day, every day.14
55. Sheriff’s Department employees and agents routinely tell arrestees not to say
anything during these hearings. %-"56. Generally within 24 hours of arrest, these groups of recent arrestees, dressed in
orange jumpsuits or street clothes and located inside the Harris County Jail, appear via videolink
before one of the five Defendant Harris County hearing officers.Hearing Officers. The hearing
officerHearing Officer determines probable cause for the arrest and reviews the bail amount
previously imposed to ensure that it conforms to the bail schedule and the systemic general policy

12 Gerald R. Wheeler & Gerald Fry, Project Orange Jumpsuit: The Misdemeanor Report #1 (Jan. 22, 2016), available at http://themisresearch.org/files/MISD_2016_REPORT.pdf [Wheeler & Fry, Report #1]. 13 Harris County Pretrial Services, 2014 Annual Report (2014) at 8, available at http://www.harriscountytx.gov/CmpDocuments/59/Annual%20Reports/2014%20Annual%20Report.pdf, (showing in Table B.1 that roughly 60 percent of misdemeanor arrestees post money bail); Pretrial Services 2015 Annual Report, supra note. 6 at 8. 14 In 2014, an average of 144 people were admitted to the jail every day on misdemeanor charges. See Harris County Pretrial Services, 2014 Annual Report (2014), supra note 12 at 3, available at http://www.harriscountytx.gov/CmpDocuments/59/Annual%20Reports/2014%20Annual%20Report.pdf (stating that 52,506 people whose most serious charge was a misdemeanor were admitted to the jail in 2013).
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Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 94 of 128 
instructions from Harris County CourtCriminal Courts at Law Judges. about how to administer the predetermined schedule. Throughout the hearing, the arrestees remain in the Harris County jail, supervised by Sheriff’s Department employees, while the hearing officerHearing Officer and a prosecutor are in a courtroom in the Harris County Courthouse.
&$"57. These hearings are referred to locally as “magistrations,” “Article 15.17 hearings,” or “probable cause hearings.”
58. The County strives to hold these hearings within 24 hours of arrest for people charged with misdemeanors. However, arrestees often are not transported to the length ofJail in time between arrestto meet that deadline, and probable cause, even when they are, the Sheriff sometimes fails to ensure that all inmates in his custody receive a hearing depends on how long the Sheriff’s booking process takes and the number of arrestees.within 24 hours. Hearing officersOfficers represent that, on occasion,, and the County’s online case records show, that the hearings do not always take place within 24 hours of arrest.15 At any point in the booking process, thean arrestee can pay his or her predetermined money bail and be released.
&%"59. If a person pays, a probable cause determination in her case will be made at a subsequent court appearance.
&&"60. An assistant district attorney participates in the probable cause hearings by arguing for the hearing officerHearing Officer to make a finding of probable cause and sometimes asking the hearing officerHearing Officer to impose bail in an amount higher than the amount on the schedule or on the warrant. One prosecutor stated the policy recently at a probable cause hearing: pursuant to Harris County’s bail schedule procedure, if an arrestee “can’t pay, they sit in jail.”

15 For example, Named Plaintiff Robert Ryan Ford was arrested at 8:17 p.m. on May 18, 2016, but did not have a probable cause hearing until May 20 at 4:17 a.m. See Harris County Criminal Courts at Law Case Records Online, available at http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx.
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Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 95 of 128 
&'"61. Harris County does not provide defense attorneys at this hearing for those who are
unable to afford to hire an attorney.
&("62. Almost one-third of Harris County arrestees lack a high school education and one
in five have serious mental health problems.16
&)"63. The prosecutor and hearing officersHearing Officers sometimes engage in ex parte
conversations before the videolink is turned on. ForTo take one representative example,: during
one docket in March, outside the arrestees’ hearing, the prosecutor and the hearing officerHearing
Officer commented on the fact that one of the arrestees on the docket had been arrested multiple
times in a two-week period for trespassing at the same place. The hearing officerHearing Officer
and the prosecutor agreed privately that the individual, who was homeless, would not be released
without a money bail. The hearing officerHearing Officer imposed a $5,000 money bail. After
the hearing, the hearing officerHearing Officer said, “He’s a pest to society.” Unable to pay the
money bail, the man appeared several days later at his first court date and pled guilty.
&*"64. In no case is a money bail determined with consideration for an arrestee’s ability to
pay., and in no case does a Hearing Officer make an inquiry into or findings concerning a person’s
present ability to pay.

16 Pretrial Services 2014 Annual Report, supra note 6,12 at 2. Harris County received $150,000 in May 2015 from the MacArthur Foundation to create a proposal that would lead to a more just and effective legal system. See Press Release, MacArthur Announces 20 Jurisdictions to Receive Funding to Reduce Jail Use (May 26, 2015), available at https://www.macfound.org/press/press-releases/macarthur-announces-20-jurisdictions-receive-funding-reduce-jailuse/. Harris County subsequently convened a Criminal Justice Coordinating Council, which investigated ways to reduce incarceration. Among the most important reforms that participants discussed was to provide defense attorneys at the probable cause hearings. Early in January 2016, the Coordinating Counsel submitted its grant proposal to the MacArthur Foundation, seeking $4 million over two years to put its plans into effect. The final document included a proposal for counsel only for individuals who are mentally ill. Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), available at http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensure-defenseless-peoplestay-in-jail-8058308. On April 13, 2016, Harris County was awarded a $2 million MacArthur grant to reform its criminal justice system. See Harris County receives $2 million grant to reform criminal justice system (Apr. 13, 2106), available at http://www.click2houston.com/news/watch-live-harris-county-receives-2-million-grant-toreform-criminal-justice-system.
17

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 96 of 128 
65. When the videolink is turned on, arrestees appear on a television screen, sitting in rows of chairson benches in a room at the jail.
&+"66. The hearing officerHearing Officer calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An assistant district attorney then reads from the complaint. The hearing officerHearing Officer decides whether there is probable cause, finding probable cause in almost every case, and, almost always, sets secured money bail according to the predetermined schedule. Sometimes the hearing officerHearing Officer increases the money bail from that applied earlier at the Harris County jail, where it was imposed pursuant toamount required by the bail schedule.
&,"67. The process of setting bail and finding probable cause is a rote exercise, and the hearings last approximately one minute as a matter of routine.
&-"68. As a matter of policy and practice, hearing officersHearing Officers make no attempt to determine an arrestee’s financial situation, and they make no inquiry into or findings concerning an arrestee’s ability to pay the money bail amount that they impose.
'$"69. In addition to making no affirmative inquiry into or findings concerning ability to pay, hearing officersHearing Officers affirmatively refuse to hear any argument that an arrestee raises about her ability to pay. If an arrestee tells the hearing officerHearing Officer that she cannot pay the money bail, the hearing officerHearing Officer, as a matter of policy and practice, tells the arrestee that considering a reduction of money bail from the schedule is not the purpose of that hearing and that the arrestee should have her attorney raise the issue with the County Court at Law Judge handling her case at her first court date after an attorney is assigned. As one hearing officerHearing Officer stated recently, probable cause hearings are “not the forum” for discussing a person’s ability to pay money bail or raising any related issues, and hearing officers
18

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 97 of 128 
believeHearing Officers state that such questions must be addressed in an adversarial setting after appointment of counsel.
'%"70. On one recent occasion that is typical of standard policy, after a hearing officerHearing Officer made a bail decision according to the money bail schedule, the arrestee asked the hearing officerHearing Officer, “Can I say something?” The hearing officerHearing Officer responded, “You can talk to me all you want, but it’s not going to change the outcome. I’m setting it according to the schedule. Talk to your lawyer about it in the morning.”
'&"71. After completing a docket of probable cause hearings in March, another hearing officerHearing Officer was asked by an observer whether the officer is allowed to consider an arrestee’s ability to pay when setting the money bail. The hearing officerHearing Officer responded, “What can I do about that? They have a bail schedule. I can’t do anything about that.”
''"72. Pursuant to policy and practice, it is not possible for arrestees to challenge the constitutionality of their money bail before the hearing officer. Hearing officers determining the question of probable causeOfficer. Hearing Officers refuse to consider deviation from the bail schedule based on indigenceability to pay and refuse to hear evidence or argument concerning ability to pay.
'("73. In almost all cases, the hearing officerHearing Officer affirms the money bail previously set pursuant to the bail schedule.17 If, however, the district attorney or arresting officer erred in setting the money bail (i.e., the monetary amount did not conform to the bail schedule), the hearing officerHearing Officer will alter the money bail — by raising or lowering the monetary amount — so that it meets the schedule.

17 Flynn, supra note. 715.
19

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 98 of 128 
')"74. Sometimes district attorneys will argue for a money bail that exceeds what the schedule requires. One district attorney recently gave the following example: If someone is charged with unauthorized use of a vehicle, but is also being investigated for armed robbery of the same vehicle, the district attorney will ask the judge to impose a money bail commensurate with the more severe charge. The district attorney stated that she would ask for the higher bail to ensure that the person will be detained because a person suspected of “something like armed robbery” should not be released on a low money bail like $2,000.
75. Hearing Officers sometimes raise bail punitively and arbitrarily, doubling it if, for example, as happened recently, an arrestee responds to a question by stating, “Yeah,” instead of “Yes.”
'*"76. If an individual doesis not appear atbrought to the probable cause hearing due to medical reasons, the hearing officerHearing Officer will make a finding of probable cause and set money bail in that person’s absence according to the predetermined schedule.
'+"77. In Harris County, money bail is imposed based solely on the alleged offense and the person’s criminal history and without reference to a person’s ability to pay, resulting in the detention of arrestees based on their poverty.
iii. The Use of Personal Bonds ',"78. Hearing officersOfficers sometimes recommend arrestees for release on “personal bonds,” which meansDefendants use to mean release without any secured financial conditions. '-"79. Recommendations for release on personal bonds are based solely on the person’s criminal charge and criminal history — they have nothing to do as a matter of policy and practice with indigence or a person’s ability to pay a money bail. The vast majority of arrestees, due to the
20

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 99 of 128 
charge against them or their criminal history, are deemed “ineligible” for personal bonds as a matter of policy.
80. Only about 8 percent of misdemeanor arrestees were recommended for actually released on personal bonds in 2014.18 According to County policies, 92% of misdemeanor arrestees were deemed ineligible for such release. and 2015.19
($"81. Personal bonds are not based on any inquiry into ability to pay, and hearing officersHearing Officers refuse to conduct such inquiries.
(%"82. Even when individuals are recommended for personal bonds, they are not released immediately, and they may not be released at all. Pretrial Services must first “verify” the person’s references. — for example, because Defendants’ policy is to require references to confirm an address, a person who is homeless cannot even “qualify” for release without payment of the scheduled amount of bail, see infra. Sometimes, references cannot be verified for days or a week. Sometimes they cannot be verified at all. In those cases, the person will not be released on a personal bond and will be detained unless she can pay the money bail.
(&"83. At any point in the verification process, the arrestee can pay the money set bypursuant to the schedule and be released immediately.
('"84. Recommendations for personal bonds in misdemeanor cases are further constrained by the instructions of the County and District CourtCourts at Law Judges, who provide strict directives to the hearing officersHearing Officers about the money bail-setting process.

18 Pretrial Services 2014 Report, supra note 6, at 9. 19 Pretrial Services 2014 Annual Report, supra note 12 at 9; Pretrial Services 2015 Annual Report, supra note 6 at 9, available at https://pretrial.harriscountytx.gov/Library/2015%20Annual%20Report.pdf.
21

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 100 of 128 
(("85. For example, hearing officersHearing Officers are instructed that they may never recommend homeless individuals for personal bonds.release without secured financial conditions. Some judges have told hearing officersHearing Officers never to issue personal bondsnonfinancial conditions for any defendant who is assigned to their courtroom at all,20 or for individuals who have previously been given personal bonds in other cases. Other judges have told hearing officersHearing Officers to consider personal bondsnon-secured financial conditions only for “students.”21 Hearing Officers often deem an arrestee “not qualified” for a personal bond if she just moved to the Houston area.
45.86. In all cases, personal bonds are not granted on the basis of inabilityan inquiry into ability to pay.
(*"87. One hearing officerHearing Officer, pursuant to policy, recently told a group of arrestees: “Don’t ask me for a personal bond.” He informed them that he would consider release on a personal bond if he was authorized to consider it, and “if I’m going to give you one, I will,” warning them again, “Don’t ask.”
88. At another hearing during which a Hearing Officer set an arrestee’s bond at $1,000 for driving on a suspended license, the arrestee pleaded with the officer for release without requiring secured bail, stating that he had “no money in the world” and needed to attend a custody hearing so he could keep his family together. The Hearing Officer refused to consider the person’s ability to pay or permit him to be released with non-financial conditions of release.

20 James Pinkerton and Laura Caruba, Tough bail policies punish the poor and the sick, critics say (Dec. 26, 2015), available at http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-policies-punish-thepoor-and-the-sick-6721984.php?t=373b57d418&cmpid=email-premium. 21 Id.
22

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 101 of 128 
(+"89. An arrestee’s indigence or ability to pay is never a factor in determining whether to recommend or approve a personal bond, and arrestees are not permitted to raise that issuenonfinancial conditions of release. Hearing Officers routinely prohibit arrestees from sharing that information, and always refuse to consider it when setting money bail or granting a personal bond, even when it is brought to their attention.
iv. Assignment to a Housing Unit 90. Any arrestee who was not assigned to a housing unit before her probable cause hearing will remain inaccessible to attorneys and everyone else outside the jail after the hearing until the jail assigns the individual to a housing unit. 91. It is only after being assigned to a housing unit that an arrestee can be contacted by anyone outside the jail and will be scheduled for a hearing in a County Court at Law.
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 " (-"92. Some arrestees cannot be contacted, even by attorneys, between magistration and first appearance. A sheriff’s deputy at the jail building at 1201 Commerce Street was recently asked to produce for attorney visits several individuals who had hadattended their probable cause hearings within the previous 24 hours. After looking for the men for an hour, the deputy stated that the men could not be seen, even by an attorney, until after they had been assigned to a housing
23

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 102 of 128 
unit in the jail., which had not yet happened. He said that the individuals were all in the basements of one of four buildings, but he did not know which one. The deputy provided a list of the four facilities in which the arrestees might be located (1200 Baker Street Jail; 701 North San Jacinto; 711 North San Jacinto Street; 1307 Baker Street).
)$"93. Shortly after that conversation, a sheriff’s deputy at the jail building at 1200 Baker Street confirmed that the same men could not be contacted until after they had been assigned to a housing unit.
)%"94. The deputies stated that it would take 24 to 36 hours for that to happen, during which time no one would be able to reach these men, including any attorney. The sheriff’s deputy said that they could not be found for the purpose of an attorney visit, but they would be found and released if money bond was posted.
95. In total, it takes a minimum of 24 hours, and frequently 3 or 4 days, for an arrested person to be fully booked into the jail, assigned to a housing unit, and made available for an attorney or family visit. It can be another several days before a person appears in a County Court at Law and is assigned an attorney. At any point during this period of time, a person can pay her money bail and be released.
vi. First Appearances 96. If, after the probable cause hearing, an arrestee is still unable to purchase her release from jail, she will be taken to a County Court at Law, usually within 24 to 48 hours of the probable cause hearing. However, arrestees who have their probable cause hearings on Friday morning will not see a County Court at Law Judge until the following Monday at the earliest. Individuals who attend probable cause hearings on Friday afternoon or evening or over the weekend are unlikely to see a Judge until the following Tuesday at the earliest.
24

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 103 of 128 

)&"97. Detained individuals are assigned court-appointed attorneys at the first appearance

hearing, but there is, as a matter of practice, no review of the money bail amount previously

imposed. The County Courts at Law Judges reduce money bail amounts previously imposed in less than 1 percent of cases.22
53.98. Detained individuals remain in lock-up outside of the courtroom and are usually

not even brought into the courtroom on this court date unless they are pleading guilty, which many

who are detained because they are too poor to pay their money bail do because they are told that

they can get out of custody more quickly by pleading guilty if they cannot afford to pay their

money bail.

54.99. One of the purposes and effects of Harris County’s post-arrest detention is to coerce

and process large numbers of guilty pleas prior to any person conducting any legal or factual

investigation into the charges, let alone the complete and zealous investigation and defense

required by professional standards and the Sixth Amendment to the United States Constitution.

))"100.

On one typical morning in March 2016, County Court at Law Judge Pam

Derbyshire accepted four guilty pleas from detained individuals in six minutes. These individuals

had just met their attorneys, and their attorneys had conducted no meaningful investigation into

the facts or circumstances of the cases. None of the defendants had been able to pay the scheduled

money bail since their arrest several days prior. They appeared before the judge in orange

jumpsuits, handcuffed together. Several of them were sentenced to three days in jail with credit

for the three days they served between their arrest and guilty plea. This is a routine, everyday

occurrence in Harris County’s misdemeanor criminal legal system. Almost 80 percent: every one

of individuals the 16 County Courts at Law judges routinely accepts guilty pleas from individuals


22 Pinkerton & Caruba, supra note 1018.

25

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 104 of 128 
who are in jail solely because they are too poor to pay money bail. 76.8 percent of detained pretrialdefendants plead guilty, while only 5652.8 percent of individuals who are released pretrialdefendants plead guilty. 23
101. The County Courts at Law Judges — and every other actor in the County’s postarrest system (as well as anyone who has observed probable cause hearings or first appearances) — know that many of the detained individuals who appear in front of them charged with misdemeanors are being held in jail solely because they are too poor to pay the money bail amount set by the predetermined schedule. They all have access to information about other holds that might be keeping the person in jail. The judges and Sheriff’s Department employees and agents have knowledge that, in hundreds of people’s cases every day, there is no reason for a person’s detention other than the person’s inability to make the monetary payment set. The Hearing Officers and County Courts at Law Judges have access to basic financial information if an arrestee has been interviewed by Pretrial Services, and they therefore know that a large majority of those appearing before them (who have not been able to pay money bail prior to the appearance) are entirely destitute, severely impoverished, or otherwise qualify for court-appointed counsel and do not have the assets to afford the secured financial condition of release prescribed by the predetermined schedule.
102. Sheriff’s Department employees and agents also observe the probable cause hearings, which occur several times per day, and witness the Defendant Hearing Officers routinely failing and refusing as a matter of policy and practice to consider ability to pay or alternatives to secured financial conditions when imposing secured financial conditions of release.

23 Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention at 13 (forthcoming Stanford Law Review) (July 14, 2016), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2809840.
26

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 105 of 128 

103. The County Courts at Law Judges are aware of the Hearing Officers’ open,

notorious, and systemic failure to account for ability to pay. Hearing Officers frequently state that

they are refusing to consider ability to pay because of blanket instructions from the Defendant

County Courts at Law Judges. Those instructions include that recognizance release may not be

given to individuals who are homeless or to people who have previously been given personal

bonds. Additionally, arrestees who are too poor to pay money bail appear directly in front of the

Defendant County Courts at Law Judges. Those same judges routinely find those arrestees to be

indigent for purposes of appointing counsel. Further, audio-visual recordings of all of the probable

cause hearings are maintained by the County and the County Clerk.

)*"104.

If a defendant does not plead guilty at thisher first appearance, a defense

attorney can file a motion for a reduction of the money bail amount. It typically takes at least one

week for that motion to be heard. Thus, in a typical case, it can take well over a week after arrest

for a person who cannot afford the predetermined money bail amount set by the schedule to obtain

any meaningful review of that amount.

)+"105.

This pretrial detention scheme means that ana typical individual without

financial means will be detained solely because of her inability to make a monetary payment for

at least two days and usually three or fourto more than seven days without any opportunity for

release or to raise any issues concerning her ability to pay. Most impoverished arrestees are

detained far longer. At any moment in this process, an arrestee who can pay the money bail set by

the schedule can walk out of the doors of the jail.

58.106.

In 2012, 22 percent of the most impoverished misdemeanor arrestees —

those who were unable to pay even a $500 money bail (the minimum amount according to the

27

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 106 of 128 

predetermined schedule) — were detained at disposition, having been in jail an average of almost

9 days.24

107. In 2015, almost 17 percent of people whose money bail amount was $500 never

posted bond, and nearly 25 percent of people given a bond of $501 to $1,999 never posted it.25

)-"108.

In 2014 and 2015, 40 percent of misdemeanor arrestees with money bail

imposed were still in jail when their case was disposed of.26 Individuals detained pretrial wereare

more likely to be sentenced to jail, less likely to be sentenced to probation, and wereare given sentences more than twice as long as those received by individuals who were released pretrial.27

C. The Harris County Jail

*$"109.

The Harris County Jail is the largest jail in Texas and the third largest jail

in the United States.28 It books on average 120,000 individuals per year and 330 individuals per

day.29 Most individuals arrested in Harris County are taken first to field stations run by the City

of Houston, Harris County Jail, though others may be held at, or some other arresting authority.

Anyone who does not post bail immediately after arrest will be transported to the Harris County-

run facilities or a brief period of time before being transferred to the Jail.


24 See Wheeler & Fry, Report #2, supra note 38, at 9. Only 9.7 percent of individuals detained at disposition are not convicted, compared with 44.2 percent of individuals who are free when their case is resolved. Moreover, for people given a $500 bail, 80.6 percent of people detained at disposition were given jail sentences, compared to 25.6 percent of defendants released on bail at disposition. Id.
25 Pretrial Services 2015 Annual Report, supra note 6 at 8.
26 Pretrial Services 2014 ReportAnnual Report, supra note 6,12 at 8 (showing in Table B.1 that roughly 60 percent of misdemeanor arrestees post money bail); Pretrial Services 2015 Annual Report, supra note 6 at 8; Pinkerton & Caruba, supra note 1018 (stating that about half of arrestees pay bondsmen for their release).
27 Heaton, et al., supra note 21 at 4.
28 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County at 1, http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc _2015_harris_county_blueprint.authcheckdam.pdf [ABA Report].
29 Id. at 9.

28

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 107 of 128 

*%"110.

The vast majority of human beings in Harris County Jail cells are not there

because they have been convicted of a crime.30 Instead, most inmates — 77 percent — are being

kept in jail cells prior to trial, despite the presumption of innocence, because they cannot afford to

pay money bail. If they could pay the money bail assigned to them, they could walk out of the

doors of the jail at any time.

*&"111.

In March 2016, a typical month, the average daily population of the Harris

County Jail was 8,579 individuals, 6,841 of whom were pretrial detainees. About 8 percent of

those pretrial detainees — 545 individuals — had been arrested for misdemeanors. The average

daily population of misdemeanor pretrial detainees in April was 546, and in May, it was 527.

Almost all of these individuals were there only because they were unable to afford money bail of

$5,000 or less.31

*'"112.

Although the jail population fell by 2,500 individuals between 2009 and

2014, the pretrial population fell by only 15 inmates.32

*("113.

In the past year prior to March 2016, the population of pretrial misdemeanor

detainees grew by 29 percent.33


30 See Office of Criminal Justice Coordination, Harris County–Jail Population March 2016 Report (April 4, 2016) at 1, on file with undersigned counsel.at 1 [Exhibit 5]. 31 Jail Population Report, supra note 18, at 3, 1. See id.; Office of Criminal Justice Coordination, Harris County–Jail Population June 2016 Report; Office of Criminal Justice Coordination, Harris County–Jail Population July 2016 Report [Exhibits 6, 7]. 32 ABA Report, supra note 16,26 at 3. 33 Jail Population Report, supra note 18Exhibit 5 at 1.
29

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 108 of 128 

*)"114.

Eight percent of the pretrial population regularly consists of misdemeanor

offenders. These individuals are generally in jail solely because they cannot afford their money

bail.34

**"115.

In 2008, the Department of Justice investigated the Harris County Jail and

launched an era of federal oversight because of the serious and systemic violations of constitutional rights that pervaded the facility.35 The investigation led the County to form the Harris County Criminal Justice Coordinating Council in an effort to address the overcrowding in the jail.36 Since then, Harris County has struggled to stay within its operating capacity.37 In 2013, taxpayers spent almost $500,000 per day to operate the jail.38
116. Researchers recently concluded that if, from 2008 to 2013, those defendants for

whom the minimum $500 money bail was imposed had instead been released without requiring

$500 money bail, the County would have released 40,000 additional individuals, avoided almost

5,900 criminal convictions, reduced incarceration days by more than 400,000, and prevented the

commission of 1,600 felonies and 2,400 misdemeanors due to the criminogenic effects of even

brief pretrial custody. The County would have saved roughly $20 million in supervision costs alone.39


34 Meagan Flynn, The Houston Man Who Refused to Plead Guilty Does Not Want an Apology (Aug. 15, 2016), available at http://www.houstonpress.com/news/the-houston-man-who-refused-to-plead-guilty-does-not-want-anapology-8667533 (reporting on the case of Gilbert Cruz, a disabled veteran, whose $3,500 bail was set in his absence; Mr. Cruz refused to plead guilty, leading to more than two months in jail, during which time he lost his job and his car, before the charges were dismissed for lack of probable cause).
35 ABA Report, supra note 16,26 at 2.
36 Id.
37 Id.
38 Id.
39 Heaton, et al., supra note 21 at 45–46.

30

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 109 of 128 

*+"117.

Between 2009 and 2015, 55 human beings died while in pretrial custody in

the Harris County Jail.40

*,"118.

Most recently, onOn April 5, 2016, arrestee Patrick Brown — who was

being held on a $3,000 bail he could not afford after being charged with misdemeanor theft —

died in the Harris County Jail.41

*-"119.

In March 2016, 26 percent of the average daily population had a

documented mental health history.42

+$"120.

There is a documented history of inmate abuse by jail guards, deaths and

suicides in the jail, inadequate training of jail staff, and lack of access to medications and medical

services. For years, the County has been aware of these intolerable conditions, which exist largely

because of the overcrowding resulting from the volume of inmates who cannot afford to pay money

bail. It has failed to remedy them.43

+%"121.

On a typical day, hundreds of new arrestees, presumed innocent, are

arrested and booked into this jail.44 BetweenIn 2015, 40 and 50.3 percent of them will be unable

to afford their money bail.45 Thus, atthe more than 50,000 misdemeanor arrestees never posted


40 Pinkerton & Caruba, supra note 1018.
41 Ebenezer Nah, one of the inmates charged with aggravated assault in connection with the death, was eligible for release solely because he could afford to pay for his release. He had just posted money bail and was being processed out of the jail at the time of the fatal assault. Meagan Flynn, Inmate Beaten To Death After Spending Less Than 48 Hours In Harris County Jail (Apr. 13, 2016), available at http://www.houstonpress.com/news/inmate-beaten-todeath-after-spending-less-than-48-hours-in-harris-county-jail-8319129.
42 Jail Population Report for March 2016, supra note 18,29 at 3.
43 The Houston Chronical, Jailhouse Jeopardy: Uncovering abuses at Harris County’s jail (Oct. 3, 2015–Mar. 6, 2016), available at http://www.houstonchronicle.com/local/investigations/jailhouse-jeopardy/ (providing links to a series of articles written by several reporters).
44 ABA Report, supra note 16,26 at 13 (stating that there are 330 bookings per day); Pretrial Service 2014 Report, supra note 11 at 3 (stating that, in 2014, 52,506 people were arrested on misdemeanor charges, which averages 144 per day).
45 Pretrial Services 2014 Report, supra note. 6, at 8 (Table B.1.).

31

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 110 of 128 

bond.46 At any given moment, there are hundreds of people charged only with misdemeanors who are being detained byin the Harris County Jail solely because they cannot afford money bail.47

Every single one of these individuals could walk out of the jail if they were wealthy enough to pay

their money bail amount. None of them received any inquiry into their ability to pay. Only those

individuals who are too poor to purchase their release are subjected to these conditions and the

health and safety risks of pretrial jailing.

D.

Defendant’sDefendants’ Wealth-Based Detention Scheme Will Cause

PlaintiffPlaintiffs To Be Jailed Solely Due To HerTheir Inability To Pay Bail

+&"122.

The named PlaintiffPlaintiffs would not have to endure a minute of

incarceration if shethey paid the amount of money required by Defendants.

+'"123.

Individuals with outstanding warrants are frequently contacted by for-profit

bonding agencies who offer them the opportunity to pay for “non-arrest bonds” approved and used

by the County which allow them to avoid arrest altogether.48

+("124.

For individuals who are aware of outstanding warrants for their arrest and

able to afford to hire counsel, lawyers are sometimes able to arrange “walk-throughs” for their

clients, whereby the person charged with a crime goes to the courthouse, pays the money bail, and

gets a court date without ever going through the arrest and booking process. Arrestees able to pay

for an attorney or for a non-arrest bond are able to pay to avoid detention.


46 Pretrial Services 2015 Annual Report, supra note 6 at 8 (Table B.1.). 47 See, e.g., ABA Report, supra note 1626, at 15 (noting that, in 2013 alone, there were 3,120 misdemeanor arrestees who could not post the $500 money bail that Harris County demanded of them). 48 All About Bail Bonds, Services for Non-Arrest Bonds in Houston, available at http://www.allaboutbailbondshouston.com/services/non-arrest-bail-bonds/; All Access Bail Bonds, Services, available at http://www.allaccessbailbonds.com/index.php/services (“A ‘Non-Arrest’ Bond lifts the warrant and initiates the process of scheduling your day in court. This relieves the stress and worry about being arrested.”).
32

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 111 of 128 

+)"125.

Arrestees are given a right to release pending trial, but

Defendant’sDefendants’ wealth-based detention system conditions their release on their ability to

afford money bail, thus tying their pretrial freedom to their wealth status.

+*"126.

As a matter of policy and practice, when a new arrestee is brought to the

Harris County Jail, county employees inform the arrestee that she will be released from jail

immediately if she pays her money bail amount. The arrestee is told that she will remain in jail if

she is not able to make that payment.

++"127.

The Harris County Sheriff’s Department collects arrestees’ money bail

payments. It is the policy and practice of the Harris County Sheriff’s Department to release only

those arrestees who pay their money bail amount.

+,"128.

In a typical week, the Sheriff’s Department releases hundreds of individuals

who pay their money bail amount.

+-"129.

It is the policy and practice of the Sheriff’s Department to detain individuals

who do not pay their money bail amount. Before an individual’s probable cause hearing, it is the

policy and practice of the Sheriff’s Department to detain the individual based on a money bail

amount set pursuant to a predetermined bail schedule. After a probable cause hearing, it is the

policy and practice of the Sheriff’s Department to detain the individual based on a money bail

amount approved by a hearing officerHearing Officer pursuant to the County’s bail schedule.

,$"130.

If a person cannot pay her money bail after her first court appearance before

a County Court at Law Judge, it is the policy and practice of the Sheriff’s Department to continue

to detain that individual unless and until she makes a monetary payment.

,%"131.

Under Defendants’ wealth-based procedures, those wealthy enough to pay

are released from the County jail. Some poorer arrestees eventually make arrangements with

33

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 112 of 128 

private bail bond companies, after spending hours, days, or weeks in jail.49 And many others who

are poorer still are left to languish in jail until the resolution of their case.

E. Harris County’sDefendants’ Use of Money Bail Is Not Narrowly Tailored — Nor Is It as Effective as Many Other Methods — in Securing Court Attendance or Public Safety

,&"132.

The empirical evidence isshows that there is no relationship between

requiring money bail as a condition of release and defendants’ rates of appearance in court.50

,'"133.

While tying pretrial freedom to wealth status is the norm in Harris County,

other jurisdictions throughout the country do not hold people in jail because of their poverty.

Instead of relying on money, other jurisdictions release arrestees with pretrial supervision practices

and procedures that can help increase court attendance and public safety without requiring

detention. ,("134.

Other jurisdictions employ numerous less restrictive methods of

maximizing public safety and court appearances when necessary to guard against a particular risk.

These include: unsecured bond, reporting obligations, phone and text message reminders of court

dates, rides to court for those without transportation or a stable address, counseling, drug and

alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors,

or, in extreme cases of particular risk, electronic monitoring, among other services.


49 Because of the common availability of commercial bail bonds, those who remain in the custody of Harris County jail are typically those that cannot even afford to pay a third-party bonding agent. The amount charged by a bonding agent to post a $500 cash bail is typically $150, although such agents are free to refuse to pay for the release of an arrestee for any reason or for no reason. Thus, the availability of third-party agents, at least for those arrestees who can afford $50 but not $500, is no guarantee. The Named Plaintiffs cannot afford such a bail. 50 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (May 2, 2016) at 195, available at http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf; (“We find no evidence that money bail increases the probability of appearance.”); Wheeler & Fry, Report #1, supra note 511, at 4.
34

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 113 of 128 

,)"135.

Other jurisdictions also employ non-monetary conditions of release,

including unsecured or “signature” bonds (which do not require payment up front for release but

instead allow immediate release upon a promise to pay the monetary amount if the person does

not appear as required), stay-away orders, curfews, or even home detention.

,*"136.

Harris County isDefendants are permitted by law to use these alternatives

but, as a matter of routine, choose not to for impoverished misdemeanor arrestees. The vast

majority of Harris County arrestees are processed and detained through Harris County’s money

bail scheme rather than non-monetary supervision methods. As a matter of policy and practice,

Harris County doesDefendants do not consider less restrictive alternatives rather than detention

based on money bail that a person cannot afford.

,+"137.

Jurisdictions with robust pretrial services and non-monetary conditions of

release achieve court-appearance rates over 90 percent, with more than 85 percent of those released

pretrial remaining arrest-free (and 98-–99 percent remaining arrest-free for violent crimes).

,,"138.

Empirical evidence proves that unsecured bond alone is just as effective at

ensuring appearance in court as secured money bail.

,-"139.

Detention on money bail increases the likelihood of conviction. A person

who is detained pretrial is 13 percent more likely to be convicted and 21 percent more likely to

35

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 114 of 128 

plead guilty.51 Additionally, individuals detained pretrial will be given longer jail sentences.52

Money bail is disproportionately imposed on non-white arrestees.53

-$"140.

Individuals who are detained — instead of released on money bail or on a

personal bond — when their case is resolved have worse case outcomes. 54 For example, 7.2

percent of individuals who are detained at disposition in Harris County are not convicted, while

34.1 percent of individuals who are free at disposition resolve their case without a conviction.

Additionally, individuals who are being confined on $500 money bail when their case is resolved

will spend a median of three days in jail (which costs the County about $1,000), while individuals

who are able to pay the $500 bail in cash (or the $150 non-refundable fee to a commercial bonding agent) and are free at disposition will spend an average of only one day in jail.55


51 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (May 2, 2016) at 18,
available at https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al,
supra note 34,47 at 13 (finding a 12 percent increase in the likelihood of conviction using the same data).); Heaton, et al., supra note 21 at 21.

52 Stevenson, supra note 35 at 18; see also Gupta, et. al, supra note 34, at 18–19 (“Criminal defendants assessed bail amounts appear frequently unable to produce the required bail amounts, and receive guilty outcomes as a result. Entered guilty pleas by defendants unwilling to wait months prior to trial and unable to finance bail likely contribute to this result.”). Stevenson, supra note 48 at 18; Heaton, et al., supra note 21 at 21.

53 Gupta, et. al, supra note 34,47 at 184–5.

54 Id. at 7; See ABA Report, supra note 16, Stevenson, supra note 48 at 18; Gupta, et. al, supra note 47 at 13 (finding
a 12 percent increase in the likelihood of conviction using the same data);Heaton, et al., supra note 21 at 21; ABA
Report, supra note 26 at 13 (“[D]efendants who are not released pre-trial are more likely to be incarcerated following a conviction, and they generally receive longer sentences upon conviction.”); Lise Olson, Study: Inmates who can’t afford bond face tougher sentences (Sept. 15, 2013), available at http://www.houstonchronicle.com/news/houstontexas/houston/article/Study-Inmates-who-can-t-afford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man, who was held in jail for seven months on minor drug and theft charges because he could not afford money bail, and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and the Effects of Pretrial Services Programs (Mar. 11, 2013), available at http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and %20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones, “Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013); Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, American Journal of Criminal Justice (2010), available at http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.

55 Wheeler & Fry, Report #1, supra note 5,11 at 6–7; Lowenkamp, et al., The Hidden Costs of Pretrial Detention at 3,

19

(Nov.

2013),

available

at

http://www.pretrial.org/download/research/The%20Hidden%20Costs%20of%20Pretrial%20Detention%20-

%20LJAF%202013.pdf (studying 153,407 defendants and finding that “when held 2-3 days, low risk defendants are

36

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 115 of 128 

-%"141.

Setting a secured money bail without an inquiry into ability to pay and in

an amount higher than a person can afford by definition defeats the entire purpose of money bail

— to incentivize a person to return to court — and removes any legitimate (let alone compelling)

state interest in the setting of a financial condition. Nor is setting money bail without findings

concerning ability to pay the most narrowly tailored way to meet any other legitimate or

compelling government interest.56

-&"142.

Harris County’sThe Defendants’ use of money bail schedule leads

disproportionately to the detention of people of color as compared to whites. Regardless of the

amount of money bail imposed, people of color are more likely to be detained at disposition than

whites.57

-'"143.

Unnecessary pretrial detention causes instability in employment, housing,

and care for dependent relatives. Studies show that those detained pretrial face worse outcomes at

trial and sentencing than those released pretrial, even when charged with the same offenses.

Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are

innocent. They have a harder time preparing for their defense, gathering evidence and witnesses,

and meeting with their lawyers. Studies also show that just two days of pretrial detention increases

the likelihood of future arrests and increases the future risk level of low level offenders.


almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours”); Arnold Foundation, Pretrial Criminal Justice Research Summary (2013) at 5, available at: http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf (finding that “low-risk defendants held 2-–3 days were 17 percent more likely to commit another crime within two years” and that those detained “4-–7 days yielded a 35 percent increase in re-offense rates.”). 56 Independently, none of the robust procedures required for a valid order of preventative detention exists, including that there is no inquiry, let alone an inquiry with counsel and basic evidentiary norms, into whether a compelling interest exists to detain a particular defendant, whether any particular identifiable danger or risk exists, and whether there are alternatives to the use of secured money bail that could mitigate any particularized risk. 57 Id.; see also Wheeler & Fry, Report #1, supra note 5,11 at 3.
37

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 116 of 128 

-("144.

Pretrial detention is more than ten times more expensive than effective

pretrial supervision programs. Through non-monetary tools, pretrial supervision programs can

save taxpayer expense while maintaining high public safety and court appearance rates.

95.145.

Class Action Allegations The named Plaintiff bringsPlaintiffs bring this action, on behalf of

herselfthemselves and all others similarly situated, for the purpose of asserting the claims alleged

in this Complaint on a common basis.

96.146.

A class action is a superior means, and the only practicable means, by which

the named PlaintiffPlaintiffs and unknown Class members can challenge the County’sDefendants’

unlawful wealth-based post-arrest detention scheme.

97.147.

This action is brought and may properly be maintained as a Classclass

action pursuant to Rule 23(a)(1)-()–(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.

98.148.

This action satisfies the numerosity, commonality, typicality, and adequacy

requirements of those provisions.

99.149.

The Plaintiff proposesPlaintiffs propose a single Class seeking declaratory

and injunctive relief. The Declaratory and Injunctive Class is defined as: All individualsClass A

or Class B misdemeanor arrestees who are or will be detained byin Harris County custody for any

amount of time after arrest because they are unable to pay money bail. A. Numerosity. Fed. R. Civ. P. 23(a)(1) %$$"150. In March 2016, the average daily population of misdemeanor arrestees
being held pretrial on money bails they could not afford was 545 individuals.58 This was a typical


58 Jail Population Report, supra note 18, at 1.

38

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 117 of 128 
month. The population of pretrial misdemeanor detainees grew by 29 percent in the past year.59 Eight percent of the pretrial population, which numbers in the thousands on any given day, regularly consists of misdemeanor offenders unable to pay a money bail.
101.151. On any given day, there are thousands of outstanding misdemeanor arrest warrants issued byin Harris County, and every day the County issues dozens more are issued.
102.152. Arrestees are held in jail for varying lengths of time depending on how long it takes them to make the cash payment that the County requiresis required for their release.
103.153. Some arrestees are able to pay immediately for their release. Others are forced to wait one or two days until they or family members can make the payment. Others will never be able to come up with any amount of money to pay for their release.
104.154. The number of current and future arrestees subject to this policy — if it is not enjoined — numbers well into the thousands.
B. Commonality. Fed. R. Civ. P. 23(a)(2). 105.155. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiff seeksPlaintiffs seek relief concerning whether the County’sDefendants’ policies, practices, and procedures violate the rights of the Class members and relief mandating that the CountyDefendants change itstheir policies, practices, and procedures so that the constitutional rights of the Class Membersmembers will be protected in the future. 106.156. Common legal and factual questions arise from one central scheme and set of policies and practices: the County’sDefendants’ post-arrest wealth-based detention scheme. The County operatesDefendants operate this scheme openly and in materially the same manner

59 Id.
39

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 118 of 128 

every day. The material components of the scheme do not vary from Class Membermember to

Class Membermember, and the resolution of these legal and factual issues will determine whether

all of the members of the classClass are entitled to the constitutional relief that they seek.

Among the most important, but not the only, common questions of fact are:

• Whether Harris County hasthe Defendants have a policy and practice of using a predetermined schedule to determine the amount of money required to secure postarrest release;
• Whether Harris County requiresthe Defendants require that scheduled amount of money to be paid up front before it will release releasing a person from itsthe jail;
• Whether Defendants, at any stage in the post-arrest process, inquire into a person’s ability to pay the predetermined amount of money and make findings concerning an arrestee’s present ability to pay any amount set;
• What standard post-arrest procedures Harris County performsthe Defendants perform on misdemeanor arrestees; for example, whether Harris County usesDefendants use any other alternate procedures for promptly releasing indigent people determined otherwise eligible for release but who are unable to afford a monetary payment.
107.157.Among the most important common questions of law is:

• Whether a secured “bail schedule” setting generic amounts of money required up front to avoid post-arrest detention without any inquiry or findings into a person’s present ability to pay the amount set violates the Fourteenth Amendment’s Due Process and Equal Protection provisions.
C. Typicality. Fed. R. Civ. P. 23(a)(3).
108.158. The named Plaintiff’sPlaintiffs’ claims are typical of the claims of the other

members of the Class, and she hasthey have the same interests in this case as all other Class

Membersmembers. Each Class Membermember is threatened with imminent and/or ongoing

confinement in jail because she cannot afford to pay the County’sa standardized cash bail amount.

The answer to whether the County’sDefendants’ wealth-based detention scheme is

unconstitutional will determine the claims of the named PlaintiffPlaintiffs and every other Class

member. 109.159.

If the named Plaintiff succeedsPlaintiffs succeed in the claim that the

40

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 119 of 128 
County’sDefendants’ policies and practices concerning post-arrest detention violate hertheir constitutional rights, that ruling will likewise benefit every other member of the Class.
D. Adequacy. Fed. R. Civ. P. 23(a)(4). 110.160. The named Plaintiff is anPlaintiffs are adequate representativerepresentatives of the Class because hertheir interest in the vindication of the legal claims that she raisesthey raise is entirely aligned with the interests of the other Class members, each of whom has the same basic constitutional claims. She is a memberThey are members of the Class, and hertheir interests do not conflict with those of the other Class members. 111.161. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-freedom post-arrest detention system. 112.162.Plaintiff isPlaintiffs are represented by attorneys from Equal Justice Under Law, Texas Fair Defense Project, and Susman Godfrey who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification. 113.163.The combined efforts of Class counsel have so far included extensive investigation into fixed money bail schemes over a period of months, including numerous interviews with witnesses, court employees, jail inmates, families, judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails. 114.164. Class counsel hashave a detailed understanding of state law and practices
41

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 120 of 128 
as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
115.165. As a result, counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ scheme and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel hashave also developed relationships with many of the individuals and families most victimized by unlawful wealth-based pretrial detention practices. The interests of the members of the Class will be fairly and adequately protected by the PlaintiffPlaintiffs and hertheir attorneys.
E. Rule 23(b)(2) 116.166. Class action status is appropriate because the CountyDefendants, through the policies, practices, and procedures that make up its wealth-based post-arrest detention scheme, hashave acted in the same unconstitutional manner with respect to all classClass members. The County enforcesDefendants apply and enforce a wealth-based system of pretrial justice: some arrestees can purchase their immediate release, while other arrestees must remain in jail solely because they cannot pay. 117.167. The Class therefore seeks declaratory and injunctive relief to enjointhat will prevent the CountyDefendants from detaining arrestees who cannot afford cash payments. Because the putative Class challenges the County’sDefendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class, Rule 23(b)(2) is appropriate and necessary. 118.168. Injunctive relief compelling the CountyDefendants to comply with these constitutional rights will similarly protect each member of the Class from being subjected to the
42

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 121 of 128 
City’sDefendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot detain arrestees due to their inability to make a monetary payment would provide relief to every Class Membermember. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
%%-"169. Plaintiff seeksPlaintiffs seek the following relief. Claim for Relief
Count One: Defendants Violate Plaintiff’sPlaintiffs’ Rights By Jailing HerThem Because SheThey Cannot Afford A Monetary Payment.
 %&$"170. Plaintiff incorporates Plaintiffs incorporate by reference the allegations in paragraphs 1-119169. %&%"171. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit jailing a person because of her inability to make a monetary payment. Defendants violate Plaintiff’sPlaintiffs’ fundamental right to pretrial liberty by keeping herenforcing against them a system of wealth-based detention that keeps them in jail solely because shethey cannot afford to pay money bail amounts imposed without providing any inquiry into or findings concerning hertheir present ability to pay.
Request for Relief WHEREFORE, PlaintiffPlaintiffs and the other Class members request that this Court issue the following reliefprospective relief against the Defendants, who are all government actors, pursuant to 42 U.S.C. § 1983 and, independently, directly under the Fourteenth Amendment to the United States Constitution, so that they cease ongoing constitutional violations:
43

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 122 of 128

a. A declaratory judgment that the Defendants violate the named Plaintiff’sPlaintiffs’ and Class Members’members’ constitutional rights by keepingoperating a system of wealthbased detention that keeps them in jail solely because they cannot make a monetary paymentafford to pay money bail amounts imposed without an providing any inquiry into andor findings concerning their present ability to pay;
b. A declaratory judgment that the Hearing Officer Defendants violate the named Plaintiffs’ and Class members’ constitutional rights by setting secured financial conditions of release without first providing an inquiry into an arrestee’s present ability to pay money bail and making findings that an arrestee has the present ability to pay any monetary amount set;
c. An order preliminarily enjoining the Hearing Officer Defendants from imposing secured financial conditions of release without first providing an inquiry into an arrestee’s present ability to pay money bail and making findings that an arrestee has the present ability to pay any monetary amount set;
d. An order and judgment preliminarily and permanently enjoining the Defendants — including all officers,Sheriff and his employees, and agents of from requiring any individual arrested by the Sheriff’s Department to satisfy a secured financial condition of release unless the Sheriff’s Department is informed and believes in good faith that there has first been an inquiry into the person’s present ability to pay the money bail amount and findings that the arrestee has the present ability to pay the sum;
e. An order and judgment preliminarily and permanently enjoining the Sheriff and his employees and agents from accepting any arrestee into the Sheriff’s custody on the basis of an unfulfilled secured financial condition of release, unless the Sheriff is informed and believes in good faith that there has first been an inquiry into the person’s present ability to pay the money bail amount and findings that the arrestee has the present ability to pay the sum;
 f. An order and judgment preliminarily and permanently enjoining the Harris County — from using money bail to detain any person without procedures that ensure an inquiry into andCourts at Law Judges, who sit en banc to develop and oversee systemic post-arrest policies applicable to all arrestees in Harris County and on whose behalf all of the other Defendants operate the County’s money bail system, from implementing and enforcing a system of wealth-based detention that keeps arrestees in jail solely because they cannot afford to pay money bail amounts imposed without first providing an inquiry into the person’s present ability to pay the money bail amount and making findings that the arrestee has the present ability to pay the sum;60

60 This relief is requested in the alternative in the event that the Court concludes that the County Courts at Law Judges are not final policymakers for post-arrest detention policies for Harris County and are instead agents of the State of Texas or for some other entity.
44

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 123 of 128 

g. A declaratory judgment that the Harris County Courts at Law Judges violate the named Plaintiffs’ and Class members’ constitutional rights by permitting secured financial
conditions of release to be imposed without providing for an inquiry into an arrestee’s present ability to pay money bail and findings that an arrestee has the present ability to pay any monetary amount set; 61

"h.

Any other order and judgment this Court deems necessary to preliminarily and

permanently enjoin Defendants — whether acting on behalf of the State, the County, or

some other government entity — from implementing and enforcing a system of wealth-

based detention that keeps arrestees in jail solely because they cannot afford to pay money

bail amounts imposed without first providing an inquiry into and making findings

concerning the person’s present ability to pay any monetary amount set.the sum;

"i.An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.
 Respectfully submitted,

/s/ Neal S. Manne____________ Neal S. Manne Lexie G. White 1000 Louisiana Street, Suite 5100 Houston, TX 77002 Phone: (713) 651-9366 nmanne@susmangodfrey.com lwhite@susmangodfrey.com Michael Gervais 560 Lexington1301 Avenue, 15th of the Americas, 32nd Floor New York, NY 1002210019 Phone: (212) 336-8330 mgervais@susmangodfrey.com

/s/ Rebecca Bernhardt____________ Rebecca Bernhardt Texas Bar No. 24001729 rbernhardt@fairdefense.org Susanne Pringle Texas Bar No. 24083686 springle@fairdefense.org Texas Fair Defense Project 314 E. Highland Mall Blvd.

61 This relief is requested in the alternative in the event that the Court concludes that the County Courts at Law Judges, whether County or State actors, are acting in their judicial capacity when they commit the unconstitutional acts challenged herein, and are subject only to declaratory relief in the first instance.

45

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 124 of 128 
Suite 180 Austin, Texas 78752 Telephone: (512) 637-5220 Facsimile: (512) 637-5224 /s/ Alec Karakatsanis_______________ Alec Karakatsanis (D.C. Bar No. 999294) (Pro Hac Vice Application Pending) Elizabeth Rossi (Pro Hac Vice Application Pending) Attorneys, Equal Justice Under Law 601 Pennsylvania Ave. NW South Building, 9th Floor Washington, DC 20004 (202) 670-1004 alec@equaljusticeunderlaw.org erossi@equaljusticeunderlawl.org Attorneys for PlaintiffPlaintiffs
46

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 125 of 128

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL,

)

LOETHA MCGRUDER,

)

ROBERT RYAN FORD

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF RON HICKMAN,

)

)

ERIC STEWART HAGSTETTE,

)

JOSEPH LICATA III,

)

RONALD NICHOLAS,

)

BLANCA ESTELA VILLAGOMEZ,

)

JILL WALLACE,

)

)

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,

)

DON SMYTH,

)

MIKE FIELDS,

)

JEAN HUGHES,

)

LINDA GARCIA

)

)

Defendants.

)

____________________________________)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 126 of 128
ORDER Upon consideration of Plaintiffs’ Motion to File First Amended Complaint and to Incorporate Previously-Filed Motions, it is ORDERED that the motion is GRANTED. Ordered this ___ day of _______________, 2016.
Hon. __________________, District Judge

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 127 of 128

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL,

)

LOETHA MCGRUDER,

)

ROBERT RYAN FORD

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF RON HICKMAN,

)

)

ERIC STEWART HAGSTETTE,

)

JOSEPH LICATA III,

)

RONALD NICHOLAS,

)

BLANCA ESTELA VILLAGOMEZ,

)

JILL WALLACE,

)

)

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,

)

DON SMYTH,

)

MIKE FIELDS,

)

JEAN HUGHES,

)

LINDA GARCIA

)

)

Defendants.

)

____________________________________)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

Case 4:16-cv-01414 Document 54 Filed in TXSD on 09/01/16 Page 128 of 128
ORDER
Upon consideration of Plaintiffs’ Motion for Preliminary Injunction, it is ORDERED that
the motion is GRANTED.
Defendants must cease enforcing unconstitutional wealth-based detention policies and
practices against the Named Plaintiffs and all similarly-situated arrestees. Specifically, the Court
orders the following preliminary injunctive relief: 1. The Hearing Officer Defendants may not impose secured financial conditions of release without providing an inquiry into an arrestee’s present ability to pay any secured financial condition of release and making findings that an arrestee has the present ability to pay any monetary amount set; 2. The Sheriff and his employees and agents may not require any individual arrested by the Sheriff’s Department to satisfy a secured financial condition of release unless the Sheriff’s Department is informed and believes in good faith that there has first been an inquiry into the person’s present ability to pay the money bail amount and findings that the arrestee has the present ability to pay the sum; 3. The Sheriff and his employees and agents may not accept any arrestee into the Sheriff’s custody on the basis of an unfulfilled secured financial condition of release, unless the Sheriff is informed and believes in good faith that there has been an inquiry into the person’s present ability to afford the secured financial condition of release and findings that the arrestee has the present ability to pay the sum; 4. Harris County and the Harris County Courts at Law Judges may not implement or enforce a system of wealth-based detention that keeps arrestees in jail solely because they cannot afford to pay money bail amounts imposed without providing an inquiry into the person’s present ability to pay the money bail amount and making findings that the arrestee has the present ability to pay the sum;
Ordered this ___ day of _______________, 2016.
Hon. __________________, District Judge


 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

United States District Court Southern District of Texas
ENTERED
December 16, 2016
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al., On behalf of themselves and all others similarly situated,
Plaintiffs,
VS.
HARRIS COUNTY, TEXAS, et al.,
Defendants.

§ § § § § CIVIL ACTION NO. H-16-1414 § § § § § §

MEMORANDUM AND OPINION

The plaintiffs, Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder, sued

under 42 U.S.C. § 1983, challenging Harris County’s postarrest detention policies. They alleged

that the Harris County Sheriff and sixteen Harris County Criminal Courts at Law Judges promulgate

policies that violate the Equal Protection and Due Process Clauses of the United States Constitution

by detaining people arrested for misdemeanor offenses who are unable to pay a financial bail bond

much longer than those financially able to pay. The result is allegedly a “wealth-based detention

system” of jailing misdemeanor defendants only because they cannot pay secured financial bail.

(Docket Entry No. 54 ¶ 125). The plaintiffs seek injunctive and declaratory relief against the County

and—to the extent that they are State, not County, actors—against the Sheriff and the sixteen Harris

County Judges, sued in their official and personal capacities. The plaintiffs also seek declaratory

relief against five Harris County Hearing Officers, also sued both in their official and personal

capacities.

On May 19, 2016, Ms. ODonnell filed this civil-rights class-action lawsuit initially suing

1

Harris County, Sheriff Ron Hickman, and the five Harris County Hearing Officers.1 She sued on
behalf of herself and all other similarly situated individuals. (Docket Entry No. 3).2 Mr. Ford and
Ms. McGruder filed their suits on May 21, 2016. (Civil No. 16-1436, Docket Entry No. 1). The
court consolidated the cases in August 2016. (Docket Entry No. 41). The plaintiffs filed an
amended complaint on August 31, 2016, adding the sixteen Harris County Criminal Courts at Law
Judges as defendants.3 (Docket Entry No. 54). Harris County, the County Judges, the Hearing
Officers, and the Sheriff have moved to dismiss. (Docket Entry Nos. 80, 83–85). The plaintiffs
responded, (Docket Entry Nos. 92–95), and the defendants replied, (Docket Entry Nos. 98, 100, 102,
106).
Based on the pleadings; the motions, responses, and replies; the record; the applicable law;
and the oral arguments of counsel on the motions presented in lengthy hearings held on August 18
and November 28, 2016,4 the court grants in part and denies in part the defendants’ motions to
dismiss. The court dismisses the personal-capacity claims against Sheriff Hickman and the County
1 The complaint names Hearing Officers Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, and Jill Wallace.
2 The operative pleading is now the first amended complaint, (Docket Entry No. 54), and further references to “the complaint” are to that pleading.
3 The complaint names County Judges 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, Don Smyth, Mike Fields, Jean Hughes, and Linda Garcia.
4 The court has also carefully considered pending litigation in substantially similar cases around the
country, including Rodriguiez v. Providence Community Corrections, Civil No. 15-1048 (M.D. Tenn. filed Oct. 1, 2015), appeal docketed, Nos. 16-6127–29 (6th Cir. July 13, 2006); Walker v. City of Calhoun, Civil No. 15-170 (N.D. Ga. filed Sep. 8, 2015), appeal docketed, No. 16-10521 (11th Cir. Feb. 9, 2016); Harris v. City of Austin, Civil No. 15-956 (W.D. Tex. filed Oct. 27, 2015); Cain v. City of New Orleans, Civil No. 15-4479 (E.D. La filed Sep. 17, 2015); Welchen v. County of Sacramento, Civil No. 16-185 (E.D. Cal. filed Jan. 29, 2016); Buffin v. City and County of San Francisco, Civil No. 15-4959 (N.D. Cal. filed Oct. 28, 2015); as well as recently settled cases such as Thompson v. Moss Point, Civil No. 15-182 (S.D. Miss. Nov. 6, 2015); Jones v. City of Clanton, Civil No. 15-34, 2015 WL 5387219 (M.D. Ala. Sep. 15, 2015); Cooper v. City of Dothan, Civil No. 15-425 (M.D. Ala. June 18, 2015); Pierce v. City of Velda, Civil No. 15-570 (E.D. Mo. June 3, 2015).
2

Judges. The court also dismisses the official-capacity claim against the Hearing Officers. The Hearing Officers did not move to dismiss the claims against them in their personal capacities. Those claims proceed. The court denies the motions to dismiss the claims against Sheriff Hickman and the County Judges in their official capacities, and the court denies the motion to dismiss the claim against Harris County.
The reasons for these rulings are explained below. I. Background
Harris County is one of the most populous counties in the United States. Multiple overlapping authorities coordinate and control pretrial procedures in the County. The parties sharply dispute basic facts and figures about the timing of pretrial procedures that can result in release pending a dismissal or guilty plea; the number of misdemeanor arrestees detained because they cannot pay bail at or near the time of booking; the sources of authority governing bail procedures; and the entities or persons operating under that authority. Taking the plaintiffs’ plausible factual allegations as true for purposes of these motions5 shows that bail procedures are administered in Harris County as described below.
A. The Sources of Bail Regulation The Texas Constitution requires that “[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident,” and it forbids “[e]xcessive bail.” TEX. CONST. art. I, §§ 11, 13. The Texas Code of Criminal Procedure states that “[t]he amount of bail to be required in any case is to be regulated by the court, judges, magistrate or officer taking the bail.”
5 See Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (“[C]ourts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true.” (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993)).
3

TEX. CODE CRIM. PRO. art. 17.15. In exercising this authority, five rules apply:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.
Id. (emphasis added). The Texas Code permits release of defendants accused of certain misdemeanors after only a citation. Id., art. 14.06.6
In 1987, after litigation over the unequal application of bail amounts in Harris County, the
United States District Court for the Southern District of Texas entered an agreed final judgment
known as the Roberson order. See Roberson v. Richardson, Agreed Final Judgment, Civil No. 842974 (S.D. Tex. Nov. 25, 1987).7 The Roberson order required the County Criminal Courts at Law
to “implement and maintain a bond schedule for all misdemeanor offenses within their jurisdiction.”
Id. at 4. The bond schedule had to “establish the initial amounts of bail required in each type or
category of offense.” Id. Judicial officers had the authority “to order the accused released on
personal bond or released on other alternatives to prescheduled bail amounts.” Id. County Judges
had to “direct the Pretrial Services Agency to make every effort to insure that sufficient information
6 The Texas Code of Criminal Procedure gives the arresting officer discretion to cite-and-release for Class A or B misdemeanors relating to possession of marijuana or certain other controlled substances, criminal mischief causing damage up to $2,500, graffiti, theft of property or service up to the value of $2,500, supplying contraband to prisoners, or driving without a license, including repeat offenses and causing damage or injury while driving without a license. TEX. CODE CRIM. PRO. art. 14.06.
7 The order is available at Docket Entry No. 80, Ex. 1.
4

is available at the time of the hearings required herein for the Judicial Officer to determine an
accused’s eligibility for a personal bond or alternatives to prescheduled bail amounts.” Id. Hearings
to “set bail and review the accused’s suitability for release on an alternative to prescheduled bail
amounts” were to occur “as soon as a Judicial Officer is available after the accused is placed in a
jail operated by or under the authority of the Sheriff of Harris County.” Id. at 2. The Roberson court
agreed to enter additional orders if “a particular arresting agency shows a pattern of failing to
produce accused persons for the hearings required within 24 hours of arrest.” Id. at 3.
The Roberson order also substantially repeated the Texas Code of Criminal Procedure by
requiring that “bail determinations shall be according to the following criteria”:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with;
2. The nature of the offense for which Probable Cause has been found and the circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any;
3. The ability to make bail is to be regarded, and proof may be taken upon this point;
4. The future safety of the victim may be considered, and if this be a factor, release to a third person should also be considered; and
5. The Judicial Officer shall also consider the accused’s employment history, residency, family affiliations, prior criminal record, previous court appearance performance and any outstanding bonds.
Id. at 3 (emphasis added).
The Texas Government Code permits County Judges to “adopt rules consistent with the Code
of Criminal Procedure . . . for practice and procedure in the courts. A rule may be adopted by a two-
thirds vote of the judges.” TEX. GOV’T CODE § 75.403(f). On March 7, 2016, the Harris County
Criminal Courts at Law Judges, sitting en banc and voting by two-thirds majority, adopted the
current Harris County Criminal Courts at Law Rules of Court. These Rules of Court contain a 5

misdemeanor bail schedule, set out as Rule 9. Current Rule 4.2.3.1. provides that “[t]he initial bail

amount may be changed on motion of the court, the hearing officer, or any party subject to the

following criteria”:

4.2.3.1.1.

the bail shall be sufficiently high to give reasonable assurance that the defendant will comply with the undertaking;

4.2.3.1.2.

the nature of the offense for which probable cause has been found and the circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any;

4.2.3.1.3.

the ability to make bail is to be regarded, and proof may be taken upon this point;

4.2.3.1.4.

the future safety of the victim and the community may be considered, and if this is a factor, release to a third person should also be considered; and

4.2.3.1.5.

the criminal law hearing officer shall also consider the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds of the accused.

Id., Rule 4.2.3 (emphasis added). The current Harris County Rules of Court require that “all law

enforcement officials in Harris County shall cause the pretrial detainees in their respective custody,

who have been charged with a class A or class B misdemeanor, to be delivered to the criminal law

hearing officer not later than 24 hours after arrest.” Id., Rule 4.2.1.1. In addition to finding probable

cause for the arrest, Hearing Officers are to “set the amount of bail required of the accused for

release and shall determine the eligibility of the accused for release on personal bond, cash bond,

surety bond, or other alternative to scheduled bail amounts, and shall issue a signed order remanding

the defendant to the custody of the sheriff.” Id., Rule 4.2.2.1.11. (emphasis added).

On August 12, 2016, the County Judges amended the County Rules of Court to provide that

“personal bonds”—unsecured recognizance bonds—“are favored” in twelve specific misdemeanor

6

categories.8 Id., Rule 12. Rule 12 lists five circumstances in which personal bonds “are disfavored,” including that “the defendant has demonstrated a risk to reoffend or harm society” or “has previously failed to appear in court as instructed.” Id.
In the present case, the plaintiffs allege that the defendants fail or refuse to comply with the Roberson order or the provisions of the Texas Code requiring them to consider an arrestee’s inability to pay bail or eligibility for release on terms other than the scheduled bail amounts at the first hearing, which all parties agree is the probable-cause hearing before a Hearing Officer. The issue in this litigation is how what happens to those arrested for misdemeanor offenses and who are unable to pay their bail at the time of arrest compares to what happens to those who can and do pay the scheduled bail amounts. The complaint allegations describe what happens after arrest.
B. The Alleged Postarrest Procedures The plaintiffs allege that despite the federal, state, and local regulations requiring judicial officers at the first hearing to consider a misdemeanor defendant’s inability to pay bail or eligibility for release on nonfinancial conditions, Harris County maintains a “systemic custom of setting secured financial conditions of release on the bail schedule without any inquiry into or findings concerning an arrestee’s present ability to pay the amount set.” (Docket Entry No. 54 ¶ 17). The complaint alleges that this systemic custom arises from written policies in the County Rules of Court, rules informally communicated to the Hearing Officers, and unwritten customs or practices of the Hearing Officers, County Judges, and County Sheriff. (See, e.g., id. ¶¶ 17, 54–55, 63–64, 84–85, 92–94, 97).
8 The twelve misdemeanors for which personal bonds are favored include: (1) theft by check; (2) driving with an invalid license; (3) gambling offenses; (4) illegal dumping; (5) fictitious vehicle license plate or registration; (6) prostitution; (7) violation of laws regulating sexually oriented businesses; (8) public intoxication; (9) driving without a license; (10) class B criminal trespass; (11) class B retail theft; (12) possessing marijuana or certain other controlled substances. RULES OF COURT, Rule 12.
7

The complaint alleges that the rules, customs, or practices work as follows:

•

Misdemeanor arrestees in Harris County are taken either to field offices or directly to the

County Jail for processing after arrest. (Id. ¶ 35).

•

When a person is arrested without a warrant, “the arresting officer will determine whether

the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline

that is staffed 24 hours a day, 7 days a week by Harris County’s assistant district attorneys.”

(Id. ¶ 36). If the district attorney decides to pursue the charge, she instructs the arresting

officer to impose money bail. (Id. ¶ 38). The Harris County Rules of Court require the

district attorney to “follow the bail schedule” or provide “a signed order from a judge or

judicial officer setting bail at a different amount.” RULES OF COURT, Rules 2.3.1.1–2.

•

If a person is arrested under a warrant, the amount that the bond schedule sets is written on

the warrant. (Docket Entry No. 54 ¶ 43).

•

According to the complaint, “[a]t no point does any person perform any inquiry into the

arrestee’s ability to pay the money bail amount written on the schedule” during the arrest or

consultation with the district attorney’s office. (Id. ¶ 38).

•

At the field office or at booking at the Harris County Jail, arrestees able to pay the set bail

amount and who are subject to no other reason for detention may post bond and be released

at this point, within a few hours after arrest. (Id. ¶¶ 41–42, 44).

•

For arrestees taken to the Harris County Jail for booking, the Sheriff’s deputies and Pretrial

Services personnel know whether the arrestee is subject to any non-monetary holds, and

whether those without holds can pay the secured money bail amount and be released or not.

(Id. ¶ 40, 44, 101).

•

Those who can afford to pay may avoid detention in different ways. If an arrestee’s

8

application to a for-profit bail bond agent is accepted, the arrestee can pay a nonrefundable

fee to the bail bond agent and the agent will stand surety for the arrestee’s release. The

complaint alleges that the fee in Harris County usually exceeds 10 percent of the scheduled

bond amount for low money bail amounts. (Id. ¶ 44 n.8). Those aware of outstanding arrest

warrants may proactively pay the bonding agency fee for a “non-arrest bond” and avoid

arrest and detention altogether. (Id. ¶ 123). Those who can obtain counsel may arrange

payment of bail at a courthouse, set a court date, and avoid the process of arrest and

detention. (Id. ¶ 124).

•

Those without sufficient money to pay bail are limited to a track that subjects them to longer

detention than wealthier arrestees. That discrepancy is the basis for this suit.

•

Those who cannot (or do not) pay the scheduled bail amount are booked into the County Jail.

(Id. ¶ 44). At booking, Harris County Pretrial Services prepares an informational form on

each arrestee, recording personal information, criminal history, employment information,

and information about sources of income and family support. (See Docket Entry No. 80 at

15–16). This information gives the Hearing Officer, and other officers, the basis to know

if the defendant is eligible for release on nonfinancial conditions and cannot afford the

prescheduled, or any, amount of bail. (Docket Entry No. 54 ¶ 101).

•

After booking, arrestees are taken to a room in the jail. They appear by videolink before a

Hearing Officer—a County magistrate judge. (Id. ¶ 51). This is the first judicial officer the

defendant encounters. The hearing is conducted entirely by videolink, and indigent arrestees

do not yet have a lawyer provided to them. (Id. ¶¶ 69–70).

•

The Hearing Officer determines if there is probable cause for the arrest and sets bail. (Id.).

In setting bail, the Hearing Officer, like the district attorney, must “refer[]” to the bail

9

schedule, but the Hearing Officer may modify the bail amount or grant an unsecured

personal recognizance bond under the Roberson factors codified in the County Rules of

Court. RULES OF COURT, Rules 4.2.2.1.11 and 4.2.3.1. The Hearing Officer has available

at the videolink hearing the information on each arrestee’s prior record, including arrests or

convictions for felonies or violent acts, and information about any other nonfinancial reasons

for continued pretrial detention with no bail or a higher bail amount. (Docket Entry No. 54

¶ 101). The Hearing Officer also has the arrestee’s financial information collected by

Pretrial Services. (Id.).

•

While “[t]he County strives to hold these hearings within 24 hours of arrest for people

charged with misdemeanors,” and “[i]t usually takes between 8 and 24 hours for a person

arrested in Harris County to be given a probable cause hearing,” the complaint alleges that

“hundreds of people every month must wait several days as a matter of practice.” (Id. ¶ 51,

58). In addition to the facts of the plaintiffs’ arrests, described below, the complaint

provides a sampling of arrest data from the Harris County district clerk’s website on August

30, 2016. That data shows four arrestees who had been held for at least two or three days

without a videolink hearing before a Hearing Officer.9 (Id. ¶ 47 n.10).

•

The videolink hearing before a Hearing Officer is a brief, “rote exercise.” (Id. ¶ 67). By

rule, each video hearing is recorded and the recording is maintained for at least 120 days.

RULES OF COURT, Rule 4.2.1.1. Hundreds of these recordings—according to the

complaint—demonstrate their perfunctory nature. The hearings typically last a minute or

less. (Docket Entry No. 54 ¶ 67). The misdemeanor defendants are warned not to

9 The plaintiffs allege that the four arrestees, Julio Ruiz, Blanchard B. Stewart, Michael Ray Mata, and Oscar Balbarbo, had no nonfinancial holds on their records and were detained solely “because they had not paid their money bail.” (Docket Entry No. 54 ¶ 47 n.10).
10

speak—about anything—lest they incriminate themselves. (Id. ¶ 69). The Hearing Officers

routinely, as a matter of consistent practice, apply the bail schedule without raising or

considering any arrestee’s financial circumstances; without considering a lower bail or

alternatives to secured financial bail; and without permitting the arrestee to speak, much less

meaningfully raise an inability to pay bail or seek release on a personal bond. (Id. ¶¶ 60,

64–73). Misdemeanor defendants who are granted personal bonds—8 percent of all

misdemeanor arrestees—are granted the bonds on the basis of the charge against them or

their criminal history, and not because their ability or inability to pay was considered. (Id.

¶ 79–80).

•

After the videolink probable-cause hearing, a misdemeanor defendant is taken to a County

Court at Law, usually within one business day after the probable-cause hearing. (Id. ¶ 96).

When the probable-cause hearing occurs on a Friday, the defendant remains in jail through

the weekend. If the following Monday is a holiday, the detention is extended to at least three

days. (Id.)

•

The appearance at a County Court at Law before a County Judge is the first formal adversary

proceeding for a misdemeanor defendant. Those who cannot afford counsel may have an

attorney appointed for them at this hearing.10 The complaint alleges that at this point, “there

is, as a matter of practice, no review of the money bail amount previously imposed.”

Instead, County Judges “reduce money bail amounts previously imposed in less than 1

percent of cases.” (Id. ¶ 97 (citing James Pinkerton and Laura Caruba, Tough bail policies

punish the poor and the sick, critics say, HOUSTON CHRONICLE, Dec. 26, 2015)).

10 Under Gideon v. Wainwright, 371 U.S. 344 (1963), the Sixth Amendment right to counsel attaches at the initiation of adversarial proceedings against the accused. See also Massiah v. United States, 377 U.S. 201 (1964).
11

•

If an attorney is appointed at this hearing, that attorney may file a motion to reduce or

remove the money bail condition, but the complaint alleges that it typically takes at least one

week for these motions to be heard. (Id. ¶ 104). For these defendants, detention lasts until

at least a week after arrest. (Id.).

The complaint alleges significant consequences following a “systemic custom of setting

secured financial conditions of release based on the bail schedule without any inquiry into or

findings concerning an arrestee’s present ability to pay the amount set.” (Id. ¶ 17). During

processing at the County jail, an arrestee’s family members or legal counsel are unable to reach him

or her unless the scheduled bail amount can be paid. (Id. ¶¶ 49–50). If the bail is not paid, a

misdemeanor arrestee remains unreachable until assigned to a housing unit, sometimes days after

arrest and even after the probable-cause hearing before a Hearing Officer. (Id. ¶¶ 92–95).

Another alleged consequence is that misdemeanor defendants often plead guilty as the only

way to “get out of custody more quickly.” (Id. ¶ 98). The complaint alleges that the County Judges

routinely accept guilty pleas from defendants at their initial appearances and sentence them to time

served, immediately releasing those who plead guilty while continuing to detain those who cannot

pay but want to contest the charges. (Id. ¶ 100). The added detention, the complaint alleges, is

imposed as a cost for exercising their constitutional right to a trial. (Id. ¶¶ 98–99). A study of Harris

County misdemeanor pleas forthcoming in the Stanford Law Review shows that 76.8 percent of

detained misdemeanor defendants plead guilty, compared to only 52.8 of defendants released on

bond. (Id. ¶ 100 (citing Heaton et al., The Downstream Consequences of Misdemeanor Pretrial

Detention, 69 STAN. L. REV. (forthcoming))).

The complaint alleges that the Harris County District Attorney, County Judges, Hearing

Officers, and County Sheriff “know that many of the detained individuals . . . charged with

12

misdemeanors are being held in jail solely because they are too poor to pay the money bail amount set by the predetermined schedule.” (Id. ¶ 101). Information collected before and during booking is available to the Hearing Officers, County Judges, and County Sheriff, including the misdemeanor arrestees’ financial condition and whether they are ineligible for release for reasons unrelated to their inability to pay bail. (Id.). The district attorney or her assistants, and Sheriff Hickman or his deputies, are present at the videolink probable-cause hearings before the Hearing Officers. (Id. ¶¶ 56, 60). According to the plaintiffs’ summary of the videolink-hearing recordings, the Hearing Officers or the Sheriff’s deputies instruct the misdemeanor defendants to remain silent during the hearings. (Id. ¶¶ 23, 70). The Hearing Officers routinely disclaim any ability to grant personal bonds or consider inability to pay. Instead, the Hearing Officers act as if they were required to impose the scheduled bond amounts as the only available release condition. (Id. ¶¶ 69–76, 85–89). The complaint alleges that this squarely violates the Texas Code requirement that “the ability to make bail is to be regarded, and proof may be taken upon this point,” TEX. CODE CRIM. PRO. art. 17.15; the Roberson court order that the eligibility for release on conditions other than the preset bail amount be considered at the first hearing before a judicial officer, Agreed Final Judgment, Roberson, Civil No. 84-2974; and the written Harris County Rules of Court requirement that Hearing Officers consider inability to pay and eligibility for release on nonfinancial conditions, RULES OF COURT, Rules 4.2.2.1.11, 4.2.3.1.3. County Judges, the complaint alleges, acquiesce in the Hearing Officers’ unwritten customs and practices of violating the federal, state, and local laws as written. The County Judges formally and informally ratify the customs and practices by requiring the denial of pretrial release for misdemeanor arrestees across the system in the written and unwritten rules they promulgate, as well as in the individual cases in which they confirm the scheduled bail amounts as the only available condition of release. (Docket Entry No. 54 ¶ 103). The
13

complaint alleges that the County Judges have additional unwritten practices and customs that they require the Hearing Officers to follow, such as an unwritten policy that no homeless defendant may be considered for release on a personal bond. (Id. ¶¶ 84–85).
C. The Complaint Allegations as to the Individual Plaintiffs Maranda Lynn ODonnell was arrested on May 18, 2016 for driving with a suspended license. (Docket Entry No. 54 ¶ 22). The district attorney set her bail at $2,500, the prescheduled amount. (Id.). She could not afford to pay any bail amount. (Id. ¶ 24). The Sheriff’s deputies told her not to speak at her brief, videolink probable-cause hearing. (Id. ¶ 23). The defendants allege that Ms. ODonnell had a criminal record consisting of two previous failures to appear in court. (Docket Entry No. 80 at 22). The defendants allege that Ms. ODonnell could pay the bail amount and was “released on bail” on May 20, 2016.11 (Id.). Robert Ryan Ford was arrested on May 18, 2016 for misdemeanor theft of property. (Docket Entry No. 80 at 23). Mr. Ford did not have a probable-cause hearing until the morning of May 20, when, at a brief videolink appearance, the Hearing Officer set his bail at $5,000, the prescheduled amount. (Docket Entry No. 54 ¶ 31 & n.14). Mr. Ford could not afford to pay any bail amount. (Id. ¶ 32). The defendants allege that Mr. Ford has a criminal history, including two felonies in the last ten years. (Docket Entry No. 80 at 23). At his first court appearance on May 23—five days after his arrest—Mr. Ford pleaded guilty and was released with a sentence of time served. (Id.). Loetha McGruder was arrested on May 19, 2016 for the misdemeanor offense of giving a false name to a police officer. (Id. at 24). A $5,000 bail, the prescheduled amount, was set and confirmed at the videolink probable-cause hearing. (Docket Entry No. 54 ¶¶ 26–27). She could not
11 None of the parties’ filings indicate when or under what circumstances Ms. ODonnell was released from confinement. The County Judges produce a bond securing release for Ms. ODonnell signed May 20, 2016. (Docket Entry No. 80, Ex. 14).
14

afford any bail amount. (Id. ¶ 28). At a hearing before a County Judge on May 23—four days after her arrest—the bail was reduced to a personal bond, and Ms. McGruder was released. (Docket Entry No. 80 at 24, and Ex. 11).
The complaint alleges that these plaintiffs’ experiences are typical of other indigent misdemeanor defendants.12 According to a 2012 report, 81 percent of misdemeanor arrestees in Harris County could not post bail at booking and were jailed. Most of the other 19 percent could pay and were released on bond before or at booking. (Docket Entry No. 54 ¶ 52). Harris County Pretrial Services annual reports indicate that in 2014, an average of 144 people were admitted to the jail each day on misdemeanor charges; in 2015, 40 percent were still in detention when their cases resolved, most often by a guilty plea. (Id. ¶ 53 nn.12–13, 108).
D. Procedural History Ms. ODonnell filed her complaint on May 19, 2016, while still in pretrial detention in the Harris County Jail. (Docket Entry No. 3). Ms. McGruder and Mr. Ford filed their complaint the next day, while they were both in pretrial detention. Civil No. 16-1436 (S.D. Tex. May 20, 2016). The court consolidated the cases on August 18, 2016. (Docket Entry No. 41). Ms. ODonnell’s original complaint named Harris County, Harris County’s five Hearing Officers, and County Sheriff Ron Hickman as defendants. The defendants filed a joint motion to dismiss on June 24, 2016. (Docket Entry No. 25). At the motion hearing on August 28, 2016, the court granted the plaintiffs time to consider amending to add any proper parties for the prospective relief alleged in the complaint. (Docket Entry No. 43). The plaintiffs amended on August 31, 2016, adding the sixteen Harris County Criminal Courts at Law Judges as defendants. (Docket Entry No.
12 The plaintiffs’ motion to certify a class under Federal Rule of Civil Procedure 23 will be heard in February 2017.
15

54). The complaint alleges a systemic and knowing violation of the Due Process and Equal Protection Clauses of the United States Constitution by the defendants’ detention of misdemeanor arrestees without regard for their ability to pay secured financial conditions of release, while permitting release at booking for defendants able to pay bail. The complaint seeks injunctive and declaratory relief from the County Judges and Sheriff in their official and personal capacities, injunctive and declaratory relief against Harris County, and declaratory relief against the Hearing Officers in their official and personal capacities.
The County Judges moved to dismiss the complaint on November 9, 2016. (Docket Entry Nos. 80–82). They argue that the named plaintiffs lacked standing under Federal Rule of Civil Procedure 12(b)(1), and that the complaint failed to state a plausible claim for relief under Rule 12(b)(6). They argue that their role in setting bail procedures for the County entitled them to immunity from suit. Finally, they argue that this court should dismiss by abstaining under Younger v. Harris, 401 U.S. 37 (1971).
Harris County, the Sheriff, and the Hearing Officers agree with and incorporate by reference the County Judges’ constitutional and abstention arguments. They also filed separate motions to dismiss, asserting their own immunity defenses and arguing that the plaintiffs have failed to identify a final municipal policymaker and therefore cannot show that Harris County is liable under 42 U.S.C. § 1983. (Docket Entry Nos. 83–85).
The court considers each argument and the plaintiffs’ responses, based on the pleadings, the record, the legal standards, and the oral arguments of counsel presented at lengthy hearings held in August and November 2016.
16

II. The Legal Standards A. Standing Challenges under Rule 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) applies to challenges to a plaintiff’s standing. “A
case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation and internal quotation marks omitted). A court lacks power to decide a claim that a plaintiff lacks standing to bring. The plaintiff has the burden of demonstrating that subject-matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
Standing requires: “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.” Croft v. Governor of Tex., 562 F.3d 735, 745 (5th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). As “the party invoking federal jurisdiction,” the plaintiffs “bear[ ] the burden of establishing these elements.” Lujan, 504 U.S. at 561. They must meet this burden “‘with the manner and degree of evidence required at the successive stages of the litigation,’” which means that “on a motion to dismiss, plaintiffs must allege facts that give rise to a plausible claim of . . . standing.” Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 133–34 (5th Cir. 2009) (quoting Lujan, 504 U.S. at 561). When a complaint seeks multiple kinds of relief, the plaintiff must show standing “for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488 (2009) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).
Courts may dismiss for lack of subject-matter jurisdiction based on: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented
17

by undisputed facts plus the court’s resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). When examining a factual challenge to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of a plaintiff’s cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see also Clark, 798 F.2d at 741. The court may consider matters outside the pleadings, such as testimony and affidavits, to resolve a factual challenge to subject-matter jurisdiction, without converting the motion to dismiss to one for summary judgment. See Garcia, 104 F.3d at 1261.
B. Pleading Sufficiency under Rule 12(b)(6) A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “[I]n deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry
18

to the facts stated in the complaint and the documents either attached to or incorporated in the complaint.” Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996). A court may “consider documents integral to and explicitly relied on in the complaint, that the defendant appends to his motion to dismiss, as well as the full text of documents that are partially quoted or referred to in the complaint.” In re Sec. Litig. BMC Software, Inc., 183 F.Supp.2d 860, 882 (S.D. Tex. 2001) (internal quotation marks omitted). Consideration of documents attached to a defendant’s motion to dismiss is limited to “documents that are referred to in the plaintiff’s complaint and are central to the plaintiff’s claim.” Scanlan v. Tex. A & M. Univ., 343 F.3d 533, 536 (5th Cir. 2003) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). The court may consider these extrinsic materials without converting to a summary-judgment motion. See Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir. 1988) (quoting 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366).
C. Section 1983 “Section 1983 provides a remedy against ‘any person’ who, under color of state law, deprives another of rights protected by the Constitution.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). A local government may not be sued under § 1983 for the deprivation of rights guaranteed by the Constitution or federal law inflicted solely by its employees or agents. Instead, it is “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under § 1983.” Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978). To plausibly allege a claim under § 1983 against a municipality, “a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, 588
19

F.3d 838, 847 (5th Cir. 2009). An official policy can be either “a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by [the municipality’s] officers,” or a “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690–91. “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011); see also Peterson, 588 F.3d at 847. (“It usually exists in the form of written policy statements, ordinances, or regulations, but it may also arise in the form of a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy.”) (quotation marks omitted). “Monell’s ‘policy or custom’ requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective.” Los Angeles Cty. v. Humphries, 562 U.S. 29, 39 (2010).
“[A] municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker” for purposes of § 1983 liability. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); see also Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (distinguishing a county judge’s “judicial duties” from his “executive, legislative and administrative chores in the day-to-day governance of the county.”). A municipality may be held liable for “deprivations resulting from the decisions of its duly constituted legislative body.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). A claim against a municipal defendant in her official capacity is the equivalent of a claim against the municipality itself. See Kentucky v. Graham, 473 U.S. 159, 165 (1985).
“[S]uits against States and their agencies . . . are barred regardless of the relief sought” by 20

the Eleventh Amendment to the United States Constitution. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citing Ex parte Young, 209 U.S. 123 (1908); Cory v. White, 457 U.S. 85 (1982)). There is a narrow exception to Eleventh Amendment immunity for suits brought against individuals in their official capacity, as agents of the state or a state entity, if the relief sought is injunctive in nature and prospective in effect. See Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.1998) (citing Young, 209 U.S. at 123).
D. Abstention As long as a federal court has jurisdiction over an action, the “‘obligation’ to hear and decide a case is ‘virtually unflagging.’” Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584, 591 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). In Younger v. Harris, 401 U.S. at 37, the federal-court plaintiff was simultaneously defending a state criminal prosecution. It was proper for the federal court to abstain from exercising its jurisdiction to hear the case “under ‘the basic doctrine of equity jurisprudence that courts of equity should not act . . . to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.’” Sprint, 134 S.Ct. at 591 (quoting Younger, 401 U.S. at 43–44). Abstention under Younger is warranted when three conditions are met: “(1) the dispute must involve an ongoing state judicial proceeding, (2) an important state interest in the subject matter of the proceeding must be implicated, and (3) the state proceeding must afford an adequate opportunity to raise the constitutional challenge.” M. D. v. Perry, 799 F.Supp.2d 712, 715 n.3 (S.D. Tex. 2011) (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)) (internal quotation marks omitted). Unless all three conditions are present, Younger abstention is improper, and the plaintiff has the burden to show that the opportunity to raise the constitutional challenge in
21

a state proceeding is inadequate. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14 (1987) (citing Moore v. Sims, 442 U.S. 415, 429–30 (1979); Younger, 401 U.S. at 45). If the alleged ongoing proceeding is not a criminal proceeding or a quasi-criminal civil enforcement action, the three factors are “not dispositive.” Sprint, 134 S.Ct. at 593. III. The Issues All the Defendants Raise
A. The Plaintiffs’ Standing Because there are warrants pending in both Harris County and Galveston County for Ms. ODonnell’s failure to appear for misdemeanor court proceedings, the defendants argue that Ms. ODonnell’s claims should be dismissed under the fugitive-disentitlement doctrine. They also allege that Ms. ODonnell was able to pay her bail when she was arrested, undermining her standing to sue here. Finally, they argue that because of her criminal background and history of failing to appear, Ms. ODonnell was not imprisoned “solely” because she could not afford to pay any bail amount. (Docket Entry No. 80 at 45–47). The fugitive-disentitlement doctrine is discretionary, sparingly invoked, and rarely applied. Degen v. United States, 517 U.S. 820 (1996). When it does apply, it is usually in criminal appeals, immigration, and civil forfeiture cases. Giri v. Keisler, 507 F.3d 833 (5th Cir. 2007) (per curiam) (extending doctrine to appellate review of Board of Immigration Appeals decisions); United States v. Hinojosa, 273 F.3d 1107 (5th Cir. 2001) (per curiam) (dismissing appeal in criminal case under the doctrine); 28 U.S.C. § 2466(a) (civil forfeiture fugitive-disentitlement provision). It has not been applied in this circuit to challenges under § 1983.13 The doctrine is intended to prevent defendants
13 The defendants cite out-of-circuit cases to support applying the doctrine here. Those cases are readily distinguishable. Sarlund v. Anderson, 205 F.3d 973, 975 (7th Cir. 2000) (dismissing appeal because “[t]he risk of abuse of process is particularly great . . . given the number of defendants and the more than likelihood that the suit is completely frivolous”); Hughes v. Colorado Dept. of Corr., Civil No. 07-354, 2009 WL 3074619, at *4 (D. Col. Sept. 21, 2009) (noting that the fugitive plaintiff’s legal representation was
22

appealing in criminal cases from obtaining a favorable ruling while escaping unfavorable results or impending proceedings. See Degen, 517 U.S. at 820; Bright v. Holder, 649 F.3d 397, 400 (5th Cir. 2011); Giri, 507 F.3d at 835–36 (quoting Sapoundijev v. Ashcroft, 376 F.3d 727, 728–29 (7th Cir. 2004)). This case is not a criminal appeal, and Ms. ODonnell’s failure to appear in County Court will not permit her to escape negative rulings this court might make. She seeks an injunction against using only secured-money bail for misdemeanor defendants without considering their inability to pay at the same time those able to pay bail can secure release. If the court rules against Ms. ODonnell, she will continue to be subject to Harris County’s bail policies and practices. Neither the law nor the record provides a basis to dismiss Ms. ODonnell’s claims under the fugitivedisentitlement doctrine.
Accepting the assertions that Ms. ODonnell did in fact have the ability to pay bail or that she was jailed because of her criminal background and not her inability to pay would require the court to resolve disputed facts that go to the merits. These assertions are not standing objections. See Bond v. United States, 564 U.S. 211, 218–19 (2011) (sufficiency of factual allegations should not be confused with justiciability of the controversy). Even taking the defendants’ factual allegations on these points as true, Ms. ODonnell would have standing to bring her claim. Ms. ODonnell alleges that no judicial officer timely considered her inability to pay or her eligibility for release despite her criminal history, and that this outcome is typical for misdemeanor defendants in Harris County. The defendants’ allegations do not resolve Ms. ODonnell’s claims.14
“severely compromised” by his absence); Colorado v. Platteville Police Dept., Civil No. 07- 486, 2008 WL 3669079, at *1, *3 (W.D. Wisc. Apr. 21, 2008) (dismissing plaintiff’s constitutional claim because plaintiff had not communicated with lawyer, shown up for depositions, or responded to motions, thus severely prejudicing defendants). The defendants do not argue that they have suffered prejudice from Ms. ODonnell’s absence.
14 The defendants make the same argument with regard to Mr. Ford. Their motion to dismiss under Rule 12(b)(1) is denied for the same reasons.
23

As to Ms. McGruder, the defendants argue that she “is the prime example of the system functioning as it should.” (Docket Entry No. 80 at 48). They argue that Ms. McGruder “was not held in jail,” because a County Judge granted her request for a personal bond “on the first business day after her” probable-cause hearing. (Id. at 47). The defendants do not adequately account for the calendar. A weekend intervened before the “next business day.” Ms. McGruder stayed in detention on her misdemeanor charge for four days, despite the fact that, as the defendants admit, she was eligible for prompt release on a personal bond based on her inability to pay and on the absence of any other basis for detention. Whether Ms. McGruder received due process and equal protection goes to the merits. This is not a proper standing objection under Rule 12(b)(1).
The defendants’ motion to dismiss the plaintiffs’ claims for lack of standing under Rule 12(b)(1) is denied.
B. The Legal Standard for the Constitutional Challenges to Pretrial Detention 1. Excessive Bail
Bail may be set at “an amount reasonably calculated to ensure the defendant’s presence at trial.” Broussard v. Parish of Orleans, 318 F.3d 644, 650 (5th Cir. 2003) (citing Stack v. Boyle, 342 U.S. 1, 5 (1951)); see also Schlib v. Kuebel, 404 U.S. 357, 365 (“Bail, of course, is basic to our system of law, and the Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment.”). The defendants argue that the plaintiffs’ complaint “is simply a disguised excessive bail challenge under the Eighth Amendment.” (Docket Entry No. 80 at 32). They cite precedents holding that an inability to pay does not make bail excessive under the Eighth Amendment or unreasonable under state law. See United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988) (“[A] bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.”); Simon v. Woodson,
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454 F.2d 161, 166 (5th Cir. 1972) (“[T]he ability to make bond is an important element in fixing an
appropriate amount therefor, but it cannot be said that the Constitution requires that it alone be
controlling.”); Jobe v. State, 482 S.W.3d 300, 302 (Tex. App.—Eastland 2016, pet. ref’d) (if ability
to pay is the sole criterion, “the role of the trial court in setting bond would be eliminated, and the
accused would be in the position to determine what his bail should be”).
The cases the defendants cite involved one-off complaints about excessive bail. These cases
did not raise the inability to pay, or that issue was irrelevant in light of felony charges or a high risk of flight or danger.15 In this case, by contrast, the plaintiffs directly challenge an alleged systematic
policy of illegal detention in the timing of misdemeanor defendants’ release based on the inability
to pay bail and an alleged refusal to consider alternatives to secured money bail for misdemeanor
offenses, as state and federal law require. The plaintiffs do not challenge the existence of the bail
schedule or the specific amounts set out in the schedule, but rather the defendants’ alleged refusal
to consider any alternatives to financial-release conditions for misdemeanor defendants unable to
pay bail and the delay in considering the inability to pay as a basis for release. This case is not
properly characterized as an Eighth Amendment challenge to excessive bail.
2. Equal Protection
The defendants argue that the Fourteenth Amendment is an improper basis for relief, first
because disparate impact is insufficient to state a § 1983 claim, and second because the
15 See, e.g., McConnell, 842 F.2d at 106, 108 (defendant charged with two counts of bank fraud carrying 5-year sentence; the court noted that “it is clear that the court was motivated by concern that McConnell might flee”); Simon, 454 F.2d at 162–63 (defendant charged with felony assault on an officer carrying life sentence); United States v. Cordero, 166 F.3d 334 (4th Cir. 1998) (unpublished table decision) (defendant charged with a drug felony carrying 10-year sentence; the court noted that “the fact that a defendant is financially incapable of satisfying the bail requirement does not violate the Eighth Amendment if the district court finds that the defendant is a flight risk or a danger to the community” (citing McConnell, 842 F.2d at 109–10)); United States v. Jessup, 757 F.2d 378, 380 (1st Cir. 1985) (defendant charged with a drug felony carrying a statutory presumption that a defendant will likely flee before trial).
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government’s legitimate interest in ensuring that criminal defendants appear for trial satisfies rational-basis review. (Docket Entry No. 80 at 36–38). The defendants cite cases on racial discrimination for the proposition that disparate impact is not actionable under § 1983, and that the plaintiffs must instead plausibly allege discriminatory intent. See Manley v. Texas Southern Univ., 107 F.Supp.3d 721 (S.D. Tex. 2015) (citing Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir. 2004)). The defendants argue that even if the Harris County Rules of Court did discriminate based on wealth, the case should be dismissed under rational-basis review because the government “has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences” and “confinement of such persons pending trial is a legitimate means of furthering that interest.” Bell v. Wolfish, 441 U.S. 520, 534 (1979).
These arguments raise strong points. But they overlook circuit law that requires courts to consider challenges to pretrial detention based on indigence with particular care. “[I]mprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc) (citing Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971)). The state has a “compelling interest in assuring the presence at trial of persons charged with crime. Yet such individuals remain clothed with a presumption of innocence and with their constitutional guarantees intact.” Id. (footnote omitted).
The Fifth Circuit panel decision in Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977), applied strict scrutiny to a § 1983 Equal Protection Clause claim challenging Florida’s alleged refusal to consider inability to pay in setting bail. The panel noted that although the Supreme Court did not consider wealth a suspect classification, “the Court has been extremely sensitive to classifications based on wealth in the context of criminal prosecutions.” Id. at 1196. The panel
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applied strict scrutiny because the claim implicated “fundamental” Fourteenth Amendment rights to be presumed innocent and presumptively eligible for release before trial and criminal conviction. Id. at 1197. The panel decision was vacated en banc after Florida changed its bail rules while the appeal was pending. See Pugh v. Rainwater, 572 F.2d at 1055. The en banc court affirmed the panel’s basis for its ruling, stating that “[a]t the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Id. (citing Williams, 399 U.S. at 235; Tate, 401 U.S. at 395).
These statements remain the applicable law in this circuit, based on subsequent case law developments. In Williams, 399 U.S. at 235, the Supreme Court held that a facially neutral system of imprisoning convicted defendants who did not pay their fines “works an invidious discrimination” as applied to indigent defendants. Id. at 242. The majority did not explicitly call for heightened scrutiny but used a functionally similar analysis, finding the government’s “substantial and legitimate interest” in collecting revenue from fines did not justify an “invidious discrimination” against those unable to afford the fines. Id. at 238, 242. A concurring opinion noted that the majority had not applied ordinary rational-basis review to the Equal Protection Clause challenge. See id. at 259 (Harlan, J., concurring in the judgment). In Bearden v. Georgia, 461 U.S. 660 (1983), the Court acknowledged without taking a clear position that the Court’s equal protection jurisprudence in collateral detention cases was “substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine.” Id. at 665–66. The Court reasoned that the answer to that question “cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as ‘the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and
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purpose, [and] the existence of alternative means for effectuating the purpose . . . .” Id. at 666–67
(quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)); see also Agreed Final Judgment,
Roberson, Civil No. 84-2974, at 1 (creating “a meaningful review of alternatives to pre-scheduled
bail amounts” to comport with the en banc Fifth Circuit’s Pugh decision, 572 F.2d at 1057–58).
The defendants argue here that the court should apply rational-basis review and dismiss the
complaint. That approach represents the “pigeonhole analysis” the Supreme Court rejected and
ignores the analysis the Court applied in Williams and Bearden. Williams, 399 U.S. at 238–42;
Bearden, 461 U.S. at 666. The “careful inquiry” the Court requires in this type of case calls for a
more demanding review. Bearden, 461 U.S. at 666.
Even if the defendants were correct that rational-basis review applies, the court would still
deny the motion to dismiss under Rule 12(b)(6). Rational basis is a factual inquiry. Courts are
properly reluctant to dismiss without permitting plaintiffs to make a factual showing that a
government policy is irrational. Mahone v. Addicks Util. Dist., 836 F.2d 921, 937–38 (5th Cir.
1988) (asserting the discretion of district courts to deny dismissal at the Rule 12(b)(6) stage on
rational-basis review).16 That analysis requires this court to resolve critical factual disputes about
16 The defendants’ reliance on Welchen v. County of Sacramento, Civil No. 16-185, 2016 WL 5930563 (E.D. Cal. Oct. 10, 2016), is unavailing. The court in Welchen dismissed a similar bail challenge under Rule 12(b)(6) because it was persuaded that the rational-basis standard applied and “[t]he state’s interest in ensuring criminal defendants appear for trial dates is a legitimate one, and detaining individuals before their arraignment is rationally related to that legitimate interest.” Id. at *11. The court relied on Harris v. McRae, 448 U.S. 297, 322 (1980), in holding that rational-basis review is appropriate “[w]here a statutory classification does not itself impinge on a right or liberty protected by the Constitution . . . .” But in this circuit, Pugh and subsequent cases lead to a different analysis. The en banc Pugh court made clear that “[r]ules under which personal liberty is to be deprived are limited by the constitutional guarantees of all . . . . The incarceration of those who cannot [meet a money bail requirement], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” 572 F.2d at 1057; see also id. at 1058 (“We view such deprivation of liberty of one who is accused but not convicted of crime as presenting a question having broader effects and constitutional implications than would appear from a rule stated solely for the protection of indigents.”); Williams v. Farrior, 626 F.Supp. 983, 985 (S.D. Miss. 1986) (“For the purposes of the Fourteenth Amendment’s Equal Protection Clause, it is clear that a bail system which allows only monetary bail and does not provide for any meaningful consideration of other
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the Harris County bail system. The parties dispute, for example, whether secured bail ensures attendance at court proceedings, (compare Docket Entry No. 54 ¶ 132 with No. 80 at 37–38); whether the plaintiffs had an opportunity to raise their inability to pay within 48 hours of arrest, (compare No. 54 ¶¶ 21–32 with No. 80 at 46–48); and whether a typical misdemeanor defendant is detained solely for inability to pay bail, (compare No. 54 ¶¶ 51, 121 with No. 80 at 20 n.28). On the last point alone, the plaintiffs allege hundreds of misdemeanor defendants detained solely by indigence; the defendants allege the number is “very small, if any.” (Id.). These disputes go to the merits of the rationality and legitimacy of the government’s bail procedure. Without a developed factual record these disputes cannot be resolved. A motion to dismiss is not the right way to resolve these disputes.
The equal protection claim survives the motion to dismiss. 3. Due Process
The defendants argue that the complaint fails to state a due-process claim because the plaintiffs admit that “it usually takes between 8 and 24 hours for a person arrested in Harris County to be given a probable cause hearing,” (Docket Entry No. 54 ¶ 51), and “[t]he Supreme Court has set a presumptively reasonable 48-hour probable cause deadline following arrest.” (Docket Entry No. 80 at 35) (citing Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); Gerstein v. Pugh, 420 U.S. 103 (1975). This argument is unpersuasive.
In Gerstein, the Supreme Court held that “the Fourth Amendment requires a timely judicial determination of probable case as a prerequisite to detention.” 420 U.S. at 126. While a rule
possible alternatives for indigent pretrial detainees infringes on both equal protection and due process requirements.”); United States v. Flowers, 946 F.Supp.2d 1295 (M.D. Ala. 2013) (“[I]t violates the Constitution’s guarantee of equal protection under the laws to convert a fine-only sentence into a prison term based on inability to pay.”).
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requiring courts to determine probable cause before every arrest “would constitute an intolerable handicap for legitimate law enforcement,” id. at 113, the Fourth Amendment’s “balance between individual and public interests always has been thought to define the ‘process that is due’ for seizures of person or property in criminal cases,” id. at 125 n.27. Riverside defined that process by holding that if the probable-cause hearing is held within 48 hours of arrest, the burden is on the plaintiff to show that the time between the arrest and the hearing was unreasonable in the circumstances. After 48 hours, the burden shifts to the government to show the delay was reasonable. 500 U.S. at 57. The Riverside Court recognized that under this standard, states could choose to combine probable-cause hearings with other pretrial proceedings if “those proceedings . . . arise very early in the pretrial process—such as bail hearings and arraignments.” Id. at 58. “Even then,” the Court noted, “every effort must be made to expedite the combined proceedings.” Id. (citing Gerstein, 420 U.S. at 124).
The plaintiffs allege that although the Hearing Officers attempt to hold probable-cause hearings within 48 hours after arrest, the hearings are at best fleeting and perfunctory. (Docket Entry No. 54 ¶ 67). The misdemeanor arrestees appear by videolink. (Id. ¶ 56). The plaintiffs allege that the Hearing Officers deliberately and inflexibly refuse to consider the inability to meet financial conditions of release. Instead, the Hearing Officers mechanically impose the scheduled bail amounts. (Id. ¶¶ 64–73). The arrestees are told not to speak. (Id. ¶¶ 23, 70). If this is a “bail hearing” for Riverside purposes, it clearly does not include consideration of indigence. Nor is it clear that the Riverside 48-hour presumptions would apply to the inquiry into the inability to pay bail or the eligibility for release on nonfinancial conditions. These are both inquiries judicial officers must make “every effort . . . to expedite.” Id. In the Fourth Amendment’s probable-cause context, courts have held state actors to significantly shorter periods to conduct “administrative
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tasks.” See, e.g., Sanders v. City of Houston, 543 F.Supp. 694 (S.D. Tex. 1982) (city enjoined from detaining prisoners more than 24 hours to complete administrative tasks). Or courts have found factual disputes that must be resolved before the court could rule on whether a delay was reasonable under due process. See, e.g., Berry v. Baca, 379 F.3d 764 (9th Cir. 2004) (jury must determine whether a 29-hour delay after authorized release was reasonable); Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986) (jury must decide whether 4-hour delay between arrest and appearance before magistrate was reasonable).
The 48-hour probable-cause-hearing standard announced in Riverside is not a safe harbor for the defendants under Rule 12(b)(6).17 The plaintiffs do not challenge the timing of the probablecause hearings. They challenge the delay before any judicial officer allows a misdemeanor arrestee an opportunity to raise the inability to pay bail or eligibility for release on a personal bond; they challenge the Hearing Officers’ refusal to consider nonfinancial conditions of release; and they challenge the refusal of the County Judges to allow categories of misdemeanor arrestees, including those who are homeless, to be considered for release on nonfinancial conditions. The plaintiffs allege customs or practices of delaying this hearing for up to a week, until indigent defendants have court-appointed counsel who move for a hearing on the inability to pay bail or the eligibility for release without financial conditions. (Docket Entry No. 54 ¶ 104).
In short, the plaintiffs do not challenge the federal, state, and local rules that, as written, require judicial officers to consider inability to pay bail within 24 hours of arrest. Rather, the
17 Collins v. Ainsworth, 382 F.3d 529 (5th Cir. 2004), does not support a safe harbor. The Fifth Circuit noted that under Mississippi law, “[t]here is no right to post bail within 24 hours of arrest.” Id. at 545. The summary judgment evidence showed that the plaintiffs were arrested on Sunday night and able to post bond on Monday morning, and that this delay was reasonable based on the practical need to bring judges to the rural detention center. For that reason, and unlike the allegations in this case, the delay applied equally to all arrestees. Those who could pay bail were not released any sooner than those who could not, and all arrestees were released at the earliest practical opportunity.
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plaintiffs allege customs or practices of applying these rules in ways that amount to County policies
that violate due process because of timing; and that violate equal protection by discriminating on
the basis of wealth, or more precisely, poverty, with an insistence on financial release conditions.18
Even if the law were clear that considering inability to pay bail within 48 hours of arrest is
sufficient due process, the plausible factual allegations in the complaint make dismissal
inappropriate. At least two of the named plaintiffs allegedly remained in detention for at least four
days before they could even raise their inability to pay bail and eligibility for release on a personal
bond before a judicial officer. (Docket Entry No. 54 ¶¶ 25–32). The plaintiffs allege that hundreds
of recorded probable-cause hearings show that Hearing Officers refuse to consider the inability to
pay bail or to consider alternatives to release on financial conditions. Statistical studies show that
the County Judges confirm the imposition of prescheduled bail amounts in 99 percent of the
misdemeanor-arrest cases. (Id. ¶¶ 51, 97). Even if 48 hours is the standard for due process—and
the parties agree that 48 hours would be the outer limit—the complaint alleges sufficient facts to
support a plausible inference that the defendants have violated the plaintiffs’ due-process rights.19
18 The claim is similar to that in Turner v. Rogers, 564 U.S. 431 (2011), in which the Supreme Court found a Due Process Clause violation after a father was incarcerated for civil contempt without an inquiry into his inability to pay child support and written state law required that such an inquiry be made. Id. at 449.
19 As Bearden, discussed above, noted, the level of review for due-process challenges to pretrial detention is functionally similar to that for equal-protection challenges. 461 U.S. at 665–66. The defendants point to Bell, 441 U.S. at 520, for the proposition that challenges to pretrial detention merit only rational-basis review. Bell held that challenges to the conditions of pretrial detention—such as overcrowding, the quality of food or of medical care, and the like—deserve rational-basis review. Challenges to the legality of the detention itself merit the more searching review of Williams, 399 U.S. at 235, Tate, 401 U.S. at 395, Bearden, 461 U.S. at 665–66, and Pugh, 572 F.2d at 1056. See United States v. Salerno, 481 U.S. 739, 748–51 (1987) (restrictions on pretrial release of adult arrestees must be carefully limited to serve a compelling governmental interest); see also United States v. Montalvo-Murillo, 495 U.S. 711, 716 (1990) (release prior to trial is a “vital liberty interest”); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”); Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc) (applying strict scrutiny to challenge of pretrial detention under the Due Process Clause).
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The due-process claim survives the motion to dismiss. 4. The Conclusion on the Constitutional Challenges
The plaintiffs have alleged sufficient facts to support plausible claims that their constitutional rights have been, are, and likely will be violated. Even if the court reviewed Harris County’s policies under the rational-basis standard—and the controlling law indicates that a more demanding review is required—this case turns on factual disputes about the County’s pretrial bail system and the legitimacy of the government’s interest in detaining indigent misdemeanor defendants who are eligible for release but for their inability to pay the scheduled bail amount. Those disputes preclude granting the motion to dismiss the constitutional claims.
“[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Detaining “arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community” falls “within that carefully limited exception.” Id. The disputes in this case include whether detaining a misdemeanor arrestee solely because that individual cannot pay the scheduled bail amount to obtain release on bond is rationally related to a legitimate government interest or is sufficiently tailored to a substantial government interest to stand. A more developed factual record is necessary to answer these questions.
The defendants’ motion to dismiss for failure to state a constitutional claim is denied. C. Younger Abstention The defendants argue that all three conditions for Younger abstention are met because the plaintiffs “were in ongoing criminal proceedings at the time they filed their Original Complaint,” the bail procedure to ensure appearance at trial is an important state interest, and the plaintiffs have an adequate opportunity to challenge their bail in the very proceedings at issue or through filing
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habeas corpus petitions. (Docket Entry No. 80 at 26–30). Younger abstention typically applies, as Younger itself did, when an ongoing state criminal
prosecution is challenged. Can Younger apply to a case involving pretrial detention proceedings that are not themselves criminal prosecutions, when the underlying prosecutions are concluded? The Supreme Court has cautioned “that federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should not ‘refus[e] to decide a case in deference to the States.” Sprint, 134 S.Ct. at 588 (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989) (NOPSI)). “Circumstances fitting within the Younger doctrine . . . are ‘exceptional’; they include, as catalogued in NOPSI, ‘state criminal prosecutions,’ ‘civil enforcement proceedings,’ and ‘civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.’” Id. (quoting NOPSI, 491 U.S. at 367–68).
In Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973), arrestees filed a class action challenging detention without a probable-cause hearing. Id. at 780–81. In deciding that Younger abstention did not apply, the Fifth Circuit reasoned that the suit “sought no relief which would impede pending or future prosecutions on various charges in the state courts” because the class action was not “against any pending or future court proceedings as such.” Id. at 781–82 (quoting Fuentes v. Shevin, 407 U.S. 67, 71 n.3 (1971)). The challenge to pretrial detention did not affect the merits of any subsequent criminal prosecution, and the allegedly unconstitutional pretrial detention could not be raised as a defense in the criminal proceeding. As the Fifth Circuit noted, “If these plaintiffs were barred by Younger from this forum, what relief might they obtain in their state court trials? Since their pre-trial incarceration would have ended as of the time of trial, no remedy would exist. Their claims to pre-trial preliminary hearings would be mooted by conviction or exoneration.” Id. at 782.
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On appeal, the Supreme Court agreed that Younger was inapplicable because “[t]he [federal] injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing.” Gerstein, 420 U.S. at 108 n.9.
The plaintiffs challenge the legality of detaining misdemeanor arrestees who are otherwise eligible for release pending trial or guilty plea without timely judicial consideration of the inability to pay a bail bond. Resolving this issue does not affect the merits of subsequent criminal prosecutions. The inability to pay bail cannot be raised as a defense in a subsequent criminal prosecution. The complaint alleges that many misdemeanor defendants plead guilty to end their pretrial detention. (Docket Entry No. 54 ¶ 100). The Fifth Circuit’s reasoning applies squarely to a case such as plaintiff Robert Ryan Ford’s, in which a misdemeanor defendant moots his own constitutional claims over the delay in obtaining release by pleading guilty to end that delay. (See Docket Entry No. 80 at 23).
Even if Younger applied to a case challenging pretrial detention, this case would fail Younger’s conditions for abstention. On the first prong, the defendants insist that although the underlying misdemeanor prosecutions against the named plaintiffs are over, the court should still abstain because those prosecutions were ongoing when this litigation began. (Id. at 26). In Ankenbrandt v. Richards, 504 U.S. 689 (1992), the Supreme Court held that Younger abstention did not apply when state proceedings are over before a federal action is filed. Id. at 705. Most courts do not abstain under Younger if there are no ongoing state proceedings when the motion to abstain is filed, even if state proceedings were pending when the case was first filed in federal court. See, e.g., Rocky Mountain Gun Owners v. Williams, — F.App’x —, 2016 WL 6574000, at *3 (10th Cir. Nov. 7, 2016) (“The district court made a clearly erroneous factual finding that the parallel state court proceedings were still ongoing at the time it granted the Secretary’s motion to dismiss on
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Younger abstention grounds.” (emphasis added)); Winter v. Wolnitzek, 834 F.3d 681, 688 (6th Cir. 2016) (“In the absence of an ongoing enforcement action, Younger has no role to play, leaving us with authority, indeed an obligation, to resolve the case.”); Banks v. Slay, 789 F.3d 919, 923 (8th Cir. 2015) (abstention was inappropriate because the state appellate case ended and plaintiffs did not petition the state supreme court); Mounkes v. Conklin, 922 F.Supp. 1501, 1511 n.5 (D. Kan. 1996) (if the state pretrial detention proceedings had already terminated when the court ruled, “Younger abstention would not apply”). In this case, there is no dispute that the named plaintiffs’ underlying state-court cases are over. At this stage, there are no ongoing state proceedings to which this court can or should defer.
Courts are divided on whether the availability of a habeas corpus petition can make and keep a terminated proceeding “ongoing” for Younger purposes. In a challenge to Indiana’s bail system, the court in Mudd v. Busse, 437 F.Supp. 505 (N.D. Ind. 1977), found that a state statute providing for motions to reduce bail (with the right of appeal of the decision) as well as habeas corpus proceedings provided adequate state remedies in ongoing proceedings. Id. at 513–16. But most courts do not consider the availability of a separately filed state action when analyzing Younger’s first factor. See, e.g., Fernandez v. Trias Monge, 586 F.2d 848, 852–53 (1st Cir. 1978); A.T. v. Cook Cty., 613 F.Supp. 775, 778–80 & n.7 (N.D. Ill. 1985); Coleman v. Stanziani, 570 F.Supp. 679, 687 (E.D. Pa. 1983). Indeed, if Younger applied to any state claim that could be filed, the rule that § 1983 has no exhaustion requirement would be effectively overturned. See Monroe v. Pape, 365 U.S. 167, 183 (1961).
The defendants argue that if a class is certified, some absent class members may have ongoing criminal cases when the court is asked to issue an injunction. (Docket Entry No. 80 at 26). The court has not ruled on the class certification motion. It is premature to rule on the assumption
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that a class action will be certified and meet Younger’s first factor. See Hicks v. Miranda, 422 U.S. 332, 349 (1975) (Younger abstention may apply if state proceedings are initiated after suit is filed in federal court). Other courts have ruled that class certification satisfies the first factor of Younger. See Mudd, 437 F.Supp. at 510 (“The definition of the plaintiff class virtually guarantees that some proceeding involving at least one member of the class is now pending or will be pending in [state court] at the time an order is entered in this case.”), aff’d, 482 F.2d 1283 (7th Cir. 1978) (“proceedings are now in process for other members of the plaintiff class”). The second and third factors, however, must also be satisfied.
On the second factor, a state has a clear interest in ensuring that persons subject to criminal prosecution appear at hearings. See Bell, 441 U.S. at 534 (“[T]he Government has a substantial interest in ensuring that persons accused of crimes are available for trials.”); Pugh, 572 F.2d at 1056 (a state “has a compelling interest in assuring the presence at trial of persons charged with crime”). The plaintiffs argue that the State’s interest in ensuring that misdemeanor arrestees appear at court is not implicated because the relief sought will not significantly diminish the ability to enforce an appearance. (Docket Entry No. 92 at 13). The issue, however, is not how much the State’s interests will be affected, but whether those interests are important. See Middlesex, 457 U.S. at 432 (“Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state’s substantial interest in the litigation.” (citing Trainor v. Hernandez, 431 U.S. 434 (1977); Juidice v. Vail, 430 U.S. 327 (1977)). In this case, they are.
The third factor, the adequacy of a timely hearing, is precisely what the plaintiffs are challenging in this case. But Younger abstention “naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved.” Gibson v. Berryhill, 411 U.S. 564, 577 (1973). To find that the plaintiffs have an adequate hearing on their constitutional
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claim in state court would decide the merits. This factor is not properly included in the abstention analysis here. See Rodriguez v. Providence Cmty. Corr., Inc., 155 F.Supp.3d 758, 765–66 (M.D. Tenn. 2015) (Younger abstention is inappropriate if the state proceeding would come so late that the probationers would first have to suffer the deprivation they allege). The third factor is not met.
The defendants suggest that Younger’s “core policy” is implicated because “the local criminal procedure in Harris County is evolving,” and administrative reform may give the plaintiffs an adequate remedy. (Docket Entry No. 80 at 30). The defendants note that the Local Rules of Court were amended on August 12, 2016 to state that personal unsecured bonds should be “favored” over secured money bail for twelve common nonviolent misdemeanors. (Id. at 30–31). Harris County has hired two more Hearing Officers and updated the pretrial-services informational form to collect more detailed financial information about misdemeanor arrestees earlier in the postarrest process. (Id. at 31). Because Younger was centrally concerned with “respect for state functions,” they argue, the court should defer to these ongoing reform efforts that “would likely moot Plaintiffs’ . . . constitutional claims.” (Id. at 30–31 (quoting Younger, 401 U.S. at 44)).
The defendants’ reliance on Younger to defer to local administrative-reform efforts is misplaced. If the potential for political reform of a challenged practice is enough for abstention, federal courts would decline to decide most cases raising those challenges, no matter how significant. See Sprint, 134 S.Ct. at 593 (“Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings.”). Careful case management to allow time for reform, not abstention, is the better response to the defendants’ argument. The defendants’ hope for resolution on such a basis is not appropriately
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considered a factor supporting dismissal based on Younger.20 The defendants’ motion to dismiss under Younger abstention is denied.
IV. Section 1983’s Application to Particular Defendants A. Does each defendant make policy for Harris County, represent the State of Texas, or act in a personal capacity? “State law determines whether a particular individual is a county or municipality final
decision maker with respect to a certain sphere of activity.” Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996). “Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)) (internal quotation marks omitted). “[S]tate and local positive law, as well as ‘custom or usage’ having the force of law” determine whether a person is final policymaker. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quoting Praprotnik, 485 U.S. at 124 n.1). “[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing the final policy with respect to the subject matter in question.” Pembaur, 475 U.S. at 483.
In McMillian v. Monroe County, 520 U.S. 781 (1997), the Supreme Court found that an Alabama sheriff alleged to have suppressed exculpatory evidence was not a final county
20 The Second Circuit has extended Younger’s comity principles to administrative and legislative regulation of criminal procedure, including bail procedures. See Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006) (citing Wallace v. Kern, 481 F.2d 621 (2d Cir. 1973); Wallace v. Kern, 499 F.2d 1345 (2d Cir. 1975); Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975)). Some courts outside the Second Circuit have found this reasoning persuasive. See Mudd, 437 F.Supp. at 512–13; Mounkes, 922 F.Supp. at 1512–13. The Fifth Circuit has not extended Younger this far, and the defendants’ reliance on Second Circuit case law does not save their argument.
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policymaker under § 1983, but rather “represents the State of Alabama.” Id. at 783. The Court cautioned that “the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, ‘all or nothing’ manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue.” Id. at 785; see also Pembaur, 475 U.S. at 483 (“[M]unicipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances.”).
The Court considered numerous factors to determine whether a sheriff allegedly acting to approve a policy of suppressing exculpatory evidence did so as a state or as a county policymaker. Support for treating the sheriff as a state policymaker included general factors such as the sheriff’s inclusion in the state constitution’s executive article, the sheriff’s subjection to the same impeachment procedures as state officers, the state-court rulings holding sheriffs liable as state actors for ordinary torts, the governor and state attorney general’s power to direct the sheriff’s enforcement procedures, and the fact that state statutes directed the sheriff to enforce state law in local counties but withheld authority to enforce criminal law from the counties themselves. Factors supporting the sheriff’s role as a final policymaker for the county included the county’s payment of his salary and supply of his equipment, the fact that his jurisdiction was coterminous with county borders, and the fact that the sheriff was elected solely by county voters. The Court majority decided that the balance tipped in favor of finding the sheriff a state actor for the alleged policy of suppressing exculpatory evidence, noting that “[t]he county’s payment of the sheriff’s salary does not translate into control over him, since the county neither has the authority to change his salary nor the discretion to refuse payment completely.” Id. at 791. The four dissenters largely agreed on
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the relevant factors but disagreed about their relative weight. The dissenters would have treated the final three factors—the county’s salary payments and the limit of the sheriff’s jurisdiction and constituency to the county—decisive and find that the sheriff was a county policymaker under § 1983. Id. at 804 (Ginsburg, J., dissenting). The question is fact-intensive and requires careful judgment under applicable law.
Written federal, state, and local law requires Harris County judicial officers to consider a misdemeanor arrestee’s inability to pay bail early in the postarrest process, when the defendant first encounters a judicial officer. In Harris County, that is at the probable-cause hearing before a Hearing Officer. The written law permits judicial officers to take proof, make findings of inability to pay, and impose nonfinancial release conditions. TEX. CODE CRIM. PRO. art. 17.15; Agreed Final Judgment, Roberson, Civil No. 84-2974; RULES OF COURT 4.2.3.1.3. The plaintiffs allege that, notwithstanding the facial requirement of the written law, Harris County follows customs or practices of invariably imposing secured money bail according to the prescheduled bail amounts, without considering inability to pay bail or eligibility for release on other conditions for unconstitutionally long periods after arrest. (Docket Entry No. 54 ¶¶ 63–73). The complaint alleges that at the brief probable-cause hearings, Harris County Hearing Officers “[a]s a matter of policy and practice . . . make no attempt to determine an arrestee’s financial situation, and they make no inquiry into or findings concerning an arrestee’s ability to pay the money bail amount that they impose.” (Id. ¶ 68). The plaintiffs allege that the Hearing Officers follow this custom and practice according to “the systemic general policy instructions from Harris County Criminal Courts at Law Judges about how to administer the predetermined [bail] schedule.” (Id. ¶ 56). They further allege that the Harris County Sheriff’s Department, “by policy and practice, detains arrestees too poor to afford the money bail amount imposed without inquiry into and findings concerning ability to pay,”
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but that the Sheriff “releases arrestees who pay their money bail,” generally before or at the booking stage. (Id. ¶ 11, 42).
Harris County responds that it cannot be liable under § 1983 because under the McMillian factors, the County Judges administering bail procedures are policymakers (if at all) for the State of Texas, not Harris County. (Docket Entry 83 at 12–19). The County argues that it cannot be liable for the Hearing Officers’ practices because these are subject to the County Judges’ review, so the Hearing Officers cannot be “final” policymakers for the County. (Id. at 24–25). The County argues that because the Sheriff does not make bail policy for Harris County, his jail-administration practices cannot be the “moving force” behind the constitutional violations the plaintiffs allege. (Id. at 9–11 (citing Piotrowski, 237 F.3d at 580)).
The § 1983 policymaking liability of each party is considered in turn. 1. The Harris County Criminal Courts at Law Judges
The complaint alleges what can be organized into three County Judge activities regulating Harris County bail procedures. First, the County Judges, sitting as a board and voting by a twothirds majority, promulgate written Rules of Court. Some of these written Rules repeat the Texas Code of Criminal Procedure. Some of these Rules the County Judges enact using their discretion to make policy choices about how to implement the bail schedule. These Rules allow pretrial detention without requiring timely opportunities for arrestees to raise, and judicial officers to consider, a misdemeanor defendant’s inability to pay and eligibility for nonfinancial conditions of release. Second, the County Judges oversee customs and practices, either through unwritten instructions to the Hearing Officers or knowing acquiescence in, and ratification of, their customs and practices that amend or contravene the rules as written in the Texas Code of Criminal Procedure or the Harris County Rules of Court. Finally, the County Judges affirm the Hearing Officers’ bail
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decisions in individual adjudications. To preview the court’s findings: to the extent the County Judges promulgate written and
unwritten rules that are not mandated by State Code or statutes, the County Judges act as final County policymakers in a legislative or administrative capacity; to the extent the County Judges affirm the Hearing Officers in individual adjudications, they act in their judicial capacity and in that role cannot provide a basis to hold the County liable; and to the extent the County Judges act to enforce or contravene article 17.15 of the Texas Code of Criminal Procedure, they act on behalf of the State of Texas in an administrative enforcement role.
These findings are set out below. a. The County Judges make policy for Harris County by enacting written bail procedures.
The Texas Constitution provides for county courts in its judiciary article. The Constitution vests the State’s judicial power “in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justice of the Peace, and in such other courts as may be provided by law.” TEX. CONST. ART. V, § 1; see also id. § 15 (“There shall be established in each county in this State a County Court.”). County judges, like “other county officers,” may be removed by the county’s district court judges. Id. § 24. The Texas Legislature may also establish “statutory county courts” in addition to “constitutional county courts” to handle the heavy or specialized work loads in more populous counties. Harris County has more people than any other county in the State. The Harris County Criminal Courts at Law are statutory county courts created to take on the work the County’s size generates. TEX. GOV’T CODE § 25.1033.
A statutory county court has the same jurisdiction and is regulated by the same rules as a
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constitutional county court. Id. § 25.0003. The County Commissioners Court, an administrative body made up of Harris County-elected commissioners and a presiding County Judge, sets the County Judges’ salaries, fills any County Court vacancy, and provides the County Court’s facilities, equipment, and personnel such as clerks, sheriffs, and lawyers.21 Id. § 25.0005–10; TEX. CONS. ART. V, § 18(b). Harris County Judges are elected by Harris County voters. TEX. CONS. ART. V, § 15. The Harris County Criminal Courts at Law have exclusive original jurisdiction over Class A and Class B misdemeanors (which can result in fines greater than $500 or prison sentences) in Harris County. See TEX. GOV’T CODE § 26.045.
“The county judge of a Texas county may possess [§ 1983 municipal] policymaking authority in some matters . . . such as presiding over the county’s legislative body, preparing the county budget, and conducting elections, with ‘virtually absolute sway over the particular tasks or areas of responsibility entrusted to him by state statute’ and accountability to ‘no one other than the voters for his conduct therein.’” Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir. 1988) (quoting Familias Unidas, 619 F.2d at 404. In Familis Unidas v. Briscoe, the Fifth Circuit examined a county judge’s implementation of a state statute that required an organization to disclose its members. The court held that this decision represented the state’s, not the county’s, policy. 619 F.2d at 404. But the court noted that the “unique structure of county government in Texas” gives county judges “numerous executive, legislative and administrative chores in the day-to-day governance of the county.” Id. The Texas configuration of the county courts means that, “at least in those areas in which [a judge], alone, is the final authority or ultimate repository of county power,” a county judge may be “a policymaker whose official conduct and decisions could be
21 The presiding judge is the county judge of the constitutional county court, not the statutory county courts at law. TEX. CONS. ART. V, §§ 15–18.
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attributed to the county under section 1983.” Bigford, 834 F.2d at 1222. In other words, the entity
for which the County Judges act as policymakers—Harris County or Texas—turns on what policy
is at issue and on how state or county law describes which entity or office has power or control over
that issue.
The County Judges argue that they are not policymakers at all, because “the bail procedure
promulgated by the County Criminal Courts at Law Judges merely restates a federal court order [in
Roberson] and Texas state law.” (Docket Entry No. 80 at 40). The County Judges correctly note
that the County Rules of Court substantially repeat the factors that judicial officers must consider
in setting bail under the federal court’s Roberson order and under article 17.15 of the Texas Code
of Criminal Procedure. RULES OF COURT 4.2.3.1. But the County Judges are not limited to these
factors. The Texas Government Code gives the County Judges broad authority to “adopt rules
consistent with the Code of Criminal Procedure . . . for practice and procedure in the courts.” TEX. GOV’T CODE § 75.403(f).22 State law does not require the policy choices the plaintiffs allege and
challenge here. State law does not require the County Judges to use only secured money bail based
solely on the scheduled bail amounts, rather than unsecured or personal bonds. See RULES OF
COURT 9.1. State law does not require district attorneys to apply the bail schedule without
considering ability to pay. See id., Rule 2.3. State law does not prevent misdemeanor arrestees from
raising the issue of their inability to pay and eligibility for release on nonfinancial conditions until
22 Harris County’s submission of supplemental authority, (Docket Entry No. 114), misses this point. The County suggests that recent resolutions from the Texas Judicial Council on bail policy and practices in the State shows that regulating bail is exclusively a matter of state legislation and policy. But the fact that the Judicial Council recommends state legislation or a constitutional amendment shows only that the Judicial Council would prefer bail regulation to become regulated exclusively by the State. “Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority.” City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). Under the current Texas Government Code, authority to act has been delegated to county judges, who make local policymaking decisions regulating bail procedures.
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they have counsel and are before a County Judge rather than a Hearing Officer. See id., Rule 24.3.
The plaintiffs also challenge unwritten customs or practices alleged to have the force of
policy, such as the Hearing Officers’ unwavering use of secured money bail rather than any
consideration of unsecured or personal bonds for those unable to pay until after the probable-cause
hearing when counsel can move to raise inability to pay. (Docket Entry No. 54 ¶¶ 19, 78–86). For
these procedures at least, the County Judges allegedly make “a deliberate choice to follow a course
of action” from among possible alternatives. See Pembaur, 475 U.S. at 483. In promulgating these
County Rules of Court, and in implementing these unwritten customs and practices, the County
Judges are not solely or simply implementing Texas state law. Rather, the allegation is that they are
unconstitutionally deviating from the State Code in Harris County, both in written rules and in
unwritten customs or practices.23
Harris County argues that the Harris County Judges are state actors enforcing state policy
because: (1) the State Constitution vests “[t]he judicial power of this State” in county courts; (2) the
State vests policymaking authority only in the County Commissioners Court, not the County Courts;
23 For the same reason, the County Judges’ argument that “[s]ince Plaintiffs are challenging directly Texas Code of Criminal Procedure Article 17.15, the Texas Attorney General is clearly a necessary and proper party” fails. (Docket Entry No. 80 at 1 n.1). The complaint does not challenge the Roberson or Code of Criminal Procedure factors as written, or as adopted by the County Rules of Court. The complaint challenges: (1) the other written procedures the County Judges have promulgated in their discretion within the Roberson/Code factors, and (2) the alleged practices of county officers that systematically contravene the rules as written. Challenged court rules are not “state statutes” for purposes of Federal Rule of Civil Procedure 5.1. See, e.g., McKay v. Federspiel, Civil No. 14-10252, 2014 WL 1400091, at *9 (E.D. Mich. Apr. 10, 2014).
Moreover, even if the plaintiffs were making a facial challenge to the Texas Code of Criminal Procedure, the County Judges have misstated the rule. Rule 5.1 requires notice to, not joinder of, a state attorney general when a state statute is facially challenged. The case the County Judges rely on, NiGen Biotech, LLC v. Paxton, 804 F.3d 389, 394 (5th Cir. 2015), recognized that the joinder of the Texas attorney general in his official capacity was proper under the Eleventh Amendment, not necessary to all challenges of a state statute.
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(3) adjudicating state crimes is not County business; and (4) cases decided in other circuits have found county-level judges to be members of the state judiciary. (Docket Entry No. 83 at 12–18). The County cites Woods v. City of Michigan City, Ind., 940 F.2d 275 (7th Cir. 1991), in which the Seventh Circuit held that Indiana county judges set bond policy on behalf of the state, not on behalf of local counties or cities.24 The County defendants also note that the Fifth Circuit has treated Texas district judges as state actors under § 1983. See Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir. 1989) (Texas district judges were not acting as county policymakers when they failed to appoint counsel in a civil contempt proceeding); Clanton v. Harris County, 893 F.2d 757, 758 (5th Cir. 1990) (per curiam) (same).
The plaintiffs rely on the Fifth Circuit’s sovereign-immunity analysis under the Eleventh Amendment. To determine if an official is a state or local actor for sovereign immunity purposes, the Fifth Circuit uses a six-factor test: (1) “whether the state statutes and case law view the agency as an arm of the state”; (2) whether the entity is funded by the county or the state; (3) “the entity’s degree of local autonomy”; (4) “whether the entity is concerned primarily with local, as opposed to statewide, problems”; (5) “whether the entity has the authority to sue and be sued in its own name”; (6) “whether it has the right to hold and use property.” Clark, 798 F.2d at 744–45. “[I]t is well established that the second [factor] is the most important.” Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999); see also Crane v. Texas, 766 F.2d 193 (5th Cir. 1985) (district attorneys are county actors without Eleventh Amendment immunity, based in part on county-level funding.).
Eleventh Amendment jurisprudence on the issue of state versus county policymaking is
24 See also Ward v. City of Norwalk, 640 F.App’x 462, 464 (6th Cir. 2016) (“The Akron Municipal Court is part of the Ohio state court system, established by the Ohio legislature. It is subject to the supervision of the Ohio Supreme Court. The municipal court may not be abolished by the city council, nor may the council expand or restrict the court’s jurisdiction.” (quoting Foster v. Walsh, 864 F.2d 416, 418–19 (6th Cir. 1988)).
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instructive but not controlling in the § 1983 context. The source of funds for an entity is the most important Eleventh Amendment factor, “since an important goal of the Eleventh Amendment is the protection of state treasuries.” Clark, 798 F.2d at 744. But the Supreme Court in McMillian held that county-level funding did not tip the balance to make a county sheriff a county actor under § 1983. 520 U.S. at 791. The Fifth Circuit has nonetheless relied on Clark’s Eleventh Amendment analysis in examining policymaking authority under § 1983 to find that Texas district judges implement Texas State policy, not county policy, in appointing counsel for criminal defendants. Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir. 1989). And although McMillian dealt with policies on handling evidence, the Court emphasized generally applicable factors such as the sources of authority to act and funds to operate to analyze a sheriff’s liability. 520 U.S. at 791.
The balance of McMillian factors—informed by the Fifth Circuit’s consideration of Eleventh Amendment factors in the McMillian analysis—favors treating the County Judges as Harris County policymakers when they promulgate written and unwritten bail procedures for all of the Harris County criminal courts for misdemeanor arrestees. The Texas Constitution lists county judges with “other county officers” as subject to removal for cause by district judges. TEX. CONS. ART. V § 24. Three of the statutory County Judges in this case sit on a board responsible for appointing, supervising, and terminating Harris County Hearing Officers. TEX. GOV’T CODE § 54.852. One of the Harris County Criminal Courts at Law Judges acts as the presiding judge, tasked with serving “as chief administrator of the offices of county court manager and county court coordinators, and of pretrial release services and all other court-related ministerial services in misdemeanor cases as required by the judges having jurisdiction over those cases.” Id. § 75.403(d)(3). Harris County provides the equipment and funds for the Criminal Courts at Law County Judges to operate, and to pay their salaries. Id. § 25.0005, 25.0010. The County Judges’ jurisdiction is geographically
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coterminous with Harris County’s borders. Only Harris County voters elect the Harris County
Judges. Id. § 25.1033. The County Commissioners Court fills County Court vacancies. Id. §
25.0009. Case law emphasizes the “unique structure of county government in Texas” that grants
county judges “numerous executive, legislative and administrative chores in the day-to-day
governance of the county.”25 Briscoe, 619 F.2d at 404. Promulgating written rules, procedures, or
policies, as well as overseeing unwritten customs or practices regulating bail, in all misdemeanor
cases in every Harris County court, is among the County Judges’ legislative and administrative
powers and duties in Harris County governance. As to both the written policies and procedures and
the informal customs and practices challenged in this case, the County Judges have “virtually
absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute
and accountability to no one other than the voters for [their] conduct therein.” Bigford, 834 F.2d at
1222 (internal quotation marks omitted).
Harris County argues that even if the County Judges represent Harris County rather than the
State of Texas, the County cannot be held liable for policies the County Judges make in their judicial
capacity. The County points to three cases in which the Fifth Circuit declined to hold municipalities
liable for judicial actors’ alleged policies because “under Texas law, ‘[a] local judge acting in his
or her judicial capacity is not considered a local government official whose actions are attributable
25 The last three factors distinguish Texas county government from the Indiana county courts and case law examined in Woods, 940 F.2d at 279. See, e.g., Parsons v. Bourff, 739 F.Supp. 1266, 1267 (S.D. Ind. 1989) (vacancy appointment by governor was an important factor for finding that the court clerk acts on the behalf of the state); Pruitt v. Kimbrough, 536 F.Supp. 764, 766 (N.D. Ind. 1982) (“County government has no judicial branch under Indiana law . . . . Accordingly, Article 2 of Title 36 of the Indiana Code relating to county government, makes no reference to any county judicial office,” and Lake County judges “are appointed initially through a non-partisan selection process by the governor.”).
These factors also distinguish Texas county judges from the Texas district judges, who have been found to be state actors under § 1983. See Hamill, 870 F.2d at 1037. District judges do not preside over the County Commissioners Courts. Judicial districts may encompass more than one county, and district court vacancies are filled not by a county commissioners court but by the governor. TEX. CONST. ART. V, § 28; TEX. GOV’T CODE § 24.025.
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to the county.” Davis v. Tarrant County, 565 F.3d 214, 227 (5th Cir. 2009) (quoting Kruegar v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995)). The issue in Davis was the Texas district judges’ denial of an attorney’s application to be included on a list of those eligible for certain court appointments. The Fifth Circuit found that “the act of selecting applicants for inclusion on a rotation list of attorneys eligible for court appointments is inextricably linked to and cannot be separated from the act of appointing counsel in a particular case, which is clearly a judicial act . . . .” Id. at 226. The County argues that this reasoning can be extrapolated to hold that the policy regulating the imposition of bail in every misdemeanor case is inextricable from the judicial act of setting bail in a particular case. (Docket Entry No. 83 at 19–21).
To support this argument, the County also cites Johnson v. Moore, 958 F.2d at 92. In that case, the plaintiff sued a municipal court judge and the municipality under § 1983, alleging that his constitutional rights were violated when the judge sentenced him to jail without appointing him counsel or obtaining a waiver of his right to counsel. Id. at 93. Affirming dismissal of the plaintiff’s § 1983 claims, the panel explained that “[w]e have repeatedly held . . . that a municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker.” Id. at 94 (citing Bigford , 834 F.2d at 1221–22; Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir. 1985); Briscoe, 619 F.2d at 404). The Circuit recognized that its previous decision in Briscoe distinguished “administrative duties,” which might be actionable as municipal policy under Monell, from a judge’s “judicial function, in which he or she effectuates state policy by applying state law.” Id. The Johnson plaintiff did not argue that the municipal judge had jailed him pursuant to “administrative or other non-judicial duties,” but only that “the municipal judge [was] a final policymaker whose official actions constitute municipal policy.” Id. The panel rejected the argument, explaining that it “ignores the distinction we have consistently drawn between a judge’s
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judicial and administrative duties. Only with respect to actions taken pursuant to his or her administrative role can a judge be said to institute municipal policy under . . . Monell.” Id.
Finally, Harris County cites Harris v. City of Austin, Civil No. 15-956, 2016 WL 1070863 (W.D. Tex., Mar. 16, 2016), a putative class action against the Austin Municipal Court’s alleged practice of failing to hold indigency hearings and provide counsel before jailing indigent defendants who could not pay traffic fines or were unwilling or unable to perform community service. The court noted that “the proposition that a municipality may be held liable based on the actions of a municipal judge where those actions are not an exercise of the judge’s ‘authority under state law,’ but rather, are an exercise of some other type of non-judicial power conferred by the municipality, is unobjectionable.” Id. at *6. The court found that the challenged Austin Municipal Court Rules were not municipal policy, but rather “the promulgation of rules for the orderly trial of cases,” and that these rules were “more judicial than non-judicial in nature.” Id. at *7.
Davis, Johnson, and Harris describe different circumstances from those alleged in the complaint here. The Harris court noted that the challenged rules in that case were “issued by judicial order signed by the Presiding Judge” and “contemplate the exercise of judicial discretion, as they do not mandate that municipal judges take any particular action with respect to any defendant.” 2016 WL 1070863 at *7. The Harris County Criminal Courts at Law Rules of Court are not promulgated by a single judge’s signed order. The Rules of Court are promulgated by the County Judges sitting en banc as a board, voting by two-thirds majority. See TEX. GOV’T CODE § 75.403(f). The Rules of Court apply not to a single court but to all the courts across one of the largest and most populous counties in the United States. The Rules of Court do not merely regulate “the orderly trial of cases,” as the Harris court found was true of Austin’s municipal court rules. 2016 WL 1070863 at *7. The Rules of Court mandate the use of secured financial bail; prescribe
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presumptions in certain misdemeanor cases; provide for the appointment of counsel; promulgate a code of judicial conduct; and instruct sheriffs, district attorneys, and other county officers in how to administer their tasks of imposing and collecting secured financial bail.
The Rules of Court, both as written and as amended by customs or practices, do not merely “contemplate the exercise of judicial discretion,” as in Davis, Johnson, and Harris. Harris, 2016 WL 1070863, at *7; cf. Davis, 565 F.3d at 227; Johnson, 958 F.2d at 94. The plaintiffs allege that the written bail schedule and rules have been amended by the customs or practices that require acrossthe-board rigid application in all courts of secured financial bail without considering eligibility for release on nonfinancial conditions or the inability to pay bail until after counsel is appointed and makes a motion raising these issues. The plaintiffs allege that the County Judges “provide[] blanket generic instructions” knowingly ratifying these customs and practices. (Docket Entry No. 54 ¶ 19). The alleged customs or practices do not give a judge discretion in any case to pick among alternative approaches. The alleged customs or practices impose rules for every case in every court. Even after the written Rules of Court were formally amended to “favor” release on personal recognizance for those arrested for twelve categories of misdemeanors, (Docket Entry No. 80 at 19), the County Judges allegedly continue to follow the customs or practices of requiring district attorneys and Hearing Officers to apply the bail schedule to require financial conditions of release for all misdemeanor defendants, and to impose the prescheduled bail amounts, detaining all those who cannot pay and delaying any opportunity to raise the inability to pay until long after wealthier defendants have posted bond and been released, (Docket Entry No. 54 ¶¶ 71–73, 84–85).
To the extent the plaintiffs rely on the County Judges’ decisions to affirm the Hearing Officers’ adjudications of individual cases, these actions are taken in the County Judges’ judicial capacities and cannot support § 1983 liability against Harris County under the law of the Fifth
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Circuit. See Davis, 565 F.3d at 227; see also DeLeon v. City of Haltom City, 106 F.App’x 909 (5th Cir. 2004) (per curiam) (municipal judge’s decision not to provide an indigency hearing in an individual case did not establish municipal policy under § 1983); Whisenant v. City of Haltom City, 106 F.App’x 915 (5th Cir. 2004) (per curiam) (same). But in: (1) promulgating the written Rules of Court; (2) overseeing and enforcing the alleged unwritten policies; and (3) acquiescing in the Hearing Officers’ unwritten customs or practices by refusing to correct them in the written policies, the County Judges act in a legislative or administrative capacity to set policy for Harris County. The Harris County Rules of Court, and the alleged unwritten amendments to those Rules, are more similar to rules passed by legislative or administrative enactment than they are to court- or judgespecific rules or order involving the exercise of discretion to choose among permissible alternatives, including in the orderly process of trial. See Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719, 731 (1980) (“Although it is clear that under Virginia law the issuance of the Bar Code was a proper function of the Virginia [Supreme] Court, propounding the Code was not an act of adjudication but one of rulemaking . . . in a legislative capacity.”) (discussed further in Part IV.B.1. below); Degen v. Gen. Coatings, Inc., 705 S.W.2d 734, 735 (Tex. App.—Houston [14th Dist.] 1986) (“The promulgation of rules and amendments thereto is a legislative act of the court, and the rules have the force of statutes.”); see also Esteves v. Brock, 106 F.3d 647, 678 (5th Cir. 1997) (“For those duties that are administrative or managerial in nature, the county may be held liable for the actions of a district attorney who functions as a final policymaker for the county.”).
The current pleadings and record provide a plausible basis to find that the County Judges act for Harris County in their allegedly unconstitutional policies, customs, or practices regulating bail for misdemeanor arrestees in Harris County. The County’s motion to dismiss on the this basis
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is denied. b. The County Judges represent the State of Texas in their direct enforcement of article 17.15 of the Texas Code of Criminal Procedure.
The Supreme Court has cautioned that the county-or-state-actor inquiry cannot be conducted in “some categorical, ‘all or nothing’ manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue.” McMillian, 520 U.S. at 785. And as the Court recognized in Pembaur, states and “municipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances.” 475 U.S. at 483.
In the “particular matters” of setting county-wide bail procedures in misdemeanor cases, the County Judges act on behalf of Harris County. But the defendants are correct that the County Rules of Court incorporate a portion of the Texas Code of Criminal Procedure verbatim. In their arguments for Younger abstention, the County Judges emphasize their role in implementing and enforcing the Texas Code of Criminal Procedure. (See Docket Entry No. 80 at 40–42). The County Judges rely on a letter dated August 8, 2016 they sent to all Harris County Hearing Officers. All sixteen County Judges signed the letter. It instructed the Hearing Officers to follow article 17.15 of the Texas Code of Criminal Procedure and the federal court’s Roberson order, which it attached.26 (Docket Entry No. 80 at 17 and Ex. 4). They also sent a letter dated November 18, 2016 to all
26 The court takes notice of this and the following letter as a public record or alternatively under the instruction that “[i]n so attaching [documents to a motion to dismiss], the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated.” Collins, 224 F.3d at 499.
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counsel who practice in the Harris County Criminal Courts at Law. Again, all sixteen County Judges signed. This letter encouraged attorneys to review bail settings at their clients’ initial court appearances. (Docket Entry No. 106 at 19 and Ex. 6). As noted, however, the initial counseled court appearances are usually after the probable-cause hearing and varying periods after wealthier defendants who can pay the scheduled bail amounts do so and are released.
The County Judges are not responsible for promulgating the State Code of Criminal Procedure. In carrying out their duties under the Code, the County Judges are effectively supervised by the State’s district court judges, who can remove county judges from office. TEX. CONS. ART. V § 24. To the extent the County Judges have discretion to, and do, promulgate the County Rules of Court and oversee unwritten customs and practices for implementing bail procedures in Harris County, they are acting on the County’s behalf. To the extent the County Judges are directly enforcing—or allegedly contravening—article 17.15 of the Texas Code of Criminal Procedure or the Roberson order in instructing the Hearing Officers regarding the factors to consider in setting bail, the County Judges act on behalf of the State of Texas, enforcing Texas law.
c. The County Judges are not proper parties in their personal capacities.
The complaint seeks injunctive and declaratory relief against the County Judges in both their official and personal capacities. (Docket Entry No. 54 ¶ 20). The plaintiffs concede that a claim against a municipal policymaker acting in an official capacity is redundant to a claim against the municipality when it is a party. (Docket Entry No. 92 at 35); see also Graham, 473 U.S. at 165–66. By contrast, a claim against State officers acting in their official capacity is not duplicative of a claim against the State because the State has Eleventh Amendment immunity from suit. State actors sued in their official capacity under § 1983 may be proper parties when the claim seeks prospective relief only. Young, 209 U.S. at 123. State officers acting in their official capacity are not liable for
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damages under § 1983 but may be sued for damages in their personal capacities. Will v. Michigan Dep’t. of State Police, 491 U.S. 58 (1989).
The plaintiffs here do not seek damages. At oral argument, the plaintiffs conceded that the claims against the County Judges in their personal capacities should be dismissed. (Docket Entry No. 122 at 77, 114–16). The court agrees. “[T]he phrase ‘acting in their official capacities’ is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.” Hafer v. Melo, 502 U.S. 21, 26 (1991). The plaintiffs seek prospective relief against the office of the Harris County Criminal Courts at Law Judges. They do not seek damages from the individuals holding that office.27 The claims for relief against the sixteen County Judges in their personal capacities are dismissed.
In summary, County Judges in Texas play a variety of roles, in a variety of circumstances. At times they make executive appointments, at times they administer county business, at times they legislate county policy, and at times they adjudicate individual cases. In this case, under the facts that the plaintiffs plausibly alleged, the Harris County Criminal Courts at Law Judges represent the State of Texas in enforcing article 17.15 of the Texas Code of Criminal Procedure, and they represent Harris County in making rules for, and in enforcing customs or practices on, bail procedures in the Harris County Courts.
2. The Harris County Sheriff a. The Sheriff is a County Policymaker to the extent he knowingly enforces invalid orders of detention.
27 Courts outside this circuit have held that injunctive relief is categorically unavailable in personalcapacity § 1983 suits. See Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991) (“[I]njunctive relief against a state official may be recovered only in an official capacity suit.”); accord Marsh v. Kirschner, 31 F.Supp.2d 79, 80 (D. Conn. 1998); Hernandez v. Kiley, Civil No. 86-7948, 1987 WL 12194, at *2 (N.D. Ill. June 5, 1987) (plaintiffs must “surrender . . . the request for injunctive relief” if they persist in an a personal capacity suit).
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County sheriffs are established under the judiciary article of the Texas Constitution. Art. V, § 23. Like “other county officers,” county sheriffs may be removed by a state district judge presiding over the sheriff’s county. Id. § 24. A vacancy in the Harris County Sheriff’s office is filled by the Harris County Commissioners Court. Id., § 23. The Sheriff is paid by the County Commissioners Courts, id., art. XVI, § 61, and elected by county voters, id. art. V, § 23.
Under state law, a sheriff is the county policymaker for law enforcement, including for county jails. County of El Paso v. Dorado, 180 S.W.3d 854, 870 (Tex. App.—El Paso 2005, pet. denied). “[I]t has long been recognized that, in Texas, the county sheriff is the county’s final policymaker in the area of law enforcement by virtue of the sheriff’s election to office.” Colle v. Brazos Cty., Tex., 981 F.2d 237, 244 n.35 (5th Cir. 1993) (quoting Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990)).
The defendants cite case law affirming that sheriffs have qualified immunity for damages suits when they have a good-faith belief that they are executing valid process by holding people in custody. See Soto v. Ortiz, 526 F.App’x 370 (5th Cir. 2013) (citing Whirl v. Kern, 407 F.2d 781, 795-96 (5th Cir. 1969); Douthit v. Jones, 641 F.2d 345, 346-47 (5th Cir. 1981), reh’g opinion of 619 F.2d 527 (5th Cir. 1980)); Jefferson v. Broadnax, Civil No. 12-4638, 2014 WL 3747151 (N.D. Tex. July 30, 2014). But in this case, the plaintiffs seek only prospective relief. And the plaintiffs allege that the Sheriff knows that the detention orders he enforces are invalid but that he nonetheless detains misdemeanor defendants under those orders. (Docket Entry No. 54 ¶¶ 9–10). Those orders, among other things, allegedly keep the defendants in jail for the sole reason that they cannot afford to pay bail, and prevent them from timely raising their inability to pay bail or their eligibility for nonfinancial conditions of release. (Id. ¶¶ 90–95). The threshold issue is not the Sheriff’s qualified immunity to a suit for damages, but his liability for prospective relief against him as a final
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policymaker for Harris County. Two cases in this circuit are more instructive than the qualified immunity case law. In Doe
v. Angelina County, 733 F.Supp. 245 (E.D. Tex 1990), a county and its sheriff were sued under § 1983 for incarcerating the plaintiff over an unpaid fine for fishing without a license. Id. at 254–56. The court found that the sheriff had a practice of detaining individuals arrested under a capias pro fine if they could not pay the fines on arrest. Id. at 256–57. The court decided that the sheriff’s authority included implementing procedures to process individuals arrested and brought to the county jail on the basis of a capias, and that “[t]he sheriff’s acquiescence in unsound and legally insufficient procedures effectively created a county policy for which the county is liable.” Id. at 257.
In De Luna v. Hidalgo County, 853 F.Supp.2d 623 (S.D. Tex. 2012), the court treated arraigning magistrates and the county sheriff together as municipal policymakers for promulgating an unconstitutional policy of converting fine-only offenses into detentions without inquiring into a defendant’s ability and good-faith effort to pay. The De Luna court reviewed the rule that deliberate indifference giving rise to liability for a municipal policy, including an unconstitutional custom or practice, “is an objective [standard]; it considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the plaintiff’s rights.” Id. at 641 (quoting Lawson v. Dallas County, 286 F.3d 257, 264 (5th Cir. 2002)). On a motion for summary judgment, the court found undisputed facts showing that the sheriff knew from paperwork his office collected that Class C misdemeanor defendants too poor to afford an attorney were not asked whether they could pay their fines and avoid detention. Instead, they were simply detained. Id. at 640–42.
Sheriff Hickman argues that De Luna’s reasoning does not apply because that case dealt with procedures for fines, not bail, and because the court found that the sheriff actually knew that the
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court orders he enforced were invalid. (Docket Entry No. 100 at 2–5). But these arguments show why De Luna’s reasoning does apply. Fines, as Sheriff Hickman notes, are imposed only after conviction and “are purely punitive.” (Id. at 3). De Luna made clear that a misdemeanor conviction does not strip away due-process rights, including the right to raise the inability to pay a fine-only punishment before that punishment is converted into detention. See De Luna, 286 F.Supp. at 647 (citing Doe, 733 F.Supp. at 248–49; Bearden, 461 U.S. at 665). The due process concerns in De Luna apply with greater force to pretrial bail, because those arrested and charged but not convicted “remain clothed with a presumption of innocence and with their constitutional guarantees intact.”28 Pugh, 572 F.2d at 1056.
The complaint alleges that the Harris County Sheriff, like the sheriff in De Luna, knows that the detention orders he enforces are invalid. The plaintiffs allege that the Sheriff has the same access as the Hearing Officers and County Judges to information showing whether misdemeanor arrestees can afford to pay bail and whether other reasons support their detention. (Docket Entry No. 54 ¶ 40). They allege that the Sheriff or his deputies attend and supervise all probable-cause hearings—which take place by videolink with the defendant at the County Jail—and observe the Hearing Officers’ consistent refusal to hear or consider any defendant’s inability to pay or nonfinancial conditions of release at those hearings. The complaint alleges that the Sheriff or his deputies instruct the arrestees not to speak at these hearings. (Id. ¶¶ 54–56, 102). The complaint also asserts that, in at least some cases, unless there is an offer to pay bail, the Sheriff delays the probable-cause hearing beyond 24 hours and keeps the misdemeanor defendant from communicating
28 See also U.S. SOI, Varden v. City of Clanton, Civil No. 15-34, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015) (rule that the Fourteenth Amendment “prohibits punishing a person for his poverty, and this includes deprivations of liberty based on the inability to pay fixed-sum bail amounts . . . applies with special force” to pretrial defendants).
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with family or counsel. (Id. ¶¶ 58, 92–95). Whether the Sheriff’s alleged deliberate indifference gives rise to a municipal policy or custom turns on what the Sheriff “should have known, given the facts and circumstances surrounding the official policy and its impact on the plaintiff’s rights.” Lawson, 286 F.3d at 264; see also Dodds v. Logan County Sheriff’s Dept, Civil No. 8-333, 2009 WL 8747487 (W.D. Okla. Aug. 3, 2009) (sheriff liable for “deliberate indifference to the due process rights of arrestees whose bail had been pre-set” by acquiescing in a policy set by local judges); Blumel v. Mylander, 954 F.Supp. 1547, 1557 (M.D. Fla. 1997) (sheriff and jailer liable for violating right of pretrial release when they were “actually and constructively aware” the 48-hour requirement had been exceeded). The parties dispute what the Sheriff knew, knows, or could reasonably be expected to know about misdemeanor defendants’ first opportunity to raise their inability to pay or eligibility for release on nonfinancial conditions before a Harris County judicial officer. Under Rule 12(b)(6), the plaintiffs have plausibly alleged sufficient facts to support a claim for relief against the Sheriff as a County policymaker at this stage of the proceedings.
“The third prong” of municipal § 1983 liability under Monell “requires a plaintiff to prove ‘moving force’ causation. To succeed, ‘a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.’” Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010) (quoting Bryan Cty., 520 U.S. at 404). Harris County argues that Sheriff Hickman is not a municipal policymaker as to the rules, customs, or practices at issue because his decisions are not the “moving force” behind the plaintiffs’ alleged injuries. (Docket Entry No. 84 at 13–14). The County argues that the bail schedule is the policy about which the plaintiffs complain, but “the sheriff does not fix bail.” Walker v. Hodge, 4 F.3d 991, 991 n.2 (5th Cir. 1993).
The facial validity of the bail schedule or the amounts of bail is not what the plaintiffs 60

challenge. To that extent, the Sheriff’s argument is unpersuasive. The Sheriff does not promulgate the bail schedule. The Sheriff allegedly does enforce orders to detain defendants who are eligible for release but cannot pay money bail until they appear before a County Judge, have counsel appointed, and—in most cases—plead guilty primarily to get out of jail faster. (Docket Entry No. 54 ¶¶ 92–98, 101, 128–31). Like the De Luna sheriff’s participation in a policy and practice of converting fine-only punishments into unconstitutional orders of detention, the Harris County Sheriff allegedly exercises his discretion: (1) to prevent misdemeanor defendants from timely raising their inability to pay bail before a judicial officer, (id. ¶ 23); (2) to prevent access to counsel who could timely raise the inability to pay, (id. ¶¶ 92–94); and (3) to detain misdemeanor arrestees who cannot pay bail even when there are no reasons for detention (id. ¶ 10). The facts as alleged support a causal link between the Sheriff’s exercise of his policymaking discretion in the area of County law enforcement and the plaintiffs’ alleged injuries of unequal detention without timely or due consideration of their inability to pay bail or eligibility for release on nonfinancial conditions.
In Familias Unidas v. Briscoe, the Fifth Circuit noted that a county judge directly implementing a state regulation, “much like that of a county sheriff in enforcing a state law, may more fairly be characterized as the effectuation of the policy of the State of Texas embodied in that statute, for which the citizens of a particular county should not bear singular responsibility.” 619 F.2d at 404. The Circuit has since determined that whether claims against a county-level actor support municipal liability turns on: (1) whether the county defendants comply with a state statute later found to be unconstitutional or whether they fail to comply with a state statute by interpreting it in an unconstitutional way; and (2) whether the state statute is “narrowly drawn, leaving little, if any, room for the exercise of discretion in its implementation.” Crane, 759 F.2d 412, 430 n.19 (5th Cir. 1985), amended on denial of reh’g, 766 F.2d 193 (5th Cir. 1985). In the complaint, the
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plaintiffs have alleged that the Sheriff knowingly and unconstitutionally applies a constitutional statute—Texas Code of Criminal Procedure article 17.15. The plaintiffs have alleged that the Sheriff has some discretion to choose not to engage in conduct that the Sheriff knows is unconstitutional. The complaint states a claim against the Sheriff in his official capacity and alleges facts that are vigorously disputed. That dispute must be resolved in order to decide that the Sheriff cannot be held liable as a county policymaker for the policies challenged here.
b. The Sheriff represents the State of Texas to the extent he enforces judicial orders of detention.
Even if the complaint did not sufficiently allege that the Harris County Sheriff knows that the detention orders he enforces are invalid, the complaint states a sufficient claim against Sheriff Hickman for prospective relief in his official capacity as a Texas State law-enforcement officer. County sheriffs are established in the Texas Constitution’s judiciary article. A sheriff can be removed from office by state district judges presiding over the sheriff’s county.29 The Texas Code of Criminal Procedure provision setting out the factors that guide an officer’s discretion to set bail apply to “the court, judge, magistrate, or officer taking the bail.” TEX. CODE CRIM. PRO. art. 17.15. An “officer taking the bail” includes the jailer. Id. art. 17.025. Although typically “the sheriff does not fix bail,” Walker, 4 F.3d at 991 n.2, and the Texas Code of Criminal Procedure requires a sheriff to execute “legal process which it is made his duty by law to execute,” art. 2.16,30 the five-factor discretionary test for setting bail applies by its terms to the Harris County Sheriff. The plaintiffs allege that the Sheriff detains misdemeanor defendants on bail before a Hearing Officer sets bail and
29 The Fifth Circuit has held that district judges are state actors under § 1983 when they execute their duty to appoint counsel. See Hamill, 870 F.2d at 1037.
30 See also TEX. LOCAL GOV’T CODE § 85.021 (“The sheriff shall execute all process and precepts directed to the sheriff by legal authority.”).
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does so under conditions that prevent access to counsel or to family absent an offer to pay the scheduled bail amount. (Docket Entry No. 54 ¶¶ 40, 48–51, 90–94).
A substantially similar case arose in a federal court in Louisiana. In Cain v. City of New Orleans, Civil No. 15-4479, 2016 WL 2849498 (E.D. La. May 13, 2016), the trial court dismissed a municipal liability claim for detaining defendants who failed to pay court costs without any inquiry into whether the defendants were able to pay or had made good-faith efforts to do so. Id. at *8 (granting the sheriff’s motion to dismiss); Cain v. City of New Orleans, Civil No. 15-4479, 2016 WL 2849478 (E.D. La. May 13, 2016) (granting the city’s motion to dismiss). The plaintiffs did not allege that the sheriff’s department “detain[ed] indigent debtors on its own initiative.” Cain, 2016 WL 2849498 at *8. Under the statutes at issue and the facts alleged, the court found that the Louisiana sheriff did not have discretion to set payment conditions or detention arrangements. The sheriff could not be sued as a municipal actor, and his conduct could not support the city’s liability under the “moving force” factor of Monell. Id.
The Cain court did not consider the sheriff’s liability for prospective relief as a state actor. In another substantially similar case, a district court in the Ninth Circuit ruled that California sheriffs are state actors when detaining misdemeanor defendants on secured financial bail under facially valid detention orders. See Buffin v. City and Cty. of San Francisco, Civil No. 15-4959, 2016 WL 6025486 (N.D. Cal. Oct. 14, 2016). In these circumstances, the sheriff was not a municipal policymaker, but he was still subject to prospective relief as a state actor sued in an official capacity under Ex parte Young. Id. at *9 (citing Young, 209 U.S. at 155–56). The relevant Texas and California statutes are similar,31 and Buffin’s reasoning is persuasive here. The parties dispute
31 Compare CAL. PENAL CODE § 1268 (defining admission to bail as the order of a competent court or magistrate) with TEX. CODE CRIM. PRO. art. 16.16–17 (granting judges of the court of appeals, district courts, and county courts the authority to admit to bail or issue warrants of detention for insufficient bail
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whether Sheriff Hickman acts with knowledge of, or with deliberate indifference as to whether, misdemeanor defendants are detained for no reason other than their inability to pay. Based on the current pleadings and record, prospective relief could run against the Sheriff in his official capacity as a State officer tasked by State statutes with detaining misdemeanor arrestees in County Jail. See also Echols v. Parker, 909 F.2d 795, 800 (5th Cir. 1990) (a district attorney was a state actor in enforcing a state anti-boycott statute and the state was liable for attorney’s fees under § 1988). Factual disputes as to what the Sheriff knew when misdemeanor arrestees were detained in the County Jail solely because they could not afford to pay bail precludes dismissal of the claims against the Sheriff in his official capacity.
c. The Sheriff is not a proper party in his personal capacity. For the same reasons the County Judges are not properly sued in their personal capacities, the plaintiffs’ personal-capacity claim against Sheriff Hickman is dismissed.32 The plaintiffs do not seek damages but rather prospective relief against the Harris County Sheriff’s office. To the extent the Sheriff is a final policymaker for Harris County, the suit against him in his official capacity is duplicative of the suit against Harris County. Should the facts show that the Sheriff enforces facially valid process without actual knowledge of, or deliberate indifference as to whether there is, a constitutional violation, the Sheriff in his official capacity is a proper party as a State actor subject to prospective relief under Ex parte Young. See Buffin, 2016 WL 6025486, at *9. The personalcapacity claim against Sheriff Hickman is dismissed.
collected). Compare CAL. PENAL CODE § 1269b (requiring judges to set a bail schedule and hold bail hearings and sheriffs to accept bail and release defendants as provided by the judicial warrants) with TEX. CODE CRIM. PRO. art. 15.17 (requiring a sheriff to produce a defendant before a magistrate and permitting the magistrate to admit the accused to bail); art. 17.15 (requiring the court, judge, magistrate or officer taking the bail to regulate the amount of bail), art. 17.20 (empowering sheriffs to take bail), art. 17.29 (requiring release of defendants who pay bail).
32 See Part IV.A.1.c. above.
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3. The Harris County Hearing Officers Five Harris County Hearing Officers are sued in their official and personal capacities. Harris County argues that the Hearing Officers are not final policymakers because they do not have policymaking authority under state law and because their decisions are subject to review by the County Judges. (Docket Entry No. 83 at 24–25). The Hearing Officers agree and argue that because they are not final policymakers, they cannot be sued in their official capacity. (Docket Entry No. 85 at 8–9). Hearing officers are county magistrate judges. They are appointed, supervised, and can be removed with or without cause by a board made up of three Harris County Criminal Courts at Law County Judges, three Harris County District Court Judges, and three Harris County Justices of the Peace. TEX. GOV’T CODE § 54.852. Under Texas law, a Hearing Officer adjudicating individual cases may “commit[] the defendant to jail, discharg[e] the defendant from custody, or admit[] the defendant to bail, as the law and facts of the case require.” TEX. GOV’T CODE § 54.856(a). Applying the McMillian factors leads to the conclusion that, unlike the County Judges, the Hearing Officers are not final policymakers whose acts or omissions could be the basis for Harris County liability under Monell. First, the Hearing Officers are not “final” policymakers. They are directly supervised by a board of judges that can remove them without cause. Their decisions to impose the scheduled bail amount in specific cases are reviewed by the County Judges, usually within one business day. Unless the County Judges acquiesce, the Hearing Officers do not have discretion to deliberate and decide among the alternative bail procedures the Texas Code and Harris County Rules make available to them. See Pembaur, 475 U.S. at 482–83. For purposes of
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municipal liability, the Hearing Officers’ supervisors—the County Judges—are the proper parties.33
See Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999) (“A court’s task is to identify
those officials or governmental bodies who speak with final policymaking authority for the local
government actor concerning the action alleged to have caused the particular constitutional or
statutory violation.”); accord Truvia v. Julien, 187 F.App’x 346 (5th Cir. 2006) (dismissing suit
against an assistant district attorney because only the district attorney was a final policymaker of the
challenged policy); see also Rhode v. Denson, 776 F.2d 107, 110 (5th Cir. 1985) (a constable
subordinate to a county judge “a fortiori could not alone make policy for [the] County”). The
County Judges allegedly know of the Hearing Officers’ custom or practice, approve it, and
informally direct or implicitly allow it be official County policy. The Hearing Officers cannot make
county policy by their customs or practices; they provide the basis for the County Judges to do so.
Second, to the extent the Hearing Officers do view themselves as having discretion to deviate
from the alleged systemwide insistence on financial conditions of release without considering the
inability to pay, the Hearing Officers exercise this discretion in adjudicating the cases that come
before them. Their alleged policymaking is inextricable from the exercise of judicial functions in
33 In their filing of supplemental authority, (Docket Entry No. 118), the County Judges argue that they do not supervise the Hearing Officers because only three County Judges sit on a board with six other judicial officials to appoint hearing officers. TEX. GOV’T CODE § 54.852. For the reasons explained above, the court finds that the County Judges’ appointment power is one factor of their control. The board can appoint, oversee, and terminate hearing officers with or without cause, and the board can act with a quorum of six judges, of which the County Judges can make up half. The County Judges also promulgate the written Rules of Court that direct the Hearing Officers in setting bail, and the complaint alleges that the County Judges promulgate unwritten instructions and acquiesce in the known practices of the Hearing Officers—practices the County Judges could correct in their written Rules but choose not to do so. (See, e.g., Docket Entry No. 54 ¶¶ 19, 56, 84–85). The County Judges rely on a letter they wrote to the Hearing Officers on August 8, 2016, to argue that the court should abstain from hearing this case because the County Judges are effectively proceeding to reform the system. (Docket Entry No. 80 at 17 and Ex. 4). They now argue that this letter provides no evidence of their supervisory control of the Hearing Officers. (Docket Entry No. 118 at 3). The County Judges cannot have it both ways. If the letter meaningfully instructed the Hearing Officers in their duties under the law, it is at least one additional factor showing that the County Judges act in a supervisory administrative or enforcement-officer role over the Hearing Officers.
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individual cases. See Davis, 565 F.3d at 227. Even taking as true the plaintiffs’ allegations that in every case, the Hearing Officers refuse to follow the State Code provisions requiring them to consider a misdemeanor defendant’s ability to post bail or eligibility for release on nonfinancial conditions, a judge’s decision in particular cases that “deliberate[ly] or mistaken[ly] depart[s] from the controlling law cannot be said to represent county policy.” Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir. 1988) (internal quotation marks omitted); see also Eggar v. City of Livingston, 40 F.3d 312, 315 (9th Cir. 1994) (“It is lamentable, but irrelevant, that [the judge] failed miserably to meet [his] obligation under both state and federal standards: [but] he is simply not a municipal decision maker in this context.”); Harris, 2016 WL 1070863, at *6 (“[A] municipal judge’s illegal pronouncement does not become a non-judicial act merely because it is illegal.”).
The official capacity claims against the Harris County Hearing Officers cannot support municipal liability against Harris County and are dismissed. The Hearing Officers are subject to the supervision of the County and the County Judges, who are already parties. The defendants concede that the plaintiffs have stated a sufficient claim for declaratory relief against the Hearing Officers in their personal capacities. (Docket Entry No. 98 at 3). The Hearing Officers remain parties to this suit only in their personal capacities and only for declaratory relief.
4. Conclusion on Municipal Liability for Harris County A municipality may be held liable for “deprivations resulting from the decisions of its duly constituted legislative body.” Bryan Cty., 520 U.S. at 403. “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick, 563 U.S. at 61. In this case, the plaintiffs have alleged facts that would show that the Harris County Criminal Courts at Law Judges promulgate written bail procedures and oversee, ratify, and enforce systemwide practices that
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amount to the County Judges’ use of their policymaking discretion to deny misdemeanor defendants a timely hearing on their inability to pay bail and to deny them any alternative to financial conditions of pretrial release. The plaintiffs have also alleged facts that would show that the County Sheriff knowingly participates in this system of unconstitutional detention by overseeing and ratifying systemwide practices preventing misdemeanor defendants from timely raising their inability to pay before the first judicial officer they encounter after arrest.
Because the “unique structure of county government in Texas” gives County Judges “numerous executive, legislative and administrative chores in the day-to-day governance of the county,” Briscoe, 619 F.2d at 404, and because “in Texas, the county sheriff is the county’s final policymaker in the area of law enforcement,” Colle, 981 F.2d at 244 n.35, the County Judges and County Sheriff act on behalf of Harris County in promulgating the policies over which they have final authority. To be sure, the County Judges repeat the Texas Code of Criminal Procedure article 17.15 language in their written Rules of Court. RULES OF COURT 4.2.3.1. To the extent that Harris County officers directly enforce that language, they do not act within their discretion as county policymakers. But the complaint alleges significant, systemwide policies, both written and unwritten, that contravene the language of the State Code, the written County Rules of Court, as well as the Roberson order and case law. For those policies and practices, Harris County is liable for prospective relief.
The motion to dismiss the claim against Harris County is denied. To the extent the County Judges and County Sheriff act as final policymakers for Harris County in their official capacities, the claims against them are redundant to the claims against the County. See Graham, 473 U.S. at 159. But the complaint also alleges facts that would show that the County Judges and County Sheriff may at times act on behalf of the State of Texas. To the extent that they act on the State’s
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behalf, the County Judges and Sheriff are liable for prospective relief in their official capacities. Young, 209 U.S. at 123.
The claims against the County Judges and County Sheriff in their personal capacities are dismissed. The claims against the Hearing Officers are dismissed except for declaratory relief against them in their personal capacities, which they do not move to dismiss.
B. Are the defendants immune from suit or from liability? 1. Harris County
“[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.” Jinks v. Richland Cty., 538 U.S. 456, 466 (2003). Municipalities are immune from punitive damage awards, but as to other forms of relief “a municipality, like a private corporation, [is] to be treated as a natural person subject to suit for a wide range of tortious activity . . . .” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259–60 (1981). The plaintiffs do not seek damages, and Harris County is not immune from prospective relief based on the County Judges and the County Sheriff’s acts as County policymakers.
2. Harris County Officials The County Judges, County Sheriff, and County Hearing Officers each moved to dismiss under various theories of immunity. (Docket Entry Nos. 80, 82, 84). To the extent the court has found that these officers act in their official capacities as Harris County policymakers, the claim for prospective relief against them is redundant to the claim against the County itself. Prospective relief against a county generally runs against county actors and employees, including county judges and county sheriffs.34 But county officials may be immune under § 1983 when they either: (1) act in a
34 See, e.g., De Luna v. Hidalgo County, 853 F.Supp.2d 623, 626 n.1 (S.D. Tex. 2012); Brown v. Harris County, Civil No. 7-644, 2010 WL 774138, at *14 (S.D. Tex. Mar. 2, 2010); Allen v. County of Galveston, Civil No. 7-341, 2009 WL 890452, at *4 (S.D. Tex. Mar. 30, 2009); Delgado v. Webb County,
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legislative capacity on behalf of the State, Tenney v. Brandhove, 341 U.S. 367, 379 (1951); or (2) act in a judicial capacity as either state or municipal actors, Pierson v. Ray, 386 U.S. 547, 553–54 (1967). Legislative immunity for state legislators is absolute as to both suits for damages and for prospective relief. Supreme Court of Virginia, 446 U.S. at 734. Judicial immunity is absolute as to damages suits. Pierson, 386 U.S. at 553–54. The Federal Courts Improvement Act of 1996, Pub. L. No. 104–317, amended § 1983 to make judicial officers acting in their judicial capacities immune from injunctive relief unless “a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983.
a. The County Judges The County Judges argue that even if they are final policymakers, they exercise “the State’s entire legislative power with respect to promulgating the Local Rules of Court,” and are legislatively immune from claims for declaratory or injunctive relief. (Docket Entry No. 80 at 42). They rely on Supreme Court of Virginia, 446 U.S. at 719. In that case, a consumer organization sued the Virginia Supreme Court and its chief justice seeking a declaration that the court had violated the Constitution by promulgating a code of ethics regulating attorney advertising. The United States Supreme Court held that in promulgating Virginia’s Code of Professional Responsibility, the state supreme court and its members acted in a legislative capacity on behalf of the state and were immune from suit. Id. at 732–34. The Court first considered whether the state justices acted in their judicial capacities to promulgate the code. The Court agreed with a dissenting opinion from the panel below that “[d]isciplinary rules are rules of general application and are statutory in character. They act not on
Civil No. 4-182, 2006 WL 133468, at *2 (S.D. Tex. Jan. 17, 2006); Connor v. Harris County, Civil No. 8878, 1992 WL 337420 (S.D. Tex. Sep. 17, 1992).
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parties litigant but on all those who practice law in Virginia. They do not arise out of a controversy which must be adjudicated but instead out of a need to regulate conduct for the protection of all citizens.” Id. at 731 (quoting Consumers Union of U.S., Inc. v. American Bar Ass’n, 470 F.Supp. 1055, 1064 (E.D. Va. 1979) (Warriner, J., dissenting)). The Court concluded that the disciplinary rules were legislative, not judicial. Id.
That reasoning applies here. The Harris County Rules of Court, like the Virginia disciplinary rules, are rules of general application that regulate not just the defendants but all those who participate in the trial of misdemeanor offenses, including clerks, districts attorneys, hearing magistrates, and sheriffs. They too arise out of the need to regulate conduct to protect all citizens, not just to adjudicate individual controversies. The Harris County Rules of Court are, like the Virginia Code of Professional Responsibility, a legislative enactment.
The Supreme Court then reasoned that because the Virginia court was “exercising the State’s entire legislative power with respect to regulating the Bar, its members are the State’s legislators for the purpose of issuing the Bar Code.” Id. at 734. The Court has also extended legislative immunity to local legislators sued for damages in their personal capacities. See Lake County Estates v. Tahoe Regional Planning Authority, 440 U.S. 391, 405 (1979) (“Whatever potential damages liability regional legislators may face as a matter of state law, we hold that petitioners’ federal claims do not encompass the recovery of damages from the members of [a regional board] acting in a legislative capacity.”); Bogan v. Scott-Harris, 523 U.S. 44, 52–54 (1998) (legislative decisions should not “distorted by the fear of personal liability”). The Court has not ruled on whether legislative immunity shields local legislators from prospective relief as well, but its reasoning leads to that conclusion. See, e.g., Bogan, 523 U.S. at 52 (“Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference . . . .”).
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In this case, the County Judges are not regulating bail procedures for the State of Texas, but only for Harris County. As local legislators, they have absolute immunity for suits from damages in their personal capacities. But municipal liability for prospective relief would be meaningless if the ruling did not run against a municipal policymaker. To the extent that the court finds the County Judges act as Harris County policymakers, the claim for prospective relief against them can be dismissed because they are redundant parties to the County itself, but not because they are legislatively immune to prospective relief.
The Court did not stop at the question of legislative immunity in Supreme Court of Virginia. It recognized that the Virginia Supreme Court “performs more than a legislative role with respect to the State Bar Code.” 446 U.S. at 734. Because the state court had independent authority to initiate disciplinary proceedings against attorneys, the Court held that the state-court judges were liable for prospective relief under § 1983 “in their enforcement capacities . . . just as other enforcement officers and agencies” could be liable.35 Id. at 736. To the extent the County Judges are state actors in their direct enforcement of the Texas Code of Criminal Procedure article 17.15, they too are liable to prospective relief under § 1983.36
Since the Court issued Supreme Court of Virginia, Congress has amended § 1983 to prohibit injunctive relief against judges acting in their judicial capacities “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. As with legislative immunity, the Supreme Court takes a “functional approach” to judicial immunity. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993). The “touchstone” for a judicial act is the “performance
35 And because the state supreme court heard appeals from lower court decisions in disciplinary cases, the Court noted, without deciding, that the state-court judges could be liable for declaratory or injunctive relief “with respect to their judicial acts.” Supreme Court of Virginia, 446 U.S. at 735–56.
36 See Part IV.A.1.b. above.
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of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Id. at 435–36 (quoting Burns v. Reed, 500 U.S. 478, 500 (1991) (Scalia, J., concurring)). In the Fifth Circuit, the test is whether: “(1) the precise act complained of . . . is a normal judicial function; (2) the events involved occurred in the judge’s chambers; (3) the controversy centered around a case then pending before the judge; and (4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity.” Harper v. Merckle, 638 F.2d 848, 858 (5th Cir. Unit B 1981) (quoting McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)).
For the reasons explained above, the County Judges do not meet the Fifth Circuit’s test for judicial capacity when they promulgate written Rules of Court or oversee the unwritten customs and practices that could be corrected through the written Rules but are not. These acts and omissions do not arise out of each judge acting to resolve disputes between parties in each court. Nor are the County Judges immune from either injunctive or declaratory relief when they administer the enforcement of article 17.15 of the Texas Code of Criminal Procedure, and when they deviate from or contravene its requirements. The County Judges’ letters to the Harris County Hearing Officers and the criminal defense bar of Harris County are neither judicial nor legislative acts, but rather administrative enforcement actions. The County Judges’ alleged unwritten instructions to Hearing Officers to deny personal bonds to certain classes of misdemeanor defendants, such as the homeless, also qualify as the sort of prosecutorial enforcement decision the Supreme Court in Supreme Court of Virginia found could be subject to an injunction. 446 U.S. at 736–37; see also Forrester v. White, 484 U.S. 219, 229 (1988) (no absolute judicial immunity for administrative acts because “[t]hose acts—like many others involved in supervising court employees and overseeing the efficient operation of a court—may have been quite important in providing the necessary conditions of a sound adjudicative system . . . [but] were not themselves judicial or adjudicative”); Morrison v.
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Lipscomb, 877 F.2d 463, 466 (6th Cir. 1989) (chief judge’s declaration of a moratorium on issuing writs of restitution was an administrative, not a judicial, act because the moratorium was a general order not connected to any particular litigation and did not alter the rights or liabilities of any party); Craig v. State Bar of Cal., 141 F.3d 1353, 1354 (9th Cir. 1998) (judge’s promulgation of general rules on bar admission was nonjudicial (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 485 (1983)).
The County Judges are immune from claims for injunctive relief for their case-by-case review of Hearing Officer decisions in individual adjudications, unless a declaratory decree is violated or unavailable. These adjudications fit the test for judicial capacity. See Cunningham ex rel. Cunningham v. City of W. Point, Miss., 380 F.App’x 419, 422 (5th Cir. 2010) (denial of bail in an individual case “was a judicial action”); see also Green v. Mayfield, Civil No.8-2287, 2009 WL 230161, at *2 (N.D. Tex. Jan 29, 2009) (“[s]etting bail or bond” in an individual case “‘is a judicial function’”) (quoting Walczyk v. Rio, 496 F.3d 139, 165 (2d Cir. 2007)). But under § 1983, judges are not immune from a suit seeking a declaratory decree in these circumstances. See 42 U.S.C. § 1983.
The County Judges’ motion to dismiss based on immunity is denied. As policymakers for Harris County, the County Judges are not necessary parties in their official capacities, but are subject to prospective relief imposed against the County. As enforcers of the State Code, the County Judges are not immune from either injunctive or declaratory relief. In their judicial capacity of reviewing the Hearing Officers’ decisions in individual adjudications, the County Judges are immune from injunctive relief but not declaratory relief.
b. The County Sheriff Sheriff Hickman seeks dismissal under Mays v. Sudderth, 97 F.3d 107 (5th Cir. 1996). In
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Mays, the plaintiff brought a § 1983 damages action against a sheriff for an illegal arrest. 97 F.3d at 109. The Fifth Circuit ruled that the sheriff shared the same absolute immunity from suit as the judge who issued the arrest order. Id. at 113. Government officials, the court reasoned, “should not be required to make the Hobson’s choice between disobeying the court order or being haled into court to answer for damages.” Id. (quoting Patterson v. Von Riesen, 999 F.2d 1235, 1240 (8th Cir. 1993). “[T]o the extent that the cause of action arises from his compliance with a facially valid judicial order issued by a court acting within its jurisdiction,” the court held that “an official acting within the scope of his authority is absolutely immune from a suit for damages.” Id. “However, [an officer] enjoys only qualified immunity for those routine duties not explicitly commanded by a court decree or by the judge’s instructions.” Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001) (internal citation omitted).
Immunity under May’s judicial-function rule does not apply here. The plaintiffs do not sue Sheriff Hickman for damages in his personal capacity. A suit for prospective relief against officers acting in their official capacities is the core exception to official immunity under Ex parte Young, 209 U.S. at 123. Even if Sheriff Hickman could claim quasi-judicial immunity in this case, that immunity would extend only as far as it does for the County Judges and Hearing Officers who issue orders of detention that Sheriff Hickman receives and implements. As discussed above, judges acting in their judicial capacities are not immune from suits seeking declaratory relief. Finally, the complaint alleges that the Sheriff performs “routine duties not explicitly commanded by a court decree or by the judge’s instructions.” Clay, 242 F.3d at 682. Those routine actions include advising misdemeanor defendants not to speak at their probable-cause hearings, including to raise their inability to pay bail, and keeping misdemeanor defendants from speaking with their families or legal counsel unless there is first an offer to pay bail. (Docket Entry No. 54 ¶¶ 23, 49–50). There
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is no basis to dismiss the Harris County Sheriff for reasons of immunity. c. The County Hearing Officers
For the reasons discussed above, the Hearing Officers acting in their judicial capacities in adjudicating misdemeanor cases are immune from injunctive relief under § 1983 but not from declarative relief. The plaintiffs sue the Hearing Officers only for declaratory relief. There is no basis to dismiss them for reasons of immunity. V. Conclusion
In 1871, “Congress enacted § 1983 to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Hafer, 502 U.S. at 28 (internal citations and quotation marks omitted). Because “municipalities often spread policymaking authority among various officers and official bodies,” Pembaur, 475 U.S. at 483, identifying the proper actors and authorities for § 1983 liability requires a legally and factually detailed inquiry. Multiple and overlapping authorities may contribute to a policy of denying freedom from pretrial detention to those accused in misdemeanor cases solely because they are too poor to pay a bail bond, or a policy of releasing wealthier misdemeanor defendants while detaining the indigent for days without a hearing on their inability to pay or eligibility for release on nonfinancial conditions. But the existence of multiple and overlapping authorities cannot, on its own, shield officers or official bodies from liability. The complaint alleges sufficient facts to plausibly claim that Harris County acts through its County Judges and County Sheriff to detain misdemeanor defendants without a timely inquiry into their inability to pay or their eligibility for release on nonfinancial conditions. The plaintiffs also state sufficient facts to plausibly allege that the County Judges and Sheriff act on their own to enforce particular provisions of Texas law and are proper parties for prospective relief in
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their official capacities. The defendants’ motions to dismiss, (Docket Entry Nos. 80, 83–85), are granted in part and
denied in part. The court dismisses the personal-capacity claims against Sheriff Hickman and the Harris County Courts at Criminal Law Judges, and the official-capacity claim against the Harris County Hearing Officers. The court denies the motions to dismiss Sheriff Hickman and the County Judges in their official capacities and the motion to dismiss Harris County. The Hearing Officers did not move to dismiss the claims against them in their personal capacities.
On the basis of the plausible factual allegations in the complaint, (Docket Entry No. 54), Harris County may be sued for the written and customary policies that the County Judges and the County Sheriff promulgate in their official capacities. To the extent they act administratively to directly enforce article 17.15 of the State Code of Criminal Procedure, the County Judges do not have judicial immunity and can be sued for prospective relief running against them as state enforcement officers. Similarly, to the extent the record shows that the Sheriff is enforcing the State Code and executing facially valid judicial orders without knowledge or deliberate indifference to their invalidity, he is a proper party as a State officer.
The County Judges and Hearing Officers are judicially immune from injunctive relief to the extent they perform judicial functions in adjudicating individual cases. They are not immune from declaratory relief. Nor are the County Judges legislatively immune from injunctive or declaratory relief in their capacities as rulemakers and enforcement officers of the Harris County bail procedures, whether those rules are promulgated formally in writing or informally through custom and practice. Harris County and the County Sheriff are not immune from either injunctive or declaratory relief.
The court will hear arguments on February 21, 2016, on the plaintiffs’ motions for class 77

certification and a preliminary injunction, (Docket Entry Nos. 1–2), and on the defendants’ motion for partial summary judgment, (Docket Entry No. 101). The defendants’ arguments to dismiss under Rule 12(b)(1) standing, Younger abstention, and failure to identify a final municipal policymaker are denied with prejudice. But the parties are not foreclosed from providing additional briefing on the constitutional standard of review or the issue of immunity from prospective relief as they argue the likelihood of the plaintiffs’ success on the merits.
SIGNED on December 16, 2016, at Houston, Texas. ______________________________________ Lee H. Rosenthal Chief United States District Judge
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 Case 4:16-cv-01414 Document 302 Filed in TXSD on 04/28/17
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 193
United States District Court Southern District of Texas
ENTERED
April 28, 2017
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al., §

On behalf of themselves and all others §

similarly situated,

§

§

Plaintiffs,

§

§

VS.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

§

Defendants.

§

CIVIL ACTION NO. H-16-1414

MEMORANDUM AND OPINION SETTING OUT FINDINGS OF FACT AND CONCLUSIONS OF LAW

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. The Evidence in the Record.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. The Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2. The Fact Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3. The Expert Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4. Overview of the Factual and Legal Issues. . . . . . . . . . . . . . . . . . . . . . . . . 19 C. The Historical Development of Bail in the United States and in Harris County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1. The Constitutionalization of Bail.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 2. Statutory and Judicial Bail Reform: Pretrial Services, Probable Cause Hearings, and “Meaningful” Alternatives to Secured Money Bail. . . . . . 25 3. Bail at the Federal Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4. Bail under Texas Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 5. Recent Distinctions Drawn Between Bail and Preventive Detention. . . . 38 a. Washington, D.C... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 b. New Mexico.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 c. New Jersey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 d. New Orleans.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 e. Maryland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 f. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 g. Calhoun, Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 h. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

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D. The Use of Bail in Harris County Misdemeanor Pretrial Detention. . . . . . . . . . . 50 1. The Statutory Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 2. Arrest and Booking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 3. The Probable Cause and Bail-Setting Hearing.. . . . . . . . . . . . . . . . . . . . . 63 4. The First Appearance Before a County Judge. . . . . . . . . . . . . . . . . . . . . . 77 5. Disposition of Misdemeanor Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 6. The Use of Bail to Detain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
E. The Population Statistics of Misdemeanor Detainees at Each Stage in the Postarrest Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 1. Arrestees Detained More than 24 Hours Before the Probable Cause Hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 2. Arrestees Detained More than 48 Hours Before a Bail Review. . . . . . . . 97 3. Arrestees Detained Until Case Disposition. . . . . . . . . . . . . . . . . . . . . . . . 99 4. Arrestees Detained “Because of” Indigence. . . . . . . . . . . . . . . . . . . . . . 100 5. Bond Forfeitures and Re-Arrests for New Criminal Activity. . . . . . . . . 106
F. The Effects of Pretrial Detention on Misdemeanor Defendants Who Cannot Pay Secured Money Bail.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
G. Comparisons to Other Jurisdictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 H. Proposed Bail Reforms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
1. Changes to Risk Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 2. Changes to the System’s Efficiency.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 3. Changes to the Probable Cause Hearings. . . . . . . . . . . . . . . . . . . . . . . . 122 4. Texas House Bill 3011 / Senate Bill 1338. . . . . . . . . . . . . . . . . . . . . . . . 123 I. Conclusions on Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
II. Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 A. The Legal Standards.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 B. Likelihood of Success on the Merits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 1. The Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 a. Equal Protection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 b. Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 2. The Constitutional Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 a. Equal Protection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 b. Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 c. Excessive Bail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 3. Harris County Policies that Violate Constitutional Requirements.. . . . . 158 a. Municipal Liability under § 1983. . . . . . . . . . . . . . . . . . . . . . . . 158 b. The County Judges’ Policies and Customs: Equal Protection. . . 160 c. The County Judges’ Policies and Customs: Due Process. . . . . . 167 d. The Sheriff’s Policies under Equal Protection and Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 4. Judicial Conduct that Violates Constitutional Requirements. . . . . . . . . 171 5. Conclusion on Likelihood of Success on the Merits. . . . . . . . . . . . . . . . 172 C. Irreparable Injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
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D. Balancing the Harms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 E. The Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 F. Bond.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 III. Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 IV. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 A. Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 B. Preliminary Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Introduction “Twenty years ago, not quite one-third of [Texas’s] jail population was awaiting trial. Now the number is three-fourths. Liberty is precious to Americans, and any deprivation must be scrutinized. To protect public safety and ensure that those accused of a crime will appear at trial, persons charged with breaking the law may be detained before their guilt or innocence can be adjudicated, but that detention must not extend beyond its justifications. Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing. Though presumed innocent, they lose their jobs and families, and are more likely to re-offend. And if all this weren’t bad enough, taxpayers must shoulder the cost—a staggering $1 billion per year.” The Honorable Nathan L. Hecht, Chief Justice of the Texas Supreme Court, Remarks Delivered to the 85th Texas Legislature, Feb. 1, 2017. This case requires the court to decide the constitutionality of a bail system that detains 40 percent of all those arrested only on misdemeanor charges, many of whom are indigent and cannot pay the amount needed for release on secured money bail. These indigent arrestees are otherwise eligible for pretrial release, yet they are detained for days or weeks until their cases are resolved, creating the problems that Chief Justice Hecht identified. The question addressed in this Memorandum and Opinion is narrow: whether the plaintiffs have met their burden of showing a
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likelihood of success on the merits of their claims and the other factors necessary for a preliminary injunction against Harris County’s policies and practices of imposing secured money bail on indigent misdemeanor defendants. Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder sued while detained in the Harris County Jail on misdemeanor charges. They allege that they were detained because they were too poor to pay the amount needed for release on the secured money bail imposed by the County’s policies and practices. (Docket Entry Nos. 3, 41, 54). They ask this court to certify a Rule 23(b)(2) class and preliminarily enjoin Harris County, the Harris County Sheriff, and—to the extent they are State enforcement officers or County policymakers—the Harris County Criminal Court at Law Judges, from maintaining a “wealth-based post-arrest detention scheme.” (Docket Entry No. 143 at 2).
This case is difficult and complex. The Harris County Jail is the third largest jail in the United States. Pls. Ex. 12(aa) at 1. Although misdemeanor arrestees awaiting trial make up about 5.5 percent of the Harris County Jail population on any given day, see id. at 13, about 50,000 people are arrested in Harris County on Class A and Class B misdemeanor charges each year. Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8.1 The arrests are made by a number of lawenforcement agencies, including the Houston Police Department and the police forces of smaller municipalities, the Texas Department of Public Safety, and the Harris County Sheriff’s Office. Id. Harris County’s bail system is regulated by State law, local municipal codes, informal rules,
1 The plaintiffs have not given each of their exhibits a unique number. When clarity requires, the opinion identifies the plaintiffs’ exhibits by category number and unique title. After the motion hearing, the defendants produced the 2016 Pretrial Services Annual Report. (Docket Entry No. 290, Ex. 1). When the opinion discusses or refers to the annual reports, the text uses the 2015 figures the parties’ experts and briefing relied on, and the recently reported 2016 data is generally supplied in footnotes. The numbers do not differ significantly from year to year. In 2015, for example, 50,947 people were arrested only on misdemeanor charges, compared to 49,628 in 2016. (Id. at 8); Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8.
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unwritten customary practices, and the actions of judges in particular cases. The legal issues implicate intertwined Supreme Court and Fifth Circuit precedents on the level of judicial scrutiny in equal protection and due process cases and on the tailoring of sufficient means to legitimate ends.
Bail has a longstanding presence in the Anglo-American common law tradition. Despite this pedigree, the modern bail-bond industry and the mass incarceration on which it thrives present important questions that must be examined against current law and recent developments. Extrajudicial reforms have caused a sea change in American bail practices within the last few years. Harris County is also in the midst of commendable and important efforts to reform its bail system for misdemeanor arrests. The reform effort follows similar work in other cities and counties around the country. This work is informed by recent empirical data about the effects of secured money bail on a misdemeanor defendant’s likely appearance at hearings and other law-abiding conduct before trial, as well as the harmful effects on the defendant’s life.
The plaintiffs contend that certainly before, and even with, the implemented reforms, Harris County’s bail system for misdemeanor arrests will continue to violate the Constitution. This case is one of many similar cases recently filed around the country challenging long-established bail practices. Most have settled because the parties have agreed to significant reform. This case is one of the first, although not the only one, that requires a court to examine in detail the constitutionality of a specific bail system for misdemeanor arrestees. This case is also one of the most thoroughly and skillfully presented by able counsel on all sides, giving the court the best information available to decide these difficult issues.
One other complication is worth noting at the outset. Since this case was filed, the 2016 election replaced the Harris County Sheriff and the presiding County Judge of Criminal Court at Law
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No. 16. (Docket Entry Nos. 158, 168). The new Sheriff and County Judge have taken positions adverse to their codefendants, although each continues to oppose certain aspects of the plaintiffs’ request for preliminary injunctive relief.2 Nonparty County officials, including the newly elected Harris County District Attorney and one of the Harris County Commissioners, have filed amicus briefs supporting the plaintiffs. (Docket Entry Nos. 206, 272). Harris County’s Chief Public Defender has filed a declaration supporting the defendants. Def. Ex. 23. The lines of affinity and adversity between the defendants and their nonparty County colleagues are not always clear.
Even with the factual and legal complexities, at the heart of this case are two straightforward questions: Can a jurisdiction impose secured money bail on misdemeanor arrestees who cannot pay it, who would otherwise be released, effectively ordering their pretrial detention? If so, what do due process and equal protection require for that to be lawful? Based on the extensive record and briefing, the fact and expert witness testimony, the arguments of able counsel, and the applicable legal standards, the answers are that, under federal and state law, secured money bail may serve to detain indigent misdemeanor arrestees only in the narrowest of cases, and only when, in those cases, due process safeguards the rights of the indigent accused.
Because Harris County does not currently supply those safeguards or protect those rights, the court will grant the plaintiffs’ motion for preliminary injunctive relief. The reasons and the precise, limited relief granted are set out in detail below.
2 Judge Jordan disagrees with the approach of his County Judge colleagues to setting secured money bail and believes that he operates his court in a constitutionally sound manner. He argues that relief against him as a judicial officer in a judicial capacity would be “overbroad.” (Docket Entry No. 162 at 9–10). Although Sheriff Gonzalez believes that Harris County’s bail system is unconstitutional and is unlikely to change without an injunction from this court, he argues for additional time for the parties to negotiate with the hope of resolving the plaintiffs’ claims through ongoing reforms or settlement. (Id. at 23); Hearing Tr. 3-2:9–10, 22–23.
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More specifically, the court finds that: • Harris County has a consistent and systematic policy and practice of imposing secured money
bail as de facto orders of pretrial detention in misdemeanor cases. • These de facto detention orders effectively operate only against the indigent, who would be
released if they could pay at least a bondsman’s premium, but who cannot. Those who can pay are released, even if they present similar risks of nonappearance or of new arrests. • These de facto detention orders are not accompanied by the protections federal due process requires for pretrial detention orders. • Harris County has an inadequate basis to conclude that releasing misdemeanor defendants on secured financial conditions is more effective to assure a defendant’s appearance or lawabiding behavior before trial than release on unsecured or nonfinancial conditions, or that secured financial conditions of release are reasonably necessary to assure a defendant’s appearance or to deter new criminal activity before trial. • Harris County’s policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution. The court accordingly orders that: • Harris County and its policymakers—the County Judges in their legislative and rulemaking capacity and the Harris County Sheriff in his law-enforcement capacity—are enjoined from detaining misdemeanor defendants who are otherwise eligible for release but cannot pay a secured financial condition of release. • Harris County Pretrial Services must verify a misdemeanor arrestee’s inability to pay bail on a secured basis by affidavit.
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• The Harris County Sheriff must release on unsecured bail those misdemeanor defendants whose inability to pay is shown by affidavit, who would be released on secured bail if they could pay, and who have not been released after a probable cause hearing held within 24 hours after arrest. The court does not order: relief in cases involving felony charges or a mix of misdemeanor
and felony charges; the elimination of secured money bail; changes to Texas State law; changes to the written Harris County Criminal Courts at Law Rules of Court; modification of prior federal court orders, including the consent decree in Roberson v. Richardson; or a right to “affordable bail” under the Eighth Amendment. Instead, the relief ordered is consistent with Texas state and Harris County law as written, is required by the Equal Protection and Due Process Clauses, and is justified by the plaintiffs’ evidence. The relief is narrow so as not to interfere with the improvements the County is working to implement by July 1, 2017.
The reasons for these rulings are set out in the detailed findings and conclusions below. I. Findings of Fact
A. Procedural Background Ms. ODonnell filed suit while she was in custody in the Harris County Jail on May 19, 2016. (Docket Entry No. 3). Ms. McGruder and Mr. Ford filed suit while they were in custody on May 21, 2016. Civil No. 16-1436. The court consolidated the actions in August 2016. (Docket Entry No. 41). The plaintiffs filed an amended complaint on September 1, 2016. (Docket Entry No. 54). After extensive briefing and two lengthy hearings on August 18 and November 28, 2016, the court issued a Memorandum and Opinion on the defendants’ motions to dismiss. (Docket Entry No. 125); ODonnell v. Harris Cty., Tex., — F.Supp.3d —, 2016 WL 7337549 (S.D. Tex. Dec. 16, 2016). The
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court dismissed the claims against the Harris County Sheriff and the sixteen Harris County Criminal Court at Law Judges in their personal capacities. The court denied the motions to dismiss the claims against the County, the personal-capacity claims against five Harris County Hearing Officers, and the official-capacity claims against the Sheriff and the County Judges. (Id.). The court reset the preliminary injunction hearing scheduled for December 15, 2016 at the parties’ request, to facilitate settlement negotiations between the parties and newly elected Harris County officials. (Docket Entry No. 109). The parties did not settle. The court held an eight-day hearing in March 2017, and the parties filed voluminous records, lengthy video recordings, and numerous briefs.
The pending motions are the plaintiffs’ motion for class certification, (Docket Entry No. 146), the defendants’ motion for summary judgment, (Docket Entry Nos. 101, 104, 108), the plaintiffs’ motion for a preliminary injunction, (Docket Entry No. 143), and the defendants’ contingent motion for a stay pending appeal should the court grant preliminary injunctive relief, (Docket Entry No. 252). The defendants argue, principally, that there is no constitutional right to “affordable bail,” that Harris County’s post-arrest policies are subject to rational basis review, and that Harris County’s policies are constitutional under any level of judicial scrutiny. (See Docket Entry Nos. 101, 161, 162, 166, 193, 256, 286). The plaintiffs argue that Harris County’s system of pretrial bail and detention in misdemeanor cases violates the Equal Protection and Due Process Clauses of the United States Constitution. (See Docket Entry Nos. 143, 145, 188, 189). They do not believe their claims raise an Eighth Amendment challenge, but they argue in the alternative that the County’s bail system for misdemeanor arrestees fails under the Eighth Amendment as well. (Docket Entry No. 92 at 18 n.19; No. 188 at 14 n.13).
This Memorandum and Opinion addresses the parties’ disputes on summary judgment and
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the plaintiffs’ entitlement to preliminary injunctive relief. Separate orders address class certification and the defendants’ motion to stay.
B. The Evidence in the Record The motion for a preliminary injunction requires balancing the expediency demanded by the request for emergency relief with a full and fair consideration of the voluminous record. The parties submitted nearly 300 written exhibits, in addition to 2,300 video recordings of bail-setting hearings conducted within the last year in Harris County, all admitted without objection. (Docket Entry Nos. 244, 267). Thirteen witnesses testified at the eight-day hearing, including four expert witnesses. The court admitted depositions and declarations from many other witnesses as well. The parties largely agree on the facts of the procedures Harris County follows after the arrest of misdemeanor defendants. Both parties’ statistical experts used the same data from the County’s administrative sources and largely agreed on the raw numbers produced by, and the gaps found in, the Harris County data. The parties’ experts disagree about how to interpret the data. The parties disagree about the constitutional significance of the evidence about the County’s bail procedures in misdemeanor cases and their effects. The court reviews the factual record under the applicable legal framework to resolve these disagreements and to enter the findings of fact and conclusions of law.3
1. The Parties Maranda Lynn ODonnell, a 22-year-old single mother, was arrested on May 18, 2016 at 5:00 p.m. and charged with driving with an invalid license. Pls. Ex. 7(a). After she was booked into the Harris County Jail, she was informed that she would be released promptly if she paid a secured
3 Any findings of fact that are also, or only, conclusions of law are so deemed. Any conclusions of law that are also, or only, findings of fact are so deemed.
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money bail of $2,500 set according to the County’s bail schedule, but that she would remain in jail if she did not pay either the full bail amount to the County or a premium to a bail bondsman up front. Id. Ms. ODonnell and her child struggled to meet the basic necessities of life. She received benefits from the federal government’s Women, Infants, and Children program to feed her daughter. She could not afford housing, so she stayed with a friend. Id. At the time of her arrest, Ms. ODonnell was working, but it was at a new job she had held for only seven days. Id. She had no money to buy her release from detention. Id. She was otherwise eligible for release.
Harris County Pretrial Services interviewed Ms. ODonnell at 11:52 p.m. on May 18. Pls. Ex. 8(c)(1), ODonnell Pretrial Services Report. At 3:00 a.m., on May 19, Pretrial Services completed a risk-assessment report recommending her release on a personal bond—that is, an unsecured appearance bond requiring no up-front payment for release. Id. Ms. ODonnell appeared before a Hearing Officer at 7:00 a.m., by videolink from the Harris County Jail. Pls. Ex. 4(c)(1), ODonnell Docket Sheet. The Sheriff’s deputies present ordered her not to speak. Pls. Ex. 7(a). Without explanation, the Hearing Officer told her that she did not “qualify” for release on personal bond and imposed the $2,500 scheduled amount as secured bail, meaning that she had to pay the full bail amount or a bondman’s premium to be released. Pls. Ex. 8(c), ODonnell Hearing Video. When asked if she would hire her own lawyer or would be seeking help from a court-appointed lawyer, Ms. ODonnell responded, “Seeking help.” These were her only words during her 50-second hearing. Id.
On the morning of May 20, Ms. ODonnell appeared before a County Criminal Court at Law Judge. (Docket Entry No. 31, Ex. 1). She completed an affidavit declaring her lack of assets and was found indigent for the purpose of appointing counsel. (Id.). Her bail amount was not changed or set on an unsecured basis, even though she declared on her affidavit that she remained in jail.
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(Id.). That same day, but after Ms. ODonnell filed this suit, an insurance underwriter for a commercial bondsman posted her bail amount. Pls. Ex. 11 at *5. This third-party payment looks like an attempt to moot her claim. See id. Ms. ODonnell was released from jail after three days in pretrial detention on the charge of driving with an invalid license. Pls. Ex. 8(c), ODonnell Docket Sheet.
Robert Ryan Ford was arrested on May 18, 2016 at 8:00 p.m. He was charged with shoplifting from a Wal-Mart. Pls. Ex. 7(c). Mr. Ford could not pay the $5,000 secured money bail imposed as the condition for his release from pretrial detention. Id. This was the amount specified in the bail schedule. Mr. Ford was interviewed by Pretrial Services at 10:00 a.m. the morning after his arrest, but Pretrial Services did not complete Mr. Ford’s risk assessment until the next day, May 20, at 2:00 a.m. Pls. Ex. 8(c)(iii), Ford Pretrial Services Report. The risk-assessment report recommended “Detain,” stating that Mr. Ford had “[s]afety issues that conditions can’t mitigate.” Id. at *16. The form did not explain these issues nor why some combination of conditions of release could not address them. Notwithstanding the recommendation to detain, had Mr. Ford paid the $5,000 bail—or paid a bondsman a $500 premium4—he would have been promptly released, regardless of “safety issues.” He could not pay the $5,000 secured money bail or the bondsman’s premium, so he remained in jail. Pls. Ex. 7(c). As intended by Pretrial Services, the secured money bail served as a pretrial detention order because Mr. Ford was too poor to pay.
Mr. Ford did not see a Hearing Officer until May 20, 2016 at 4:00 a.m., 32 hours after his arrest. Pls. Ex. 8(c)(iii), Ford Docket Sheet. His hearing lasted less than 50 seconds. Pls. Ex. 8(c),
4 The complaint alleges, and the record shows, that commercial sureties in Harris County typically charge a nonrefundable premium of 10 percent of the total value of the bond, but for low money bail amounts, such as those at the lower end of the misdemeanor bail schedule, bondsmen charge a premium higher than 10 percent. (Docket Entry No. 54 ¶ 44 n.8); Hearing Tr. 2-1:56.
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Ford Hearing Video. He did not speak except to ask for a court-appointed lawyer. Id. His bail was confirmed at $5,000 on a secured basis. Id.
On May 23, 2016, Mr. Ford appeared before a County Criminal Court at Law Judge, pleaded guilty, and was sentenced to time served. Pls. Ex. 8(c)(iii), Ford Docket Sheet. He was released at 12:30 a.m. on May 24, 2016. Id. Mr. Ford was continuously detained on his misdemeanor charge for over five days, until the final disposition of his case.
Loetha Shanta McGruder, a pregnant 22-year-old mother of two, was arrested on May 19, 2016 at 5:20 p.m. She was charged with failing to identify herself to a police officer. Pls. Ex. 7(b). Ms. McGruder was indigent. Id. She depended on federal benefits to care for her older son, who has Down’s Syndrome and other medical needs, and she depended on child-support payments for her other children. Id. Ms. McGruder was not working when she was arrested. She avoided homelessness by living with her boyfriend. Id. She could not pay the $5,000 secured money bail imposed as the condition for her release from pretrial detention. Id.
Ms. McGruder was interviewed by Pretrial Services the morning after her arrest, at 8:40 a.m. Pls. Ex. 8(c)(ii), McGruder Pretrial Services Report. Pretrial Services completed its risk-assessment report around 1:00 p.m. with no recommendation for either release or detention. Id. Ms. McGruder appeared before a Hearing Officer at 1:00 p.m. on May 20. Pls. Ex. 8(c)(ii), McGruder Docket Sheet. She did not speak at her hearing except to discuss her need for a court-appointed lawyer. Pls. Ex. 8(c)(ii), McGruder Hearing Video. Her bail was confirmed at $5,000 on a secured basis. Id.
After about 87 hours in jail, Ms. McGruder appeared before a County Criminal Court at Law Judge. Pls. Ex. 8(c)(ii), McGruder Docket Sheet. She was ready to enter a guilty plea because she believed it was the fastest way to be released. Hearing Tr. 2-1:80–81, 108. Her lawyer convinced
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her to seek a personal bond instead. Id. At her first counseled hearing before a County Judge, Ms. McGruder was granted a personal bond—an unsecured $5,000 bond with no up-front payment required. She was released at 7:30 p.m. the same day. Pls. Ex. 8(c)(ii), McGruder Docket Sheet. Ms. McGruder spent four full days in pretrial detention on her misdemeanor charge of failing to identify herself to a police officer.
The plaintiffs sued Harris County under 42 U.S.C. § 1983, alleging that the County’s policies have deprived them and others similarly situated of due process and equal protection by detaining them before trial on misdemeanor charges because of their inability to pay a secured money bail, and without a meaningful or timely inquiry into their inability to pay. (Docket Entry No. 54). The motions to dismiss resulted in earlier rulings on the claims against the various defendants. • The court denied Harris County’s motion to dismiss. The County may face municipal
liability under § 1983 for the law-enforcement policies of its Sheriff, to the extent the Sheriff knowingly enforces invalid detention orders, and for the legislative and administrative policies of the County Judges to the extent those policies are not directly mandated by Texas law. ODonnell, 2016 WL 7337549 at *22–31. • The court dismissed the plaintiffs’ personal-capacity claim against the Harris County Sheriff but denied the motion to dismiss the official-capacity claim. Id. at *32. To the extent the Sheriff enforces facially valid but unconstitutional detention orders, the Sheriff may be liable for prospective relief under Ex parte Young, 209 U.S. 123 (1908). Id. • The court dismissed personal-capacity claims against the sixteen Harris County Criminal Court at Law Judges, but denied the motion to dismiss the official-capacity claims against them. ODonnell, 2016 WL 7337549 at *27–28. To the extent the County Judges
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administratively enforce facially constitutional Texas laws, such as the Texas Code of Criminal Procedure, in an unconstitutional manner, the County Judges may be liable for prospective relief. Id. at *28, 36–37. • The court granted the motion to dismiss the official-capacity claims against five Harris County Hearing Officers. Id. at *34–35. They remain in the suit in their personal capacities for declaratory relief only. Id.
2. The Fact Witnesses The fact witnesses testified about the post-arrest process for misdemeanor defendants in Harris County, as well as the reforms to the bail system the County expects to implement by July 1, 2017. The fact witnesses and their testimony are summarized below. • Assistant District Attorney JoAnne Musick. Ms. Musick was appointed the Sex Crime Unit Chief at the Harris County District Attorney’s Office in January 2017. She has practiced criminal defense privately for over thirteen years and has served as the vice-chair of the Criminal Law & Procedure Committee of the Houston Bar Association and as a board member of the Texas Criminal Defense Lawyers Association. Ms. Musick testified about her extensive experience with Harris County pretrial processes, both as a criminal defense lawyer and as an Assistant District Attorney. Ms. Musick filed a declaration stating her observation that Harris County consistently detains misdemeanor arrestees, who are otherwise eligible to be released, because they cannot pay a secured financial condition of release. As a consequence, many indigent misdemeanor arrestees plead guilty at their first appearance as the only way to be released from pretrial detention without waiting days or weeks for another hearing. Pls. Ex. 7(g) at 4–5.
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• Sheriff Ed Gonzalez. Sheriff Gonzalez was elected Harris County Sheriff in November 2016 and assumed office in January 2017. He served eighteen years with the Houston Police Department and was a Houston City Council member for three terms before his election as Sheriff. Sheriff Gonzalez testified about his experience with the post-arrest process in Harris County. Sheriff Gonzalez also filed a declaration stating his observation that Harris County consistently detains misdemeanor arrestees, who are otherwise eligible to be released, because they are too poor to pay a secured financial condition of release. Pls. Ex. 7(r) at 1–2.
• Major Patrick Dougherty. Major Dougherty was appointed as a major with the Harris County Sheriff’s Office in January 2017 after serving thirty-five years with the Houston Police Department. Major Dougherty testified about his experiences with the post-arrest processes in the City of Houston and in Harris County. Major Dougherty reviewed the technology limits and overcrowded conditions in the Harris County Jail that complicate the timely transfer and presentment of misdemeanor arrestees.
• Director of Pretrial Services Kelvin Banks. Mr. Banks began work as the Director of Pretrial Services for Harris County in October 2016. He served previously as the Director of Pretrial Services for the Third Circuit Court in Wayne County, Michigan, primarily overseeing pretrial services for the City of Detroit. Mr. Banks testified about the County’s current Pretrial Services program, the planned changes to Pretrial Services’s risk-assessment tool, and other changes impacting the use of secured money bail in misdemeanor cases. These changes are expected to be implemented by July 1, 2017.
• Chief Hearing Officer Blanca Villagomez. Judge Villagomez has been a Harris County Hearing Officer since the position was created in 1993. She testified about her own and
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others’ practices as Hearing Officers. • Hearing Officer Eric Hagstette. Judge Hagstette has been a Harris County Hearing Officer
for over eleven years. He was a Harris County Assistant District Attorney for ten years and a criminal defense attorney for ten years. Judge Hagstette testified about his practices as a Hearing Officer and his impressions of the pretrial process from his time as a practicing criminal lawyer. • County Judge Darrell Jordan. Judge Jordan was elected to be the presiding judge of County Criminal Court at Law No. 16 in November 2016. He assumed office in January 2017. Judge Jordan previously practiced as a criminal defense attorney for eight years. Judge Jordan testified about his practices as a County Judge and about his past experiences as a lawyer defending misdemeanor arrestees in Harris County. • County Judge Paula Goodhart. Judge Goodhart was appointed to be the presiding judge of County Criminal Court at Law No. 1 in 2010. She was an Assistant District Attorney for Harris County for fourteen years and a criminal defense attorney for three years. Judge Goodhart testified about her practices as a County Judge and about her past experiences practicing in the Harris County Criminal Courts at Law. • County Judge Margaret Harris. The defendants offered the testimony of Judge Harris, the presiding judge of County Criminal Court at Law No. 5 since 2003. The parties stipulated that Judge Harris’s testimony would be consistent in material respects with Judge Goodhart’s testimony. Hearing Tr. 5:152. • Dr. Marie VanNostrand. Dr. VanNostrand is a project manager for Luminosity, a consulting firm that advises pretrial services programs. Dr. VanNostrand is a former probation and
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parole officer and pretrial services provider. She began working as a consultant for pretrial services agencies in 2003 and through Luminosity has been consulting with Harris County to reform its pretrial processes and services since February 2015. Hearing Tr. 6-1:131. Dr. VanNostrand testified about her statistical studies on pretrial detention and about the reforms to the Harris County pretrial process planned for implementation by July 1, 2017.
3. The Expert Witnesses The plaintiffs presented Dr. Stephen Demuth to testify under Rule 702 of the Federal Rules of Evidence on sociology and criminal pretrial procedure. Dr. Demuth has a doctorate in sociology with a concentration in chronology and quantitative methods of research. He is a professor of sociology at Bowling Green State University in Ohio. He has published extensively in peerreviewed journals on pretrial criminal processes and on the appropriate use of large data sets. Dr. Demuth testified that he received no compensation for his consultation and testimony in this case. He has invested at least 150 hours of work analyzing the data Harris County has produced since the plaintiffs retained him on February 9, 2017. The plaintiffs also presented Judge Truman Morrison to testify under Rule 702. Judge Morrison is a Senior Judge of the Superior Court of the District of Columbia. He has served on that court for over thirty-seven years. After taking senior status in 2000, Judge Morrison has focused on misdemeanor cases. Since the late 1980s, he has led reform efforts in his court to eliminate the use of secured money bail in the D.C. criminal justice system. He has also worked to educate judicial officers and others around the country on the benefits of eliminating money bail and the harms of continuing to use it in misdemeanor cases. The defendants offered the testimony of Dr. Robert Morris as a Rule 702 witness in
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criminology. Dr. Morris holds a doctorate in criminal justice and was a professor of criminology at the University of Texas in Dallas for nine years. Since August 2016, he has been the cofounder and chief executive officer of Predicto, a company that uses machine learning to predict failures in industrial equipment. Dr. Morris testified that he has worked 45 to 50 hours analyzing data produced by Harris County since his retention and has invoiced the County $325 per hour. Hearing Tr. 4-2:156.
The defendants also offered the testimony of Mr. Bob Wessels as a Rule 702 witness with specialized knowledge in court administration and pretrial procedures, particularly in Harris County. Mr. Wessels was the court manager of the Harris County Criminal Courts at Law for thirty-five years, until he retired in 2011. He has received numerous awards and national recognition for his work on court administration and is a former president of the National Association of Court Administrators.
The court finds that Drs. Demuth and Morris meet the Rule 702 requirements to testify about Harris County’s pretrial arrest data and system and that Judge Morrison and Mr. Wessels are qualified to testify about court administration. Specific findings about the reliability, helpfulness, and credibility of their opinions are set out in detail below.
4. Overview of the Factual and Legal Issues The parties dispute three broad issues: (1) whether Harris County impermissibly sets secured money bail to serve as de facto orders of pretrial detention in misdemeanor cases; (2) whether Harris County provides misdemeanor defendants due process and equal protection in their bail settings; and (3) whether planned reforms will sufficiently address the plaintiffs’ allegations of constitutional violations. Each issue raises complex questions of fact and law.
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The defendants argue that Harris County judicial officers do not intentionally use secured money bail to detain and are not recklessly indifferent to that effect of secured money bail. Instead, the defendants argue, Hearing Officers and County Judges apply the Texas Code of Criminal Procedure’s requirement to consider five factors—only one of which relates to a defendant’s ability to pay—in setting bail. See TEX. CODE CRIM. PRO. art. 17.15. The plaintiffs respond that the evidence shows Harris County judicial officers do not in fact give individualized consideration of the five factors in setting bail in each misdemeanor case, but instead routinely set secured money bail to conform to a predetermined schedule, even when it is clear that the effect will be pretrial detention.
The parties’ disputes extend beyond whether the facts show rare, occasional, or frequent individual consideration of bail in particular cases. The parties also dispute whether imposing secured money bail on an indigent or impecunious misdemeanor arrestee is a but-for cause or a proximate cause of pretrial detention if an arrestee with financial means could pay and secure prompt release. The defendants argue that virtually no misdemeanor defendant is detained before trial “solely by” or “because of” an inability to pay secured money bail. Instead, the defendant’s past criminal history, prior failures to appear, or other risk factors all contribute to a judicial officer’s decision to impose secured money bail at a particular amount. Under this view, the arrestee’s criminal history, prior failures to appear, or other risk factors—not just the bail amount—are among the reasons for pretrial detention. (See, e.g., Docket Entry No. 162 at 15–16; No. 164 at 8–9); Hearing Tr. 1:99–100.
The plaintiffs counter with a but-for argument. A judicial officer’s decision to set secured money bail means that the misdemeanor defendant has been found eligible for release and would be
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released but for their inability to make the up-front payment of the secured money bail bond. The plaintiffs argue that detaining misdemeanor defendants before trial solely because of their inability to pay violates the Equal Protection Clause, because defendants with similar histories and risks but with access to money are able to purchase pretrial release. The plaintiffs contend that all rigorous studies of pretrial release in misdemeanor cases show that release on secured money bail does no more to mitigate the risk of nonappearance or of new criminal activity during pretrial release than release on unsecured or nonfinancial conditions. (See, e.g., Docket Entry No. 143 at 15–17; No. 188 at 4–7); Hearing Tr. 4-2:15–16.
For the reasons set out below, the court finds and concludes that the plaintiffs have the better understanding of the case. A misdemeanor defendant’s criminal background or risk factors may give the County a persuasive reason to detain that defendant. But an order imposing secured money bail is effectively a pretrial preventive detention order only against those who cannot afford to pay. It is not a detention order as to defendants who can pay, even if they present a similar risk of failing to appear or of committing new offenses before trial as those who cannot pay. And the reliable record evidence shows that release on secured money bail does not mitigate those risks for misdemeanor defendants better than release on unsecured or nonfinancial conditions, in Harris County or elsewhere. The issue is not a right to “affordable bail,” as the defendants insist, but a violation of the Equal Protection and Due Process Clauses.
The plaintiffs allege that Harris County’s pretrial misdemeanor bail system violates procedural due process because: (1) misdemeanor arrestees who cannot pay the up-front amount for release on secured money bail are frequently held longer than 24 hours before any meaningful bail review, contrary to Texas law and to federal court orders; (2) misdemeanor arrestees are not able
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even to ask for a review of their bail in a counseled, adversarial proceeding, with an opportunity to present evidence and a right to findings on the record, until at least two or three days and often up to two weeks after their arrests; (3) misdemeanor arrestees who cannot afford their secured money bail are jailed for more than 48 hours if they do not plead guilty at their first court appearances; and (4) the County imposes secured money bail to serve as de facto detention orders, without affording misdemeanor defendants the due process protections the Constitution requires for detention orders. (See, e.g., Docket Entry No. 144 at 13–14; No. 145 at 7–9; No. 188 at 13–15).
The defendants argue that Harris County’s pretrial process is among the fastest in the nation and that its bail practices are not out of step with the majority of other United States jurisdictions. (See, e.g., Docket Entry No. 286). While insisting that the County’s current system is legal, the defendants acknowledge that it needs improvement. They argue that the planned reforms will make the County’s pretrial system more efficient, more rational, and more equal across classifications of wealth and risk factors. (Docket Entry No. 162 at 23); Hearing Tr. 1:100–01, 8-2:30–32. The plaintiffs respond that until the expected reforms are implemented, serious constitutional violations will continue to occur, affecting hundreds of individuals every day. Even under the reforms, the plaintiffs contend, Harris County will continue its policy of imposing secured money bail as de facto pretrial detention orders in violation of federal due process requirements. (Docket Entry No. 188 at 26–27).
The court finds and concludes that, based on the credible, reliable evidence in the present record, the plaintiffs are likely to succeed on the merits of at least some of their claims that the present system violates due process and equal protection, and that the plaintiffs are likely to succeed in part in their challenges to the new pretrial system as currently proposed by Harris County. The
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plaintiffs are entitled to a preliminary injunction, as set out in detail below. C. The Historical Development of Bail in the United States and in Harris County 1. The Constitutionalization of Bail Bail originated in medieval England “as a device to free untried prisoners.” Daniel J. Freed
& Patricia M. Wald, Bail in the United States: 1964 1 (1964); see 4 William Blackstone, Commentaries on the Laws of England (Rees Welsh & Co. [1769] 1902) (“By the ancient common law, before and since the [Norman] conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case.” (footnotes omitted)); see generally William F. Duker, The Right to Bail: A Historical Inquiry, 42 ALB. L. REV. 33, 34–66 (1977); Elsa de Haas, Antiquities of Bail 128 (1940). In 1275, the English Parliament enacted the Statute of Westminster, which defined bailable offenses and provided criteria for determining whether a particular person should be released, including the strength of the evidence against the accused and the accused’s criminal history. See Note, Bail: An Ancient Practice Reexamined, 70 YALE L.J. 966, 966 (1961); June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 SYRACUSE L. REV. 517, 523–26 (1983). In 1679, Parliament adopted the Habeas Corpus Act to ensure that an accused could obtain a timely bail hearing. In 1689, Parliament enacted an English Bill of Rights that prohibited excessive bail. See Carbone, supra, at 528.
Early American constitutions codified a right to bail as a presumption that defendants should be released pending trial. See Note, Bail, supra, at 967. One commentator who surveyed the bail laws in each state found that forty-eight states have protected, by constitution or statute, a right to bail “by sufficient sureties, except for capital offenses when the proof is evident or the presumption
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great.” Matthew J. Hegreness, America’s Fundamental and Vanishing Right to Bail, 55 ARIZ. L. REV. 909, 916 (2013). States modeled these provisions on the Pennsylvania Constitution of 1682. See Carbone, supra, at 531–32. Texas substantially incorporated that language into its Constitution in 1845, and it remains.5 TEX. CONST. art. 1 § 11.
Texas law interprets Article I, § 11 to prohibit preventive pretrial detention except in specific and narrow circumstances set out in constitutional amendments. Id. § 11a et seq. “The exceptions contained in Article I, § 11a, supra, to the constitutional right to bail proclaimed by Article I, § 11, supra, include the seeds of preventive detention urged by many to be abhorrent to the American system of justice. It is obvious that for these reasons the provisions of said § 11a contain strict limitations and other safeguards.” Ex parte Davis, 574 S.W.2d 166, 169 (Tex. Cr. App. 1978). The exceptions are narrow. All but one are limited to felonies. The one exception is under §§ 11b and 11c, which permit a denial of bail and pretrial preventive detention for those accused of a crime of family violence, including misdemeanors, if: (1) the accused has violated a condition of pretrial release or a protective order; and (2) a magistrate determines at an adversary hearing by a preponderance of the evidence that the accused violated the condition of release or protective order in a manner “related to the safety of a victim of the alleged offense or the safety of the community.” TEX. CONST. art. 1, §§ 11b–11c.
Historians and jurists confirm that from the medieval period until the early American republic, a bail bond was typically based on an individualized assessment of what the arrestee or his surety could pay to assure appearance and secure release. In medieval England, an arrestee was forbidden to pay his sureties for obtaining his release. If an accused failed to appear, the sureties
5 The Texas Constitution contains an additional provision making bail available even in capital cases after indictment. TEX. CONST. art. 1 § 11.
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were “amerced” with a fine, but there were “maximum amercements depending on the wrong-doer’s rank; the baron [did] not have to pay more than a hundred pounds, nor the routier more than five shillings.” 2 Frederick William Polluck & Frederic William Maitland, The History of English Law Before the Time of Edward I 514 (2d ed. 1984 [1898]). Joseph Chitty, an eminent proceduralist, summarized the English practice when the United States Constitution was ratified: “The rule is, where the offence is prima facie great, to require good bail; moderation nevertheless is to be observed, and such bail only is to be required as the party is able to procure; for otherwise the allowance of bail would be a mere colour for imprisoning the party on the charge.” 1 J. Chitty, A Practical Treatise on the Criminal Law 88–89 (Philadelphia ed. 1819); see also Bates v. Pilling, 149 Eng. Rep. 805, 805 (K.B. 1834) (“a defendant might be subjected to as much inconvenience by being compelled to put in bail to an excessive amount, as if he had been actually arrested”); Rex v. Bowes, 99 Eng. Rep. 1327, 1329 (K.B. 1787) (per curiam) (“[e]xcessive bail is a relative term; it depends on the nature of the charge for which bail is required, upon the situation in life of the parties, and on various other circumstances”) & (Archbald, J.) (permitting a “lessening” of bail if there were “difficulty” procuring the decreed sum); Neal v. Spencer, 88 Eng. Rep. 1305, 1305–06 (K.B. 1698) (collecting cases showing a diversity of bail amounts given for the same offense). The pre-Texas history of bail confirms the modern holdings of Texas courts, that bail is a mechanism for pretrial release and not for continued pretrial preventive detention.
2. Statutory and Judicial Bail Reform: Pretrial Services, Probable Cause Hearings, and “Meaningful” Alternatives to Secured Money Bail
In the mid-nineteenth century, bail reform was crucial to abolishing imprisonment for debt. In Massachusetts, the 1831 survey of the Prison Discipline Society noted that the availability of bail in debtors’ prisons created class distinctions between “poor seamen, poor laborers, and poor
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mechanics” who could not find sureties and remained in jail, “while there is scarcely an instance on record of a poor minister, a poor physician, or a poor lawyer in Prison for debt.” Sixth Annual Rep. of the Prison Discipline Society 22 (1831). After Massachusetts abolished imprisonment for debt in 1855, the State permitted those jailed on mesne6 process in contract cases to swear an oath of indigence and to be released on personal recognizance as an alternative to secured money bail. 1857 Mass. L. 489–97. From 1831 to 1833, Congress passed legislation abolishing imprisonment for debt at the federal level. 4 STAT. 467, 594, 676. Ultimately, forty-one states, including Texas, constitutionally banned imprisonment for debt.7 See TEX. CONST. art. 1 § 18.
Another wave of bail reform began with the 1960s Manhattan Bail Project, conducted by the Vera Foundation in New York City. See Wayne H. Thomas, Jr., Bail Reform in America 3, 20–27 (1976); Ronald Goldfarb, Ransom 150–72 (1965). The Project interviewed defendants before their first court appearance to evaluate whether they were good candidates for pretrial release on recognizance; that is, release “on one’s honor pending trial.” Goldfarb, supra, at 153–54. The standard interview questions asked about a defendant’s personal background, community ties, and criminal history. Id. The interviewer scored a defendant’s answers using a point-weighting system and verified the answers, usually by telephone, with references the defendant provided. Id. at 154–55, 174–75. The interviewers gave the information to the court and recommended which defendants should be released on nonfinancial conditions. Id. at 155. During the first three years
6 “Mesne” is a medieval French legal term meaning “intermediate,” or process issued after a suit began but before it ended. It often referred to a writ issued during a civil case. The word remained in the Federal Rules of Civil Procedure until 2007, despite the fact that few knew what it meant and fewer ever used it.
7 For an up-to-date collection of state constitutional provisions banning imprisonment for debt, see Note, State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 HARV. L. REV. 1024, 1035 n.95 (2016).
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of the Project, defendants released on nonfinancial conditions at the recommendation of the Vera Foundation were about three times more likely to appear for trial than were defendants in control groups who were found eligible for release on nonfinancial conditions but who were instead released on secured money bail. Id. at 155, 157. The success of the Manhattan Bail Project inspired the creation of pretrial services programs across the country. See Timothy R. Schnacke et al., Pretrial Justice Inst., The History of Bail and Pretrial Release 10 (2010).
In the 1970s, a major prisoners’ class action challenged the facial and as-applied constitutionality of Florida’s pretrial detention system. The litigation led to two foundational opinions, one by the United States Supreme Court and one by the former Fifth Circuit. In Gerstein v. Pugh, 410 U.S. 103 (1975), the Supreme Court ruled that criminal defendants arrested without a warrant and then detained before trial had to be taken “promptly” before a judicial officer to determine probable cause for the arrest. 410 U.S. at 127. The Court did not specify what would meet the promptness standard, instead noting that “the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole. . . . It may be found desirable, for example, to make the probable cause determination at the suspect’s first appearance before a judicial officer, or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release.” Id. at 124 (internal citations omitted).
In Pugh v. Rainwater, 572 F.2d 1053 (1978) (en banc), the Fifth Circuit considered the same class’s challenge to Florida’s pretrial bail system. The en banc court vacated as moot the panel decision finding the system unconstitutional, because Florida had amended its rules while the appeal was pending. Id. at 1058–59. The en banc court ruled that the Constitution did not require the statute to include a presumption that indigent arrestees would be released without financial
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conditions to be facially valid. Id. at 1057–58. But the court noted that while “[u]tilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements[, t]he incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057.
In the decade following Gerstein and Rainwater, the City of Houston and Harris County were sued in two lawsuits disputing how to apply those precedents locally. In Sanders v. City of Houston, 543 F.Supp. 694 (S.D. Tex. 1982), the court ruled after a bench trial that Gerstein’s promptness standard required a probable cause hearing for those arrested without a warrant by the City of Houston within 24 hours of arrest. Id. at 702. The court also ruled that bail had to be set within 24 hours of arrest to avoid an unconstitutional denial of bail under the Texas Constitution.8 Id. at 704.
In Roberson v. Richardson, Agreed Final Judgment, Civil No. 84-2974 (S.D. Tex. Nov. 25, 1987), the court entered a final agreed judgment that applied the 24-hour time limit to misdemeanor cases throughout the County.9 The Roberson order’s stated purpose was to ensure that misdemeanor arrestees in Harris County had “the right to a prompt, fair and reliable determination of Probable Cause as set out in Gerstein v. Pugh, 420 U.S. 103 (1978), a meaningful review of alternatives to pre-scheduled bail amounts as set out in Rainwater v. Pugh, 572 F.2d 1053 (5th Cir. 1978) (en banc), and the right to the prompt appointment of counsel.” Id. at 1. The Roberson order required the County Criminal Courts at Law Judges to provide probable cause hearings within 24 hours of
8 The Sanders plaintiffs challenged the City of Houston’s practices under the Fourth Amendment, and the court ruled that the permissible period for the “administrative steps incident to arrest” concluded at 24 hours. 543 F.Supp. 699. The plaintiffs did not raise, and the court did not decide, challenges under the Equal Protection and Due Process Clauses of the Constitution.
9 The order is available at Def. Ex. 95.
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misdemeanor arrests, allowing the hearings to be by videolink rather than in person. Id. at 2 (videolink), 3 (24 hours).
The Roberson order required judicial officers at the probable cause hearing to “set the amount of bail required of the accused for release and determine the accused’s eligibility for release on personal bond or alternatives to prescheduled bail amounts.” Id. at 3. Substantially repeating Article 17.15 of the Texas Code of Criminal Procedure, Section D of the Roberson order stated:
Such bail determinations shall be according to the following criteria: 1. The bail shall be sufficiently high to give reasonable assurance that the undertaking
will be complied with; 2. The nature of the offense for which Probable Cause has been found and the
circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any; 3. The ability to make bail is to be regarded, and proof may be taken upon this point; 4. The future safety of the victim may be considered, and if this be a factor, release to a third person should also be considered; and 5. The Judicial Officer shall also consider the accused’s employment history, residency, family affiliations, prior criminal record, previous court appearance performance and any outstanding bonds. Id. at 3. The Roberson order required the County Judges to “implement and maintain a bond schedule for all misdemeanor offenses within their jurisdiction.” Id. at 4. The schedule had to “establish the initial amounts of bail required in each type or category of offense.” Id. The Roberson order required that: At the Probable Cause hearing the [Hearing] Officer shall use the Bail Schedule, in addition to the criteria in Section D, in determining the appropriate bail in a given case. The [Hearing] Officer shall have the authority to order the accused released on personal bond or
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released on other alternatives to prescheduled bail amounts. The [County] Judges shall direct the Pretrial Services Agency to make every effort to insure that sufficient information is available at the time of the hearings required herein for the [Hearing] Officer to determine an accused’s eligibility for a personal bond or alternatives to prescheduled bail amounts. Id. Nothing in the Roberson order contemplated detention based on a misdemeanor arrestee’s inability to pay the scheduled bail amount set on a secured basis. Rather, the order required Hearing Officers to make individualized adjustments to the bail schedule in each case to provide a mechanism for release, either by lowering the scheduled amount when setting a secured bond; setting nonfinancial conditions of release; or granting release on unsecured “personal bonds” without additional conditions. See id. at 4, 1 (the purpose of the order is to provide “a meaningful review of alternatives to pre-scheduled bail amounts” (emphasis added)). Finally, the Roberson order required the County Judges to appoint counsel “prior to any adversarial judicial proceedings” or “where the Judge concludes that the interests of justice require representation, for all accused indigents who do not refuse the appointment of counsel.” Id. at 4. In determining indigency for the purpose of appointing counsel, the Roberson order required the County Judges to consider the accused’s income and expenses, assets and debts, dependents, and “whether the accused has posted or is capable of posting bail.” Id. In no case could a County Judge “deny appointed counsel to an accused solely because the accused has posted, or is capable of posting bail.” Id. Efforts to comply with the Roberson order have produced the system Harris County has in place today, examined in greater detail below.10 (Docket Entry No. 101 at 11); Hearing Tr. 4-2:222–29; 5:6–20. Harris County operates a Pretrial Services Agency that interviews
10 See Part I.D.2–3 infra.
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misdemeanor arrestees to provide criminal risk and financial background information to the Hearing Officers. The Hearing Officers hold videolink hearings for those arrested, charged, and booked into the Harris County Jail on misdemeanor charges.11 These hearings usually, but far from always, are held within 24 hours of arrest. The Hearing Officers usually jointly determine probable cause and set bail.
3. Bail at the Federal Level At the federal level, the Judiciary Act of 1789 provided an absolute right to bail in noncapital cases and bail at the judge’s discretion in capital cases. See 1 STAT. 73, 91. The first Congress also proposed the Eighth Amendment to the United States Constitution, which, like the Texas Constitution and the English Bill of Rights, prohibits excessive bail. See U.S. CONST. amend. VIII; TEX. CONST. art. 1, § 13. But unlike the Texas Constitution, the United States Constitution does not explicitly state a right to bail. The Eighth Amendment guarantees only that “[e]xcessive bail shall not be required.” U.S. CONST. amend. VIII; see Carlson v. Landon, 342 U.S. 524, 545–46, (1952) (the Eighth Amendment does not provide a “right to bail”). But the United States Supreme Court has made clear that “[b]ail set at a figure higher than an amount reasonably calculated to fulfill [the] purpose [of assuring the defendant’s appearance at trial] is ‘excessive’ under the Eighth Amendment.” Stack v. Boyle, 342 U.S. 1, 5 (1951). As the Court explained, From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves
11 The Harris County Hearing Officers also hold hearings, determine probable cause, and set bail in felony cases under rules and a bail schedule promulgated by the Harris County District Judges. Hearing Tr. 4-1:115. The Roberson order applied to procedures in Class A and B misdemeanor cases only. See, e.g., Def. Ex. 160 at 6. The Hearing Officers’ practices with regard to felony cases are not a subject of this litigation.
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to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285 . . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. Id. at 4; see also Bandy v. United States, 81 S.Ct. 197, 198 (1960) (Douglas, J., in chambers) (“It would be unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom. Yet in the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release.” (citing Stack, 342 U.S. at 1)); United States v. Leathers, 412 F.2d 169, 171 (D.C. Cir. 1969) (“the setting of bond unreachable because of its amount would be tantamount to setting no conditions at all”). The Bail Reform Act of 1966 became “the first major reform of the federal bail system since the Judiciary Act of 1789.” State v. Brown, 338 P.3d 1276, 1286 (N.M. 2014); see Bail Reform Act of 1966, 80 STAT. 214 (repealed 1984). The stated purpose of the Bail Reform Act of 1966 was “to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges . . . when detention serves neither the ends of justice nor the public interest.” Id. § 2. The Act required: (1) a presumption of release on personal recognizance unless the court determined that release would not reasonably assure the defendant’s appearance in court; (2) the option of conditional pretrial release under supervision or other terms designed to decrease the flight risk; and (3) a prohibition on using money bail when nonfinancial release options such as supervisory custody or restrictions on “travel . . . or place of abode” could reasonably assure the defendant’s appearance. See id. § 3, § 3146(a). Congress again revised federal bail procedures with the Bail Reform Act of 1984, enacted as part of the Comprehensive Crime Control Act of 1984. See Bail Reform Act of 1984, 98 STAT. 1837, 1976 (codified at 18 U.S.C. §§ 3141–3150 (2012)). The legislative history of the 1984 Act
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states that Congress wanted to “address the alarming problem of crimes committed by persons on release” and to “give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released.” S. Rep. 98–225, at 3 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3185. The 1984 Act, as amended, retains most of the 1966 Act but “allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions ‘will reasonably assure . . . the safety of any other person and the community.’” United States v. Salerno, 481 U.S. 739, 741 (1987) (omission in original) (quoting the Bail Reform Act of 1984) (upholding the preventive detention provisions in the 1984 Act).
The federal history of bail reform confirms that bail is a mechanism of pretrial release, not of preventive detention. Pretrial preventive detention in federal cases requires counseled, adversarial hearings with findings stated on the record that, by clear and convincing evidence, no less restrictive alternative can reasonably assure the defendant’s presence at trial. See id. In United States v. McConnell, 842 F.2d 105 (5th Cir. 1988), the Fifth Circuit held that “a bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.” Id. at 107. The magistrate judge in McConnell had initially ordered the felony defendant detained before trial with no release condition under the provision of the Bail Reform Act recently upheld in Salerno. See id. at 106. The district court replaced the detention order with a set of conditions for release, including weekly check-ins with pretrial services, travel restrictions, and secured money bail of $750,000. Id. The defendant moved for reconsideration, alleging that he did not have the assets to pay the secured money bail. The defendant appealed the district court’s denial of his motion for reconsideration, and the Fifth Circuit remanded to the district court for a written
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opinion with findings on the record. Id. The court issued written findings, and a second appeal
followed. Id.
The Fifth Circuit recognized that under the Bail Reform Act, Congress “proscrib[ed] the
setting of a high bail as a de facto automatic detention practice.” Id. at 109. The Fifth Circuit relied
on the Senate Report of the Bail Reform Act, which explained that:
section 3142(c) provides that a judicial officer may not impose a financial condition of release that results in the pretrial detention of the defendant. The purpose of this provision is to preclude the sub rosa use of money bond to detain dangerous defendants. However, its application does not necessarily require the release of a person who says he is unable to meet a financial condition of release which the judge has determined is the only form of conditional release that will assure the person’s future appearance. Thus, for example, if a judicial officer determines that a $50,000 bond is the only means, short of detention, of assuring the appearance of a defendant who poses a serious risk of flight, and the defendant asserts that, despite the judicial officer’s finding to the contrary, he cannot meet the bond, the judicial officer may reconsider the amount of the bond. If he still concludes that the initial amount is reasonable and necessary then it would appear that there is no available condition of release that will assure the defendant’s appearance. This is the very finding which, under section 3142(e), is the basis for an order of detention, and therefore the judge may proceed with a detention hearing pursuant to section 3142(f) and order the defendant detained, if appropriate. The reasons for the judicial officer’s conclusion that the bond was the only condition that could reasonably assure the appearance of the defendant, the judicial officer’s finding that the amount of the bond was reasonable, and the fact that the defendant stated that he was unable to meet this condition, would be set out in the detention order as provided in section 3142(i)(1). The defendant could then appeal the resulting detention pursuant to section 3145.
Id. at 108–09 (quoting S.Rep. No. 225, 98th Cong.2d Sess. 16, reprinted in 1984 U.S.C.C.A.N.
3182, 3199). The Fifth Circuit concluded that the district court could set a secured money bail
amount beyond the defendant’s ability to pay, but “[i]n such an instance, the court must explain its
reasons for concluding that the particular financial requirement is a necessary part of the conditions
for release. It is sufficient for the court to find by a preponderance of evidence that the defendant
poses a serious risk of flight.” Id. at 110. When federal bail functions as an order of detention
because of the defendant’s inability to pay, the court must treat the bail as an order of detention under
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§ 3142(e) and must provide the procedural protections that section requires, with a preponderanceof-the-evidence standard. See also United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (“once a court finds itself in this situation—insisting on terms in a ‘release’ order that will cause the defendant to be detained pending trial—it must satisfy the procedural requirements for a valid detention order”).
4. Bail under Texas Law The Texas state appellate court practice is similar to federal court practice. Texas courts have imposed or confirmed high money bail after a judicial officer holds an adversarial hearing, with defense counsel present, and issues a reasoned opinion with written findings permitting secured money bail despite inability to pay in felony cases in which pretrial preventive detention without bail is available under Article I, § 11 of the Texas Constitution. See, e.g., Jobe v. State, 482 S.W.3d 300 (Tex. App.—Eastland 2016) (charge of capital murder); Ex parte Ragston, 422 S.W.3d 904 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (capital murder, first-degree murder, and aggravated robbery); Ex parte Vasquez, 558 S.W.2d 477 (Tex. Cr. App. 1977) (capital murder). In cases in which preventive detention is not available, Texas appellate courts have confirmed high money bail in felony cases when the evidence did not show the defendant’s inability to pay. See, e.g., Ex parte Dupuy, 498 S.W.3d 220, 233 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“Appellant offered no evidence, and we see none in the record, suggesting the trial court set his bail at $200,000 for each case in order to keep him incarcerated.”); Cooley v. State, 232 S.W.3d 228, 235 (Tex. App.—Houston [1st Dist.] 2007) (“Cooley owns half of a multi-million dollar air freight business and did not introduce evidence that revenues from it were unavailable to him.”); Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Cr. App. 1980) (evidence showed the defendants “live
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in a style inconsistent with poverty”); Ex parte Welch, 729 S.W.2d 306, 310 (Tex. App.—Dallas 1987, no pet.) (incomplete and conflicting evidence on ability to pay in a case charging solicitation of capital murder committed while the defendant was already on pretrial release on a secured money bail).
In a narrow set of felony cases, Texas courts have imposed or confirmed high money bail despite evidence of inability to pay the amount needed for pretrial release. “When the offense is serious and involves aggravating factors that may result in a lengthy prison sentence,” a higher money bail than the defendant can pay is permissible, but only after satisfying the same due process requirements as an actual detention order. Dupuy, 498 S.W.3d at 230; see, e.g., Maldonado v. State, 999 S.W.2d 91 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (charges of possessing cocaine with a street value of $11–72 million with a possible sentence of 99 years); Ex parte Miller, 631 S.W.825 (Tex. App.—Ft. Worth 1982) (charges of murder and rape carrying life sentence); Ex parte Runo, 535 S.W.2d 188 (Tex. Cr. App. 1976) (bail set at $125,000 on a charge carrying a life sentence was not excessive, but bail set at $75,000 on a charge carrying a minimum two-year sentence was excessive and had to be reduced to $5,000). Even so, Texas courts are careful to distinguish between transparent pretrial preventive detention orders and de facto pretrial detention orders imposed by setting bail higher than the defendant can pay. See, e.g., Dupuy, 498 S.W.3d at 230; Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.) (setting bail “on the obvious assumption that appellant could not afford bail in that amount and for the express purpose of forcing [the defendant] to remain incarcerated” was overturned for abuse of discretion); Ex parte Nimnicht, 467 S.W.3d 64, 70 (Tex. App.—San Antonio 2015) (“There is no evidence the trial court set bail with the intent to prolong Nimnicht’s incarceration, especially in light of the fact the trial
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court reduced the bail amount.”).12
The defendants argue that, while Texas law forbids setting bail higher than a defendant can
pay in order to impose a de facto pretrial detention order, if a judicial officer weighs all five factors
of Article 17.15 of the Texas Code of Criminal Procedure and then imposes a bail amount that an
indigent arrestee cannot pay, the bail is not a de facto detention order. (See, e.g., Docket Entry No.
164 at 8–10, 18; No. 263 at 3–4; No. 266 at 7–8). The defendants overstate the Article 17.15 factors
and their role. The Texas cases make clear that a judge may arrive at a bail amount that a defendant
cannot pay when the defendant is facing a felony charge carrying an extended prison sentence. Even
then, the bail setting requires an adversarial, counseled hearing at which the defendant can put on
evidence of indigence and likelihood of compliance with nonfinancial conditions of release, and
reviewable findings, stated on the record, that the secured financial condition is reasonably necessary
to assure the defendant’s appearance at trial or law-abiding conduct.13 In misdemeanor cases, pretrial
12 The unpublished, nonprecedential Texas cases the defendants cite are all along the same lines. The cases involve felony charges, most of them first-degree felonies. In each, the appellate court found that: the evidence did not support a finding of indigence; see, e.g., Ex parte Murray, 2013 WL 5425312 (Tex. App.—Ft. Worth 2013, no pet.) (defendant’s father owned several rental properties and did not disclose whether collateral would be available for bond); Ex parte Cleveland, 1997 WL 451601 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (defendant had $200,000 in stocks and had filed a motion to unfreeze the assets to meet a bail of $200,000); In re Flores, 2003 WL 22682520 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (testimony from a bail bondsman insufficient to establish inability to pay); Lawhon v. State, 2015 WL 7424763 (Tex. App.—Austin 2015, no pet.) (testimony from defendant’s mother did not establish whether defendant could pay the bail or not); or the fact of indigence was outweighed because the case charged either capital murder or multiple serious felonies, for which preventive detention was available; see, e.g., Ex parte Tomlinson, 2002 WL 31008642 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Smith v. State, 2001 WL 421236 (Tex. App.—Houston [14th Dist. 2001, no pet.); Peterson v. State, 1993 WL 406758 (Tex. App.—Houston [14th Dist.] 1993, no pet.); or bail was irrelevant because the defendant was held for a probation violation; see, e.g., Ex parte Abdullah, 2011 WL 2226153 (Tex. App.—Texarkana 2011, pet ref’d). In each case, the defendant was provided an adversarial hearing with the opportunity to present evidence and contest the State’s evidence. And in many cases, the trial court lowered the initial bail amount after making specific findings on the balance of the state-law factors. See, e.g., Abdullah, Cleveland, Flores, and Lawhon, supra.
13 The Texas cases do not specify the evidentiary standard for bail-setting hearings. The burden of proof is on a defendant who claims bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App.
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preventive detention is permitted only when a defendant is facing a family violence charge after previously violating a release condition in an earlier family violence case. In those cases, it is not necessary to use secured money bail to effect the detention of those who cannot pay. The Texas Constitution permits a transparent order of pretrial preventive detention.
5. Recent Distinctions Drawn Between Bail and Preventive Detention a. Washington, D.C.
In 1994, Washington, D.C. amended its Code using language substantially similar to the federal Bail Reform Act. The amended Code permits a judicial officer to set “a financial condition to reasonably assure the defendant’s presence at all court proceedings that does not result in the preventive detention of the person, except as provided in” the Code’s regulations of preventive pretrial detention orders. D.C. CODE § 23-1321(c)(3). The Code permits preventive detention only in cases involving a charge of violent or dangerous crime, as well as in cases presenting a “serious risk that the person will flee.” Id. § 23-1322(b)(1). To order preventive detention, a judge must: hold a hearing at the first appearance of the defendant before a judicial officer; appoint counsel for the defendant; permit the defendant to put on evidence, testify, and call witnesses; and make written findings “by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of the person as required, and the safety of any other person and the community.” Id. § 23-1322(b)(2)–(d)(7).
1981); Ex parte Martinez–Velasco, 666 S.W.2d 613, 614 (Tex. App.—Houston [1st Dist.] 1984, no pet.). In reviewing a trial court’s ruling for an abuse of discretion, an appellate court will not intercede as long as the trial court’s ruling is at least within the zone of reasonable disagreement. Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). But an abuse-of-discretion review requires more of the appellate court than simply deciding that the trial court did not rule arbitrarily or capriciously. Beard, 92 S.W.3d at 573; Montgomery, 810 S.W.2d at 392. The appellate court must instead measure the trial court’s ruling against the relevant criteria by which the ruling was made. Id.
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Judge Truman Morrison of the D.C. Superior Court credibly testified at the motion hearing that until the 1994 amendment, the D.C. courts did not order preventive detention outright. The statutory prohibition on using secured money bail to assure community safety was also “a dead letter.” Hearing Tr. 2-2:137. “So in cases of any seriousness, judges made an effort nontransparently, never saying what they were doing out loud, to immobilize high-risk people—who they thought were high-risk people—with money bonds that they hoped would be beyond their reach.” Id. Judge Morrison testified that after the 1994 rule change, “[f]or the high-risk people that we used to immobilize nontransparently, we turned to this preventive detention statute that was moldering on the bookshelf, and prosecutors and judges began using that for high-risk people.” Id. at 2-2:139. For “somewhat serious misdemeanors who we had been keeping in the jail on lower levels of money bond,” judges began to order alternative nonfinancial conditions of release with supervision provided by D.C.’s pretrial services agency. Id. at 2-2:139–40. Based on a recent report by that agency, Judge Morrison testified that although secured money bail is still available under the D.C. Code, such bail is almost never imposed in misdemeanor cases. Transparent preventive detention orders are issued in only about 1.5 percent of misdemeanor cases, and then only after counseled, adversary hearings with findings on the record that there are no less restrictive conditions that will assure the defendant’s presence at trial or the safety of the community.14 Id. at 2-2:149, 154; D.C. CODE § 23-1322(b)(2)–(d)(7).
14 Judge Morrison testified that one exception in his past practice was to automatically impose a $500 bond on pretrial arrest warrants with the intent of revisiting conditions of release at a counseled first appearance hearing, generally held within 24 hours of arrest. Hearing Tr. 2-2:163–64. Judge Morrison credibly testified that his participation in this litigation has caused him to rethink the practice and petition the chief judge of the D.C. Superior Court to have the practice changed across the court system. Id. at 2-2:164.
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b. New Mexico In 2014, the New Mexico Supreme Court ruled that “[n]either the New Mexico Constitution nor our rules of criminal procedure permit a judge to set high bail for the purpose of preventing a defendant’s pretrial release.” Brown, 338 P.3d at 1292 (citing N.M. CONST. art. II, § 13—substantially the same language as TEX. CONST. art. I, § 11). The court explained that “[i]ntentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether.” Id. The supreme court held that the trial court had abused its discretion by requiring secured money bail “solely on the basis of an accusation of a serious crime” and had failed to apply the New Mexico Code of Criminal Procedure requirement that trial courts impose the least restrictive bail and release conditions to reasonably assure a defendant’s appearance and the public’s safety. Id. at 1291–92. In 2016, New Mexico voters codified the holding of State v. Brown in a constitutional amendment that passed with 87.2 percent of the vote.15 The amendment provided that “[b]ail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. An appeal from an order denying bail shall be given preference over all other matters.” Constitutional Amendment 1, New Mexico Senate Joint Resolution 1, March 1, 2016.16 The amendment also required that “[a] person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money
15 Official Results of the November 8, 2016 General Election, New Mexico Secretary of State, available at http://electionresults.sos.state.nm.us/resultsSW.aspx?type=SW&map=CTY.
16 Available at http://www.sos.state.nm.us/uploads/files/CA1-SJM1-2016.pdf.
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or property bond.” Id. Under the amendment, courts cannot order preventive detention for misdemeanor arrestees or accomplish the same effect by setting a secured money bail that an indigent defendant cannot pay.
c. New Jersey New Jersey recently amended its constitution and statutes to enact statewide bail reforms. The changes went into effect on January 1, 2017. The New Jersey Constitution now provides that “[p]retrial release may be denied to a person if the court finds that no amount of monetary bail, nonmonetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process.” N.J. CONST. art. 1, § 11. In a detailed law-enforcement directive, the New Jersey Attorney General concluded that under New Jersey’s prior practice, “in most cases the critical determination whether a defendant [was] released pending trial or instead incarcerated in a county jail [was] not made by a judge issuing a well-reasoned court order. Rather, for all practical purposes, defendants [were] released or detained based on whether they happen[ed] to have the financial means to post bail.” N.J. Attorney General Law Enforcement Directive No. 2016-6 at 9. New Jersey changed. Its current system creates a presumption against the use of secured money bail unless the prosecutor can show that “no non-monetary release condition or combination of conditions would be sufficient to reasonably assure the defendant’s appearance in court when required”; “the defendant is reasonably believed to have financial assets that will allow him or her to post monetary bail in the amount requested by the prosecutor without having to purchase a bond from a surety company or to obtain a loan”; and
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“imposition of monetary bail set at the amount requested would . . . make it unnecessary for the prosecutor to seek pretrial detention.” Id. at 56. Secured money bail cannot be used to achieve or to have the effect of a pretrial detention order. Out of 3,382 cases filed in the first month under the new law, judges imposed transparent orders of pretrial detention in 283 cases and denied pretrial detention when requested to do so in 223 cases. Secured money bail was set in only 3 cases. Pls. Ex. 7(k) at 1.
New Jersey does not distinguish between felony and misdemeanor cases but between numbered “categories” of offenses, making comparisons to the Texas misdemeanor bail system difficult. The New Jersey numbers are for all case categories. Id. Because this approach clearly applies to more serious felony-level cases, the basis for applying it to misdemeanor cases is even stronger.
d. New Orleans On January 12, 2017, the Council of the City of New Orleans, where the municipal courts have jurisdiction only over misdemeanor cases, passed a measure reforming its bail ordinance. Pls. Ex. 12(tt). The preamble states that “incarcerating people solely due to their inability to pay for their release through the payment of cash bond violates the Equal Protection Clause of the Fourteenth Amendment.” Id. at 1 (citing Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir. 1977). The new ordinance requires that except for four enumerated offenses—battery, possession of weapons, impersonating a peace officer, and domestic violence—all misdemeanor arrestees are to be released on personal recognizance. Id. at 2–3. For those charged with one of the enumerated offenses, the municipal courts must “impose the least restrictive non-financial release conditions.” Id. at 3. “For any person who qualifies for indigent defense, or does not have the present ability to pay, the Court
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may not set” any financial condition of release or a nonfinancial condition of release “that requires fees or costs to be paid by the defendant.” Id. Other than the four specific exceptions for offenses that involve violence or other public safety threats, all defendants must be released with no financial conditions. If a financial condition is imposed, the defendant must have “the present ability to pay the amount set.” Id.
e. Maryland On February 17, 2017, the Maryland Court of Appeals adopted detailed changes to its court rules, the main source of criminal procedural law in Maryland. The rule changes will take effect on July 1, 2017. Pls. Ex. 12(p)(i), Court of Appeals of Maryland, Rules Order, Feb. 17, 2017 at 3. The rule changes are “designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond” by establishing a “[p]reference” for “additional conditions [of release] without financial terms.” Id. at 33. All defendants—both felony and misdemeanor—must be released on personal recognizance or unsecured bond unless a judicial officer makes written findings on the record “that no permissible non-financial condition attached to a release will reasonably ensure (A) the appearance of the defendant, and (B) the safety of each alleged victim, other persons, or the community.” Id. at 35. Even in those circumstances, the new rules require that “[a] judicial officer may not impose a special condition of release with financial terms in form or amount that results in the pretrial detention of the defendant solely because the defendant is financially incapable of meeting that condition.” Id. at 39. Pretrial detention must not be the intended use or the incidental effect of secured money bail. Before the rule change, the Maryland Attorney General wrote to the rules committee chairman that “[a]lthough Maryland law permits unconditional pretrial detention only where no
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conditions of release will reasonably protect the public or ensure the defendant’s appearance at trial, nearly every evaluation of Maryland’s pretrial system has found no relationship between a pretrial detainee’s perceived risk and the bond amount set. . . . Lower risk defendants are detained because they cannot afford the bail, while higher risk defendants who have access to financial resources are able to make bail and are often permitted to do so without imposition of other conditions to protect the public.” Pls. Ex. 12(p) at 3 (citing reports). An advisory memo from the then United States Attorney General stated that “[a]s a general proposition, Maryland’s judicial officials . . . do not properly and consistently consider defendants’ individual circumstances, and particularly their financial resources, in making bail determinations. As a result, arrestees in Maryland habitually face extended periods of pretrial detention not as a result of their dangerousness to the community or because they pose a substantial risk of flight, but solely because they are unable to pay bail.” Pls. Ex. 12(p)(ii) at 7. The memo concluded that this system, and those like it, violated both state law and the federal Constitution. Id. at 4–11.
f. Alabama Some of the same lawyers representing the plaintiffs in this case have brought similar actions challenging bail systems around the country. Several actions were resolved with an agreed final judgment. These judgments typically state that “[i]f the government offers release from custody after arrest upon the deposit of money pursuant to a bail schedule, it cannot deny release from custody to a person, without a hearing regarding the person’s indigence and the sufficiency of the bail setting, because the person is unable to deposit the amount specified by the schedule.” Jones v. City of Clanton, Alabama, Civil No. 15-34, 2015 WL 5387219 at *4 (M.D. Ala. Sep. 14, 2015) (citing Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978); Bearden v. Georgia, 461 U.S. 660 (1983); State
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v. Blake, 642 So.2d 959 (Ala. 1994)); see also Jenkins v. City of Jennings, Civil No. 15-252 (E.D. Mo. Dec. 14, 2016); Bell v. City of Jackson, Civil No. 15-252 (E.D. Mo. June 20, 2016); Thompson v. Moss Point, Civil No. 15-182 (S.D. Miss. Nov. 6, 2015); Snow v. Lambert, Civil No. 15-567 (M.D. La. Aug. 27, 2015); Cooper v. City of Dothan, Civil No. 15-425 (M.D. Ala. June 18, 2015); Pierce v. City of Velda, Civil No. 15-570 (E.D. Mo. June 3, 2015). In Jones, the court independently confirmed the need for relief, reasoning that “[b]ail schemes such as the one formerly enforced in the municipal court result in the unnecessary pretrial detention of people whom our system of justice presumes to be innocent,” and that “[c]riminal defendants, presumed innocent, must not be confined in jail merely because they are poor.” Jones, 2015 WL 5387219 at *3.
The U.S. Department of Justice filed a statement of interest in Jones, stating that “[i]ncarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.”17 See Varden v. City of Clanton, Alabama, Civil No. 15-34, Docket Entry No. 26 at 1 (M.D. Ala. Feb. 13, 2015). The Justice Department reasoned that because rigidly adhering to a secured money bail schedule “do[es] not account for individual circumstances of the accused, [it] essentially mandate[s] pretrial detention for anyone who is too poor to pay the predetermined fee. This amounts to mandating pretrial detention only for the indigent.” Id. at 9. After Jones, fifty of Alabama’s largest cities, accounting for 40 percent of the population, voluntarily reformed their bail systems to either release misdemeanor defendants on personal recognizance or, at a minimum, to set
17 The following year, the Justice Department issued a “Dear Colleague Letter” advising state and local courts that due process and equal protection principles forbid using “bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.” Letter from Vanita Gupta to Colleagues at 2 (Mar. 14, 2016), available at https://www.justice.gov/crt/file/832461/ download.
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an early hearing to consider alternative methods of release to secured money bail. Pls. Ex. 12(l). g. Calhoun, Georgia
Some of the plaintiffs’ counsel also represented the plaintiffs in Walker v. City of Calhoun, Georgia, Civil No. 15-170, 2016 WL 361612 (N.D. Ga. Jan. 28, 2016). A putative class of misdemeanor arrestees alleged that Calhoun detained them on prescheduled amounts of secured money bail that were not reviewed except at court sessions held each Monday. Id. at *1. The trial court granted the plaintiffs’ motion for a preliminary injunction, finding that “keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible.” Id. at *10 (citations omitted). The court ordered Calhoun to “implement postarrest procedures that comply with the Constitution,” and directed that “until Defendant implements lawful postarrest procedures, Defendant must release any other misdemeanor arrestees in its custody, or who come into its custody, on their own recognizance or on unsecured bond in a manner otherwise consistent with state and federal law and with standard booking procedures.” Id. at *14. The Eleventh Circuit vacated the injunction because requiring the defendant to implement constitutional procedures was “the archetypical and unenforceable ‘obey the law’ injunction” forbidden by Federal Rule of Civil Procedure 65. Walker v. City of Calhoun, Georgia, — F.App’x —, 2017 WL 929750 at *2 (11th Cir. Mar. 9, 2017). The panel did not consider the merits, instead remanding for the district court to enter a specific order consistent with Rule 65. See id.
Walker attracted significant attention. Ten amicus briefs were filed, including by the American Bar Association, the U.S. Department of Justice, the Pretrial Justice Institute and National Association of Pretrial Services Agencies, the Cato Institute, and various representatives of bail bonds associations, Georgia law-enforcement personnel, and other municipalities and their insurers.
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The relevant amicus briefs are included in the record here. The American Bar Association’s amicus brief in Walker argued that “[m]onetary conditions
of release should never be drawn from an inflexible schedule, should be imposed only after consideration of the defendant’s individual circumstances, and should never prevent the defendant’s release solely because the defendant is unable to pay.” Pls. Ex. 12(ff) at 12. The Third Edition of the ABA Standards for Criminal Justice, Pretrial Release (3d ed. 2007), recommend “procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond.” Standard 10-1.4(a). Jurisdictions should impose financial conditions only “when no other conditions will ensure appearance,” and financial conditions “should not be employed to respond to concerns for public safety.” Standard 10-1.(4c)–(d). The Standards also emphasize that “[t]he judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.” Standard 10-1.4(e).
The American Bar Association’s brief emphasizes that “[u]nwarranted pretrial detention infringes on defendants’ constitutional rights, ‘making it difficult for the defendant to consult with counsel, locate witnesses, and gather evidence’ and placing a particularly heavy burden on ‘poor defendants and on racial and cultural minorities.’” Pls. Ex. 12(ff) at 14 (quoting Standards at 32–33). The commentary to the Standards states that “[i]f the court finds that unsecured bond is not sufficient, it may require the defendant to post bail; however, the bail amount must be within the reach of the defendant and should not be at an amount greater than necessary to assure the defendant’s appearance in court.” Id. (quoting with emphasis Standards at 43–44). The brief concludes that detaining a defendant solely for failure to pay a secured financial condition of release is unwarranted and unconstitutional. Id.
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The Justice Department’s brief expanded the statement of interest it submitted in the Jones Alabama bail case. The brief reasoned that, based on Supreme Court precedent, “[i]f a court finds that no other conditions may reasonably assure an individual’s appearance at trial, financial conditions may be constitutionally imposed—but ‘bail must be set by a court at a sum designed to ensure that goal, and no more.’” Pls. Ex. 12(dd) at 18 (quoting with emphasis Salerno, 481 U.S. at 754). “Although the imposition of bail in such circumstances may result in a person’s incarceration,” the Department explained, “the deprivation of liberty in such circumstances is not based solely on inability to pay.” Id. But adhering to “fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance, do not provide for such individualized determinations, and therefore unlawfully discriminate based on indigence.” Id.
The Justice Department’s argument is stated less strongly than the American Bar Association’s. While the American Bar Association argues that defendants must not be detained solely because of their inability to pay secured money bail, the Justice Department interprets “solely” to exclude those who cannot pay a secured money bail because it has been set beyond their reach due to their risk of flight. See id. Both arguments are consistent with the reforms surveyed above. Some jurisdictions, such as Washington, D.C., New Mexico, New Jersey, and New Orleans, do not permit secured money bail settings to result in pretrial detention or operate as de facto pretrial preventive detention orders in misdemeanor cases, in line with the American Bar Association’s recommendations. Others, such as Maryland and Alabama, permit secured money bail to have the effect of detention only if the court follows the procedures required for pretrial preventive detention, in line with the Justice Department’s argument. In those cases, a judicial officer must make written
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findings after an adversarial, counseled hearing that secured money bail in the amount set is the only, or the least restrictive, condition that can reasonably assure the defendant’s appearance at trial.
The Pretrial Justice Institute and the National Association of Pretrial Services Agencies submitted a brief in Walker using empirical data to argue that secured money bail, as opposed to an unsecured appearance bond, is never the only reasonable condition that will assure an individual’s appearance at trial or community safety. Pls. Ex. 12(hh). The brief presented data showing that those released on secured money bail do not appear at greater rates or commit new crimes at lower rates than those released on unsecured bonds. Id. Secured money bail schedules can effectively increase rates of appearance when they operate as detention orders, but “the use of such schedules inevitably leads to the detention of some persons who pose little threat to public safety, but are too poor to afford release, while releasing others that pose a higher safety risk (but can afford to post bond).” Id. at 25.
h. Conclusion In addition to the policy changes that a number of jurisdictions have already implemented or are in the process of implementing, even more jurisdictions have announced that they are examining or are about to reform their bail systems.18 A common theme among these reformed and reforming jurisdictions is that, before recent rule changes, each jurisdiction as a matter of routine practice either intentionally used or indifferently permitted the use of secured money bail as de facto detention orders against those financially unable to pay. See, e.g., Brown, 338 P.3d at 1292 (“We
18 See, e.g., Arizona Supreme Court, Justice for All: Report and Recommendations of the Task Force on Fair Justice for All: Court-Ordered Fines, Penalties, Fees, and Pretrial Release Policies (Oct. 31, 2016), available at Pls. Ex. 12(vv); Utah Auditor General, A Performance Audit of Utah’s Monetary Bail System (Jan. 2017), available at Pls. Ex. 12(uu); see also “Foxx agrees to release of inmates unable to post bonds of up to $1,000 cash,” Chicago Tribune, Mar. 1, 2017; “Committee Announces Sweeping Code Reforms, Changes to Bail,” Delaware Law Weekly, Mar. 22, 2017.
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understand that this case may not be an isolated instance and that other judges may be imposing bonds based solely on the nature of the charged offense without regard to individual determinations of flight risk or continued danger to the community.”); Pls. Ex. 12(p); Hearing Tr. 2-2:137. The other theme is that this practice did not hold up to historical, empirical, political, or legal scrutiny.
Whether by legislative enactment, judicial rulemaking, or court order, there is a clear and growing movement against using secured money bail to achieve a misdemeanor arrestee’s continued detention. Of course, it is not a federal court’s role in any way to make policy judgments. See, e.g., Brown v. Plata, 563 U.S. 493 at 537–38 (2011). The question this case presents is not what is the best or even a good bail policy. The question is what bail system the Constitution requires and what system it prohibits. The Constitution sets minimum standards of due process and protects basic rights such as the presumption of innocence and the ability to prepare for trial. State and local governments may add to, but may not detract from, these basic protections. See, e.g., Gerstein, 420 U.S. at 124. The question is whether Harris County meets the constitutionally minimum standards and procedures.
D. The Use of Bail in Harris County Misdemeanor Pretrial Detention 1. The Statutory Framework
The Texas Code of Criminal Procedure defines “bail” as “the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.” TEX. CODE CRIM. PRO. art. 17.01. Except for certain types of felonies, “a magistrate may, in the magistrate’s discretion, release the defendant on his personal bond without sureties or other security.”19 Id. art. 17.03(a). A personal bond requires the defendant
19 Felony defendants may be released on personal bond only by the “court before whom the case is pending.” TEX. CODE CRIM. PRO. art. 17.03(b). The Texas Code of Criminal Procedure designates the
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to swear an oath that if he or she fails to appear, the principal sum the court sets becomes due. Id. art. 17.04. The magistrate granting a personal bond may assess a nonrefundable bond fee “of $20 or three percent of the amount of the bail fixed for the accused, whichever is greater.” Id. art. 17.42, § 4(a). Magistrates may postpone, reduce, or waive the fee. Id. art. 17.03(g).
Texas law does not facially provide for release on no financial conditions. The “personal bond” defined in Texas law differs from what other jurisdictions call a personal bond or a personal recognizance bond by requiring a principal sum that becomes due if the defendant fails to appear. See, e.g., Goldfarb, supra, at 153–54 (personal recognizance in New York is release solely “on one’s honor pending trial”); Brown, 338 P.3d at 1289 (distinguishing release on “personal recognizance” from release “upon the execution of an unsecured bond,” which makes a sum due if the defendant fails to appear).20
The Texas Code of Criminal Procedure states that “[t]he amount of bail to be required in any case is to be regulated by the court, judges, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion” by five rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of
Harris County Hearing Officers and County Criminal Court at Law Judges as magistrates. Id. art. 2.09. 20 Texas’s scheme points up a flaw in the amicus brief filed by the American Bail Coalition, the
Professional Bondsmen of Texas, and the Professional Bondsmen of Harris County. (Docket Entry No. 182). The brief consistently and ahistorically assumes that references to “bail” always mean secured money bail with a monetary payment required up front as a condition of release. (See id. at 4–6). But in many instances, sureties would provide no payment unless the principal failed to appear—what many jurisdictions in modern parlance call an unsecured appearance bond (and what Texas calls a “personal bond” to indicate that the surety and principal are the same person). See Part I.C.1 supra. By assuming that all pretrial release must either be conditioned on secured money bail with an up-front financial payment or on no financial condition at all, the bondsmen’s brief provides little relevant argument or evidence for this case in Texas, in which all release is on one sort of financial condition or another.
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oppression. 3. The nature of the offense and the circumstances under which it was committed are
to be considered. 4. The ability to make bail is to be regarded, and proof may be taken upon this point. 5. The future safety of a victim of the alleged offense and the community shall be
considered. TEX. CODE CRIM. PRO. art. 17.15.
In Harris County, “magistrates” include Hearing Officers and County Judges. See id. art. 2.09. In addition to a magistrate’s discretion to issue a personal bond, the Texas Code of Criminal Procedure permits the arresting officer to release defendants accused of certain misdemeanors by citation only. Id. art. 14.06. The Code permits the arresting officer to cite-andrelease those arrested for Class A or B misdemeanors for possessing small amounts of marijuana or certain other controlled substances, criminal mischief causing damage up to $2,500, graffiti, theft of property or service up to the value of $2,500, supplying contraband to prisoners, or driving without a license. Id. Major Patrick Dougherty testified that the Houston Police Department and Harris County follow the cite-and-release practice only for traffic-related Class C misdemeanor arrestees. Hearing Tr. 3-2:47–48 (“All Houston police officers basically book all their prisoners in the City Jail, regardless of whether it is a felony, misdemeanor or a Class C offense.”), 52. The Harris County District Attorney has recently implemented a cite-and-release policy, as well as a diversionary program, for misdemeanor arrests for possessing small amounts of controlled substances. Hearing Tr. 3-2:178. Under the County’s diversionary program, the District Attorney’s office postpones charges for misdemeanor arrestees who agree to complete educational courses. These arrestees are not subjected to the booking and bail setting processes described below because
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the District Attorney declines charges at that time. Hearing Tr. 4-1:21–22.

The Texas Government Code permits the County Judges to “adopt rules consistent with the

Code of Criminal Procedure . . . for practice and procedure in the courts. A rule may be adopted by

a two-thirds vote of the judges.” TEX. GOV’T CODE ANN. § 75.403(f). At least three times since the

beginning of 2016, the Harris County Criminal Courts at Law Judges, sitting en banc and voting by two-thirds majority, adopted or amended the Harris County Criminal Courts at Law Rules of Court.21

The current version is the Rules of Court as amended on February 9, 2017. The Rules of Court

contain a misdemeanor bail schedule, id. Rule 9, and provide that “[t]he initial bail amount may be

changed on motion of the court, the hearing officer, or any party subject to the following criteria”:

4.2.3.1.1.

the bail shall be sufficiently high to give reasonable assurance that the defendant will comply with the undertaking;

4.2.3.1.2.

the nature of the offense for which probable cause has been found and the circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any;

4.2.3.1.3.

the ability to make bail is to be regarded, and proof may be taken upon this point;

4.2.3.1.4.

the future safety of the victim and the community may be considered, and if this is a factor, release to a third person should also be considered; and

4.2.3.1.5.

the criminal law hearing officer shall also consider the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds of the accused.

Id. Rule 4.2.3. The County Rules of Court state that “all law enforcement officials in Harris County

shall cause the pretrial detainees in their respective custody, who have been charged with a class A

or class B misdemeanor, to be delivered to the criminal law hearing officer not later than 24 hours

21 See Rules of Court, as amended March 7, 2016; Rules of Court, as amended August 12, 2016; Rules of Court, as amended February 9, 2017.
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after arrest.” Id. Rule 4.2.1.1. Misdemeanor defendants arrested without a warrant who are not given a probable cause hearing within 24 hours after arrest must be released on a personal bond of no more than $5,000 when the 24 hours have expired.22 See TEX. CODE CRIM. PRO. art. 17.033; Sanders v. City of Houston, 543 F.Supp. 694, 705–06 (S.D. Tex. 1982); Roberson v. Richardson, Agreed Final Judgment, Civil No. 84-2974 (S.D. Tex. Nov. 25, 1987).23
At the 24-hour hearing, commonly referred to as the probable cause hearing, in addition to finding probable cause for the arrest, Hearing Officers are to “set the amount of bail required of the accused for release and shall determine the eligibility of the accused for release on personal bond, cash bond, surety bond, or other alternative to scheduled bail amounts, and shall issue a signed order remanding the defendant to the custody of the sheriff.” Rules of Court 4.2.2.1.11. On August 12, 2016, the County Judges amended the County Rules of Court to provide that “personal bonds”—unsecured appearance bonds—“are favored” in twelve specific misdemeanor categories.24 Id. Rule 12. Rule 12 lists five circumstances in which personal bonds “are disfavored,” including when “the defendant has demonstrated a risk to reoffend or harm society” or “has previously failed to appear in court as instructed.” Id.
The next step in the process is scheduling cases for arraignment, referred to as the “first appearance settings.” Arrestees released on secured money bail before booking are scheduled for
22 The detention is permitted to extend, regardless of whether bond has been set or paid, for an additional 48 hours if the charge is a crime of family violence, and if a magistrate issues written findings that the violence is likely to continue if the defendant is released. TEX. CODE CRIM. PRO. art. 17.29.
23 The Roberson order is available at Def. Ex. 95. 24 The twelve misdemeanors for which personal bonds are favored include: (1) theft by check; (2) driving with an invalid license; (3) gambling offenses; (4) illegal dumping; (5) fictitious vehicle license plate or registration; (6) prostitution; (7) violation of laws regulating sexually oriented businesses; (8) public intoxication; (9) driving without a license; (10) class B criminal trespass; (11) class B retail theft; (12) possessing marijuana or certain other controlled substances. Rules of Court, Rule 12.
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arraignment one week from the day of their arrests (or on a Friday if the arrest was over a weekend). Id. Rule 4.1.2. Those released on a personal bond are scheduled for arraignment the same day, or the next business day if released after 9:00 a.m. Id. Rule 4.1.4. Those booked into the County Jail who request counsel are scheduled for arraignment the next business day, when counsel may be appointed. Id. Rule 24.9.1.
On February 9, 2017, the County Judges amended the County Rules of Court to provide first appearance settings for all misdemeanor arrestees booked into the County Jail the next business day after booking, “regardless of whether the defendant has been released from custody.” Id. Rule 4.1.2. At this first appearance, the County Judge must “review conditions of release, bail amount set, and personal bond decision and modify if good cause exists to do so.” Id.
2. Arrest and Booking According to the 2015 annual report of Harris County Pretrial Services, 50,947 people were arrested in Harris County on only Class A or Class B misdemeanor charges in 2015. Pls. 10(c), 2015 Pretrial Services Annual Report at 8. In that year, 27.9 percent were arrested by the Harris County Sheriff’s Office. The rest were arrested by other law-enforcement agencies, principally the Houston Police Department.25 Id. Major Dougherty testified based on his thirty-five years of service with the Houston Police Department that those arrested without a warrant by the City of Houston are taken to the City Jail, tested for drugs or alcohol if applicable, and fingerprinted. Hearing Tr. 3-2:48–49. Either at the site of the arrest or at the City Jail, the arresting office calls a District Attorney hotline that is staffed 24 hours a day by an Assistant District Attorney, who decides whether to accept the charge. Id. at 3-
25 In 2016, 49,628 people were arrested on only Class A or B misdemeanor charges. (Docket Entry No. 290, Ex. 1 at 8). Of those, 28.2 percent were arrested by the Sheriff’s Office. (Id.).
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2:50–51. If the Assistant District Attorney declines the charge, the arrestee is promptly released. Id. at 3-2:50. If the charge is accepted, an officer prepares a District Attorney Intake Management System (DIMS) report and electronically forwards it to the District Attorney’s office, where the formal charge is prepared. Id. at 3-2:48–49. Major Dougherty testified that by this point in the process, 1 to 3 hours have elapsed, depending on the time spent transporting arrestees from outlying areas of Houston to the City Jail. Id. at 3-2:49.
The District Attorney’s office prepares a formal charging document and applies a secured money bail using the County Judges’ bail schedule to set the amount. Id. at 3-2:51; see Rules of Court 2.3. The scheduled bail amount is set based on the charge and the defendant’s criminal history. See Rules of Court 9.1. The document is forwarded to the District Clerk’s office, which assigns the case to a County Judge’s court and sets a first-appearance date. Major Dougherty testified that the Clerk’s assignment makes the case “paper-ready” and is completed about 12 to 16 hours after arrest. Hearing Tr. 3-2:52. Once the case is paper-ready, a misdemeanor defendant with access to enough money may pay the amount necessary for release and be promptly released from custody.26 Id. at 3-2:54. A defendant may pay the entire bond amount into the registry of the court, to be refunded at case disposition if the defendant makes all scheduled appearances—a “cash bond.” Or, and most often, the defendant pays a nonrefundable premium to a commercial bondsman, who
26 If an Assistant District Attorney wants a misdemeanor defendant to be detained until a magistrate can set a bail amount, he or she will enter “88888888” as the bail amount. Hearing Tr. 2-1:100–01. While that is technically a bail amount that, if paid, would permit release, in practical effect it is a code indicating that the misdemeanor defendant should not be released until a magistrate can set bail and issue a protective order if necessary. Id. In 2015, bail was set under the 88888888 code in 4,059 cases—8.0 percent of all misdemeanor arrests. Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8. In 2016, the 88888888 code was used in 2,535 cases—5.1 percent of all misdemeanor arrests. (Docket Entry No. 290, Ex. 1 at 8).
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posts the principal with the court—a “surety bond.”27 See Pls. 10(c), 2015 Pretrial Services Annual Report at 9; 2-1:55–58.
Harris County Pretrial Services personnel have offices at the City Jail. Hearing Tr. 3-2:57, 59. Arrestees who have not bonded out at the earliest opportunity and who have not already been taken from the City to the County Jail have their interview with a Pretrial Services officer while at the City Jail. Id. at 3-2:56–58. Harris County Director of Pretrial Services Kelvin Banks testified that interviews typically take 15 to 20 minutes. Id. at 3-2:170. In the interview, Pretrial Services asks for the defendant’s background information, including residence, employment, education level, and past criminal history. See, e.g., Pls. Ex. 8(d). After the interview, Pretrial Services tries to verify the information by calling references and running internet searches. Hearing Tr. 3-2:171.
Before this suit was filed, an unwritten policy required Pretrial Services to obtain two verified references before a defendant could be released on a personal bond. (See Docket Entry No. 162 at 5; No. 166 at 10 n.13); see also Def. Ex. 52. In August 2016, the County Judges sent a letter to the Hearing Officers changing the policy to permit release on personal bond with only one verified reference. Def. Ex. 52. The verification requirement is not codified in the County Rules of Court or in State law. Until the August 2016 letter, the requirement appears to have been an unwritten policy promulgated by County Judges and enforced as a practice or custom by Hearing Officers and by Pretrial Services personnel.28
27 The court uses “secured money bail” or “secured financial conditions of release” to mean both surety bonds and cash bonds. Both are “secured” by having collateral paid up front before release, either by a bondsman (who charges a defendant a nonrefundable premium) or by the defendant (who can have the collateral refunded after case disposition). The court uses “unsecured or nonfinancial conditions” to mean personal bonds, with or without additional nonfinancial conditions of supervised release, such as GPS monitoring.
28 The Pretrial Services verification requirement is an example of a policy systematically applied across the board as an unwritten practice or custom established by “multiple and overlapping authorities.”
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Pretrial Services officers complete a validated risk-assessment form, which uses a pointweighting system to itemize and evaluate the defendant’s risk of flight or risk of new criminal activity during pretrial release. Hearing Tr. 3-2:172; Pls. Ex. 8(d). A risk-assessment tool is “validated” when its risk indicators have been empirically shown to reliably predict outcomes such as nonappearance or new criminal activity. Hearing Tr. 3-2:172.
The current risk-assessment tool that Harris County Pretrial Services uses assigns points to seventeen different risk indicators. See, e.g., Pls. Ex. 8(d). Under “Criminal Risk Items,” arrestees are given a point if the current charge involves a crime of violence, a point if the defendant is on probation, a point if the defendant is on parole, a point for a prior misdemeanor conviction and another point for multiple prior convictions, a point for a prior felony conviction and another point for multiple prior convictions, a point for a past failure to appear, and a point if the defendant has a formal “hold,” such as an outstanding warrant from another jurisdiction. See id; Hearing Tr. 21:134–37.
Under “Background Risk Items,” a defendant receives a point for being male, a point for lacking a high school diploma or GED, a point for not having a land line phone, a point for living with someone other than a spouse or family, a point for not owning an automobile, a point for lacking full-time employment, and a point for being under 30 years of age.29 Hearing Tr. 2-1:134–37; see generally Pls. Ex. 8(d).
The point totals from both the Criminal Risk Items and Background Risk Items are added to
ODonnell, 2016 WL 7337549 at *38. The County Judges’ policy and practice support finding that the plaintiffs have sufficiently alleged and shown a local policymaker for the purposes of § 1983 liability. See Monell v. Dept. of Social. Serv., 436 U.S. 658 (1978); ODonnell, 2016 WL 7337549 at *22–27.
29 If the defendant is under 21 and has a prior juvenile adjudication, he or she is given a point under that category rather than the under-30 category. Pls. Ex. 8(d); Hearing Tr. 2-1:134–37.
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reach a single score which is set on a risk scale. Id. Defendants with three points or fewer are scored as low risk, four to five points are scored as “low moderate risk,” six to seven points are scored as moderate risk, and eight points or above are scored as high risk. Id. Criminal risk points are weighted the same way as background risk points. A 29-year-old man who works part-time and rents and apartment with a roommate, who does not own a car or a land line phone, but who has no criminal history would receive the same risk score as an older woman on probation who has multiple felony convictions, a past failure to appear, an outstanding warrant and a current charge involving a crime of violence. Both cases would be assigned at least six points and be categorized as “moderate” risk. See id. Mr. Banks testified that for defendants whose risk scores are increased because of the background factors that correlate with poverty rather than criminal activity, the standard Pretrial Services procedure is to recommend release on personal bond, notwithstanding the higher risk score. Hearing Tr. 4-1:55.
The collected information, verified references, risk-assessment score sheet, and the Pretrial Services recommendation for release are all gathered into a report and transmitted to a Hearing Officer for the defendant’s probable cause hearing. See generally Pls. Ex. 8(d). Mr. Banks testified that currently, if Pretrial Services makes a recommendation, it recommends either that a Hearing Officer grant a personal (unsecured) bond with standard conditions (such as supervision by Pretrial Services), grant a personal (unsecured) bond with additional conditions (such as geographic restrictions), or “detain.” Id. at 3-2:173. Mr. Banks explained that Pretrial Services makes a recommendation to “detain” misdemeanor arrestees with immigration or other warrant holds on their record. Id. at 3-2:173–75; 4-1:41–44. A recommended high bail setting is intended to keep arrestees detained to address the hold. Id. at 3-2:175; 4-1:41–42. But, as explained below, secured money
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bail, if unpaid, prevents the defendant from addressing the hold or from being transferred to the agency imposing the hold, extending the overall time spent in custody.30 Mr. Banks testified that Pretrial Services also recommends “detain” for “high risk” arrestees. Id. at 3-2:173–75; 4-1:41–44. Because Texas law prohibits pretrial preventive detention in most misdemeanor cases, a recommendation to “detain” is a recommendation to set a high secured bail in order to detain until a judicial officer considers the case or the case is terminated. Id. at 3-2:175; 4-1:41–42. A defendant who pays the bail is released, despite the “high risk” category and the recommendation to detain.
Pretrial Services does not directly ask defendants whether they can pay the bail amount set or what amount they could pay. Hearing Tr. 4-1:47. Mr. Banks testified that instead, Pretrial Services asks a “litany” of questions about a defendant’s assets, income, and expenses. Id. at 4-1:48. Defendants sometimes refuse to be interviewed, and the record indicates that they may do so because they do not understand that the interview is non-adversarial and that providing responsive answers is the only way they can be released on nonfinancial conditions. Hearing Tr. 2-2:29–30; 3-2:125. Other defendants are confused by the questions. For instance, “Do you have a place to stay?” may be taken to mean “Can you afford rent or housing?” But it could also mean “Are you likely to leave the jurisdiction because you do not have a place to live here?” Answering the first question in the negative when the second question is the one asked can—and in Harris County does31—become the basis for detention rather than release on unsecured financial conditions. Hearing Tr. 2-2:12–13.
30 See Part I.E.4 infra. 31 The example is drawn from a recorded probable cause hearing. Pls. Ex. 3, May 16, 2016, 6.46 at 14:40 (L. P.). After answering that she does not have a place to stay, the defendant learns that she could be released on an unsecured personal bond if she has a place to stay. The Hearing Officer cuts her off as she tries to explain that she does in fact have a place to stay but misinterpreted his earlier question. The Hearing Officer does not let her explain and confirms her bond at the prescheduled amount with the clear understanding that she will not be able to purchase her release on a secured basis. Id.
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If Pretrial Services officers at the City Jail determines that an arrestee is a good candidate for release on personal bond, they may forward the interview papers to their counterparts at the County Jail for “early presentment” to a Hearing Officer. Hearing Tr. 3-2:182–83. The Hearing Officer may approve or deny release on personal bond using only the charging papers (the DIMS report) and interview papers prepared for the early presentment. Id. If the Hearing Officer approves release on personal bond, the arrestee can be released from the City Jail without being transported to or booked in the County Jail. Id. 3-2:57–58. Early presentment depends on the availability of Pretrial Services personnel. The record evidence clearly shows that early presentments are rare. In 2015, only 90 out of 21,748 Houston Police Department arrestees were released on personal bonds after early presentment.32 Pls. Ex. 4(d), Second Rebuttal Report at 15; Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8.
Arrestees who do not pay for release or obtain release on personal bond by early presentment at the City Jail are taken to and booked in the Harris County Jail. Hearing Tr. 3-2:65. Transport buses run every two hours, but Major Dougherty testified that capacity limits at the County Jail Inmate Processing Center create significant delays. These limits prevent paper-ready misdemeanor arrestees from being transported to the County Jail on the next available bus. Id. at 3-2:67–68. Because the Inmate Processing Center is the only holding facility for County arrestees, they are given priority over arrestees waiting for transport from the City Jail, which adds to the delays. Id. at 32:69–70.
Major Dougherty testified that those arrested without a warrant by the County are taken either
32 In 2016, the number of those released on a personal bond instead of transported to and booked in the County Jail rose to 240. Pls. Ex. 4(d), Second Rebuttal Report at 15). The total number of misdemeanor arrestees by the Houston Police Department in 2016 was 21,274. (Docket Entry No. 290, Ex. 1 at 8).
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directly to the County Jail or to one of four outlying County detention centers, with transport to the County Jail within 4 hours. Id. at 3-2:54–55. Once at the County Jail, County arrestees go through the same process as City arrestees—they are charged, fingerprinted, drug and alcohol tested, and interviewed by Pretrial Services in the Inmate Processing Center next to the Jail. Id. at 3-2:84–85. The Inmate Processing Center runs 24 hours a day, 7 days a week. The booking process takes between 8 and 12 hours. Id. at 2-1:38. Booking at the County Jail relies on a paper, rather than an electronic, system. Id. at 3-2:85. Arrestees with the financial means to do so may pay their money bonds or a bondsman’s premium while still in the Inmate Processing Center and be released, usually within 12 to 15 hours of arrest. Id. While in the Processing Center, arrestees do not have access to counsel or family members. Id. at 2-1:43. Those who do not pay their secured money bonds while in the Processing Center are assigned and transferred to a housing unit in the County Jail. Id.
About 7 percent of misdemeanor arrests annually are arrested after a warrant has issued. Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8; (see also Docket Entry No. 290, Ex. 1 at 8). When Harris County magistrates—Hearing Officers or County Judges—issue warrants, they affix the prescheduled secured money bail amount to the warrant. Hearing Tr. 2-1:216–17; 3-2:55; 82:108. Misdemeanor defendants with access to money can pay the secured amount or a bondsman’s premium and be processed without being arrested. Id. Misdemeanor defendants who are arrested on a warrant but cannot pay are subject to the same procedures as warrantless arrests. Id. Although a magistrate has already found probable cause to issue the warrant, the Texas Code of Criminal Procedure requires each arrestee to appear before a magistrate to be informed of his or her rights and to request counsel. TEX. CODE CRIM. PRO. art. 15.17. What Harris County calls “probable cause hearings” fulfill the function of informing arrestees of their rights, finding probable cause for
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warrantless arrests, and setting bail or, more often, confirming the prescheduled amount of bail on a secured basis.
3. The Probable Cause and Bail-Setting Hearing The Hearing Officers hold probable cause hearings every 2 hours, 24 hours a day, 7 days a week. Hearing Tr. 4-1:160. Defendants arrested without a warrant who have completed processing at the Inmate Processing Center are put on the next available docket for a probable cause hearing. Id. at 2-1:93. Probable cause hearings are conducted by videolink connecting a Hearing Officer’s courtroom, an Assistant District Attorney’s office, and a large room in the County Jail. See generally Pls. Ex. 2. Up to forty-five arrestees may be adjudicated at a single probable cause hearing. Hearing Tr. 4-1:161. When an arrestee’s case is called, the arrestee stands on a marked square in the center of the room and faces a screen showing the Hearing Officer and Assistant District Attorney. See Pls. Ex. 2. The hearings are recorded. Id. Hearings typically last about one to two minutes per arrestee.33 See generally Pls. Ex. 2. During this brief period, the Assistant District Attorney reads the charge, and the Hearing Officer determines probable cause and sets bail. Id. Hearing Officers have discretion to release arrestees on personal bond, to impose additional conditions of release (such as geographical restrictions), or to raise or lower the bail amount from the scheduled amount. See TEX. CODE CRIM. PRO. art. 17.03, 17.15, 17.40–44. For those misdemeanor arrestees who have not had their Pretrial Services papers given to a Hearing Officer for early presentment—the vast majority—the first setting is their earliest
33 In their Exhibit 3, the plaintiffs have provided 121 videos of individual hearings, with lengths ranging from 20 to 28 seconds for in absentia hearings (D. N., J. H., J. L.) to nearly six minutes for a hearing that involved a lengthy recitation to enter a family violence protective order (J. P.). (A sixteen-minute hearing is an extreme outlier where the hearing was suspended while County personnel tended to a defendant in the background having a seizure (D. S.)). Of the 121 individual videos, 26 are under one minute, 98 are at or under two-and-a-half minutes, and 115 are at or under 4 minutes. Pls. Ex. 3.
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opportunity to be considered for release on a personal bond. Hearing Tr. 2-1:45–46. As noted, under Texas law, misdemeanor defendants arrested without a warrant must be
released on an unsecured personal bond if a magistrate does not find probable cause within 24 hours of arrest. TEX. CODE CRIM. PRO. art. 17.033. The Houston City Jail is not equipped to provide videolink hearings and does not provide opportunities for live presentment to the Hearing Officers. Hearing Tr. 3-2:61–63. When the Inmate Processing Center at the County Jail is at capacity and arrestees cannot be transported promptly from the City Jail, those who have not paid and been released may wait at the City Jail more than 24 hours before they are transported to the County Jail and can have their probable cause and bail-setting hearing before a Hearing Officer. Id. at 4-1:9, 136. To avoid releasing these arrestees on unsecured personal bonds at the 24-hour time limit, the customary unwritten practice is to hold in absentia “paper hearings.” Id. at 2-1:92–93. At a paper hearing, the Hearing Officer finds probable cause based on the DIMS report that the arresting officer prepared and that the Assistant District Attorney used to draw up the charge. Id. Pretrial Services forms are not made available at paper hearings. The DIMS report does not provide any of the defendant’s financial information. Hearing Officers do not set bail or consider eligibility for unsecured personal bonds at paper hearings. Id. at 4-1:133–35.
Defendants almost never have counsel at the probable cause and bail-setting hearing. See Def. Ex. 23. Those who are indigent have not yet had counsel appointed. Those who can afford counsel have either paid their bonds and been released or have not been able to arrange their counsel’s presence. See id. Both the Sheriff’s deputies and the Hearing Officers instruct the defendants not to speak except to answer specific questions, lest they incriminate themselves. Hearing Tr. 4-1:178. Because the Hearing Officers are not judges of courts of record, they do not
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make written findings or issue reasoned opinions explaining why they set bail on a secured or unsecured basis, or why they select the bail amount imposed. (Docket Entry No. 138 ¶ 72); Hearing Tr. 4-1:145. The video recordings show that Hearing Officers occasionally state that bail is set at a certain level or that a personal bond is denied “based on your priors” (see below). Hearing Officers occasionally make notes on the Pretrial Services forms, such as “Criminal History”; “Safety of Community”; or “Safety.” See Pls. Ex. 9, e.g., (M. W.), (A. G.), (H. P.). These cryptic, one-to-three word notations are just that. They do not show that Hearing Officers weighed the statutory factors in setting bail, much less how they did so.
Chief Hearing Officer Blanca Villagomez testified that before granting an unsecured personal bond, she “look[s] at the five factors obviously that are set out in Article 17.15. I listen to the prosecutor and whatever allegations that led to their charge, secondly. I will look at all of the information that is available to me that is provided by Pretrial Services and reach a conclusion on that.” Hearing Tr. 4-1:117. She testified that on occasion, based on the circumstances and the evidence presented, she has denied release on an unsecured personal bond to defendants who score low on the risk scale because she perceived a threat to public safety. On other occasions, she disregards a high risk score based on background resource factors, such as not owning a land line phone or a car. Id. at 4-1:126. Judge Villagomez testified that she does not reach a conclusion on whether secured money bail will operate as a condition of detention, but that she does realize that detention, rather than release, will be the outcome of setting secured money bail for indigent defendants more than “rare[ly].” Id. at 4-1:140–42. She nevertheless sets bail on a secured basis at the scheduled amounts in those cases. Id. She testified that she believes it is lawful under Texas law to require a secured money bail she knows a defendant cannot pay “if I have taken in all of the
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factors in 17.15 into consideration because [ability to pay] is not the only one.” Id. at 4-1:144–45. Hearing Officer Eric Hagstette testified that he discounts high risk scores when they are based
on background factors showing poverty rather than a history of nonappearance or criminal activity. Id. at 4-1:163–65. He did not disagree with Judge Villagomez’s approach. He testified that the Hearing Officers “all go about our job pretty much the same way, do what we are statutorily required to do during these hearings and then make the decision with the information that is available and is presented at the hearing.” Id. at 4-1:168–69. He explained that he does not impose secured money bail with an intent to detain but that “[t]he intent is to set a bond that is sufficiently high based on the factors I’m obligated to consider.” Id. at 4-1:171. When asked how he would approach a defendant with no job, no income, no assets, and a history of failing to appear, for whom the scheduled bond amount would be $4,000, he testified that he would not release that defendant on an unsecured $4,000 bond because “[i]t depends again on the other factors being balanced.” Id. at 4-1:172.
Judge Villagomez testified that she does not and cannot keep track of how many times she raises or lowers a bond, how often she rejects a Pretrial Services recommendation, or whether, and how often, defendants she releases on unsecured personal bonds fail to appear at hearings. Id. 4-1:126–27, 132, 150. Judge Hagstette testified that he raises and lowers bail amounts in roughly equal numbers—“I knock them down and I raise them up”—but he does not know how often those he releases on unsecured personal bonds fail to appear. Id. at 4-1:163, 167–68, 173.
The Pretrial Services Annual Report provides system-wide statistics on how often Hearing Officers implement or reject Pretrial Services recommendations. Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 14. In 2015, for the 9,388 defendants for whom Pretrial Services
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recommended release on unsecured personal bond with standard conditions of supervision, Hearing Officers denied a personal bond 56.3 percent of the time.34 Id. In 1,831 cases, Hearing Officers
granted release on unsecured personal bonds on the condition that Pretrial Services could verify the references. Id. The data do not show in how many cases that did or did not happen.35 For the 4,816
defendants for whom Pretrial Services recommended release on personal bond with enhanced supervisory conditions, Hearing Officers denied a personal bond 84.8 percent of the time.36 Id. For
the 11,935 defendants for whom Pretrial Services made no recommendation, Hearing Officers denied a personal bond 96.9 percent of the time.37 Id. For the 4,716 defendants for whom Pretrial Services
recommended “detain” (15.3 percent of all defendants interviewed by Pretrial Services), Hearing
34 The report lists “total reports reviewed” as well as a higher number for “total cases reviewed,” apparently reflecting the fact the some defendants (who receive only one recommendation) may have more than one charge pending (each of which is counted as a separate case outcome). Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 14. The tables break down personal bond denials into several categories, including “PB denied,” “PB denied, bond lowered,” “PB denied, bond raised,” “Reviewed, no action on personal bd,” and so forth. Id. The percentages in the court’s findings are based on dividing the total number of personal bond denials by the total number of cases.
In 2016, Hearing Officers rejected Pretrial Services recommendations for release on personal bond with standard conditions 50.4 percent of the time. (Docket Entry No. 290, Ex. 1 at 14).
35 Pretrial Services does track the number of defendants granted a personal bond but not released from jail, which may indicate an inability to verify references. In 2015, 798 misdemeanor defendants were granted a personal bond but not released until case disposition or until they posted a secured money bail. Pls. Ex. 10(c) at 18. In 2016, the Hearing Officers followed Pretrial Services recommendations for granting a personal bond, but on the condition references could be verified, in 2,404 cases. That year, 685 misdemeanor defendants were granted a personal bond but not released until case disposition or until they posted a secured money bail. (Docket Entry No. 290, Ex. 1 at 14, 18).
36 In 2016, for the 4,493 defendants for whom Pretrial Services recommended release on a personal bond with enhanced supervisory conditions, Hearing Officers denied a personal bond 78.9 percent of the time. (Docket Entry No. 290, Ex. 1 at 14).
37 In 2016, for the 12,335 defendants for whom Pretrial Services made no recommendation, Hearing Officers denied a personal bond 95.9 percent of the time. (Docket Entry No. 290, Ex. 1 at 14).
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Officers denied a personal bond 97.1 percent of the time.38 Id. Overall, Hearing Officers reject Pretrial Services recommendations for release on a personal bond 66.3 percent of the time. Id. Pretrial Services acknowledges the wide discrepancy between what they recommend based on the County’s validated risk-assessment tool and what the Hearing Officers order based on the preset bail schedule. The Frequently Asked Questions page on the Pretrial Services public website asks, “Why aren’t there more Personal Bonds approved?” The answer: “Good question!”39 Hearing Tr. 4-1:57.
Among all cases in which Pretrial Services interviewed the misdemeanor defendant, whether Hearing Officers granted release on secured or on unsecured financial conditions, the Hearing Officers lowered the bail amount from what was stated on the charging document in 7.2 percent of cases and raised the bail amount in 10.7 percent of cases.40 Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 14. In 2015, Hearing Officers lowered the amount below $500—the minimum amount on the bail schedule—in 4 cases, out of nearly 51,000 arrests with bail set.41 Id. at 8. The plaintiffs’ expert, Dr. Stephen Demuth, credibly testified that from the beginning of 2015 to the end of January 2017, Hearing Officers adhered to the prescheduled bail amount stated on the charging documents in 88.9 percent of all misdemeanor cases.42 Pls. Ex. 4(d), Second Rebuttal Report at 10;
38 In 2016, for the 2,263 defendants for whom Pretrial Services recommended “detain,” Hearing Officers denied a personal bond 96.2 percent of the time. (Docket Entry No. 290, Ex. 1 at 14).
39 Available at https://pretrial.harriscountytx.gov/Pages/FAQs.aspx (last accessed April 24, 2017). 40 Among all cases in which Pretrial Services interviewed the misdemeanor defendant in 2016, Hearing Officers lowered the bond from that posted on the charging document in 5.9 percent of cases and raised the bond amount in 9.2 percent of cases. (Docket Entry No. 290, Ex. 1 at 14). Altogether, the year-toyear rates hardly changed from the end of 2015 to the end of 2016. 41 In 2016, Hearing Officers lowered the bail amount below $500 in 6 cases, out of nearly 50,000 arrests with bail set. (Docket Entry No. 290, Ex. 1 at 8). 42 The defendants’ expert, Dr. Robert Morris, disagrees. He found that Hearing Officers adhered to the prescheduled bail amount on the charging documents in 80.7 percent of all cases. Def. Ex. 28A at 4.
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Hearing Tr. 6-2:119–21. When they do change the amount, they raise it about 67 percent of the time.
Id.
Dr. Demuth presented credible evidence based on Harris County’s administrative data that
from January 2015 through January 2017, only 9.7 percent of all misdemeanor arrestees were granted
release on an unsecured personal bond, with or without additional nonfinancial conditions. Pls. Ex.
8(d), Second Rebuttal Report at 9. That figure is consistent with the Pretrial Services annual reports,
which show that 8.5 percent of misdemeanor arrestees were granted an unsecured personal bond in
2015, and 10.8 percent in 2016.43 Pls. Ex. 10(c) at 9; (Docket Entry No. 290, Ex. 1 at 9). In 2015,
His method for arriving at that number is not clear. His report states that the figure is based on a mislabeled defendants’ exhibit showing bond activity only in January 2017. See Def. Ex. 28A at 4 (relying on Def. Ex. 36); Hearing Tr. 2-2:85 (Def. Ex. 36 mislabeled). At the hearing, he testified that he reviewed the underlying data set which covers the period from January 2015 through January 2017. Hearing Tr. 6-2:17–19. Dr. Demuth testified that he performed the same calculations on the underlying data as Dr. Morris but arrived at the higher figure. Id. at 6-2:119–21.
The 8-point difference in the experts’ figures is not significant. Either way, Hearing Officers adhere to the bail schedule over 80 percent of the time—a high majority of cases. The inconsistencies between Dr. Morris’s written report and his testimony leads the court to find that Dr. Demuth’s calculation of 88.9 percent is the more reliable figure.
43 The defendants argue that the relevant figure is that Hearing Officers granted personal bonds in over 25 percent of the cases they heard in November and December 2016, showing an increase in granting personal bonds based on recent rule changes dropping the number of verified references from two to one and presuming release on personal bonds in twelve categories of misdemeanor cases. (Docket Entry No. 286 at 9). The proper denominator, however, is the total number of misdemeanor cases. All misdemeanor defendants arrested by the City of Houston are eligible for early presentment to a Hearing Officer for release on personal bond. Under the forthcoming reforms, all misdemeanor defendants arrested by any agency in Harris County will be eligible for early presentment. See Part I.D.2 supra; Part I.H.2 infra. Even defendants who are released before their probable cause hearings without early presentment are effectively denied a personal bond by Pretrial Services and the Hearing Officers. In addition, under Fifth Circuit law, the payment of a secured money bail does not moot a claim that the bail amount, or the requirement of the bail on a secured basis, is unreasonable. Simon v. Woodson, 454 F.2d 161, 166 n.8 (5th Cir. 1972).
Even accepting the defendants’ higher figure for grants of personal bonds, the same reports the defendants rely on show that personal bonds are almost never granted to misdemeanor arrestees scored as “high risk,” including those whose risk scores are high because of poverty indicators like not owning a car or a land line phone. In 2015, of all personal bonds granted, only 2.9 percent were granted to arrestees scored as high risk and most likely unable to pay any secured bail because of indigence. Pls. Ex. 10(c) at 17. Over 72 percent of personal bonds were granted for low and low-moderate risk defendants who, at least as measured by the assessment tool, would have had more resources. Id. In 2016, the comparative figures were
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46.1 percent of arrestees were released on a surety bond, 5.1 percent on a cash bond, and the remaining 40.3 percent were detained until case disposition. In 2016, the figures were nearly identical: 43.4 percent released on a surety bond, 5.6 percent on a cash bond, and 40.1 percent detained until case disposition. Id. Virtually all misdemeanor arrestees detained until disposition have a secured bail amount set that, if paid, would result in the prompt release of the arrestee. See Pls. Ex. 10(c) at 8; (Docket Entry No. 290, Ex. 1 at 8).
The court credits the Hearing Officers’ testimony that they consider the Article 17.15 factors in some way. But their impressions about how frequently certain case outcomes occur is not reliable and not worthy of greater weight than the data presented in the Pretrial Services Annual Report. The Hearing Officers’ testimony that they do not “know” whether imposing secured money bail will have the effect of detention in any given case, e.g., Hearing Tr. 4-1:141, 4-2:16, and their testimony that they do not intend that secured money bail have that effect, is not credible. Other record evidence, including the Pretrial Services public reports; the high number and percentage of misdemeanor defendants detained rather than released because they are subject to secured money bail at the scheduled amount; the high number and percentage whose bail is set by the schedule rather than by an individualized inquiry; the infrequency of deviations from imposing the scheduled bail amount on a secured basis; and the video recordings of probable cause hearings, which consistently show an indifference as to whether pretrial detention will result from setting secured bail, all weigh heavily in favor of finding little to no credibility in the Hearing Officers’ claims of careful case-by-case
5.8 percent for high-risk defendants and 68.7 percent for low- and low-moderate-risk defendants. (Docket Entry No. 290, Ex. 1 at 17). These figures show that Hearing Officers are not granting personal bonds out of a consideration of inability to pay, as the defendants argue, but are instead systematically using secured money bail to address risk, even when the secured money bail operates to detain defendants who are scored as high-risk because of their indigence.
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consideration under the Roberson order and the Article 17.15 factors.
This is not a personal criticism of any one or all of the Hearing Officers. To say that their
job is difficult is a dramatic understatement. The sheer numbers of defendants the Hearing Officers
confront on a daily basis makes individual consideration extraordinarily difficult. The absence of
counsel adds to the difficulty. The Hearing Officers clearly work steadily and hard. They see a
difficult population—including both misdemeanor and felony defendants—every day and all day.
It is unsurprising that a system of virtually automatic adherence to a bail schedule has developed,
given the large number of defendants, the small number of Hearing Officers, and the limited time
for hearings.
The record contains 2,300 recordings of misdemeanor probable cause hearings before the
Hearing Officers. The recordings begin in March 2016—before the lawsuit was filed—and continue
through early November 2016. Pls. Ex. 2. The court has reviewed many hours of footage. The
results are consistent and support this court’s findings and conclusions. Two hearings are
illustrative. The court chooses them not because they are extreme examples of any particular feature,
but because they appear pretty ordinary. Neither hearing is procedurally unusual. The parties did not cite or play either one at the motion hearing.44
44 Unsurprisingly, both parties emphasized video recordings that were most favorable to their arguments. The plaintiffs, for instance, displayed one recording in which the Hearing Officer doubled a defendant’s secured bail amount when the defendant answered “yeah” instead of “yes,” a penalty clearly unrelated to the defendant’s risk of nonappearance or of new criminal activity before trial. Pls. Ex. 3, May 14, 2016, 15.58 at 8:15, B. J.; see also id., May 21, 2016, 12.45 at 43:59, E. P. (Hearing Officer raises bond from $5,000 to $25,000 on a misdemeanor charge because the defendant answers “yeah” instead of “yes”). The plaintiffs highlight 121 recordings, pretty evenly distributed across the five defendant Hearing Officers. See generally Pls. Ex. 3.
The defendants highlight only 6 recordings, which show hearings before only two of the defendant Hearing Officers. See Def. Ex. 70. All 6 recordings involve defendants with minor, nonviolent charges and little or no criminal history—what Pretrial Services calls low-risk defendants. Id. In each case, the Hearing Officer grants the defendant’s release on an unsecured personal bond before asking whether the defendant needs a court-appointed lawyer. Id. The Hearing Officer’s decision is apparently based on the low-risk
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D. M. was arrested early in the morning of August 24, 2016 and charged with possessing less than two ounces of marijuana. See Pls. Ex. 4(b), Working Database. His probable cause hearing was at 4:00 p.m. the same day. Id. The recording shows the following: • The Hearing Officer finds probable cause and tells the defendant, “Your bond is incorrect
based on” his five prior felony and nine misdemeanor convictions. Pls. Ex. 3, August 24, 2016, 15.22 at 37:25. • The defendant responds that he has only one prior felony conviction. The Hearing Officer spends the bulk of the unusually long four-and-a-half minute hearing thumbing through the defendant’s record and counting convictions. The Hearing Officer counts as prior felony convictions two felony charges that were reduced to misdemeanor convictions but still does not arrive at five felony convictions. He tells the defendant, “Either way your bond was incorrectly set, so it’s now set at $5,000, which is what it should have been set at. [I’m] going to deny your personal bond based on all your priors.” Id. • The defendant requests a personal bond because his fiancée is pregnant and he is the only income earner in the household. The Hearing Officer responds, “I take all that into consideration” but again points to the defendant’s prior convictions. The defendant points out that he has never missed a court appearance for any of those prior arrests and convictions. The Hearing Officer cuts him off, stating, “That is one factor, the other factor is everything else. . . . Based on the nature of the offenses for which you were charged, I’m not going to consider you” for a personal bond. Id. • The defendant confirms he will need a court-appointed lawyer. The Hearing Officer
profile of the defendant, and not on whether the defendant could pay a secured financial condition of release.
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concludes that if the defendant would like a personal bond, he can ask the County Judge for one in the morning at his first appearance. Id. If the defendant had been able to pay a bondsman’s premium, he would have been released notwithstanding his criminal history. D.M. appeared before a County Judge the next day and pleaded guilty. He was released later that day. See Pls. Ex. 4(b), Working Database. A. G. was arrested on October 1, 2016 at 9:30 p.m. for unlawfully wielding a five-inch knife. See id. His probable cause hearing was held the next afternoon. It is one of the more recent recordings in evidence. Id. The recording shows the following: • The Hearing Officer finds probable cause and confirms the scheduled secured money bail amount of $2,500. Pls. Ex. 3, October 2, 2016, 12.16 at 27:39. • The defendant confirms that he will need a court-appointed lawyer and tries to ask a question. The Hearing Officer cuts him off, stating, “Nobody who’s got the criminal history you have out of Florida is going to get a pretrial [bond] from me, for fear of what would happen to the safety of the community.” The defendant again tries to speak. The Hearing Officer again cuts him off: “I have more people to consider than you in this, and the safety of the public is one of them.” The defendant tries a third time to speak, and again the Hearing Officer shouts over him, saying “You’re not going to be able to talk to me because I’m not letting you talk, because I’m going by what I feel is best for the community.” Id. • After a pause, the defendant quietly asks if he may speak. The Hearing Officer shouts “No!” The defendant pauses again and then states that his only criminal history is a 25-year-old matter in Florida and that he is nearly finished with his exams to become a medical professional. The Hearing Officer responds that “your 25 year ago tendencies seem to be
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revisiting me, and I am afeared for the people in the State of Texas.” Id. • The Hearing Officer again confirms that the defendant will need a court-appointed attorney,
then dismisses him. As the defendant leaves the room, the Hearing Officer quips to the Assistant District Attorney that it “makes me feel better” that the defendant is returning to detention. The Assistant District Attorney laughs. Id. The defendant’s first appearance before a County Judge was held the next day but then reset for October 7, 2016. Pls. Ex. 4(b), Working Database. At the rescheduled hearing, after seven continuous days in detention, A.G. was released on an unsecured personal bond. See id. His case remained pending at the time of the most recent data production from the County. There is no indication that he has failed to appear or has been re-arrested since October 2016. See id. The two recordings illustrate what many other recordings confirm. Hearing Officers treat the bail schedule, if not as binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount.45 Amounts that deviate from the schedule are treated as “incorrect,”46 and requests for a personal bond, if not denied outright, are deferred until
45 See, e.g., Pls. Ex. 3, September 1, 2016, 9.25 at 39:23, R. W. (bail raised “based on the [County] Judges’ bail schedule”; Mr. W.: “My bond has already been posted, so what does that mean?” Hearing Officer: “That means that they’ll have to make up the difference, if you’re going to get out on the bonds.”); November 2, 2016, 6.06 at 1:00:02, B. J. (“Bond was set at $1,000. However, you are on probation. Based on the schedule, the [County] Judges’ schedule, bond is set at $5,000. Your pretrial bond release is denied.”).
46 See, e.g., Pls. Ex. 3, May 14, 2016, 15.58 at 50:55, V. V. (bond “corrected” to $6,000); March 15, 2016, 16.06 at 20:28, B. G. (raising secured bond because it was “incorrectly set” at $1,000, and stating that: “The correct bond should be $2,500 so I have to raise your bond to $2,500.”); May 12, 2016, 15.48 at 16:57, W.S.T. (“Your bond is incorrectly set.”; raising bail to $2,000 based on prior convictions); November 2, 2016, 22.07 at 18:17, T. S. (“Your bond is incorrectly set at $3,000. . . . It’s $500 for the four misdemeanors each so that’s $2,000 makes $3[,000], and $1,000 for the felony prior, is $4[,000], so I’m going to raise your bond to $4,000.”)
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the County Judge holds a later hearing.47 Hearing Officers routinely adjust initial bail settings to
conform to, not to deviate from, the bail schedule. Defendants who try to speak are commanded not to, shouted down, or ignored.48
The Hearing Officers testified that they cannot let one factor—the inability to pay—control
their bail determination. Hearing Tr. 4-1:124, 171. But they frequently cite only one
factor—criminal history—as controlling their decision to set secured money bail that the defendant clearly cannot pay.49 And although the Hearing Officers testified that they do not “know” in any
given case whether a defendant can pay secured money bail, they routinely set secured scheduled
money bail amounts despite: (1) being informed of a defendant’s indigence on the Pretrial Services
report; (2) being told of a defendant’s indigence by the defendant; (3) being aware that a defendant’s
charge clearly relates to poverty (such as begging or sleeping at a bus stop); and (4) recording that
47 See, e.g., Pls. Ex. 3, March 18, 2016, 18.03 at 1:37, H. W. (“If no one bonds you out of jail, on Monday morning, he [the County Judge] can determine if he will grant you a personal bond.”); October 2, 2016, 1.14 at 24:48, K.L.M. (denying request for nonfinancial conditions of release, stating, “It’s not happening today.”); May 22, 2016; 15.45 at 39:15, N. R. (Mr. R.: “I got a question, sir. Do you think it’s possible I could get a PR bond, because my job is on the line and my apartment, too. Do you think that’s possible?” Hearing Officer: “It’s possible, but you’re going to have to ask Judge Standley when you get to him. It’s not happening today.”); May 17, 2016, 17.45 at 5:02, W. F. (Mr. F.: “I just want to get released.” Hearing Officer: “That’s not going to happen immediately, Mr. F[.]”).
48 See, e.g., Pls. Ex. 3, May 12, 2016, 15.48 at 18:36, K. C. (Hearing Officer: “We’re not here to have a conversation. You’re here to listen to what she says and I’m here to determine whether I feel probable cause exists or not.”); May 16, 2016, 3.44 at 26:05, T.D.E. (Hearing Officer: “No, you don’t say anything Mr. E[.] You get to say that to your court-appointed lawyer. Thank you and you can go with the deputy.”); October 2, 2016, 9.12 at 12:30, L. R. (Mr. R.: “Your Honor, may I speak?” Hearing Officer: “No.”); J.L.A. (Mr. A.: “I have no way of getting out of here, like, I swear, the $5,000—”; cut off by Hearing Officer).
49 See, e.g., Pls. Ex. 3, May 12, 2016, 15.48 at 16:57, W.S.T. (raising bail to $2,000 based on prior convictions and “for the same reason deny your personal bond”); August 23, 2016, 15.46 at 40.29, J. B. (Mr. B.: “I was asking for leniency on my bond, sir.” Hearing Officer: “Based on your priors, that’s as lean as I can get.”); November 2, 2016, 22.07 at 18:17, T. S. (based on “priors,” “going to deny your personal bond.”).
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a defendant needs court-appointed counsel because of indigence.50 The evidence that this occurs is
overwhelming. The Hearing Officer’s wisecrack that setting a $2,500 bond for reasons of
community safety “makes me feel better” clearly shows intent to use secure money bail to detain that
defendant indefinitely.51
The court finds and concludes that in the typical case, Hearing Officers set secured money
bail as a condition of detention operating only against those who are indigent and cannot pay the bail,
rather than as a mechanism for pretrial release. In the vast majority of cases, the Hearing Officers
50 See, e.g., Pls. Ex. 3, May 12, 2016, 9.49 at 24:41, F. C., (Hearing Officer: “I would consider you for release on a personal bond, but you’ve indicated you have no residence. Is that correct?” Mr. C.: “Yes, ma’am.” Hearing Officer: “Okay, your pretrial bond release is denied.”); May 16, 2016, 6.46 at 14:40, L. P. (Ms. P.: “What is a personal bond?” Hearing Officer: “A personal bond is where you have a place to stay. You just told me you don’t have any other place to stay, so I’m not going to consider you for a personal bond.”); May 18, 2016, 19.48 at 8:10, K. H. (“You indicated to Pretrial [Services] that you were living in a car, so I’m not going to be able to consider you for a personal bond.”); October 7, 2016, 22.15 at 18:45, C.D.D. (Mr. D.: “Currently, I’m mostly living out of my car.” Hearing Officer: “A little too unstable for a personal bond. I’m setting your bond at, well it’s as low as it goes, $500.”); October 2, 2016, 1.14 at 24:48, K.L.M. (arrested for shoplifting $54 worth of clothing from a Goodwill thrift store); August 24, 2016, 6.21 at 4:55, F. O. (arrested for “camping” at a bus shelter); May 21, 2016, 22.52 at 32:15, A. C. (soliciting money at a gas station and sleeping at the carwash; “You don’t qualify for a personal bond.”); May 12, 2016, 3.48 at 40:40, J. M. (“bothering customers, begging for money” outside of a shopping center); May 21, 2016, 3.55 at 25:43, R. L. (“begging” for money outside a gas station; “You don’t qualify for a personal bond.”); August 23, 2016, 3.18 at 31:21, E. B. (“begging” at Wal-Mart); August 25, 2016, 15.27 at 48:44, J.L.A. (arrested for soliciting money outside a Walgreens); August 26, 2016, 12.25 at 17:38, A.C.R.W. (panhandling at a gas station); November 1, 2016, 3.06 at 20:33, J. G. (panhandling outside a store); November 2, 2016, 1.03 at 28:54, C. T. (arrested for panhandling at a gas station); November 2, 2016 9.09, 31:42, T. O. (arrested for sleeping in an abandoned bank); February 8, 2017, 6.41 at 37:36, J. H. (arrested for asking for money outside of a Shop N Go); October 6, 2016, 15.18 at 30:42, R. W. (arrested for attempting to use a bathroom at a hospital); May 22, 2016, 3.47 at 22:58, R. J. (“You do not qualify for a personal bond. . . . Will you be hiring your own attorney or seeking help?” Mr. J.: “Seek help. I ain’t got no money.”). November 3, 2016, 12.14 at 13:38, T. P. (in absentia; “She appears to be homeless. I’m going to leave the bond at $1,000.”; requesting appointed counsel on her behalf, stating, “I’m going to make the assumption that she’s indigent.”).
51 See also Pls. Ex. 3, November 3, 2016, 01.04 at 26:20, L. I. (after lowering bond from $50,000 to $5,000, Hearing Officer threatens to re-raise the bond to $50,000 if Mr. I. does not have a place to stay, stating “The order says you can’t go there, so here’s how we’re going to work it out. It’ll be your choice. If you get out on bond, you’re going to tell me you got someplace else to go. Now if you don’t have any place else to go then I have to give you a place to stay. My place, I’m going to give you the address, it’s 701 San Jacinto [the County Jail]. . . . So I’ll raise your bond back where it was, and I’ll leave you in jail. So either you got another place to stay, or you’re going to stay in jail.”).
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use their discretion to consider the five Article 17.15 factors to almost automatically impose the prescheduled secured bail amounts, notwithstanding Pretrial Services recommendations to release defendants on unsecured personal bonds and notwithstanding clear evidence of indigence. Hearing Officers make these decisions in brief, uncounseled hearings at which the defendants are actively discouraged from speaking, and no reviewable findings are made on the record.
4. The First Appearance Before a County Judge Before the most recent change to the County Rules of Court in February 2017, any “incarcerated person” who remained in detention after the probable cause hearing would be scheduled to appear before a County Judge “the next business day” after the probable cause hearing. At this first appearance before a County Judge, counsel was appointed if requested. Rules of Court, Rule 24.9. The plaintiffs offered unrebutted testimony that, although misdemeanor defendants were taken to the County Courthouse on the scheduled day, they usually did not appear in the courtroom before the County Judge unless they offered to plead guilty at that time. Hearing Tr. 2-1:59–61, 63; 3-1:8–9. Bail review was at the County Judge’s initiative, and done only in a minority of the cases. In some cases, the review was prompted by a Pretrial Services recommendation or by defense counsel. See Pls Ex. 10(c), 2015 Pretrial Services Annual Report at 15; Hearing Tr. 5:108; 72:56–61. One County Judge testified that in his experience as a former criminal defense attorney, seeking a bail reduction before a County Judge was formally available, but practically futile. Hearing Tr. 2-1:10. Defendants who did not plead guilty but wanted to contest their bail settings depended on court-appointed counsel filing a formal motion for bail review. That motion would not be considered until a later hearing, usually held one or two weeks later. Id. at 3-1:10–11. The only way to gain release earlier was to pay the bail or to plead guilty.
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The February 9, 2017 amendment took effect on March 9, 2017. The amended County Rules of Court require “any arrestee that is booked into the Harris County Jail” to be presented at a “Next Business Day Setting,” even if that arrestee is released from custody between booking and the next business day. Rules of Court, Rule 4.3.1. If the probable cause hearing has not been held by the Next Business Day Setting, the County Judge rather than the Hearing Officer will determine probable cause and set bail. Id. The amended Rules state that “[a]bsent a waiver by the defendant and defense counsel, the court will review conditions of release, bail amount set, and personal bond decision and modify if good cause exists to do so.” Id.
Judge Darrell Jordan, the presiding judge of County Criminal Court at Law No. 16, testified that in e-mail exchanges, some County Judges have objected that because the new Rule 4.3.1 is not based on the Texas Code of Criminal Procedure, County Judges do not have to review bail at the Next Business Day Setting. Hearing Tr. 3-1:98, 117. Whether County Judges do or do not review the bail that the Hearing Officers set, Judge Jordan testified that in his experience as a criminal defense attorney on many misdemeanor cases, seeking a bail review at the first appearance was futile because County Judges “stick to the bond schedule. That would be the answer. What does the bond schedule say?” Id. at 3-1:10.
Judge Jordan testified that he takes a different approach to bail from his fifteen County Judge colleagues. Id. at 3-1:16–17. The Hearing Officers and other County Judges who testified agreed. Id. at 3-2:176–77; 4-1:113–16, 180–81; 5:62, 120. Judge Jordan testified that in his interpretation of the Roberson order and Article 17.15 factors, the first factor—that “the bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with”—means that a person who has the funds available for a secured money bail should post security within his or her financial
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means to assure appearance at trial. Id. at 3-1:62–63. The fourth factor—requiring consideration of ability to pay—means that bail should be set at an amount and on terms the defendant can meet to be released. That may mean a $2,000 secured bail if the defendant can afford the $200 commercial surety premium, and an unsecured personal bond if the defendant cannot pay the premium. Id. at 3-1:65–66. “Otherwise, I[ would be] keeping them in jail because they can’t afford the bond.” Id. at 3-1:66.
As for the nature of the offense and consideration of community safety, Judge Jordan testified that he reviews charging documents with the assigned Assistant District Attorney before the first appearance hearings. Id. at 3-1:66–67. For cases that present troubling charges or circumstances, Judge Jordan has the defendants appear in his courtroom and engages them in a colloquy. Id. “I want to talk to them and fully understand what is going on so then I can make a decision on what we should do with their bond.” Id. at 3-1:66. “But at no time in my analysis do I say setting a money bond is going to make them a better person or make the victim safer because the person had $500. . . . Money does not make somebody safe.” Id. at 3-1:71. Instead, Judge Jordan testified that he orders additional, nonfinancial conditions of release on personal bond, such as GPS monitoring for those at risk of violating a protective order. Id. at 3-1:73–74.
Judge Jordan has experienced the Harris County misdemeanor pretrial justice system both as a lawyer representing defendants and as a County Judge ruling on defendants’ cases. He does not believe that the Texas Code or County Rules of Court are unconstitutional as written. He testified that judges can apply the rules in a constitutional manner, and that the way he applies them is constitutional. Id. at 3-1:87–88. But he also believes that outside of his jurisdiction over those assigned to County Court No. 16, the County engages in a widespread practice of detaining
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misdemeanor defendants before trial on secured bail amounts County personnel know the defendants cannot pay because they are indigent. Id. at 3-1:61. Judge Jordan testified that without an injunction from this court, that practice will continue. Id.
Testifying on behalf of herself and County Judge Margaret Harris, Judge Paula Goodhart, the presiding judge of County Criminal Court at Law No. 1, testified that she believes Judge Jordan “consider[s] one factor and one factor only, which is the ability to pay.” Id. at 5:115, 120. She interprets the Roberson order and Article 17.15 to require her to “look at a person’s individual liberty and weigh that with the risk to the community and the risk that they are not going to appear and consider it altogether with all of those factors and set a reasonable and rational bond that we believe is going to secure their reappearance and it is going to minimize their risk to reoffend.” Id. at 5:116. She testified that “[a]fter going through the whole process, I have set a bond that I did not think it was likely that the person could make, not as an instrument of oppression or with the intent to detain, but because after considering all of the factors, that was the reasonable and rational non-excessive thing to do.” Id. at 3-1:121.
Judge Goodhart disagreed with Judge Jordan’s conclusions about the incentives resulting from the secured money bail system. She testified to her understanding that under Texas law, having a bond revoked for new criminal activity creates a financial incentive for those who post secured money bail to comply with the conditions of their release. Id. at 3-1:123. Judge Goodhart apparently did not know that Texas does not permit a financial forfeiture when a defendant released on bond commits a new offense. See TEX. CODE CRIM. PRO. art. 22.01–02 (permitting forfeiture with a right to collect the financial security only in cases of failure to appear). In fact, the re-arrest of a defendant during pretrial release guarantees that the bond will not be forfeited. Id. art. 22.13(5).
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Judge Goodhart testified that no Harris County policymaker, so far as she is aware, has examined Harris County data to compare pretrial failure-to-appear rates or bond forfeiture rates between those released on secured or unsecured financial conditions. Hearing Tr. at 5:137–38. Her impression was confirmed by Director of Pretrial Services Kelvin Banks and the Hearing Officers. See id. at 3-2:146; 4-1:149–50, 162–63. Dr. Marie VanNostrand, the County’s consultant on pretrial reform, testified that Harris County may collect the data that would allow this study but has never undertaken such a study or compiled the data to do so. Id. at 6-1:111. Judge Goodhart testified on behalf of herself and another County Judge that even if she learned from such a study that secured money bail provides no financial incentive to comply with the conditions of release, it would not change her subjective belief that secured money bail is better for community safety than unsecured bail. Id. at 5:131.
The court finds and concludes that the Harris County policymakers with final authority over the County’s bail system have no adequate or reasonable basis for their belief that for misdemeanor defendants, release on secured money bail provides incentives for, or produces, better pretrial behavior than release on unsecured or nonfinancial conditions. The policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial. In addition to the absence of any information about the relative performance of secured and unsecured conditions of release to achieve these goals, the policymakers have testified under oath that their policy would not change despite evidence showing that release on unsecured personal bonds or with no financial conditions is no less effective than release on secured money bail
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at achieving the goals of appearance at trial or avoidance of new criminal activity during pretrial release.
Dr. Demuth presented uncontroverted and reliable evidence that in 2015 and 2016, the County Judges changed the bond amount and type from that set by the Hearing Officers in fewer than 1 percent of misdemeanor cases. Pls. Ex. 4(d), Second Rebuttal Report at 10; see also Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 15. That is compelling evidence that, like the Hearing Officers, County Judges presiding over Court Nos. 1 through 15 are not making individualized bail assessments under either the Roberson Order or the Article 17.15 factors.
The County’s rule change to require a bail review at a defendant’s first appearance within one business day of booking, rather than within one business day of the probable cause and bail-setting hearing, has been in effect only since March 9, 2017. See Rules of Court 4.3.1. The record evidence does not show whether this earlier bail review has had any effect. Mr. Bob Wessels, who served as court administrator for the County Criminal Courts at Law for decades, testified that the bail review is not a new change to the rules but a codification of prior consistent practice. Hearing Tr. 5:29. Judge Jordan credibly testified that some of his colleagues have refused to conduct bail reviews, even under the new rule. Id. at 3-1:98. Judge Jordan also testified that bail reviews are usually futile because the County Judges adhere to the bail schedule on a secured basis. Id. at 3-1:10. Assistant District Attorney JoAnne Musick testified that, before the rule change, County Judges typically presumed that a misdemeanor defendant was indigent and appointed counsel if the defendant was still detained at the first appearance. Id. at 2-1:60–61. Only those who had posted bond to be released were made to submit an affidavit of indigence before counsel could be appointed. Id. That means that for years, under a consistent practice now codified in the County Rules of Court, the
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County Judges have presumed misdemeanor defendants to be indigent because they remained detained by their inability to pay a secured financial condition of release, yet in about 99 percent of the cases, the County Judges have neither adjusted the bail nor granted release on unsecured or nonfinancial conditions. There is no basis in the record to find or conclude that the rule change requiring bail review at the Next Business Day Setting has altered or will alter these practices.
5. Disposition of Misdemeanor Cases Unless a district attorney declines a charge or a Hearing Officer finds no probable cause, the earliest opportunity to dispose of a misdemeanor case is at the defendant’s first appearance before a County Judge, if the defendant pleads guilty and is sentenced.52 Ms. Musick testified based on her lengthy experience as a criminal defense attorney that many misdemeanor defendants “don’t really want to plead guilty, but sometimes they want to get out of jail, return to family, return to work, what have you. So they will inquire about a plea so that they can get out.” Hearing Tr. 2-1:65. Judge Jordan testified that in his experience, Assistant District Attorneys would make a plea offer in 85 or 90 percent of the misdemeanor cases at a defendant’s first appearance. Id. at 3-1:14. Both testified that the typical sentence for those pleading guilty at a first appearance is either the time already served in pretrial detention, or some number of days that with a two-for-one or three-for-one credit for the time served would allow release within a day of the first appearance. Id. at 2-1:67; 3-1:12. Judge Goodhart testified that prosecutors sometimes threaten to seek sentencing enhancements for certain offenses to convince misdemeanor defendants to plead and receive a time-served sentence
52 According to the 2015 Pretrial Services Annual Report, Hearing Officers did not find probable cause in 1.5 percent of the cases reviewed by Pretrial Services. Pretrial Services reviewed about 81 percent of the total cases of misdemeanor arrestees in 2015. Pls. Ex. 10(c) at 10, 14.
According to the 2016 Pretrial Services Annual Report, Hearing Officers did not find probable cause in 1.7 percent of the cases reviewed by Pretrial Services. Pretrial Services interviewed about 79 percent of the total cases of misdemeanor arrestees in 2016. (Docket Entry No. 290, Ex. 1 at 10, 14).
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at their first appearances. Id. at 5:114. Another indication that misdemeanor defendants abandon valid defenses and plead guilty to
obtain faster release than if they contested their charges is a report from the National Registry of Exonerations showing that Harris County has led the United States in the total number of criminal exonerations each of the last two years. Def. Ex. 110. Most of Harris County’s exonerations come from misdemeanor drug offenses that evidence samples conclusively prove the defendant did not commit. See id. But rather than wait for lab tests that may exonerate them, misdemeanor arrestees who cannot pay for release before their first appearances plead guilty in order to end their pretrial detention and be released. See id.; Pls. Ex. 13(a); 7(h) at 2.
Defendants who do not plead guilty at the first appearance have a hearing set, generally two or three weeks later. Id. at 2-1:10. Defendants who cannot pay their bail during this time remain in pretrial detention. Id. at 2-1:10–11. Defendants released on bond typically have their hearings set much later. Dr. Demuth presented uncontroverted and reliable testimony that from 2015 to early 2017, for misdemeanor arrestees who did not bond out—40 percent of all misdemeanor arrestees—the median time between arrest and case disposition was 3.2 days. Of those, 72 percent resolved their cases within 7 days; 90 percent resolved their cases within 30 days. Pls. Ex. 4(d), Second Rebuttal Report at 4. Over the same period, for misdemeanor arrestees released on bond (either secured or unsecured)—60 percent of misdemeanor arrestees—the median time to disposition was 120 days. Of those, 5 percent resolved their cases within 7 days; 13 percent resolved their cases within 30 days. Id.
Dr. Demuth presented uncontroverted and reliable testimony, based on the County’s own data, that the likelihood of a conviction differs dramatically depending on whether a defendant is
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detained before trial. 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. Id.
at 4. Only 13 percent of those still detained at case disposition had their cases dismissed, and 2
percent received deferred adjudications. Id. For those released before case disposition, 32 percent
had their cases dismissed and 12 percent received deferred adjudications. Id.; Pls. Ex. 4(b), First
Rebuttal Report at 16–18. These figures are consistent with, and support, the plaintiffs’ theory that
for misdemeanor defendants unable to pay secured money bail, Harris County maintains a “sentence
first, conviction after” system that pressures misdemeanor defendants to plead guilty at or near their
first appearances because that is the only way to secure timely release from detention. Hearing Tr.
6-2:172–73.
In one of the most sophisticated and rigorous studies of bail and pretrial detention in
misdemeanor cases to date,53 researchers at the University of Pennsylvania examined hundreds of
thousands of Harris County misdemeanor arrest cases. The results are presented in a peer-reviewed
53 Dr. Demuth credibly testified that the Heaton Study, along with a study by Arpit Gupta et al., discussed in Part I.F below, are “the most rigorous studies available on this kind of question of trying to isolate a causal effect of detention or money bail on these outcomes [failure to appear and recidivism] later on.” Hearing Tr. 6-2:137. The Heaton Study not only ran multiple regression analyses, controlling for all relevant variables available in Harris County’s data, it also treated the data as a natural experiment in which the weekday of an arrest acted as a random sorting tool to isolate time in detention as the only significant variable between like cases. Id. at 6-2:125–130. The Gupta et al. study observed a similar natural experiment based on the random variable of judicial case assignments in Philadelphia. Pls. Ex. 12(h).
Dr. Morris criticized the Heaton Study principally for not controlling for specific charge types in its natural experiment, and for overstating the causal effects of detention. Def. Ex. 28A at 5. Dr. Morris’s criticism is not credible. The Heaton Study specifically states that, and explains how, it controlled for the charged offense in its regression analysis, id. at 18, and in the natural experiment, id. at 28. In fact, the Study criticized other researchers who failed “to control for the particular offense charged.” Id. at 9. The Study carefully distinguished between correlational estimates offered by regression analysis and causal estimates that derive from the natural experiment. Id. at 46. As Dr. Demuth credibly explained, no study ever perfectly proves causation, but experimental studies can approach causal inferences that simple regression studies cannot. Hearing Tr. 6-2:125. Dr. Morris’s criticisms of the Heaton Study are particularly weak given his own analytical shortcomings in studying Harris County’s data, as discussed in Part I.E.4 below. The court finds that Dr. Morris’s criticisms of the Heaton Study are unpersuasive and lack record support.
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study forthcoming in the Stanford Law Review. Pls. Ex. 12(d), Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention 69 STAN. L. REV. (forthcoming) (July 2016) (“Heaton Study”); Pls. Ex. 12(d)(i) (peer-review policy for empirical research). The Heaton Study analyzed the differences in case outcomes between misdemeanor defendants who did not post bond within the seven days following the probable cause hearing, and those who did post bond within that period and were released. The researchers found that the still-detained defendants were 25 percent (14 percentage points) more likely to be convicted, and 43 percent (17 percentage points) more likely to be sentenced to jail than those who bonded out earlier. Id. at 4. Detained defendants received sentences nine days longer on average, more than double the average sentence of similar, released defendants. Id. The researchers concluded that the fact of detention itself, rather than the defendant’s charge, criminal history, or other variables, causally affects these outcomes. Id. at 3–4.
The findings of Dr. Demuth and of the Heaton Study are supported by the record, case law, and commentary. The case law and commentary recognizes that those released from pretrial detention are better able to consult with counsel and prepare a defense without hazarding their employment, housing, or family obligations. See, e.g., Brown, 338 P.3d at 1287 (“Congress attempted to remediate the array of negative impacts experienced by defendants who were unable to pay for their pretrial release, including the adverse effect on defendants’ ability to consult with counsel and prepare a defense, the financial impacts on their families, a statistically less-favorable outcome at trial and sentencing, and the fiscal burden that pretrial incarceration imposes on society at large.”) (citing 1966 U.S.C.C.A.N. at 2293, 2299); (see also Docket Entry No. 182 at 7; No. 272 at 9). Above all, they are free from the pressure to plead guilty as the only way to be released from detention in a reasonably short period. Ms. Musick credibly testified that many of her misdemeanor
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clients chose to abandon valid defenses by pleading guilty at the first appearance so they could get out of jail instead of remaining detained for the two or three weeks it would take even to raise those defenses—or their inability to pay secured bail—in court. Hearing Tr. 2-1:68–69. Judge Jordan credibly testified that it was common to have misdemeanor clients who professed their innocence and had valid defenses to nevertheless plead guilty in order to be released much earlier than if they sought an unsecured bond based on indigence or challenged the prosecution’s case. Id. at 3-1:11–12.
The defendants note that every misdemeanor defendant who pleads guilty affirms under oath that he or she does so voluntarily. That is true. It is also true that the County Judges engage the misdemeanor defendant in a counseled colloquy to affirm that the plea is made voluntarily. Id. at 2-1:83–84; 3-1:98–99; 5:112–13. But these arguments miss the point. The credible, reliable, and well-supported testimony of the witnesses and the statistical studies in the record overwhelmingly prove that thousands of misdemeanor defendants each year are voluntarily pleading guilty knowing that they are choosing a conviction with fast release over exercising their right to trial at the cost of prolonged detention. This Hobson’s choice is, the evidence shows, the predictable effect of imposing secured money bail on indigent misdemeanor defendants.
6. The Use of Bail to Detain The consistent testimony of the plaintiffs’ witnesses, including Assistant District Attorney Musick, Sheriff Gonzalez, and Judge Jordan, is that Harris County routinely detains misdemeanor defendants, who would be released if they could pay secured money bail, because they are unable to pay the amount needed for release. Hearing Tr. 2-1:68–69; 3-1:51–52, 61; 3-2:9; see also Pls. Ex. 7(h) ¶ 5; (Docket Entry No. 206). The consistent testimony of the Hearing Officers and other County Judges is that they do not detain misdemeanor defendants solely because they cannot pay but
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because the balance of state-law factors, including the need to ensure future appearances and to protect community safety, require money bail that is secured and generally (in 90 percent or more of the cases) set at the scheduled bail amount, calculated based on the charge and the defendant’s criminal history and no other factors. These requirements, the defendants testified, can and frequently do outweigh the misdemeanor defendant’s inability to pay the bail on a secured basis. Id. at 4-1:117–18, 123–25, 144–45, 168–69; 5:34, 58, 71–72; Def. Ex. 23. At the motion hearing, the parties agreed with the court’s characterization of this conflict as one between a but-for cause and a proximate cause view of detention. Id. at 1:99–100; 4-2:15–16. In the plaintiffs’ theory, thousands of defendants are detained but for their ability to pay secured money bail. (See, e.g., Docket Entry No. 143 at 15–17; No. 188 at 4–7). In the defendants’ view, secured money bail for many defendants is out of reach because of the defendants’ problematic criminal history, the serious nature of the charges, the need for mental health evaluations, or other factors. (See, e.g., Docket Entry No. 162 at 15–16; No. 164 at 8–9).
Closer examination of the record evidence and the hearing testimony undermines the defendants’ proximate-cause explanation for detention. First, there is the overwhelming credible evidence that, with the exception of Judge Jordan, Harris County Hearing Officers and County Judges do not make individualized determinations of bail based on each defendant’s circumstances, but instead consistently adhere to the predetermined bail schedule. Second, the facts established by other overwhelming evidence undermines the judicial defendants’ position that in many cases, their individualized review shows that the public interest in the misdemeanor defendant’s appearance in court and law-abiding behavior before trial requires secured money bail at the scheduled amount, notwithstanding the misdemeanor defendant’s apparent indigence and the state-law prohibition on
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preventive detention orders in misdemeanor cases. See, e.g., Hearing Tr. 5:71–72. The defendants argue that secured money bail provides incentives not delivered by unsecured
personal bonds to induce appearance at trial. See, e.g., Hearing Tr. 5:127–28. The defendants cite what they call the “indemnitor effect”: commercial sureties and acquaintances of a defendant who put up the money for the defendant’s pretrial release on secured bail have an incentive to ensure that defendant’s return to court. See, e.g., id. at 4-2:79–80; 6-2:68. Under Texas law and the County Rules of Court, however, unsecured personal bonds provide similar incentives, or lack thereof. Texas law requires those released on unsecured personal bonds to swear to appear or forfeit the principal bond amount. See TEX. CODE CRIM. PRO. art 17.04. Harris County Pretrial Services is required by its policies to supervise misdemeanor defendants released on unsecured personal bond, keep them informed of court dates, administer drug tests and other appropriate monitoring services, and send out an investigator when a defendant fails to appear. Hearing Tr. 3-2:148; 4-1:18–19; Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 5. Pretrial Services is required by its policies to supply the “indemnitor effect” for those released on unsecured bonds. At most, commercial sureties and a defendant’s social network can prompt the defendant to appear at hearings, or, in the case of sureties, petition the courts to revoke the release on bond. But these are the same actions that Pretrial Services may—and under its policies, must—take for those released on unsecured personal bonds. Compare Hearing Tr. 5:127–28, with id. at 4-1:18–19; Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 5.
Formally, the financial incentives are the same across bond types. Those who are released and fail to appear either forfeit a cash bond, become civilly liable to Harris County for the principal
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bail amount, or become civilly liable to a bondsman for the principal bail amount.54 In each case and
for each category of bond, nonfinancial incentives provide more powerful reasons to appear. These
reasons include fear of a warrant for re-arrest and the possibility of being charged with, and
convicted of, an additional misdemeanor for failure to appear. See TEX. PENAL CODE § 38.10.
At bottom, even if there were a difference between the indemnitor effects of having a
commercial bondsman paid by the defendant’s friends or family monitor and encourage the defendant’s appearance,55 versus having Harris County Pretrial Services provide the monitoring and
encouragement, that difference cannot be the basis for imposing secured, rather than unsecured, bail
without making indigence at least the proximate cause of the differential treatment. The defendants
essentially argue that co-indemnitors—family and friends with access to money—makes secured bail
a better assurance of appearance than unsecured bail. See, e.g., Hearing Tr. 3-1:16, 129. On that
basis, the homeless and the friendless are denied release on personal bond because they lack coindemnitors.56 See id. at 3-1:43–44; Pls. Ex. 1, Appendix E at 6. An indigent homeless individual’s
lack of co-indemnitors is, however, both a cause and a consequence of indigence. The rigid demand
for secured, rather than unsecured, money bail from a homeless individual is indistinguishable from
54 In fact, the incentives are somewhat stronger for defendants released on cash bonds and personal bonds, since they can avoid financial liability and loss altogether by appearing at their hearings. Those released on surety bonds suffer the permanent loss of the nonrefundable premium they pay to the surety, whether or not they appear. See Hearing Tr. 5:126.
55 But see Hearing Tr. 3-2:154 (Mr. Banks: “It’s my understanding the bail bondsman doesn’t monitor anything or enforce anything unless a person does not show.”).
56 Mr. Banks testified that Harris County follows an “[u]nwritten custom” of recommending detention for the homeless. Hearing Tr. 4-1:43–44; see also Pls. Ex. 1 at 6 (County defendants’ response to interrogatory: “The Hearing Officers, in considering all five factors under 17.15, as well as using common sense, generally find that a homeless person is ineligible for a personal bond in that if such a person lacks a sufficient connection to Houston or lacks a reasonable means of being contacted in the event that they fail to appear in court, judicial experience leads to the reasonable conclusion that such a person is ineligible for a personal bond.”).
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an order that a misdemeanor defendant so indigent as to be homeless be detained because of that indigence.
Other than a fully-paid-up-front cash bond, the unsecured personal bond and the secured surety bond provide an equivalent lack of financial incentives to appear during pretrial release. Harris County personnel testified that the County does not try to collect unsecured bonds forfeited for nonappearance. Hearing Tr. 3-1:36; 3-2:148; 5:24. Even if commercial bondsmen file civil suits to collect forfeited bond amounts, for misdemeanor defendants who lack assets—who are judgmentproof—that civil liability does not create a meaningful incentive. See id. at 1:190; 3-2:148–49; 41:170. The up-front payment of the bondsman’s premium is a sunk cost, and is not recoverable even if the defendant appears for every court date. Id. at 2-1:53; 4-2:13–14. Neither secured nor unsecured bonds provide meaningfully different financial incentives.
The incentive argument fares no better with respect to deterring new criminal activity during pretrial release. The evidence is that neither a secured nor unsecured bond is subject to forfeiture for new criminal activity. See TEX. CODE CRIM. PRO. art. 22.01–02; 22.13(5); Hearing Tr. 41:58–59. The record establishes that requiring secured money bail provides no incentive to lawabiding behavior during pretrial release that is not equally provided by unsecured personal bonds—the main incentive, of course, being the threat of re-arrest and extended sentences for new criminal activity, incentives that apply equally across all classes of released defendants. See TEX. PENAL CODE § 38.10.
Secured money bail ensures better results than unsecured appearance bonds only when the secured money bail operates as an order of detention because the defendant cannot pay. Those who are detained because they cannot pay secured money bail necessarily make their court appearances
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and do not re-offend. But that success is because of the detention, not because of the financial security. And it applies only to those who cannot pay the secured financial conditions of release.57
The defendants argue that even if judges gave greater consideration to a misdemeanor defendant’s inability to pay, the defendants argue, some indigent defendants would still be detained under other state-law factors, such as a history of prior failures to appear or criminal convictions. The defendants cite Ms. ODonnell and Mr. Ford as examples. (Docket Entry No. 164 at 18). The problem is that although there is no meaningful difference in the financial or other incentives provided between secured and unsecured money bail, those with “priors” will be detained on secured bail, only if they are too poor to pay it. See also Hearing Tr. 5:33–34. The defendants repeatedly argue that because Texas law does not permit pretrial preventive detention in most misdemeanor cases, the only way to address serious concerns about nonappearance or new criminal activity is with a secured money bail too high for the defendant to pay. Hearing Tr. 1:115–16; 3-1:72–73; 5:43–44, 70; (Docket Entry No. 166 at 13–14). But it is the fact of pretrial detention, not the secured money amount, that addresses these concerns, and only for those too poor to pay. An arrestee with access to money but with similar present charges, similar prior failures to appear, and similar criminal history could pay the secured bond and be released, despite the risks to public safety or of nonappearance. That arrestee would face no meaningfully different incentives than if released on an unsecured bond for the same amount.
Both Judge Goodhart and Judge Villagomez testified that one reason they reject Pretrial
57 The record provides no support for defense counsel’s argument that some defendants choose remain detained, meaning they are able but unwilling to pay the secured bail amount. See Hearing Tr. 5:79–80; Def. Ex. 28 at 18; (Docket Entry No. 162 at 15–16). The credible testimony from every witness and declarant with experience representing criminal misdemeanor defendants is that no one remains in the Harris County Jail out of a desire to be there. See, e.g., Hearing Tr. 2-1:60; 3-1:13; Pls. Ex. 7(h) ¶ 6. Nevertheless, the court’s relief permits defendants to remain in pretrial custody if they choose to do so.
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Services recommendations to release defendants on unsecured financial conditions in some cases is that the judges are able to access and consider the charging documents and other information that make the misdemeanor offense worse than the charge makes it appear, while Pretrial Services is limited to resource and criminal-history information obtained in the interview with the defendant. Hearing Tr. 4-1:125–26; 5:69–70; see also id. at 5:6–7. This is not a credible explanation for why the Hearing Officers and County Judges adhere to the bail schedule nearly 90 percent of the time. That aside, the judges’ reasoning assumes at the least that if the circumstances surrounding the crime appear graver than the misdemeanor charge on its own indicates, imposing secured money bail at the scheduled amount will induce better pretrial behavior from the defendant. That assumption has no basis in evidence or experience in misdemeanor cases when the defendant is released. In effect, the defendants’ position is that misdemeanor defendants should be incarcerated for the risks they pose, but only if a secured financial condition beyond the their ability to pay accomplishes the incarceration.
The fact that the defendants consistently interpret the Roberson order and Article 17.15 of the Texas Code of Criminal Procedure to refer only to secured bail is telling. The order and the Code provision refer only to “the amount of bail.” The Code defines “bail” as both secured and unsecured bonds. See TEX. CODE CRIM. PRO. art. 17.01; 17.15. While the defendants may increase the bail amount based on a misdemeanor defendant’s past conduct, neither the Code nor the Roberson order require the higher level of bail to be imposed only on a secured basis. Judge Hagstette acknowledged that on occasion he has, consistent with the order and Code, set misdemeanor bail at the maximum scheduled amount of $5,000 but on an unsecured basis, so that the defendant could be released on a personal bond. Hearing Tr. 4-1:169; see also Ex parte Gentry, 615 S.W.2d 228, 231
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(Tex. Cr. App. 1981) (confirming bail at $2,500 but ordering release on “the security of a personal bond in the amount fixed”). The fact that Hearing Officers and County Judges rarely engage in this practice shows they set secured money bail not with an eye to the incentives provided by higher bail amounts, but with the understanding and expectation that secured bail will detain outright. Their shorthand for personal bonds as “PR bonds,” meaning “pretrial release bonds,” betrays the same understanding. Id. at 3-2:86–87; 4-1:75, 169; see also Pls. Ex. 3, February 8, 2017, 6.41 at 37:36; November 2, 2016, 6.06 at 1:00:02; May 12, 2016, 9.49 at 24:41.
Although the Texas Code consistently states that the purpose of the probable cause hearing is to “determine[] whether probable cause exists to believe that the person committed the offense,” see, e.g., TEX. CODE CRIM. PRO. art. 17.033, the orders the Hearing Officers issue are titled “probable cause for further detention,” see generally Pls. Ex. 9. On these orders, Hearing Officers check a box stating that “[t]he Court FINDS PROBABLE CAUSE for further detention EXISTS” and requiring that the “Defendant shall remain in the Sheriff’s custody until he posts [secured] bail in this cause.” Id. In Harris County, secured money bail is not just a de facto pretrial detention order; it is literally a pretrial detention order.
The plaintiffs’ understanding of those detained “solely” because they are financially unable to pay secured money bail at the scheduled amount more accurately describes the current reality in Harris County. While Texas law guides the judicial officers’ discretion in setting bail amounts, it does not require bail to be set on a secured basis. Judicial officers in Harris County follow a custom and practice, without sufficient basis in data or experience, of setting bail on a secured basis to address concerns about a defendant’s risk of failing to appear or of committing new criminal activity. The only way that secured bail addresses those concerns is by effectively ordering pretrial preventive
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detention. This occurs only when, and because, the defendant is too poor to pay the amount of bail imposed. In Harris County, secured financial conditions of release in misdemeanor cases effectively function as detention orders only against the indigent.
E. The Population Statistics of Misdemeanor Detainees at Each Stage in the Postarrest Process
In mid-February 2017, Harris County produced data drawn from its administrative records purporting to account for all adults booked into the Harris County Jail from January 1, 2015 to February 14, 2017. Def. Ex. 28 at 2. The data set included 106,055 case entries. Pls. Ex. 4(b), Second Supplemental Report at 1. Id. at *2–3. Both parties’ experts relied principally on this data set to reach their conclusions about the misdemeanor population in the Harris County Jail.
1. Arrestees Detained More than 24 Hours Before the Probable Cause Hearing
From 2015 to early 2017, nearly 67 percent of misdemeanor arrestees were detained from arrest until the probable cause hearing. Pls. Ex. 4(b), Expert Report at *2, Second Supplemental Report at 2. Almost all of the remaining 33 percent paid a secured money bond to be released before the probable cause hearing. Only 90 people were released on personal bond through early presentment to a Hearing Officer in 2015, and 240 in 2016. That is around 1 percent of arrestees held in custody by the City of Houston Police Department. Id; (Docket Entry No. 207-1 at 15; No. 290, Ex. 1 at 8).
Of those still detained at the probable cause and bail-setting hearing, more than 14,000 misdemeanor defendants—a little over 20 percent of those detained at that point58—waited more
58 Dr. Demuth arrived at these numbers from the available data from January 1, 2015 to November 25, 2016 and from December 1, 2016 to January 31, 2017. Pls. Ex. 4(b), Expert Report at *2, Second Supplemental Report at 2. Dr. Demuth calculated that after removing duplicate entries for multiple charges filed at the same time, the sample includes 97,715 misdemeanor arrestees. Pls. Ex. 4(b), First Supplemental
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than 24 hours after arrest for the hearing. Pls. Ex. 4(d), Second Rebuttal Report at 1. Over 600 people—1.0 percent of those detained—waited more than 72 hours after arrest for the hearing.59 Id. The plaintiff Robert Ryan Ford was detained 32 hours after his arrest before he appeared before a Hearing Officer. See Pls. Ex. 8(c)(iii), Ford Docket Sheet.
Under Texas law, Harris County is required to release misdemeanor defendants if they have not had a probable cause hearing within 24 hours of arrest. TEX. CODE CRIM. PRO. art. 17.033. Release must be on an unsecured personal bond if the defendant cannot pay secured money bail. Id. at 17.033(b). Probable cause hearings for those arrested by the City of Houston Police Department may be delayed because of crowded conditions at the County Jail, causing backups in transporting arrestees from the City to the County Jail and booking them there.60 For some whose probable cause hearings are delayed more than 24 hours after their arrests, the Hearing Officers may hold hearings in absentia or “on the papers.” Hearing Tr. 2-1:92–93. The Hearing Officers find probable cause based on the DIMS report provided in the charging documents. Id. That situation rarely occurs. The parties’ experts agreed that only 3 to 4 percent of the entire arrest population has probable cause determined on the papers. See Def. Ex. 28A; Hearing Tr. 6-2:31–32, 121–22. That means Harris County has over the last two years detained more than 10,000 misdemeanor arrestees more than 24 hours after arrest without either a probable cause hearing or a probable cause determination on the
Report at *2. That is, misdemeanor defendants arrested and charged with multiple offenses on the same arrest are not double-counted, but defendants who were arrested multiple times on different charges may appear multiple times in the sample. Id. at *2–3.
59 The parties do not meaningfully dispute the basic numbers. The parties dispute whether the average or median length of detention is less than 25 hours, Hearing Tr. 1:152; 2-2:61–64; 4-2:42, 52–53, but the average and median periods are not critical. The issue is not whether Harris County complies with the law on average, but the extent to which it violates its legal obligations. Meeting a due process standard 50.1 percent of the time would not save the defendants’ case.
60 See Part I.D.2 supra.
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papers. And on the relatively few occasions when Hearing Officers make probable cause determinations on the papers, they testified that they do not consider the amount of bail or eligibility for release on unsecured personal bond at that time. Id. at 4-1:133–35.
The court finds and concludes that Harris County is not providing a bail-setting hearing within 24 hours in thousands of cases.
2. Arrestees Detained More than 48 Hours Before a Bail Review From 2015 to early 2017, nearly 50 percent of misdemeanor arrestees were detained from arrest until their first appearance before a County Judge. Pls. Ex. 4(d), Second Rebuttal Report at 2. In April 2016, one month before the plaintiffs filed suit, only 7.5 percent of all misdemeanor arrestees were released on personal bond, almost all of them by Hearing Officers at the probable cause hearing. Def. Ex. 47; Pls. Ex. 4(d), Second Rebuttal Report at 10. By the end of 2016, seven months after the plaintiffs filed suit and three months after the County Judges changed the Rules of Court to instruct the Hearing Officers to presume that unsecured personal bonds for twelve offense categories,61 16 percent of all misdemeanor arrestees were released on personal bond. Def. Ex. 47; Pls. Ex. 10(b), December 2016 Pretrial Services Monthly Report. The overall rate of release of misdemeanor defendants on unsecured personal bonds from 2015 to early 2017 was 9.7 percent—10.8 percent in 2016 alone. Pls. Ex. 4(d), Second Rebuttal Report at 9; (Docket Entry No. 290, Ex. 1 at 9). Over the last two years, around 52,000 misdemeanor arrestees were still detained after their probable cause hearings before the Hearing Officers. Pls. Ex. 4(d), Second Rebuttal Report at 2. The next hearing, before a County Judge, is generally within one business day after the probable
61 See Part I.D.1 supra.
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cause hearing. But more than 26,000 misdemeanor arrestees—over 51 percent of those still detained—waited more than 48 hours after their arrests before their first appearances before a County Judge. Id. Over 6,800 people—just over 13 percent of the detained population—were held longer than 96 hours after arrest before their first appearance. Pls. Ex. 4(b), Second Supplemental Report at 1. The plaintiff Loetha McGruder was detained 87 hours after her arrest before her first appearance before a County Judge. Pls. Ex. 8(c)(ii), McGruder Docket Sheet.
The defendants dispute these numbers, but their expert, Dr. Morris, provided no alternative figures on the length of detention between arrest and first appearances. See Def. Ex. 28A at 1–3. He argued that Harris County’s data contains too many gaps, clerical errors, and problematic distributions to provide a basis for reliable calculations or conclusions. Id.; Hearing Tr. 4-2:201–03. Dr. Morris specifically cited a distribution chart showing hours-to-release as containing too many sharp peaks and valleys, indicating that the data did not accurately reflect the length of detention. Def. Ex. 28A at 1–3; Hearing Tr. 6-2:79.
The plaintiffs’ expert, Dr. Demuth, accounted for the problems Dr. Morris identified. Dr. Demuth excluded arrestees who had holds, had prior failures to appear, were on probation, faced multiple charges, faced concurrent felony charges, had prior convictions, were admitted for mental health or medical evaluations, or had high-risk designations. Pls. Ex. 4(b), Rebuttal Report at 3. Dr. Demuth found the same rates and distribution of delays across the remaining population. Id. Dr. Demuth testified that the peaks and valleys in the distribution are likely caused by the fact that Harris County does not record the time of first appearance. Hearing Tr. 6-2:112–16. Dr. Demuth adjusted for this by assuming that first appearances occur for all defendants at 9:00 a.m., when the County Courts open their sessions for the day. Id. at 6-2:115–16. This is a realistic estimate and a
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conservative approach. Rather than the smoother distribution that actually occurs as arrestees make their first appearances throughout the day, the 9:00 a.m. assumption makes the distribution reflect and exaggerate the rhythms of the County’s arrest cycle. The relatively more numerous misdemeanor defendants arrested in the afternoon and evening appear to have their first appearances all at once at 24-hour intervals of 9:00 a.m. on the days after their arrest. The relatively smaller number arrested late at night make their assumed 9:00 a.m. appearances seem relatively scarcer. Id. at 6-2:112–16. Dr. Demuth’s calculations and conclusions are reliable and helpful, even with the gaps and flaws in the Harris County records and data. Of course, Harris County is welcome to provide more accurate information at the merits trial. On the present record, Dr. Demuth has sufficiently addressed Dr. Morris’s concerns by basing his calculations on realistic and conservative assumptions.
The court finds and concludes that at least half of the detained misdemeanor population in Harris County wait 48 hours or longer after arrest before seeing a County Judge, and at least 13 percent wait 96 hours or longer.
3. Arrestees Detained Until Case Disposition Harris County’s annual and monthly Pretrial Services reports show that a remarkably stable 40 percent of misdemeanor arrestees remained detained until case disposition. See generally Pls. Ex. 10(b), 10(c). In both the 2014 and 2015 annual reports, the rate is identical: 40.3 percent. Pls. Ex. 10(c). The 2016 Pretrial Services Annual Report, released after the motion hearing, shows that 40.1 percent of misdemeanor arrestees were detained until case disposition in 2016. (See Docket Entry No. 290, Ex. 1 at 8). The 2016 change in the County Rules of Court to presume release on
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personal bond in twelve offense categories has apparently had little impact.62 Of the 84 percent of detained arrestees who plead guilty at their first appearance,63 67 percent
are released within a day. Pls. Ex. 4(d), Second Rebuttal Report at 3. About 83 percent are released within five days of their first appearance. Id. Those who do not plead guilty typically wait for one to three weeks or more before a second hearing before a County Judge. See Hearing Tr. 2-1:68; 62:168–69.
Dr. Demuth testified that the likelihood a misdemeanor defendant will be detained at disposition correlates strongly with the indicators of poverty Pretrial Services uses to assess risk. Those who had one point for criminal risk on the assessment but no points for background, or resource, factors were detained at disposition 14 percent of the time. Id. at 7-1:9–10. Those with one point for criminal risk and seven points for background risk—meaning young males who did not own a home, an automobile, or a land line and who were unemployed or underemployed, or poorly educated—were detained at disposition 53 percent of the time. Id. At two points of criminal risk, those with no background risk points were detained until case disposition 33 percent of the time; those with seven background risk points were detained until case disposition 74 percent of the time. Id. at 7-1:10–13.
4. Arrestees Detained “Because of” Indigence The defendants argue that the plaintiffs’ statistical reports do not prove that large numbers of misdemeanor arrestees are detained solely because of indigence and that the plaintiffs are assuming that if those detained could pay for release, they would. (Docket Entry No. 162 at 15–16);
62 See Part I.D.1 supra. 63 See Part I.D.5 supra.
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Hearing Tr. 8-2:53. Both parties’ experts tried to discern from Harris County data whether and to what extent misdemeanor defendants are detained because they cannot pay a secured money bail. Dr. Demuth relied on a computer program the plaintiffs developed that took “snapshots” of the data on the Harris County Jail’s misdemeanor population at particular times on particular dates, pulled each defendant’s public records from the County’s public-facing online interface, and excluded those with nonfinancial reasons for detention on misdemeanor charges, such as concurrent pending felony charges. Hearing Tr. 2-2:5–7; 7-1:38–39. The most recent series of snapshots showed that on average, between February 15, 2017 and March 14, 2017, every day in the Harris County Jail there were: • 328 people charged only with misdemeanors. • 240 people charged only with misdemeanors and not subject to formal holds, such as
warrants from another jurisdiction. • 154 people charged only with misdemeanors, not subject to holds, who had been in jail for
3 or more days. • 126 people charged only with misdemeanors, not subject to holds, who had been in jail for
5 or more days. • 84 people charged only with misdemeanors, not subject to holds, who had been in jail for 10
or more days. Pls. Ex. 4(d), Second Rebuttal Report at 9. The plaintiffs contend that at the very least, the 154 people in the County Jail every day who have been detained for three days or more on misdemeanor charges and are not subject to other holds have been found eligible for pretrial release and would be
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released if they paid the secured money bail.64 (Docket Entry No. 145 at 6; 146 at 13; No. 188 at 11). Dr. Demuth credibly testified that only the arrestees’ inability to pay keeps them detained. 6-2:168, 180–81; 7-1:39.
The defendants’ cross-examination of Dr. Demuth demonstrated that in a handful of entries for February 15, 2017, the plaintiffs’ computer program had failed to capture the fact that a misdemeanor arrestee was also charged with a felony or was about to be released on bond. Id. at 7-1:41–58. In some instances, these additional docket activities took place the same day as the snapshot and may have occurred hours after the snapshot captured the data. This would indicate that the program worked as designed, including that it captured data only for a particular point in time and did not track cases over time. Id. at 7-1:33–34, 43. In a few other instances, the program did not work as designed in that an entry was miscoded. Id. at 7-1:43, 45.
The defendants also demonstrated that certain entries in the “snapshot” included misdemeanor arrestees who were detained for mental-health evaluations or had formal “holds,” such as flags indicating that the arrestee was subject to extradition to another jurisdiction. Id. at 7-1:57–74. The court finds that the defendants’ focus on mental-health status and other holds is misplaced. Article 16.22 of the Texas Code of Criminal Procedure permits magistrates—including the Harris County Hearing Officers and County Judges—to collect information about, and order the assessment of, an arrestee’s mental-health status. But Article 16.22(d) clearly states that “[t]his
64 The data on arrestees detained in the Harris County Jail for three days or more undermines the declaration and testimony of Bob Wessels, the defendants’ expert on Harris County court administration. Mr. Wessels testified that most misdemeanor defendants who have not bonded out are detained only because they are still in “processing,” and that only a few high-risk defendants are detained on money bail they cannot pay. Def. Ex. 26 at 10; Hearing Tr. 5:31–34. The court finds that Mr. Wessels is knowledgeable about the history of the Harris County courts and the implementation of the Roberson order, but because he has been retired from the position of court administrator for over six years, his knowledge of the present system, especially the detailed statistics on the prison population, is entitled to substantially less weight.
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article does not prevent the applicable court from, before, during, or after the collection of information regarding the defendant as described by this article: (1) releasing a mentally ill or mentally retarded defendant from custody on personal bond or surety bond. . . .” TEX. CODE CRIM. PRO. art 16.22. Article 16.22 is the only legal basis the defendants identified to detain misdemeanor arrestees for mental-health evaluations. Hearing Tr. 8-2:16. Judge Jordan testified that while misdemeanor arrestees who are ordered to have a mental-health evaluation ordinarily are detained pending the evaluation, the only way to ensure detention is to order secured money bail and refuse to grant a personal bond, knowing that the arrestee cannot pay the secured bail. Id. at 3-1:46–48. If the court ordered the arrestee evaluated but the arrestee had access to money, he or she could pay for prompt release, despite the evaluation order. Id. Misdemeanor arrestees waiting for mentalhealth information to be collected or evaluated are detained by secured money bail because they cannot pay.
As for “holds,” the plaintiffs offered unrebutted testimony that misdemeanor arrestees subject to holds, such as immigration detainers or pending warrants in other counties, are released “to their holds” only when they have either posted bond or disposed of the misdemeanor case. Id. at 2-2:30–32; 4-1:154–57. For instance, if an arrestee has a warrant pending in a neighboring county, that county has ten days to take custody of the arrestee. But the ten days do not begin to run until the arrestee has either paid the secured money bail set in the misdemeanor case, been granted a personal bond, or resolved that case by pleading guilty, being convicted, or having the charges dismissed. Id. Misdemeanor arrestees who have secured money bail imposed for their misdemeanor charges are detained in Harris County not because of the hold, which they are legally unable to address, but because they are unable to pay the secured money bail.
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Excluding bail-as-detention-orders for mental-health evaluations and holds that are irrelevant to this case (because they do not prevent release for a defendant who can pay the secured money bail), the defendants have shown that Dr. Demuth’s estimated average of those detained because they are unable to pay is inflated at most by a dozen entries in each category of the “snapshot.” On the present record, the court finds and concludes that more than 100 individuals are detained in the Harris County Jail each day, who have judicially been found eligible for release and who would be released but for their inability to pay secured money bail.
The defendant’s expert, Dr. Morris, attempted a different method of counting who was detained in the Harris County Jail solely due to indigence. Def. Ex. 28. Dr. Morris drew on the Pretrial Services risk assessments for all interviewed misdemeanor defendants from January 1, 2015 to February 14, 2017, a total of 92,941 risk-assessment reports. Id. at 10. He excluded those with prior arrests or higher risk scores, because “[t]hose who have more of a criminal history are of a higher risk to have some unmeasured legal factor delaying release.” Id. Dr. Morris concluded that over the nearly 26-month period, no defendants who had all five indicators of indigence tracked by Pretrial Services—no employment, no car, no land line phone, no high school education, and no family residence—were detained solely by inability to pay. Id. He found only 65 detained individuals who had one Pretrial Services resource factor of indigence who were low risk, had no other reasons for detention, were eligible for release on a secured bond, but had not paid the bond and been released. Id.
Dr. Morris’s study is critically flawed in at least two ways. It first adopts the defendants’ mistaken outlook that Texas law allows misdemeanor-only defendants to be detained before trial. See id. (“some unmeasured legal factor delaying release”). With a narrow exception for certain
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family violence cases, Harris County uses no other mechanism to detain misdemeanor defendants before trial than by imposing secured money bail. By excluding defendants with prior arrests or high-risk scores from consideration, Dr. Morris excluded a significant population of misdemeanor arrestees who were judicially deemed eligible for pretrial release and would have been released if they could have paid the up-front amount needed under the secured money bail set.65
An even more basic flaw in Dr. Morris’s study was his exclusion of all misdemeanor defendants who had “moderate” or “high” risk scores from the population he considered. As explained above, Pretrial Services current risk-assessment tool counts resource factors such as the lack of a land line phone or an automobile as the same type of risk points as prior convictions or failures to appear.66 A misdemeanor defendant with no criminal history who met all of the poverty indicators would have at least five risk points—for not having a car, a family residence, a land line phone, a high school diploma, and for being unemployed or underemployed—and up to seven points if the defendant were a young male. See generally Pls. Ex. 8(d). But Dr. Morris excluded these defendants from his survey.
In sum, Dr. Morris excluded indigent defendants from his survey to conclude that, of the misdemeanor defendants surveyed, none was detained because of indigence. Dr. Morris’s conclusion is not entitled to any weight. These critical flaws undermine his credibility and diminishes the court’s confidence in the reliability of the opinions he expressed, whether deriving from his own research or criticizing the analytic methods and conclusions of others.
In his supplemental report, Dr. Morris ran his calculations including those with low-moderate
65 See Part I.D.6 supra. 66 See Part I.D.2 supra.
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and moderate risk scores. Def. Ex. 28, Supplemental Report at 3. Dr. Morris’s attempt to salvage his report is not successful. He again excluded “high risk” defendants, which automatically excludes many young misdemeanor defendants who have all five poverty indicators on the Pretrial Services current risk-assessment form. His exclusion of defendants with prior arrests, mental-health evaluations, or assault charges again assumes that people are being detained for those reasons when the only mechanism under Texas law to detain them is to impose secured money bail that they are unable to pay. Even with all of these exclusions, Dr. Morris found that 1,623 people with at least one poverty indicator were detained in Harris County solely because of their inability to pay the secured bail imposed. Id.
5. Bond Forfeitures and Re-Arrests for New Criminal Activity Harris County does not track the comparative failure-to-appear or new-criminal-activity rates of misdemeanor defendants released on different types of bonds. Pls. Ex. 4(d), Second Rebuttal Report at 11; Hearing Tr. 3-2:146; 4-1:88; 5:138; 6-1:127. Harris County has not coded, collected, or analyzed data on the different types of pretrial misconduct. It cannot, as other jurisdictions have, determine whether new misconduct by those released on surety bond or on personal bond is violent or is the type of nonviolent offense for which release on unsecured personal bond is presumed. See id. The defendants’ expert, Dr. Morris, agreed that “it’s a shame we don’t have good data on court appearance.” Hearing Tr. 6-2:50. Dr. VanNostrand noted that Harris County does not currently compile the data to know how many defendants fail to appear for hearings when released on different types of bonds. The County will have to compile data on failures to appear as part of the Arnold Tool’s risk assessment. Id. at 6-1:110–12, 127–28. But for now, the County is imposing secured money bail, usually at prescheduled amounts, for almost all misdemeanor defendants, with no ability
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to tell how effective this type of bond is to prevent failures to appear or new criminal activity compared to release on unsecured or nonfinancial conditions.
Harris County does keep, and was able to produce, data coded as “bond forfeiture,” “bond revocation,” and “bond surrender.” But this data is not consistently kept or recorded. See Pls. Ex. 4(d), Second Rebuttal Report at 11. Some County Judges “forfeit” a bond after a single failure to appear. Others reset hearings and do not record a bond as forfeited until after multiple failures to appear. A single entry in the “forfeiture” data may mean one failure to appear or many. Hearing Tr. 3-1:105. A bond may be revoked because a defendant failed a drug test, even if the defendant appeared at every court setting and is never arrested or charged with another offense, or revoked because the defendant failed to appear. Id. at 3-1:105; 3-2:148, 154. Similarly, one “revocation” entry may indicate one failure to appear, many, or none at all, and may or may not indicate new criminal activity. Commercial sureties can ask for bond surrender for a variety of reasons. Judges may rely on a variety of factors to grant or deny the request. Hearing Tr. 5:132–33.
The parties’ experts nonetheless tried to compare the “failure” rates of misdemeanor defendants released on different kinds of bonds. Dr. Demuth treated all coded forfeitures, revocations, and surrenders as a general proxy for pretrial misconduct, without distinguishing between failures to appear or new criminal activity. Pls. Ex. 4(d), Second Rebuttal Report at 12; Hearing Tr. 6-2:157–58. Dr. Morris apparently examined coded forfeitures as a straightforward proxy for failures to appear. Def. Ex. 28A at 11. Using this approach, Dr. Demuth calculated that those released at any stage in the pretrial process on a surety bond have a failure rate of 11.1 percent; those released on an unsecured personal bond have a failure rate of 13.7 percent; and those released on a cash bond have a failure rate of 5.9 percent. Pls. Ex. 4(d), Second Rebuttal Report at 12.
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Dr. Demuth credibly explained that this comparison of these general populations is misleading, because it does not control for the fact that many released early in the arrest process on surety bonds are, because of their relatively greater access to money or credit, likely to be an inherently less risky population than those released later in the arrest process, whether on a surety or a personal bond. See id.; Hearing Tr. 6-2:157–58; see also id. at 6-1:113. Dr. Demuth tried to account for this difference by comparing misdemeanor defendants released on different types of bonds only after a probable cause hearing. That is, he considered and compared those who could not afford to bond out right away on secured money bail, but who were able to come up with the money to post bond at a later stage in the process. Id. Dr. Demuth found that among these populations with a more similar risk profile, those released on surety bond have a failure rate of 14.4 percent, while those released on unsecured personal bond have a failure rate of 13.6 percent. Pls. Ex. 4(d), Second Rebuttal Report at 12. That is, even with Harris County’s incomplete data, those released on unsecured personal bond have slightly better pretrial success rates than those released on a commercial surety bond.
Dr. Morris also tried to control for the different risk profiles by rejecting a general comparison of populations and using a propensity score matching algorithm that “pairs” criminal defendants who share background characteristics but who are released under different conditions. See Def. Ex. 28A at 11–12. Using this method, Dr. Morris concluded that for female misdemeanor arrestees, there was no difference in the pretrial performance between those released on surety bonds and those released on unsecured personal bonds. Id. For male defendants, those released on surety bonds had a failure rate of 14.0 percent, while those released on personal bonds had a failure rate of
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16.2 percent.67 Def. Ex. 28A at 12; Hearing Tr. 6-2:43–44.
Dr. Morris’s decision to disaggregate his findings by gender and provide no overall failure
rates is puzzling, to say the least. Dr. Morris’s earlier reports did not disaggregate by gender. His
broader past work in the field of pretrial studies did not disaggregate by gender. None of the studies
that Dr. Morris seeks to rebut disaggregate by gender. Harris County’s forthcoming reforms
specifically aim to be gender-blind in their risk assessments and prescriptions. See Hearing Tr. 6-
2:40–41; 6-1:78–79. Dr. Morris found identical failure rates among women. His decision to
disaggregate his findings had the effect of inflating the slight difference in failure rates between
secured and unsecured bonds among men and made it appear greater than the overall rate of failure,
which Dr. Morris did not provide.
On the credible, reliable evidence in the present record, the court finds and concludes that:
(1) Harris County has not compiled the data it has to compare failure-to-appear or new-criminal-
activity rates by bond type among misdemeanor defendants during pretrial release; and (2) to the
extent the information is available, it shows that those released on personal bond have substantially similar—or even somewhat better—pretrial failure rates as those released on surety bonds.68 Secured
money bail in Harris County does not meaningfully add to assuring misdemeanor defendants’
67 Dr. Morris excluded from his calculations defendants who could not be paired by the propensity score matching algorithm. See Def. Ex. 28A at 12. His total sample size of paired defendants was 5,667 male misdemeanor defendants and 2,684 female misdemeanor defendants. Id.
68 The defendants tried to show that the misdemeanor defendants Judge Jordan released on personal bond fail to appear at higher rates than those released on personal bond by the other County Judges. See Def. Ex. 128A. Their exhibit contains numerous errors. It counts cases rather than people, so the real number of defendants who fail to appear is unknown. Hearing Tr. 4-1:94–95. It tracks only cases that have been disposed in each Criminal Court at Law since January 1, 2017. Def. Ex. 128A. But many, if not most, cases disposed in that time would have had release conditions set by the presiding judge who preceded Judge Jordan in Court No. 16. Hearing Tr. 4-1:92. It is not clear if the exhibit tracks actual failures to appear or only bond forfeitures, which may include multiple failures to appear per forfeiture. The exhibit is entitled to no weight.
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appearance at hearings or absence of new criminal activity during pretrial release. This finding is consistent with recent empirical work in other jurisdictions. According to the
most recent and credible evidence, secured financial conditions of pretrial release do not outperform alternative nonfinancial or unsecured conditions of pretrial release in ensuring the appearance of misdemeanor defendants at hearings. See, e.g., Pls. Ex. 12(h), Arpit Gupta et al., The Heavy Costs of High Bail: Evidence from Judge Randomization, 45 J. LEG. STUDIES 471, 475 (2016) (“We find no evidence that money bail increases the probability of appearance.”). One landmark study examined appearance rates in Colorado, where courts presume that misdemeanor defendants should be released on unsecured bonds and, unlike Harris County, track comparative rates of pretrial failures to appear. This study found that unsecured appearance bonds are equally effective as secured money bail, at both assuring appearance at trial as well as law-abiding behavior before trial. Pls. Ex. 7(q), Ex. 2, Claire M.B. Brooker et al., The Jefferson County Bail Project: Impact Study Found Better Cost Effectiveness for Unsecured Recognizance Bonds Over Cash and Surety Bonds (Pretrial Justice Institute, June 2014).
In New York City, which holds bail-setting hearings every day from 9:00 a.m. to 1:00 a.m., see Pls. Ex. 17, two large charitable bail-fund programs have paid the secured money bail amounts in misdemeanor cases for thousands of defendants for years. See Pls. Ex. 7(u). None of those defendants has a financial incentive to return to court. Only the bail funds lose money if the arrestee fails to appear. But the bail funds have consistently achieved 95 to 96 percent appearance rates. Id. The bail funds achieve these rates of appearance through simple and relatively inexpensive supervision methods, like sending text message reminders of hearings to the misdemeanor defendants. Id.; Pls. Ex. 12(ss).
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These studies are consistent with Harris County’s own data. Although Harris County does not track pretrial failures-to-appear or new criminal activity by secured versus unsecured conditions of release, the parties’ experts found only slight, if any, differences in pretrial failure rates between those released on secured money bail and those released on unsecured personal bonds.
The defendants rely on a single study comparing rates of failures to appear and new criminal activity for misdemeanor defendants: that of their expert, Dr. Morris.69 In a study that has not yet
been published or completed the peer-review process, Dr. Morris compared failure-to-appear rates and rates of new criminal activity for misdemeanor defendants released on different categories of bond in Dallas County, Texas in 2008. Def. Ex. 30; see also Def. Ex. 163 (2012 update). Dr. Morris found that those released on a commercial surety bond failed to appear 26.7 percent of the time and were charged with a new offense 26 percent of the time within 12 months of their initial arrest. Def. Ex. 30 at 7–8. Those released on personal bond failed to appear 39.6 percent of the time and were charged with a new offense 29.1 percent of the time within 12 months of arrest. Id. Those released on cash bond failed to appear 30.2 percent of the time and were charged with new offenses 13.7 percent of the time within the 12-month period. Id. Dr. Morris testified that the difference in recidivism was not statistically significant. Hearing Tr. 6-2:53.
The court finds that Dr. Morris’s study is entitled to substantially less weight than the
69 The court considers, but does not give significant weight to, the studies that compare case outcomes in felony cases only. E.g., Def. Ex. 115, Eric Helland, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J. OF L. & ECON. 93 (2004); Def. Ex. 116, Thomas Cohen & Brian Reaves, Pre-trial Release of Felony Defendants in State Courts, Bureau of Justice Statistics, Special Report (Nov. 2007). Felony cases present risks of flight and greater risks of failures to appear and to reoffend than misdemeanor cases. Nor does the court give particular weight to anecdotal impressions of how release on secured money bail compares to completely unsupervised release. E.g., Def. Ex. 83, Cynthia Kent, Security and Success of the Surety Bond: A View from the Bench (Aug. 12, 2008) (impressionistically comparing failure-to-appear rates in Smith County, Texas); but see Travis County: No Place for Bondsmen, AUSTIN MONITOR, Mar. 30, 2017, available at https://www.austinmonitor.com/stories/2017/03/travis-county -no-place-bondsmen/ (impressions arriving at the opposite conclusion for Travis County, Texas).
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published, peer-reviewed articles in the record that rigorously compare pretrial failure rates among misdemeanor arrestees released on different categories of bond. Dr. Morris testified that, as is true of Harris County, Dallas County does not compile comparative data on failures to appear. Instead, Dallas County tracks “forfeitures,” which may include multiple failures per entry. Id. at 6-2:50, 55. Dr. Morris did not provide the court or opposing counsel with access to the underlying data tables his calculations generated. The reason he gave—to protect the peer-review process the article is still undergoing—does not take into account the availability of a confidentiality or protective order, or a partially sealed filing, to achieve this same protection. Id. at 6-2:67–69.
The plaintiffs offered reliable evidence that in Dallas County, only those posting commercial surety bonds may be released within the first 24 hours after arrest on misdemeanor charges. Commercial bondsmen use the time to offer secured bonds to the least risky defendants. Pls. Ex. 7(i). Although Dr. Morris used his proximity score matching algorithm to attempt to control for background risk factors, it is unclear without the underlying data whether or to what extent it is possible to control for the significant dissimilarities between the two populations created by the commercial sureties’ “head start” on selecting the least risky and most financially secure misdemeanor defendants for surety bonds. See Pls. Ex. 4(d), Rebuttal Report at 13–14. And unlike Harris County’s extensive Pretrial Services program, Dallas County provides almost no supervision and therefore no incentives or reminders to those released on personal bond. Hearing Tr. 6-2:53–54. In sum, the court finds that Dallas County’s procedures, and Dr. Morris’s study of them, do not offer an effective or reliable comparison to Harris County.
F. The Effects of Pretrial Detention on Misdemeanor Defendants Who Cannot Pay Secured Money Bail
Recent studies of bail systems in the United States have concluded that even brief pretrial
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detention because of inability to pay a financial condition of release increases the likelihood that misdemeanor defendants will commit future crimes or fail to appear at future court hearings. See, e.g., Pls. Ex. 12(c), Christopher T. Lowenkamp et al., The Hidden Costs of Pretrial Detention (Laura and John Arnold Foundation, Nov. 2013). A study co-authored by Dr. VanNostrand, who is helping Harris County reform its bail system, found that for misdemeanor defendants, even two to three days of pretrial detention correlated at statistically significant levels with recidivism. See id. at 26. Pretrial detention made it more likely that misdemeanor defendants would fail to appear at future hearings. See id. at 14. Other studies have confirmed these findings and shown that the likelihood of recidivism and failure to appear correlates with the imposition of secured money bail, not with a particular bail amount. See Pls. Ex. 12(h), Gupta et al., supra, at 473; see also Heaton Study at 19–24; Pls. Ex. 12(g), Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (Working Paper, University of Pennsylvania, Nov. 2016).
The Heaton Study found that if, during the six years between 2008 to 2013, Harris County had given early release on unsecured personal bonds to the lowest-risk misdemeanor defendants—those receiving secured bail amounts of $500 or less—40,000 more people would have been released pretrial; nearly 6,000 convictions and 400,000 days in jail at County expense would have been avoided; those released would have committed 1,600 fewer felonies and 2,400 fewer misdemeanors in the eighteen months following pretrial release; and the County would have saved $20 million in supervision costs alone. See Heaton Study at 45–46. Sheriff Gonzalez credibly testified that the research showing the “criminogenic” effects of even a short period of pretrial detention and the high public costs of extended detention is consistent with his own experience as a Harris County law-enforcement officer. Hearing Tr. 3-2:11, 14.
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A growing literature examines empirical data on “cumulative disadvantage” in pretrial detention. “Cumulative disadvantage” is a “sequence of undesirable events whereby the occurrence of earlier negative events increases the odds of subsequent negative events.” Hearing Tr. 6-1:66 (referencing Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black, and White Felony Arrestees, 41 CRIMINOLOGY 873 (2003)). “Bail exacerbates and perpetuates poverty because of course only people who cannot afford the bail assessed or to post a bond—people who are already poor—are held in custody pretrial. As a consequence, they often lose their jobs, may lose their housing, be forced to abandon their education, and likely are unable to make their child support payments.” Pls. Ex. 12(f), Lisa Foster, Office for Access to Justice, Remarks at the American Bar Association’s 11th Annual Summit on Public Defense (Feb. 6, 2016); see also Pls. Ex. 12(a)(iii), Marie VanNostrand, Legal and EvidenceBased Practices: Applications of Legal Principles, Laws, and Research to the Field of Pretrial Services at 15 (National Institute of Corrections, Apr. 2007); (Docket Entry No. 182 at 7; No. 272 at 9).
Money-based pretrial systems exacerbate the racial disparities in pretrial detention and posttrial outcomes. See Pls. Ex. 12(mm), Cynthia E. Jones, “Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 LEGISLATION & PUB. POL’Y 919 (2013). An amicus filing by Harris County Commissioner Rodney Ellis and the NAACP Legal Defense and Educational Fund notes that African-Americans make up 18 percent of Harris County’s adult population but 48 percent of the Harris County Jail’s adult population. (Docket Entry No. 272 at 8). A 2011 study found that in Harris County, 70 percent of white misdemeanor defendants obtain early pretrial release from detention, but only 52 percent of Latino misdemeanor defendants and 45 percent of African-
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American misdemeanor defendants do so. (Id.). The defendants did not dispute this data. G. Comparisons to Other Jurisdictions The parties supplied additional briefing comparing, when possible, Harris County’s pretrial
misdemeanor system to systems used in other jurisdictions. (Docket Entry Nos. 233, 237, 255). The parties agree that “relatively little attention has been paid to analyzing bail determinations in misdemeanor cases” across the country. (Docket Entry No. 233 at 1; see also No. 255 at *8–9). Most large urban centers appear to hold daily bail hearings, at which arrestees appear before judicial officers within 24 hours of arrest. These occur in New York City; Cook County, Illinois; Maricopa County, Arizona; and Miami-Dade County, Florida. (See Docket Entry No. 237). Washington, D.C., holds daily bail hearings except on Sunday, when the courts are closed. Hearing Tr. 2-2:194. Some bail courts run 24 hours a day, (see Docket Entry No. 237 (Maricopa County)); others operate during business hours, (see id. (Cook County; Miami-Dade County)). New York City holds bail hearings between 9:00 a.m. and 1:00 a.m. every day. (Docket Entry No. 233 at 1).
The defendants note that all of these jurisdictions permit secured money bail. Some broadly permit preventive detention in misdemeanor cases, and all, according to the defendants, permit secured money bail to result in detaining defendants “who pose a risk to the community that cannot be mitigated by conditions or are likely to fail to appear.” (Docket Entry No. 255 at *2). The defendants claim that the plaintiffs seek to hold Harris County to an anomalous standard by eliminating secured money bail, while even those jurisdictions that no longer impose secured money bail as a matter of practice still permit it as a matter of law. Hearing Tr. 5:41; (Docket Entry No. 166 at 13–14; No. 255).
As the court surveyed above, some jurisdictions permit secured money bail to result in
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pretrial detention, but only when that satisfies the due process required of actual detention orders.70 Although other jurisdictions have timetables and procedures similar to Harris County’s, the practical effect of the bail hearings and resulting orders is dramatically different. In Washington, D.C., only 1.5 percent of misdemeanor arrestees are detained until case disposition and virtually none on secured money bail. Hearing Tr. 2-2:149, 154. In New York City, only 3 percent of misdemeanor arrestees are detained until case disposition. (Docket Entry No. 233 at 2). Under New Jersey’s recent reforms, statewide, only 8.4 percent of arrestees across all charge categories—including felonies—were detained until case disposition. Pls. Ex. 7(k) at 1. In Kentucky, statewide, 25 percent of both felony and misdemeanor arrestees are detained until case disposition. Pls. Ex. 12(m)(i). The defendants do not identify a jurisdiction that, like Harris County, detains over 40 percent of those charged only with misdemeanor offenses until their cases are resolved. See Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8. If there is an anomalous standard here, it is set by Harris County.
The defendants argue, and presented witnesses who testified, that Harris County leads most other jurisdictions in the timeliness of its proceedings because of how quickly district attorneys file charges and make release on secured money bail available. (See Docket Entry No. 286 at 3–5); Hearing Tr. 2-1:34–36; 3-2:50; 5:12–13. Arresting officers consult with Assistant District Attorneys over a 24-hour hotline. The Assistant District Attorneys decide whether to accept charges before an arrestee is even booked. Hearing Tr. 2-1:34–36. In other jurisdictions, no arrestees, whether they can make bail or not, are even given the opportunity of release until a next-day or subsequent arraignment hearing, at which district attorneys decide whether to accept charges. Id. at 5:12–13;
70 See Part I.C.3–5 supra.
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(Docket Entry No. 255 at *3–4). Harris County’s speed at processing charges is commendable. When paired with the
automatic imposition of secured money bail, however, it exacerbates the wealth-based differential treatment between those able to pay a bondsman to purchase early release and those who cannot. Those who can pay secured bonds are released within hours of arrest. Those who cannot are detained for days or weeks and face intense pressures to accept a guilty plea to end their pretrial detentions.
H. Proposed Bail Reforms Dr. Marie VanNostrand, who the County has retained as a consultant on reforming its pretrial processes, testified about the policy changes the County expects to implement between July 1, 2017 and March 2018. For ease of analysis, those changes can be divided into three groups: policy changes affecting the County’s risk assessment of misdemeanor defendants; policy changes to enhance the efficiency of the Harris County pretrial system; and policy changes that will affect the combined probable cause and bail-setting hearings.
1. Changes to Risk Assessment The centerpiece of Harris County’s proposed bail reforms is the adoption of the Arnold Tool, a nationally validated risk-assessment tool that will replace the County’s current validated riskassessment tool. While the current risk-assessment tool relies on seventeen indicators of risk, including “background risk factors” such as home and automobile ownership,71 the Arnold Tool uses only nine indicators of risk. Almost all relate to either past criminal history, past failure to appear, or the severity of the current charge. The only “background factor” is the defendant’s age at time
71 See Part I.D.2 supra.
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of arrest.72 Def. Ex. 157. Instead of simply adding all indicators up into a single risk score, the Arnold Tool scales and weights the indicators and provides three different scores on a 1- to 6-point scale. The scores are for risk of failure to appear, risk of new criminal activity, and risk of violence. Id.; Hearing Tr. 6-1:86–87.
Unlike the County’s current risk-assessment tool, the Arnold Tool would not score a misdemeanor defendant as a “moderate” risk based on poverty indicators such as the defendant’s educational level, or the lack of a car or land line phone. Def. Ex. 157. Dr. VanNostrand characterized the County’s current risk-assessment tool as “resource-based.” By contrast, the Arnold Tool is a “risk-based” assessment. Hearing Tr. 6-1:17–19. The substantial research behind the Arnold Tool shows that relying on resource-based factors does not predict failure-to-appear rates or new criminal activity better than excluding those factors and relying instead on the Arnold Tool’s nine risk-based indicators. Id. at 6-1:77–78.
As a condition of using the Arnold Tool, local jurisdictions must agree that they will not change it or put it to unintended uses. Def. Ex. 62. Local jurisdictions cannot change the risk indicators or how they are scored. Id.; Hearing Tr. 6-1:51. What local jurisdictions can control is the consequences that attach to each risk level. Whether a defendant with a low risk score is released without any supervision or with some supervisory conditions, or released on secured money bail, unsecured bail, or no financial conditions, is a matter of local policy. Whether to detain a defendant who has a high risk score, release that defendant on secured money bail, or release that defendant with unsecured or nonfinancial conditions but with demanding supervisory conditions, such as GPS
72 The nine factors are: current charge of a crime of violence; a pending charge at the time of the offense; a prior misdemeanor conviction; a prior felony conviction; a prior violent conviction; a prior failure to appear in the past two years; a prior failure to appear older than two years; a prior sentence to incarceration; and age at time of arrest. Def. Ex. 157.
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monitoring, is also a matter of local policy. Hearing Tr. 6-1:51–52. At the time of the motion hearing, Harris County had not yet decided what outcomes Pretrial
Services would recommend based on various risk scores. Id. In general, under the new system, lowrisk defendants will be recommended for release on unsecured personal bonds well in advance of their probable cause hearings. High-risk defendants will not have bail set at all until the probable cause hearing. Id. at 6-1:52–53. What constitutes low or high risk is not yet defined. Id. at 6-1:52, 134. For moderate-risk misdemeanor arrestees, the County plans to continue the current system of setting secured money bail at a scheduled amount when the arrestee is charged. Id. at 6-1:141–42. Moderate-risk defendants with access to funds will be able to pay the secured money bail and be released before the probable cause hearing. Moderate-risk defendants without the means to pay a secured money bail will be detained until the hearing. If no changes are made to the bail setting, that misdemeanor arrestee will be detained until case disposition. Id. County policymakers have also stated their intention to continue to set secured money bail as a condition of release for high-risk misdemeanor defendants. Id. at 6-1:136. After the probable cause hearing, even the highest-risk defendants with the means to do so will be able to purchase release. For those without the means to pay, the secured financial condition will keep them detained, operating as a detention order in all but name and process. Id. at 6-1:71.
Like Harris County’s current risk-assessment tool, the Arnold Tool is designed only to inform Pretrial Services recommendations. At most, recommendations such as release on personal bonds for low-risk defendants will be presumed in certain cases but required in none. Id. at 6-1:53. If judicial officers decide to reject the Arnold Tool’s recommendations for release on personal bond—as they currently do in nearly 67 percent of all misdemeanor cases using the County’s current
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risk-assessment tool73—they will not be acting contrary to Harris County policy. The wealth-based disparities will continue, with no empirical basis to conclude that imposing secured money bail promotes better rates of appearance or of law-abiding behavior for those on pretrial release.
2. Changes to the System’s Efficiency Unlike the County’s current risk-assessment tool, the Arnold Tool will not require a Pretrial Services interview for a bail recommendation. Id. at 6-1:123–24. Once an arrestee has been identified, Pretrial Services can pull any prior criminal record, assess the risk score, and generate a release recommendation, in some cases even before the arrestee has been transported from the scene of the arrest to the City or County Jail. Id. at 6-1:124. Early presentment of low-risk defendants for a personal bond will no longer depend on the availability of Pretrial Services personnel. Instead, it will be automatic. Id. at 6-1:136–37. Dr. VanNostrand estimated that early presentments on paper will allow Hearing Officers to release low-risk defendants on personal bonds within 4 hours of arrest. This would be among the fastest processing speeds in the nation. Id. at 6-1:138–39. Dr. VanNostrand testified that increasing the number of arrestees released at early presentment will reduce jail crowding and speed pretrial release determinations and hearings for other misdemeanor defendants.74 Id. at 6-1:145–46. The County has hired two additional Hearing Officers and will be hiring more Pretrial Services personnel to handle the expedited processing. Def.
73 See Part I.D.3 supra; see also Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 14. 74 Whether the number of arrestees released on personal bond will actually increase is unclear. The County’s policymakers testified inconsistently on this point. On behalf of herself and another County Judge, Judge Goodhart testified that under the current system, all misdemeanor defendants who “are appropriate for release” on personal bond are released on personal bond, and that she did not know if “once you apply the Arnold Tool if that is going to make a difference.” Hearing Tr. 5:142–43. Yet she also testified that she anticipates “a whole lot” more people will be released under the reformed system using the Arnold Tool, even though the population of misdemeanor arrestees in Harris County will not change in terms of charges or risk profile between now and then. Id. at 5:139–140, 143.
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Ex. 58; Hearing Tr. 3-2:128–30, 6-1:130. For the past year, Harris County has been redesigning its technology infrastructure to support the more streamlined system and to integrate information sources that diverse County agencies rely on. Hearing Tr. 6-1:119, 125, 130. Dr. VanNostrand testified that the current Harris County system “is very paper transport heavy.” Information is entered and reentered by hand as cases pass from arresting officers to district attorneys, to court clerks, and to Pretrial Services officers. Hearing Tr. 6-1:139. Infrastructure changes expected by July 1 are designed to cut down on paper transport and centralize more processes online.
Because the new system will aim to make early-release determinations based on a defendant’s record rather than on an interview, the current Pretrial Services requirement of having to contact references to verify a defendant’s self-reported financial, employment, or other circumstances will apparently be eliminated, at least for defendants determined to be low-risk.75 Id. at 6-1:139–40. Dr. VanNostrand testified that Pretrial Services will continue to interview misdemeanor defendants who are not released at early presentment. Hearing Tr. 6-1: 155–56. Instead of verifying references, however, Pretrial Services will obtain an affidavit of indigence similar to the affidavit used now to determine eligibility for appointment of counsel at a defendant’s first appearance before a County Judge. Id. at 4-1:48–49; 6-1:136, 161. Under the new system, the same affidavit of indigence will be used for both appointing counsel as well as setting release conditions, including bail. Id.
The County is also building a new inmate processing center, scheduled to open in March
75 As described above, see Part I.D.2 supra, under the current system, misdemeanor arrestees are not released on personal bond until references verify the arrestee’s information provided in the Pretrial Services interview. (Docket Entry No. 162 at 5). Until recently, Pretrial Services and Hearing Officers required two verified references. (Docket Entry No. 166 at 10 n.13). The current unwritten policy is to require one verified reference. (Id.); see also Def. Ex. 52.
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2018. (Docket Entry No. 166 at 19 n.23); Hearing Tr. 3-2:74. The new center will process arrestees both from the City of Houston and from Harris County. It is designed to avoid the current bottlenecks that occur in transporting defendants from one Jail to the other. Hearing Tr. 3-2:71–75.
3. Changes to the Probable Cause Hearings With the adoption of the Arnold Tool, the Harris County policymakers intend to amend the County Rules of Court to issue a new money bail schedule. Def. Ex. 67. While the current bail schedule is calibrated to the defendant’s current charge and criminal history, the new schedule will likely be calibrated to the predictive risk scores generated by the Arnold Tool. Hearing Tr. 6-1:151–52. The amended bail schedule will call for release on unsecured personal bonds for defendants with low-risk scores. Id. Those with moderate-risk scores will have a secured money bail set pending the probable cause hearing. Pretrial Services will recommend conditions of supervision during release, which the Hearing Officers may impose at the hearing. Id. at 6-1:142–43, 151–55. Those with high-risk scores will have no bond set pending the probable cause hearing, with more stringent conditions of supervised release and the possible imposition of secured money bail to be considered at the hearing. Id. at 6-1:143, 153–54. On February 28, 2017, the Harris County Commissioners approved a pilot program to provide public defenders at the probable cause hearings before the Hearing Officers. Def. Ex. 59. As presently conceived, the public defender will help misdemeanor arrestees raise objections and provide relevant information about their inability to pay money bail, without risking incriminating statements.76 Hearing Tr. 1:103, 145–46. The pilot program is expected to launch by July 1, 2017,
76 The current plan is for a public defender to staff all cases at the probable cause and bail-setting hearing, regardless of a defendant’s indigence. The attorney assigned to a defendant’s case will continue to be appointed to represent indigent defendants at their first appearances before a County Judge. See Hearing Tr. 1:145.
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the same date the Arnold Tool and new bail schedule are planned to go into effect. Def. Ex. 59. It is unclear whether having defense counsel at the probable cause and bail-setting hearing
will significantly change the procedures or outcomes. Hearing Officers do not conduct proceedings of record under Texas law. Hearing Tr. 1:145–46. The Hearing Officers do not have to state findings or conclusions on the record for review by another judicial officer. Sheriff Gonzalez and Judge Jordan testified that the practical sustainability and impact of having counsel at probable cause hearings is doubtful. Id. at 3-1:113–14, 3-2:22. Judge Jordan opined that until Hearing Officers stop treating the County Judges’ bail schedule as a requirement to be applied in almost all cases on a secured basis, having defense counsel at the bail-setting hearing is unlikely to make a meaningful difference in the availability of release on unsecured or nonfinancial conditions. Id. at 3-1:114.
4. Texas House Bill 3011 / Senate Bill 1338 Bills have been introduced in the Texas Legislature proposing wide-ranging amendments to Article 17 of the Texas Code of Criminal Procedure, which regulates bail. House Bill 3011, and its companion Senate Bill 1338, if enacted as proposed, would permit pretrial preventive detention if a magistrate “determines by clear and convincing evidence that requiring bail and conditions of pretrial release are insufficient to ensure” the defendant’s appearance in court or the safety of the community. Pls. Ex. 16 at 1. Proposed Article 17.028 would set a statewide standard of 48 hours after arrest, within which a magistrate would have to make an initial release decision, considering “any credible information provided by the defendant.” Id. at 3. Magistrates would be required to impose “the least restrictive conditions and the minimum amount or type of bail necessary to reasonably ensure” the defendant’s appearance and the safety of the community. Id. at 4. The legislation would forbid “requir[ing] a
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defendant to provide a monetary bail bond for the sole purpose of preventing the defendant’s pretrial release.” Id. A magistrate who denied pretrial release would have to issue a reasoned opinion with written findings within 24 hours of the decision, subject to review on appeal. Id.
Under proposed Article 17.034, defendants who are released and fail to appear must again be released on personal bond if they can show good cause for their failure to appear. Id. at 8. Even if they cannot show good cause, magistrates “must set the amount of bail at the minimum amount” need to assure reappearance. Id.
“As soon as practicable” after a magistrate denies release, but no later than ten days after the decision, all defendants still detained would be entitled to an adversarial, counseled bail-review hearing, at which they would be able to put on evidence, testify, and call witnesses. Id. at 8–10. The reviewing judge must find by clear and convincing evidence “that monetary bail and conditions of release are insufficient to reasonably ensure the defendant’s appearance in court as required or the safety of the community” for the pretrial detention to continue. Id. at 11. The judge would have to issue that finding in a reasoned opinion, subject to appellate review. Id. at 12.
Proposed Article 17.20 provides that in misdemeanor cases, “[n]otwithstanding a bail schedule or any standing order entered by a judge,” a sheriff or other jailer “after considering the defendant’s pretrial risk assessment, may . . . take the bail of the defendant in accordance with [proposed] Article 17.028.” Id. at 14. Proposed Article 17.028 is the article that requires release on the least restrictive condition. See id. at 4. Article 17.20 would confirm that sheriffs have independent judgment and authority to release misdemeanor arrestees on less restrictive conditions than provided by a secured money bail schedule. Cf. id. at 14–15 (providing that in felony cases, a sheriff must deliver an arrestee to a court to make the pretrial-release decision under Article 17.028
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and permitting the sheriff to take the defendant’s bail only if the court so orders). If enacted as proposed, the legislation would likely address many of the plaintiffs’ concerns.
Under the Code as revised, Hearing Officers would not be authorized to exclaim “based on your priors!” at a one-to-two-minute hearing before imposing secured money bail that the defendant cannot pay, resulting in that defendant’s detention. The Hearing Officers would have to find and state the clear and convincing evidence supporting the specific reasons why paying a nonrefundable premium to a bail bondsman is reasonably necessary to ensure that the misdemeanor defendant will appear and refrain from new criminal activity while on pretrial release, and why no less restrictive condition is reasonable. The written findings would be reviewed in an adversarial, counseled hearing before County Judges, who must also apply the exacting clear-and-convincing evidence standard. Notwithstanding the County’s bail schedule, the Sheriff would be authorized to assess a misdemeanor defendant’s risk and release the defendant on an unsecured personal bond, with or without enhanced conditions for supervision. Bail could not be set to achieve pretrial detention without following the procedures required for a valid detention order under State law.
The defendants argue that because the Texas legislature has proposed these changes, it is the only body that can make them. (Docket Entry No. 266 at 9); see also Hearing Tr. at 3-1:72–73. But nothing in the current Code of Criminal Procedure prevents Harris County from imposing the least restrictive conditions on pretrial release, deciding those conditions by clear and convincing evidence, or making written findings and issuing reasoned opinions at bail reviews. Nothing in Texas state law permits, much less requires, Harris County judges to impose secured money bail for the purpose of detaining those who cannot pay it. A sheriff’s role in releasing misdemeanor defendants on bail
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is already provided for under the current version of Article 17.20.77 The proposed legislation
represents an acknowledgment that at least some jurisdictions in Texas are imposing secured money
bail to detain misdemeanor arrestees because they cannot pay it, without the process a detention
order requires. The proposed legislation makes explicit the due process requirements for setting bail
under Texas law and sets boundaries on the procedures and time frames to meet those requirements.
I. Conclusions on Findings of Fact
Historically, bail has served as a mechanism of release from pretrial detention. Recently,
many jurisdictions have acknowledged and repudiated long-standing practices of imposing, whether
by intent or indifference, secured money bail that misdemeanor defendants are clearly unable to pay,
resulting in pretrial detention of defendants otherwise eligible for release. Encouraged in their
reforms by the American Bar Association and the U.S. Department of Justice, among others, these
jurisdictions have followed two approaches to reforming the use of secured money bail for
misdemeanor defendants. Some take the approach that a secured financial condition cannot result
in the pretrial detention of misdemeanor defendants who cannot pay it, and who are otherwise
eligible to be released. Other jurisdictions permit secured financial conditions of release to result
in detention only when the process due before imposing a pretrial preventive detention order is
77 “BAIL IN MISDEMEANOR. In cases of misdemeanor, the sheriff or other peace officer, or a jailer licensed under Chapter 1701, Occupations Code, may, whether during the term of the court or in vacation, where the officer has a defendant in custody, take of the defendant a bail bond.” TEX. CODE CRIM. PRO. art. 17.20; cf. id. art. 17.21 (“BAIL IN FELONY. In cases of felony, when the accused is in custody of the sheriff or other officer, and the court before which the prosecution is pending is in session in the county where the accused is in custody, the court shall fix the amount of bail, if it is a bailable case and determine if the accused is eligible for a personal bond; and the sheriff or other peace officer, unless it be the police of a city, or a jailer licensed under Chapter 1701, Occupations Code, is authorized to take a bail bond of the accused in the amount as fixed by the court, to be approved by such officer taking the same, and will thereupon discharge the accused from custody. The defendant and the defendant’s sureties are not required to appear in court.”); see also Texas Attorney General Opinion No. H–856 (1976) (“[S]ince article 17.20 authorizes the sheriff or other peace officer to take bail in misdemeanor cases, article 17.15 compels the conclusion that such officer is also to regulate the amount of bail in such cases.”).
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provided. This includes timely, counseled, adversarial hearings at which the defendant may present evidence and the judge must issue a reasoned opinion with written findings explaining why the secured financial condition of release is the only reasonable way to assure the defendant’s appearance at hearings and law-abiding behavior before trial. The first approach recognizes that releasing those who can pay while detaining those who cannot pay would violate the Equal Protection Clause. The second approach recognizes that when secured money bail functions as a detention order against an indigent defendant, procedural protections are required under the Due Process Clause.
Texas law does not provide for pretrial release on no financial conditions. Texas law permits Harris County’s Hearing Officers and County Judges to choose between making financial release conditions secured—requiring a misdemeanor defendant or a surety to pay the amount up front to be released from jail—or unsecured—allowing release with the bond coming due only if the defendant fails to appear at hearings and a magistrate orders the bond forfeited. In setting the bail amount, whether secured or unsecured, Texas law requires Hearing Officers to consider five factors, including the defendant’s ability to pay, the charge, and community safety. A federal court consent decree requires Hearing Officers to make individualized assessments of each misdemeanor defendant’s case and adjust the scheduled bail amount or release the defendant on unsecured or nonfinancial conditions.
Harris County Hearing Officers and County Judges follow a custom and practice of interpreting Texas law to use secured money bail set at prescheduled amounts to achieve pretrial detention of misdemeanor defendants who are too poor to pay, when those defendants would promptly be released if they could pay. Complying with the County Judges’ policy in the bail
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schedule and the County Rules of Court, Harris County Assistant District Attorneys apply secured bail amounts to the charging documents. The schedule is a mechanical calculation based on the charge and the defendant’s criminal history. Although Texas and federal law require the Hearing Officers and County Judges to make individualized adjustments to the scheduled bail amount and assess nonfinancial conditions of release based on each defendant’s circumstances, including inability to pay, the Harris County Hearing Officers and County Judges impose the scheduled bail amounts on a secured basis about 90 percent of the time. When the Hearing Officers do change the bail amount, it is often to conform the amount to what is in the bail schedule, if the Assistant District Attorneys have set it “incorrectly.” The Hearing Officers and County Judges deny release on unsecured bonds 90 percent of the time, including in a high majority of cases in which Harris County Pretrial Services recommends release on unsecured or nonfinancial conditions based on a validated risk-assessment tool. When Hearing Officers and County Judges do grant release on unsecured bonds, they do so for reasons other than the defendant’s inability to pay the bail on a secured basis.
The Hearing Officers and County Judges follow this custom and practice despite their knowledge of, or deliberate indifference to, a misdemeanor defendant’s inability to pay bail on a secured basis and the fact that secured money bail functions as a pretrial detention order. The Hearing Officers follow an unwritten custom and practice of denying release on unsecured bonds to all homeless defendants. Those arrested for crimes relating to poverty, such as petty theft, trespassing, and begging, as well as those whose risk scores are inflated by poverty indicators, such as the lack of a car, are denied release on unsecured financial conditions in the vast majority of cases, when it is obvious that pretrial detention will result. Hearing Officers style their orders as findings of “probable cause for further detention,” when the only condition of further detention is the
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misdemeanor defendant’s inability to pay secured money bail. Pls. Ex. 9. As a result of this custom and practice, 40 percent of all Harris County misdemeanor
arrestees every year are detained until case disposition. Most of those detained—around 85 percent—plead guilty at their first appearance before a County Judge. Reliable and ample record evidence shows that many abandon valid defenses and plead guilty in order to be released from detention by accepting a sentence of time served before trial. Those detained seven days following a bail-setting hearing are 25 percent more likely to be convicted, 43 percent more likely to be sentenced to jail, and, on average, have sentences twice as long as those released before trial.
Harris County is required by Texas and federal law to provide a probable cause and bailsetting hearing for those arrested on misdemeanor charges without a warrant within 24 hours of arrest. At the hearing, Hearing Officers are supposed to provide “a meaningful review of alternatives to pre-scheduled bail amounts.” Roberson Order at 1. Although Texas law requires Harris County to release misdemeanor defendants who have not had a hearing within 24 hours, over 20 percent of detained misdemeanor defendants wait longer than 24 hours for a hearing. In some, but not all, of these cases, the Hearing Officers determine probable cause in the defendant’s absence, but the Hearing Officers admit that they do not provide a meaningful bail setting in absentia. For those misdemeanor arrestees who are detained for significant periods by the City of Houston Police Department before they are transported to the Harris County Jail, or for those booked into the Harris County Jail on a Friday, the Next Business Day Setting before a County Judge will not occur until after three or four days in pretrial detention.
The record shows that County Judges adjust bail amounts or grant unsecured personal bonds in fewer than 1 percent of the cases. Prosecutors routinely offer, and County Judges routinely accept,
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guilty pleas at first setting and sentence the misdemeanor defendants to time served, releasing them from detention within a day of pleading guilty. Those who do not plead guilty remain detained until they have a lawyer who can file a motion to contest the charge or the bail setting and request a motion hearing. These hearings are generally held one or two weeks later. The record shows that the motion hearing is the first opportunity a misdemeanor defendant has to present evidence of inability to pay and to receive a reasoned opinion explaining the bail setting. Testimony from the defendants’ expert on Harris County court administration establishes that the Next Business Day Setting rule codifies, rather than alters, these customs and practices.
The court finds and concludes that Harris County has a custom and practice of using secured money bail to operate as de facto orders of detention in misdemeanor cases. Misdemeanor arrestees who can pay cash bail up front or pay the up-front premium to a commercial surety are promptly released. Indigent arrestees who cannot afford to do so are detained, most of them until case disposition. Because the County Judges know and acquiesce in this custom and practice in their legislative capacity as rulemakers, this consistent custom and practice amounts to an official Harris County policy.
Harris County does not compile comparative data on failures to appear by release on different bond types. No Harris County policymaker or judicial officer has attempted to examine the relative pretrial success or failure rates of misdemeanor defendants released on secured money bail versus those released on unsecured bail. The reliable, credible evidence in the record from other jurisdictions shows that release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision. Harris County’s proxy data for failure-to-appear is consistent
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with these studies. The information Harris County does keep shows no significant difference in appearance rates between those released on secured money bail and those released on unsecured appearance bonds, when properly controlling for the differences in risk profiles of the population.
The reliable evidence in the present record shows no meaningful difference in pretrial failures to appear or arrests on new criminal activity between misdemeanor defendants released on secured bond and on unsecured financial conditions. But even a few days in pretrial detention on misdemeanor charges correlates with—and is causally related to—higher rates of failure to appear and new criminal activity during pretrial release and beyond. Misdemeanor pretrial detention is causally related to the snowballing effects of cumulative disadvantage that are especially pronounced and pervasive for those who are indigent and African-American or Latino.
Harris County commendably plans to revise its pretrial processes and bail schedule by July 1, 2017. The County proposes to provide early release on unsecured bonds to “low-risk” misdemeanor defendants and to hold “high-risk” defendants—regardless of ability to pay money bail—until the probable cause hearing. “Moderate-risk” defendants will be granted release on a secured money bail, if they can pay the scheduled amount. The County plans to implement the Arnold Risk-Assessment Tool and integrate its information technology systems to avoid the delays that booking procedures and Pretrial Services interviews create. But Harris County’s policymakers and judicial officers have made clear their intent to continue imposing secured money bail on “highrisk” and “moderate-risk” defendants, categories as yet undefined. Those who can pay the secured money bail, no matter their level of risk, will be released. Those who cannot will remain detained.
Except in the narrow case of defendants charged with a crime of family violence after violating a previously imposed condition of release, Texas law does not permit orders of pretrial
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preventive detention. Proposed legislation would permit magistrates to order preventive detention in certain cases, but only with procedural safeguards, and would forbid the use of secured money bail to accomplish preventive detention based on inability to pay. But for now, Harris County effectively gets around the Texas prohibition on pretrial detention by imposing secured money bail against indigent misdemeanor defendants knowing that they cannot pay. Harris County has its own extralegal system of pretrial preventive detention through secured money bail that operates on the basis of wealth. It accomplishes this without providing the procedural safeguards typically required of pretrial preventive detention orders. II. Conclusions of Law
A. The Legal Standards To obtain a preliminary injunction, the plaintiffs must establish “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). “[A]t the preliminary injunction stage, the procedures in the district court are less formal, and the district court may rely on otherwise inadmissible evidence, including hearsay evidence.” Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993). Summary judgment is appropriate if “no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case,
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and on which the party will bear the burden of proof at trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). “The movant bears the burden of identifying those portions of the record it believes demonstrates the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted).
In deciding a motion for summary judgment, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008). When the moving party has met its Rule 56 burden, the nonmoving party must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden is not satisfied with some metaphysical doubt as to the material facts, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal quotation marks and citations omitted). Factual controversies resolve in the nonmoving party’s favor, “but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Id.
B. Likelihood of Success on the Merits 1. The Standard of Review
Federal courts “generally analyze the fairness of relations between the criminal defendant and
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the State under the Due Process Clause, while [they] approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause.” Bearden v. Georgia, 461 U.S. 660, 665 (1983). The Supreme Court has noted that in cases of detaining the indigent, “[d]ue process and equal protection principles converge in the Court’s analysis.” Id. (citing Griffin v. Illinois, 351 U.S. 12, 17 (1956)).
Although the legal standards and analysis overlap, the plaintiffs present one claim that is more appropriately analyzed under equal protection principles, and another claim more appropriately analyzed under due process. First, the plaintiffs allege that Harris County maintains a “wealth-based detention system” by setting secured money bonds higher than indigent misdemeanor defendants can pay, creating de facto orders of detention. (Docket Entry No. 54 at 9; No. 92 at 19). These detention orders operate only against the indigent, because defendants who receive the same or similar secured bail but who can pay the bond or bondsman’s premium can be promptly released, regardless of the risk of nonappearance or new criminal activity. (Docket Entry No. 54 ¶ 42). Second, the plaintiffs allege that Harris County delays or fails to provide procedural protections required for a meaningful bail review. They allege that misdemeanor arrestees are frequently detained for days or even weeks before they can obtain any meaningful review of their bail setting in a counseled, adversarial hearing with findings on the record. (Docket Entry No. 54 ¶¶ 51, 82, 104; No. 92 at 21). Many plead guilty to obtain release rather than wait for a bail review that may, but likely will not, result in release.
The threshold question is what standard of review applies under either equal protection or due process analysis—rational basis, strict scrutiny, or something in between.
a. Equal Protection In its Memorandum and Opinion on the defendants’ motions to dismiss, the court reviewed
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the Supreme Court’s trilogy of cases, Williams v. Illinois, 399 U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971), and Bearden v. Georgia, 461 U.S. 660 (1983), along with the Fifth Circuit’s panel and en banc decisions in Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977), vacated at 572 F.2d 1053 (5th Cir. 1978) (en banc), to conclude that “[t]he ‘careful inquiry’ the [Supreme] Court requires in this type of case calls for a more demanding review” than rational basis. ODonnell, 2016 WL 7337549 at *15. The court invited briefing from the parties on the standard of review. Id. at *39.
The County argues that rational basis review is the appropriate standard because the Williams-Tate-Bearden line of cases is limited to detention for defendants who do not pay postconviction fines, and does not extend to detention for those who do not pay secured pretrial bail. (Docket Entry No. 162 at 12). The County relies on cases holding that wealth-based distinctions are subject only to rational basis review because “[g]enerally speaking, an individual’s indigence does not make that individual a member of a suspect class for equal protection purposes.” Driggers v. Cruz, 740 F.3d 333, 337 (5th Cir. 2014) (citing Maher v. Roe, 432 U.S. 464 (1977)); see also San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); Carson v. Johnson, 112 F.3d 818, 821–22 (5th Cir. 1997) (“neither prisoners nor indigents constitute a suspect class”).
The Supreme Court and Fifth Circuit cases reviewed at the dismissal stage make clear that detention based on wealth is an exception to the general rule that rational basis review applies to wealth-based classifications. In Williams, the Supreme Court ruled that “[o]nce the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” 399 U.S. 241–42. In Tate, the Court extended the rule, holding that
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the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full. 401 U.S. at 671 (quoting Morris v. Schoonfield, 399 U.S. 508, 509 (1970) (plurality)). The Bearden Court reaffirmed that “if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” 461 U.S. at 667–68. Bearden made finding the least-restrictive alternative a constitutional requirement in cases in which inability to pay a fine results in imprisonment. “[T]he court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay.” Id. at 672; see also Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972) (invalidating a law requiring certain defendants to choose between “a $17 fine or 13 days in jail” because it created two disparately treated classes defined by wealth without a compelling state interest justifying the practice). When the Supreme Court ruled in San Antonio School District v. Rodriguez that wealthbased classifications ordinarily require rational basis review, the Court specifically excepted the wealth-based detentions at issue in Williams and Tate. 411 U.S. at 20. The Court recognized that in Williams and Tate, “[t]he individuals, or groups of individuals, who constituted the class discriminated against . . . shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” Id. The Williams-Tate
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exception did not apply to a case in which some could afford better schooling than others, but no one was completely cut off from public education by poverty. Id. at 25. In that case, wealth classifications did not create a suspect class and rational basis review applied. Id. at 28–29. But here, the plaintiffs’ claim is not that some are able to afford better conditions of pretrial release than others. The claim is that misdemeanor defendants who can pay secured money bail are able to purchase pretrial liberty, while those who are indigent and cannot pay are absolutely denied pretrial liberty and detained by their indigence. Under Williams, Tate, and Bearden, an absolute deprivation of liberty based on wealth creates a suspect classification deserving of heightened scrutiny.78
The defendants’ argument that Williams, Tate, and Bearden are limited to detention for failure to pay post-conviction fines is unpersuasive. Although state and local governments have compelling interests in punishing and deterring violations of court orders, including the failure to pay court-ordered fines, the Supreme Court limits post-conviction detention of indigent defendants who cannot pay fines. The Court held that detention may be imposed only as a last resort, after a court carefully reviews the alternatives and makes findings on the record that detention is the least restrictive option. Bearden, 461 U.S. 671–72. By contrast, pretrial bail is not intended to be punitive. See, e.g., Brown, 338 P.3d. at 1291 (“Bail is not pretrial punishment and is not be set solely on the basis of an accusation of a serious crime.”). The defendants have argued that the government’s interest in setting bail is to ensure that misdemeanor arrestees return for court appearances, not to protect public safety or to deter crime. (See Docket Entry No. 101 at 7, 13). In the absence of a greater penological interest, and given the presumption of innocence for those
78 As the court noted in its earlier Memorandum and Opinion, this distinction arises in the due process analysis as well. ODonnell, 2016 WL 7337549 at *17 n.19. Challenges to the conditions of detention receive rational basis review. Bell v. Wolfish, 441 U.S. 520 (1979). Challenges to the decision to detain itself are accorded the full complement of due process protections. Salerno, 481 U.S. at 748–51.
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awaiting trial, a government policy of wealth-based classifications for pretrial detention for misdemeanor offenses deserves, if anything, less deference than post-conviction detention.79
That conclusion is supported by the Fifth Circuit’s Rainwater decisions. The class plaintiffs in Pugh v. Rainwater alleged that Florida’s imposition of secured money bail without regard for an arrestee’s ability to pay violated equal protection. 557 F.2d at 1190. The panel decision explicitly applied strict scrutiny, reasoning that “the [Supreme] Court has been extremely sensitive to classifications based on wealth in the context of criminal prosecutions” and concluding from Williams-Tate that “the wealth classification in the instant case warrants close judicial scrutiny” by creating a suspect class. 557 F.2d at 1197. The panel also stated that “[s]trict scrutiny is appropriate also because the inability to raise money bail necessarily affects fundamental rights of the indigent defendant. Foremost among these rights is the presumption of innocence.” Id. Pretrial detention based on inability to pay money bail also implicated and threatened “an accused’s right to a fair trial,” because “the ‘right to freedom before conviction permits the unhampered preparation of a defense.’” Id. (quoting Stack, 342 U.S. at 4).
The en banc court vacated the panel decision as moot because, while the appeal was pending, Florida issued a new written bail policy. 572 F.2d 1053. Although the en banc court did not comment on the scrutiny standard to be applied, it cited Williams and Tate, stating that “[a]t the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Id. at 1056. The court viewed pretrial
79 See U.S. Dept. of Justice Statement of Interest, Varden v. City of Clanton, Alabama, Civil No. 1534, Docket Entry No. 26 at 8 (M.D. Ala. Feb. 13, 2015) (“Although much of the Court’s jurisprudence in this area concerns sentencing or early release schemes, the Court’s Fourteenth Amendment analysis applies in equal, if not greater force to individuals who are detained until trial because of inability to pay fixed-sum bail amounts.”).
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confinement “of one who is accused but not convicted of a crime as presenting a question having
broader effects and constitutional implications than would appear from a rule stated solely for the
protection of indigents.” Id.
Williams, Tate, Bearden, and Rainwater remain good law, neither overruled nor limited. The
Supreme Court in San Antonio School District v. Rodriguez specifically excepted Williams and
Tate from the general rule that wealth-classifications are reviewed under a rational basis standard.
411 U.S. at 20. Bearden, decided a decade after San Antonio School District, confirmed that using
wealth-based classifications that result in detention for inability to pay a fine “requires a careful
inquiry into such factors as ‘the nature of the individual interest affected, the extent to which it is
affected, the rationality of the connection between legislative means and purpose, [and] the existence
of alternative means for effectuating the purpose.’” 461 U.S. at 666–67 (quoting Williams, 399 U.S.
at 260 (Harlan, J., concurring)). The en banc court in Rainwater—also decided well after San
Antonio School District—applied Williams and Tate to the pretrial bail context. Rainwater supports applying a standard of review more exacting than rational basis.80
At a minimum, heightened scrutiny requires a court to evaluate the government’s legitimate
interest in a challenged policy or practice and then inquire whether there is a sufficient “fit” between
80 The defendants note that in Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003), the Fifth Circuit applied rational basis review to a § 1983 challenge to “bail-fee statutes” that imposed $5 to $15 fees for filing and serving process, including the processing of bail bonds. Id. at 647. The court found that in many cases the nominal fees were refunded upon request, mitigating due process concerns. Id. at 566. Most importantly, the arrestees challenging the fees did not allege, and the evidence did not show, that they were detained or that their release was even delayed by the imposition of the fees. Id. at 662.
Broussard does not help the defendants here. Like the Louisiana jurisdictions challenged in Broussard, Harris County imposes nominal fees of $20 or 3 percent of the bond principal on arrestees released on personal bond. Hearing Tr. 1:121; 2-1:47. The witnesses consistently testified that these fees are discretionary, and no arrestee is denied release for failure to pay the fee up front. Id. at 2-1:47, 53, 102–03; 3-2:145. Because these fees do not absolutely deprive indigent arrestees of liberty before trial, they would not be reviewed under heightened scrutiny. San Antonio Sch. Dist., 411 U.S. at 20. But the plaintiffs do not challenge these fees. Broussard does not apply.
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the government’s means and ends. Cf. Harris v. Hahn, 827 F.3d 359, 365 (5th Cir. 2016)
(“Classifications survive rational basis review ‘even when there is an imperfect fit between means
and ends.’” (quoting Heller v. Doe by Doe, 509 U.S. 312, 321 (1993))). At a maximum,
“[c]lassifications created by state action which disadvantage a ‘suspect class’ or impinge upon the
exercise of a ‘fundamental right’ are subject to strict scrutiny, and will be upheld only when they are
precisely tailored to serve a compelling state interest.” Clark v. Prichard, 812 F.2d 991, 995 (5th
Cir. 1987).
State and local governments have “a compelling interest in assuring the presence at trial of
persons charged with a crime.”81 Rainwater, 572 F.2d at 1056 (citing Stack, 342 U.S. at 1). As a
matter of law, Harris County has met its burden to show a compelling state interest. The question
is what level of tailoring heightened scrutiny requires in this case, and whether the plaintiffs have
81 It is unclear whether community safety is also a compelling government interest in setting bail for misdemeanor defendants. The defendants did not brief public safety as a government interest, but they frequently pressed that point at the preliminary injunction hearing. See, e.g., Hearing Tr. 1:95–96, 194–95; 4-1:140–42; 144–45; 5:34, 69–70; (cf. Docket Entry No. 101 at 2, 13; No. 161 at 1; No. 162 at 2, 22). The defendants note that one of the five Article 17.15 factors judicial officers must consider is the safety of the alleged victim and of the community. Hearing Tr. 4-1:17–18, 144; 5:69–71.
The U.S. Department of Justice argues that “[i]f a court finds that no other conditions may reasonably assure an individual’s appearance at trial, financial conditions may be constitutionally imposed—but ‘bail must be set by a court at a sum designed to ensure that goal, and no more.’” Pls. Ex. 12(dd) at 18 (quoting Salerno, 481 U.S. at 754). The American Bar Association’s Standards for Criminal Justice, Pretrial Release emphasize that financial conditions of release “should not be employed to respond to concerns for public safety.” Pls. Ex. 12(ff) at 12, (quoting Standard 10-1.4(d)). The vacated Pugh v. Rainwater panel concluded based on still-valid Supreme Court precedent that “[t]he sole governmental interest served by bail is to assure the presence of the accused at trial.” 557 F.2d at 1198, vacated by 572 F.2d 1053 (citing Stack, 342 U.S. at 5; Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976)).
The court need not decide at this stage whether protecting the community from new criminal activity during pretrial release is a compelling government interest in setting money bail for misdemeanor defendants. The government’s compelling interest in assuring the defendants’ appearance satisfies the government’s burden under heightened scrutiny. The government’s interest does not become more compelling by having an additional policy reason for setting bail, and the tailoring analysis is not affected. Appearing at hearings and refraining from criminal activity are two forms of pretrial law-abiding behavior. The present record does not show that financial conditions of release addresses one better than the other. Whether the government’s interest is in law-abiding behavior broadly defined or only in a defendant’s appearance, the government’s policies must be narrowly tailored to meet that interest.
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demonstrated a likelihood of showing that Harris County does not meet that standard. In Bearden, after the parties extensively argued about whether rational basis review or strict scrutiny applied, the Supreme Court cautioned that “[w]hether analyzed in terms of equal protection or due process, the issue [of detention based on indigence] cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such facts as the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose.” 461 U.S. at 666–67 (internal footnotes, quotation marks, and citation omitted). The Rainwater panel interpreted Williams and Tate to require strict scrutiny in a challenge to a pretrial system of detaining indigent defendants because they could not pay secured money bail. 557 F.2d at 1197. The en banc court vacated on other grounds, without commenting on the scrutiny standard. See 572 F.2d at 1053.
The plaintiffs have suggested that “intermediate” scrutiny is the most conservative application of these precedents that recognizes both the government’s and the individual arrestee’s weighty interests. Hearing Tr. 1:73–75; see also Salerno, at 750–51 (“On the other side of the scale, of course, is the individual’s strong interest in liberty. We do not minimize the importance and fundamental nature of this right. But, as our cases hold, this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.”) “Narrow tailoring under intermediate scrutiny is different from strict scrutiny’s narrow-tailoring requirement. Strict scrutiny requires the government to show that it has used the least restrictive means of advancing a compelling interest.” Lauder, Inc. v. City of Houston, Texas, 751 F.Supp.2d 920, 933 (S.D. Tex. 2010). As applied in free expression First Amendment case law, “the requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial
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government interest that would be achieved less effectively absent the regulation.” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
In light of the plaintiffs’ burden to show a likelihood of success on the merits, the court applies the tailoring requirement of intermediate scrutiny. This standard is appropriately deferential towards the County and appropriately protective of the misdemeanor defendants.
b. Due Process In reviewing facial challenges to statutes regulating pretrial-confinement conditions, the Supreme Court evaluates whether “conditions and restrictions of pretrial detainment” impermissibly “amount to punishment of the detainee.” Bell, 441 U.S. at 533, 535. The Court focuses “on whether the restrictions were imposed for a punitive purpose and, if not, on whether the restrictions are excessive in relation to a legitimate regulatory purpose.” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 778 (9th Cir. 2014) (en banc) (collecting cases). In United States v. Salerno, 481 U.S. at 739, the Court reviewed a challenge to a provision of the federal Bail Reform Act of 1984 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. 18 U.S.C. § 3142(e). Under Bell’s first prong, the Court found no evidence that Congress had intended pretrial detention to operate for a punitive purpose. 481 U.S. at 747. Under Bell’s second prong, the Court upheld the preventive detention portion of the Act because it “carefully limits the circumstances under which detention may be sought to the most serious of crimes.” Id. Having concluded that the challenged provision of the Bail Reform Act was regulatory and not punitive, the Court evaluated whether the Act’s procedures sufficiently protected “the
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individual’s strong interest in liberty.” Id. at 750. The Court upheld the provision under this standard because: (1) “[d]etainees have a right to counsel at their detention hearing; (2) “[t]hey may testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses who appear at the hearing”; (3) the judicial officer “is guided by statutorily enumerated factors”; (4) “[t]he Government must prove its case by clear and convincing evidence”; and (5) “the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain.” Id. at 751.
The Ninth Circuit, sitting en banc, interpreted Salerno to require strict scrutiny of pretrial detention conditions. Lopez-Valenzuela, 770 F.3d at 781 & n.3 (Salerno’s “heightened scrutiny” standard requires that pretrial detention policies be “narrowly tailored to serve a compelling state interest”). The Salerno Court itself did not describe its analysis as strict scrutiny or invoke the narrow-tailoring standard. But the Court did make clear that under the Due Process Clause, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” 481 U.S. at 755. Salerno involved a facial challenge to a federal law under the Due Process Clause, requiring a more demanding burden for the plaintiffs than that involved here.82 Here, the plaintiffs’ due process challenge is to Harris County’s bail system as applied.
2. The Constitutional Requirements a. Equal Protection
“The rule of Williams and Tate, then, is that the State cannot ‘impos[e] a fine as a sentence
82 “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” Salerno, 481 U.S. at 745 (citing Schall v. Martin, 467 U.S. 253, 269 n.18 (1984)).
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and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.’” Bearden, 461 U.S. at 667 (quoting Tate, 401 U.S. at 398) (alterations in original). The Bearden Court concluded that while a state has broad discretion to decide what penalties satisfy its clear interest to deter and punish crime, once the state “determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it,” unless a court finds either that (1) the defendant was not actually indigent and was refusing to pay in bad faith, or (2) “alternative measures are not adequate to meet the State’s interests in punishment and deterrence.” Id. at 667–68, 674.
Applying Williams and Tate to the pretrial bail context, as Rainwater did, (and by extension, the post-Rainwater Bearden decision), the court concludes that Harris County has broad discretion to impose pretrial release conditions that meet the compelling interest of assuring a misdemeanor defendant’s appearance at trial. But once the County has chosen to impose a financial condition of pretrial release, the County may not use that condition to imprison defendants before trial because they lack the means to pay it. Rainwater, 572 at 1056. To do so impermissibly conditions “an absolute deprivation of a meaningful opportunity to enjoy [the] benefit” of liberty before trial or conviction on the basis of a defendant’s poverty. San Antonio School District, 411 U.S. at 20.
Under the Equal Protection Clause as applied in the Fifth Circuit, pretrial detention of indigent defendants who cannot pay a financial condition of release is permissible only if a court finds, based on evidence and in a reasoned opinion, either that the defendant is not indigent and is refusing to pay in bad faith, or that no less restrictive alternative can reasonably meet the government’s compelling interest. Bearden, 461 U.S. at 674. In this case, the plaintiffs bear the
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burden of meeting the preliminary injunction requirements, but at the trial on the merits, the County will have the burden under heightened scrutiny to show that there is no reasonable alternative to a policy, custom, and practice of setting money bail on a secured basis in misdemeanor cases. See, e.g., Lauder, 751 F.Supp.2d at 933. The judicial defendants bear the burden to show that they make a finding of no reasonable alternative to imposing money bail on a secured, prescheduled basis for indigent defendants.
b. Due Process In Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court held that a state court’s detention order for civil contempt violated the Due Process Clause. Id. at 449. The Court reasoned that while a civil contempt proceeding exposing the defendant to detention for up to one year did not require the assistance of counsel, the state had to provide “alternative procedural safeguards” such as “adequate notice of the importance of ability to pay [as an element to prove at the hearing], fair opportunity to present, and to dispute relevant information, and court findings.” Id. at 448. The Court made clear that these were examples, not a complete description of what was needed for due process. The state could provide different procedures “equivalent” to those the Court listed. Id. Turner is a helpful starting point for examining the plaintiffs’ likelihood of succeeding on their due process claim. Although the Supreme Court has not defined with precision the federal due process requirements for pretrial detention of misdemeanor defendants, at a minimum, state or local governments must provide notice of the importance of ability to pay in the judicial determination of detention, a fair opportunity to be heard and to present evidence on inability to pay, and a judicial finding on the record of ability to pay or a reasoned explanation of why detention is imposed despite an inability to pay the financial condition. Turner clarified that these procedures are required by the
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Due Process Clause even when the Sixth Amendment does not guarantee a right to counsel. Courts
are divided over whether an initial bail-setting is a “critical stage” in the criminal process requiring
counsel. See, e.g., Ditch v. Grace, 479 F.3d 249 (3rd Cir. 2007); Gonzalez v. Comm’r of Corr., 68
A.3d 624 (Conn. 2013); Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010); State v. Fann, 571
A.2d 1023 (N.J.Super.L. 1990). Harris County does not currently provide counsel at the probable cause and bail-setting hearing but is exploring a pilot program to do so in July 2017.83
The defendants cite many cases for the proposition that “a bail setting is not constitutionally
excessive merely because a defendant is financially unable to satisfy the requirement.” See, e.g.,
McConnell, 842 F.2d at 107. These cases in fact support the plaintiffs’ due process claims. The
cases the defendants cite involve serious felony charges with potentially lengthy sentences. The
appellate courts affirmed the imposition of secured money bail that a defendant could not pay. But
the bail was imposed only after at least one counseled adversarial hearing, at which the defendant
had an opportunity to present evidence and to be heard, with the court stating its findings on the
record that either the defendant had not presented evidence of indigence or that no other condition
could reasonably assure the defendant’s appearance at future hearings or protect the community from additional felony crimes.84
83 See Part I.H.3 supra. 84See, e.g., United States v. Cordero, 166 F.3d 334 (Table), 1998 WL 852913 at *2 (4th Cir. 1998) (statutory presumption that defendant was a flight risk when the potential sentence exceeded ten years; district court expressly addressed ability to make bail in a reasoned opinion); Lee v. Evans, 41 F.3d 1513 (Table), 1994 WL 651959 (9th Cir. 1994) (defendant presented no evidence on ability to pay at the hearing); Hood v. Evans, 37 F.3d 1505 (Table), 1994 WL 526973 (9th Cir. 1994) (same); United States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120, 1133 (7th Cir. 1984) (“In this case [charging attempted murder and armed robbery], the amount of the petitioner’s bail was reviewed twice by Illinois trial courts and twice by the Illinois Supreme Court.”); State v. Pratt, — A.3d —, 2017 WL 894414 (Vt. 2017) (“bail requirements at a level a defendant cannot afford should be rare” and “courts should be particularly circumspect in exercising their discretion to set bail at a level that a defendant cannot meet”; a defendant with fourteen pending charges, including violent felonies fell within the rare exception); see also Part I.C.2–3 supra and
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The defendants cite only one case relating to detention on a misdemeanor charge, Fields v. Henry County, Tennessee, 701 F.3d 180 (6th Cir. 2012). But in Fields, the defendant could afford to pay money bail, and he was not detained because he was unwilling or unable to pay. See id. at 183 (the defendant was released on a $5,000 bail bond). Instead, the defendant objected to Tennessee’s policy of detaining all those charged with family-violence offenses for 12 hours and the county’s policy of using a bail schedule. Id. at 184–85. Because the misdemeanor defendant failed “to point to any inherent problem with the dollar amount set in his case,” the Sixth Circuit held that the bail schedule was not per se unconstitutional. Id. at 184 (“That is not to say that using a bond schedule can never violate the Excessive Bail Clause.”).
The plaintiffs here do not challenge the bail schedules as per se unconstitutional. See also Terrell v. City of El Paso, 481 F.Supp.2d 757, 766–67 (W.D. Tex. 2007) (use of a bail schedule not inherently unconstitutional). Nor do the plaintiffs challenge the Texas statute allowing transparent pretrial detention orders in certain family-violence cases. Aside from this one case involving a misdemeanor defendant but not involving the same issues, the defendants rely exclusively on serious felony cases that permitted detention for failure to pay a financial condition only after a counseled, adversarial hearing with findings on the record that no alternative to secured money bail could reasonably assure the defendant’s appearance given the potential for a prison sentence of ten years to life and the resulting risk of flight.
Most importantly, in almost every case the defendants cite, the trial court could have—and sometimes did—order preventive detention, but ultimately set a secured financial condition with the
cases cited therein.
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possibility of release as a less restrictive alternative to preventive detention.85 In Texas, however, pretrial preventive detention is not available in misdemeanor cases except for those arrested on charges of family violence who have already violated a condition of pretrial release. See TEX. CONST. art. 1 §§ 11b–11c.
The defendants argue that the Texas ban on preventive pretrial detention in most misdemeanor cases is not relevant because the plaintiffs are alleging violations only of federal law and have not pleaded state-law claims. (Docket Entry No. 266 at 3–5); Hearing Tr. 8-2:69–71. But federal due process protects state-created liberty interests. Liberty interests protected by the Due Process Clause “may arise from two sources—the Due Process Clause itself and the laws of the States.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983)). The Supreme Court recognizes “that states may, under certain circumstances, create liberty interests which are protected by the Due Process Clause” and which entitle prisoners “to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that this state-created right is not arbitrarily abrogated.” Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997) (citing Sandin v. Conner, 515 U.S. 472 (1995); Wolff v. McDonnell, 418 U.S. 539, 557 (1974)).
“The Supreme Court has adopted a two-step analysis to examine whether an individual’s procedural due process rights have been violated. The first question ‘asks whether there exists a
85 See, e.g., McConnell, 842 F.2d at 105; United States v. Tirado, 72 F.3d 130 (Table), 1995 WL 684553 (6th Cir. 1995); Mantecon-Zayas, 949 F.2d at 550 (“because the Bail Reform Act authorizes judicial officers to order pretrial detention where no condition or combination of conditions can ‘reasonable assure’ the defendant’s presence,” the court may set an unpayable bail if it concludes “that detention is necessary until trial”); United States v. Jessup, 757 F.2d 378, 388–89 (1st Cir. 1985) (“the basic purpose of the [Bail Reform] Act [is] to detain those who present serious risks of flight or danger but not to detain those who simply cannot afford a bail bond”), abrogated on other grounds by United States v. O’Brien, 895 F.2d 810 (1st Cir. 1990).
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liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.’” Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010) (quoting Ky. Dep’t of Corr., 490 U.S. at 460). “State law creates protected liberty interests only when (1) the state places substantive limitations on official conduct by using explicitly mandatory language in connection with requiring specific substantive predicates,” and (2) the state law requires a specific outcome if those substantive predicates are met.” Fields, 701 F.3d at 186. A “narrowly limited modicum of discretion” permitted to judicial officers does not deprive prisoners of a constitutionally protected right to be released. Teague v. Quarterman, 482 F.3d 769, 776 (5th Cir. 2007).
The Texas Constitution prohibits pretrial preventative detention orders in most misdemeanor cases. TEX. CONST. art. 1 §§ 11, 11b–11c; Ex parte Davis, 574 S.W.2d at 169. Texas has created a liberty interest in misdemeanor defendants’ release from custody before trial. Under Texas law, judicial officers, as all parties admit, have no authority or discretion to order pretrial preventive detention in misdemeanor cases with a narrow exception for certain family-violence cases.86
To determine whether the procedures used sufficiently protect state-created liberty interests under the Due Process Clause, the Fifth Circuit applies the balancing test articulated in Matthews v. Eldridge, 424 U.S. 319 (1976). See Meza, 607 F.3d at 402. A federal court must consider:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedure used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
86 To use the Sixth Circuit’s terms, the substantive predicates are clear: any misdemeanor charge outside of the single enumerated exception. And the required outcome is specific: no pretrial preventive detention. See Fields, 701 F.3d at 186.
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Id. (quoting Matthews, 424 U.S. at 335). In this case, the private interest affected by Harris County’s policy is the misdemeanor
defendant’s interest in release from custody before trial. That interest implicates fundamental constitutional guarantees: the presumption of innocence and the right to prepare for trial. See Salerno, 481 U.S. at 749–51; Stack, 342 U.S. at 4; Rainwater, 572 F.3d at 1056–57. The record evidence shows that misdemeanor defendants in Harris County who are detained until case disposition are convicted at higher rates and given sentences twice as long as those released before trial.87 They plead guilty at rates much higher than those who are able to secure early release from pretrial detention.88 Detained misdemeanor defendants experience the multiplying effects of “cumulative disadvantages” when they lose jobs, places to live, or family visitation rights because of pretrial detention.89
The risk of an erroneous deprivation of this liberty interest through the imposition of secured money bail is high. For the indigent, the risk of pretrial liberty deprivation because of the inability to pay secured money bail is certain. That deprivation is erroneous because the record evidence shows that secured money bail is not more effective at increasing the likelihood of appearance or law-abiding behavior before trial than release on an unsecured or nonfinancial condition. The record evidence shows that nearly 85 percent of those released in Harris County on an unsecured personal bond or other nonfinancial conditions do not forfeit their bonds for failing to appear or for
87 See Part I.D.5; Part I.E.3 supra. 88 See id. 89 See Part I.F supra.
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committing new criminal activity.90 The rate is substantially the same as those released on secured money bail.91
As for the third factor, the defendants argue that alternatives to their system of detaining misdemeanor arrestees on secured financial conditions would be prohibitively expensive for the County. The defendants argue that adopting the Washington, D.C. system of releasing almost all misdemeanor arrestees before trial would cost the County tens or hundreds of millions of dollars. Def. Ex. 26 at 13–14; (Docket Entry No. 166 at 13–14). Mr. Banks testified that implementing the relief the plaintiffs seek would cost Harris County Pretrial Services $30 million annually. The current Harris County Pretrial Services budget is $7.5 million. Def. Ex. 46; Hearing Tr. 4-1:29–38.
The testimony relating to this argument is far from credible. Mr. Banks’s calculations assumed that this court would order every misdemeanor defendant released on personal bond, even if a defendant could pay a secured money bond. See Def. Ex. 46; Hearing Tr. 4-1:36–37. Mr. Banks not only assumed that the County would absorb the costs of supervising every arrestee before trial, he also made the unwarranted assumption that 58.7 percent of those released would require GPS monitoring—the most restrictive form of supervision—and that over 10,000 arrestees—18.4 percent of all arrestees—would require alcohol-intake ignition locks, even though only about 6,000 arrestees—15 percent—are charged with misdemeanor driving-while-intoxicated offenses each year. Def. Ex. 46; Hearing Tr. 4-1:37–38; Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 12.
Mr. Banks greatly overstated the costs of pretrial supervision of misdemeanor defendants. Dr. VanNostrand’s work has shown that low-risk defendants require little to no supervision. Indeed,
90 See Part I.E.5 supra. 91 See id.
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oversupervising misdemeanor defendants on pretrial release by, for example, subjecting them to frequent check-ins and drug tests, increases nonappearance rates. Pls. Ex. 12(j), Marie VanNostrand, Pretrial Risk Assessment in the Federal Court at 5 (U.S. Department of Justice, Apr. 2009). Dr. VanNostrand criticized Harris County Pretrial Services because of unnecessary—and unnecessarily costly—oversupervision. Hearing Tr. 6-1:155. Mr. Banks testified that the County likely oversupervises by automatically requiring drug tests of every defendant released on personal bond, even if the defendant’s misdemeanor charge is unrelated to drugs and his background shows no prior drug offenses. Id. at 3-2:143–44; 4-1:32. Neither Texas law nor the County Rules of Court require this approach.
The credible evidence shows that, while Pretrial Services might incur some additional costs in supervising those who are now detained on a secured money bail they cannot pay, those costs are far less than the costs of detention. The issue is not added costs, but, more precisely, shifted costs. See, e.g., Pls. Ex. 12(kk), 12 (jj), 12(ww); Pls. Ex. 13(k); Heaton Study at 45–46; Hearing Tr. 3-2:19. Mr. Banks estimated costs only for Harris County Pretrial Services. He did not estimate the costs the County would save by detaining far fewer people and for shorter periods. The contrary testimony relating to this factor is credible. Judge Morrison testified that most of the costs of the D.C. system arise from running a state-of-the-art drug-testing lab and paying all D.C. pretrial services officers at the federal salary payscale. Hearing Tr. 2-2:165–68. Neither is required for Harris County. The court concludes that the defendants’ testimony and evidence on the County’s costs of releasing misdemeanor defendants on alternatives to secured financial conditions is unreliable.
In Meza, the Fifth Circuit ruled that a parolee who had not been convicted of a sex offense had a Texas-created liberty interest in being free from requirements to register as a sex offender and
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to participate in sex-offender therapy. 507 F.3d at 401. Applying the Matthews balancing test, the court concluded that the parolee was owed “at least the same [due] process of an inmate, but as a parolee, he should generally be entitled to more favorable treatment than inmates.” Id. at 409. Applying Wolff v. McDonnell, 418 U.S. at 539, on the process required to protect an inmate’s statecreated liberty interests, the Fifth Circuit held that the parolee was owed “at a minimum: (1) written notice that sex offender conditions may be imposed as a condition of his mandatory supervision, (2) disclosure of the evidence being presented against [him] to enable him to marshal the facts asserted against him and prepare a defense, (3) a hearing at which [the parolee] is permitted to be heard in person, present documentary evidence, and call witnesses, (4) an impartial decision maker, and (5) a written statement by the factfinder as to the evidence relied on and the reasons it attached sex offender conditions to his mandatory supervision.” (citing Wolff, 418 U.S. at 560–62).
Under the federal case law defining due process for detention orders in general, as well as case law defining due process for state-created liberty interests, the court concludes that Harris County, in order to detain misdemeanor defendants unable to pay a secured financial condition of pretrial release, must, at a minimum, provide: (1) notice that the financial and other resource information its officers collect is for the purpose of determining the misdemeanor arrestee’s eligibility for release or detention; (2) a hearing at which the arrestee has an opportunity to be heard and to present evidence; (3) an impartial decisionmaker; and (4) a written statement by the factfinder as to the evidence relied on to find that a secured financial condition is the only reasonable way to assure the arrestee’s appearance at hearings and law-abiding behavior before trial.
The due process required for pretrial detention orders based on an indigent misdemeanor defendant’s failure to pay a secured financial condition of release is similar to the equal protection
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standard that prevents the government from converting financial conditions or penalties into detention orders without the following: a hearing with notice that pretrial liberty is at stake; with the opportunity to present evidence and to be heard; before a judge who must make findings on the record that either the arrestee has the ability to pay the amount needed for release, or that the government has no reasonable alternative to imposing detention for the failure to pay.
Due process also requires timely proceedings. In the context of misdemeanor arrests, pretrial detention of even three or four days can significantly increase the rates of nonappearance, recidivism, and the cumulative disadvantages of lost employment, leases, and family custody rights.92 Due process protections are meaningless if they are provided only after defendants effectively serve their sentences.
Texas and federal law provide guidance that due process requires the necessary hearing to be within 24 hours of arrest in misdemeanor cases. Texas law requires that a misdemeanor defendant arrested without a warrant must be released “not later than the 24th hour after the person’s arrest” if a probable cause hearing has not been provided. TEX. CODE CRIM. PRO. art. 17.033(a). “If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.” Id. In Sanders, the federal district court applied the 24-hour standard to setting bail in the City of Houston. 543 F.Supp. at 704. In the Roberson order, the federal district court required “a meaningful review of alternatives to prescheduled bail amounts” to be held within 24 hours from arrest. Agreed Final Judgment, No. 842974 at 1.
The defendants argue that evidentiary hearings with findings on the record are generally not
92 See Part I.F supra.
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possible within 24 hours because the available “information is necessarily limited” when the bailsetting hearings occur. They also argue that evidentiary hearings are not required because Gerstein permits jurisdictions to meet a less demanding due process standard in finding probable cause and in setting bail. (Docket Entry No. 166 at 16; No. 286 at 15). These arguments are unpersuasive. Sanders and Roberson were issued thirty years ago, before networked computing and communications technologies made it relatively fast and easy to transmit information. Those orders nonetheless set a 24-hour boundary on the time to complete the administrative incidents to arrest in misdemeanor cases in the City of Houston and in Harris County. Under Roberson, the County Judges are supposed to direct Pretrial Services “to make every effort to insure that sufficient information is available . . . to determine an accused’s eligibility for a personal bond or alternatives to prescheduled bail amounts” for a hearing to be held within 24 hours of arrest. Agreed Final Judgment, No. 84-2974 at 4. Thirty years later, this 24-hour period is enough for Harris County to gather information on a misdemeanor defendant’s ability to pay secured money bail, compile his or her criminal history and any other pending charges or holds, and make a finding as to whether secured money bail or a less restrictive alternative is needed to meet the government’s interests.
As for Gerstein, the defendants conflate two separate parts of the Supreme Court’s opinion. The Court reasoned that “[b]ecause of its limited function and its nonadversary character, the probable cause determination is not a ‘critical stage’ in the prosecution that would require appointed counsel.” 420 U.S. at 123. Elsewhere, the Court noted that states are free to develop different pretrial processes. Some states may choose “to make the probable cause determination at the suspect’s first appearance before a judicial officer, or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release.” Id. at 123–24 (internal
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citations omitted). That does not mean, as the defendants appear to assume, that the minimal procedural protections for finding probable cause under the Fourth Amendment become the maximum procedures required for arraignments, bail-settings, or other proceedings a state chooses to combine with probable cause determinations. See id. at 125 n.27 (explaining that the majority opinion addressed due process only under the Fourth Amendment and that the “probable cause determination is in fact only the first stage of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct”).
Harris County may combine probable cause and bail-setting determinations in the same hearing. But the County must provide the procedures necessary both under the Fourth Amendment for the probable cause determination and under the Due Process and Equal Protection Clauses for setting bail and for ordering detention for indigent misdemeanor defendants unable to pay secured money bail.
c. Excessive Bail As they did at the dismissal stage, the parties dispute whether this case is properly analyzed under the Eighth Amendment’s prohibition on excessive bail. (See Docket Entry No. 101 at 18; No. 263). For the same reasons stated in its Memorandum and Opinion on the motions to dismiss, the court concludes that this is not an Eighth Amendment case. See ODonnell, 2016 WL 7337549 at *13. As explained above, Texas law does not facially provide for release on no financial conditions. See TEX. CODE CRIM. PRO. arts. 17.01, 17.03. The requirement that magistrates consider five factors in setting the bail amount applies equally to secured and unsecured financial conditions of release. See id. arts. 17.01, 17.15. The plaintiffs do not challenge the existence of Harris County’s bail schedule, the scheduled amounts, or the amounts the Hearing Officers and County
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Judges arrive at in applying the Texas-law factors. The plaintiffs do object to Harris County’s customs, practices, and policies of setting money bail amounts on a secured basis for all but a few misdemeanor defendants, effectively detaining without due process those who would be released if they could pay, but who cannot and so are deprived of their pretrial liberty. These claims are not about the scheduled bail amounts in themselves. The claims are about the necessary procedures for requiring those amounts on a secured basis, the fact that those who can pay are promptly released, and the fact that those who cannot pay the secured bail suffer pretrial detention for their misdemeanor charges as a result.
The County Judges argue that the plaintiffs’ claims must be analyzed under the Eighth Amendment because when “a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994). But the plaintiffs’ claims and the court’s conclusions do not rely on substantive due process. Williams, San Antonio School District, and Rainwater make clear that detention based on wealth classifications triggers heightened scrutiny for suspect class discrimination under the Equal Protection Clause. See 399 U.S. at 242; 411 U.S. at 21–22; 572 F.2d at 1056. Salerno, McConnell and the cases on state-created liberty interests require procedural, not substantive, due process analysis. See 481 U.S. at 746; 842 F.2d at 109 n.5; see also Matthews, 418 U.S. at 560–62.
Even if the plaintiffs were bringing an excessive bail claim, the analysis and outcome remain the same. Salerno and McConnell applied due process principles to analyze an Eighth Amendment claim that bail was excessive when it resulted in the automatic detention of a defendant who could
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not afford to pay. See generally 481 U.S. at 739; 842 F.2d at 105. Rainwater applied equal protection principles to scrutinize a pretrial bail system that allegedly resulted in the system-wide detention of indigent arrestees. 572 F.2d at 1056–57. The defendants assume that if this is an Eighth Amendment case, the plaintiffs’ claims are defeated by McConnell’s reasoning that “a bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.” 842 F.2d at 107; (see Docket Entry No. 101 at 18; No. 262 at 3). But the Eighth Amendment cases consistently hold that detention for failure to pay a financial assessment is permissible: (1) for dangerous felonies, in which the potential sentence ranges from ten years to life in prison to capital punishment; (2) after a judicial officer provides due process, including a counseled, adversarial, evidentiary hearing with findings on the record and a reasoned opinion; (3) with a finding that no alternative to the secured financial condition can reasonably meet the government’s interests.93 To the extent they apply, the Eighth Amendment cases support the plaintiffs’ arguments. Nonetheless, these cases are not the basis of the claims or of the court’s findings and conclusions.
3. Harris County Policies that Violate Constitutional Requirements a. Municipal Liability under § 1983
A local government may be sued under § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [plaintiffs’] injury. . . .” Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978). Relief under § 1983 against a municipality requires “a plaintiff [to] show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the
93 See Part I.C.2–3, Part II.B.2.b supra.
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moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009).
An official policy can be “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality’s] officers,” or a “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690–91. “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). “[A] municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker” for purposes of § 1983 liability. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). A municipality may be held liable for “deprivations resulting from the decisions of its duly constituted legislative body.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). A claim against a municipal defendant in her official capacity is the equivalent of a claim against the municipality itself. See Kentucky v. Graham, 473 U.S. 159, 165 (1985).
“Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)) (internal quotation marks omitted). “[S]tate and local positive law, as well as ‘custom or usage’ having the force of law” determine whether a person is final policymaker. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quoting Praprotnik, 485 U.S. at 124 n.1). “[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from
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among various alternatives by the official or officials responsible for establishing the final policy with respect to the subject matter in question.” Pembaur, 475 U.S. at 483.
b. The County Judges’ Policies and Customs: Equal Protection Harris County is not liable for the actions of the Hearing Officers or County Judges taken in a judicial capacity in adjudicating individual cases. See Johnson, 958 F.2d at 94. Nor is the County liable for policies that are set by the State of Texas and do not allow County officials to choose among alternatives. Pembaur, 475 U.S. at 483. The County argues that it has no liability because the policies at issue are created by judges acting in their judicial capacities or are required by Texas law. (Docket Entry No. 266 at 9–11). The record evidence, however, shows customs and practices, amounting to policy, that are neither created by judges in their judicial capacity nor mandated by Texas state law. By an uncodified policy and practice, the County does not permit misdemeanor arrestees to be released on unsecured personal bonds until references are verified.94 By unwritten policy and practice, Pretrial Services asks misdemeanor arrestees for information on their ability to pay without informing them that the purpose is to determine their eligibility for release on nonfinancial or unsecured financial conditions.95 Pretrial Services does not ask what bond arrestees are able to pay.96 None of these unwritten rules, customs, or practices is required by State law. In its Memorandum and Opinion on the County’s motion to dismiss, the court ruled that the County can be liable under § 1983 for the policy choices made by the County Judges in their capacity
94 See Part I.D.2 supra. 95 See id. 96 See id.
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as legislators and as administrative rulemakers. ODonnell, 2016 WL 7337549 at *27, 34–35. The County’s August 2016 letter changing the unwritten rule from requiring two verified references to requiring one verified reference of financial resources shows that the County Judges are final policymakers over this rule and that the policy is promulgated in their legislative or administrative capacity, not their judicial capacity in adjudicating specific cases in their courts.97 See Def Ex. 52; ODonnell, 2016 WL 7337549 at *33 n.33. The Roberson order—which ran against the County Judges only—required the County Judges to “direct the Pretrial Services Agency to make every effort to insure that sufficient information is available at the time of the hearings required herein for the Judicial Officer to determine an accused’s eligibility for a personal bond or alternatives to prescheduled bail amounts.” Agreed Final Judgment, No. 84-2974 at 4; Def Ex. 159. The Roberson order shows that the County Judges are final policymakers who, in an administrative capacity, direct Pretrial Services to gather misdemeanor arrestees’ financial information and present it to the Hearing Officers.
The plaintiffs allege that the County Judges promulgate an unwritten policy by knowingly acquiescing in and ratifying the Hearing Officers’ systemic custom and practice of setting money bail on a secured basis, following the bail schedule, without considering the misdemeanor arrestee’s inability to pay. (Docket Entry No. 54 ¶¶ 19, 56, 84–85, 103). The defendants argue that the Hearing Officers do consider ability to pay as one of the state-law factors in setting bail. (Docket Entry No. 166 at 9, 17–18). But because the record evidence showed that the Hearing Officers almost automatically set secured money bail at unpayable amounts in cases clearly involving indigent misdemeanor defendants, the plaintiffs argue that the County Judges promulgate an unwritten policy
97 See Part I.D.2 supra.
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permitting Hearing Officers to use secured money bail as de facto pretrial detention orders, without
providing due process and contrary to Texas’s ban on pretrial detention in all but one category of
misdemeanor cases.98 (Docket Entry No. 161 at 7; No. 189 at 4–5; No. 190 at 11).
The court finds and concludes on the present record that the plaintiffs have demonstrated a
clear likelihood of success on the merits of their allegations. Based on the Pretrial Services monthly
and annual public reports, the court finds and concludes that the County Judges know that Harris
County detains over 40 percent of all misdemeanor defendants until the disposition of their cases.99
The County Judges know that Hearing Officers deny Pretrial Services recommendations for release
on unsecured and nonfinancial conditions around 67 percent of the time.100 They know that Hearing
Officers deviate from the bail schedule—up or down—only about 10 percent of the time.101 The
County Judges understand—because all but one of them share the same view—that what Hearing
98 The defendants argue that the plaintiffs have shifted their grounds between their amended complaint and the evidence and arguments presented at the preliminary injunction hearing. See, e.g., Hearing Tr. 8-2:36–37; (Docket Entry No. 260 at 9; No. 266 at 2–3). The argument is overstated. The plaintiffs have not altered their essential claims—that Harris County’s policies violate the Equal Protection and Due Process Clauses—or the relief they seek—a preliminary injunction to restrain those violations. All parties had ample notice of the issues raised in the briefing, including the plaintiffs’ argument that if Harris County judges were in fact “considering” misdemeanor defendants’ ability to pay but setting secured financial conditions of release beyond the defendants’ ability to pay, such policies, customs, and practices amounted to invalid pretrial detention orders under the Equal Protection and Due Process Clauses. (See Docket Entry No. 143 at 9). The court permitted all parties ample opportunity to conduct discovery and revise and rebut expert reports over the course of the eight-day hearing, with a week-long recess in between sessions. What has changed since the plaintiffs’ amended complaint is not the plaintiffs’ essential legal theories, but the factual evidence produced at trial. Under Rule 15(b), pleadings may be freely amended to conform to the evidence at trial. FED. R. CIV. PRO. 15(b)(1)–(2). The defendants’ argument is without merit.
99 See Part I.D.5 supra. Cf. Peterson, 237 F.3d at 579 (twenty-seven incidents of excessive force “do not suggest a pattern so common and well-settled as to constitute a custom that fairly represents municipal policy” (internal quotation marks and citation omitted). The evidence here shows tens of thousands of constitutional violations.
100 See Part I.D.3 supra. 101 See id.
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Officers mean when they say they “consider” an arrestee’s ability to pay is that they disregard inability to pay if any other factor in the arrestee’s background provides a purported basis to confirm the prescheduled bail amount and set it on a secured basis.102 Harris County’s Director of Pretrial Services testified that there is an “[u]nwritten custom” to deny all homeless arrestees release on unsecured or nonfinancial conditions. The County Judges know that Pretrial Services and the Hearing Officers treat homeless defendants’ risk of nonappearance as a basis to detain them on a secured financial condition of release they cannot pay.103 Hearing Tr. 4-1:43–44. The County Judges testified that they could change these customs and practices legislatively in their Rules of Court, but that they choose not to. Hearing Tr. 5:49–50, 150–51.
These legislative rulemaking choices are not required by Texas law. The Texas Code of Criminal Procedure makes ability to pay one of five factors to consider in setting the bail amount, but the Code does not require bail to be set on a secured basis and does not require that the five factors be used to decide whether to set bail on a secured basis. See TEX. CODE CRIM. PRO. art. 17.01, 17.15. The parties agreed that in County Court No. 16, Judge Jordan follows a different practice.104 Judge Jordan does not set bail on a secured basis if it would operate to detain an indigent misdemeanor defendant. If a defendant has the means to pay some bail on a secured basis, Judge Jordan considers the five factors to set bail within an amount the defendant can pay. If a defendant cannot pay a financial condition up front, Judge Jordan considers the five factors, sets the bail amount on an unsecured basis, and orders nonfinancial conditions of pretrial supervision to release
102 See Part I.D.6 supra. 103 See id. 104 See Part I.D.4 supra.
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the defendant while addressing the defendant’s risk of nonappearance or of new criminal activity.105 Judge Jordan’s judicial practice is consistent with Texas law and, when done timely, is consistent with equal protection and due process. But as a legislative body that votes to enact policy by a twothirds majority, the County Judges knowingly acquiesce in and ratify customs and practices so consistent and widespread as to have the force of a policy. That policy is to detain misdemeanor defendants before trial who are otherwise eligible for release, but whose indigence makes them unable to pay secured financial conditions of release.
This policy is not narrowly tailored to meet the County’s compelling interest in having misdemeanor defendants appear for hearings or refrain from new criminal activity before trial. Even applying the less stringent standard of intermediate scrutiny, the present record does not show that rates of court appearance or of law-abiding behavior before trial would be lower absent the use of secured money bail against misdemeanor defendants. See Lauder, 751 F.Supp.2d at 933 (under intermediate scrutiny, “the requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation”) (internal quotations marks and citation omitted). Recent rigorous, peer-reviewed studies have found no link between financial conditions of release and appearance at trial or law-abiding behavior before trial.106 Harris County policymakers have not attempted to collect, much less review, the County’s own data to determine whether secured financial conditions of release work better in Harris County than unsecured or nonfinancial conditions.107 That lack of inquiry is one indication
105 See id. 106 See Part I.F supra. 107 See Part I.E.5 supra.
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the policy is not narrowly tailored. The other indication is that both parties’ experts evaluated Harris County’s data and found no significant difference in appearances at hearings or in new arrests between misdemeanor defendants released on secured money bail and those released on unsecured personal bonds.108
To be sure, requiring secured money bail for misdemeanor defendants does not run afoul of equal protection principles when those defendants are actually released. If two defendants take advantage of similarly timed opportunities for pretrial release on secured money bail, the fact that it may be harder for one to come up with the money than the other does not create a suspect classification between the two and does not trigger heightened scrutiny. See San Antonio Sch. Dist, 411 U.S. at 23–24. But when a secured financial condition of release works an absolute deprivation of pretrial liberty because a defendant is indigent or so impecunious that he or she cannot pay even a bondsman’s premium required for release, the County must show that requiring a secured money bail is at least more effective than a less restrictive alternative at meeting the County’s interests, even if it is not the least restrictive means to do so. See id. at 20–22; Bearden, 461 U.S. at 672.
Based on the present record, the court finds and concludes that, as a matter of law, Harris County cannot make this showing. The cases in which the government is able to show no reasonable less restrictive alternative to detaining an indigent defendant by imposing a secured money bail all involve charges for serious felonies that carry lengthy potential sentences. The Harris County Criminal Courts at Law have jurisdiction only over misdemeanor cases. The plaintiffs were charged only with misdemeanor offenses and have no pending felony charges. Texas law forbids pretrial preventive detention of misdemeanor arrestees in all but one category of cases—those who are
108 See id.
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arrested on family violence charges and who have violated a prior family violence protective order while released before trial. In that narrow category, the State provides enhanced procedures to protect the defendant’s liberty interests. See TEX. CONST. art. 1, §§ 11b–11c; TEX. CODE CRIM. PRO. art. 17.29–292. Outside that category, Texas law does not distinguish among misdemeanor arrestees in terms of their eligibility for pretrial release. Hearing Officers recognize this approach whenever they permit release on secured money bail. A defendant who can pay is released regardless of risk. Once deemed eligible for release, indigent misdemeanor defendants who cannot pay the secured financial condition of release cannot be detained on that basis without a hearing and judicial findings on the record that no other reasonable alternative is available. In Harris County misdemeanor cases, reasonable alternatives to continued detention are readily available for indigent defendants unable to pay a secured money bail. Those alternatives include reducing the bail amount, as Judge Jordan does, imposing unsecured money bail, or releasing on nonfinancial conditions of pretrial supervision. Hearing Tr. 3-1:62–66.
Harris County is not liable for the individual adjudications of its Hearing Officers and County Judges in specific cases, even if those orders detain indigent arrestees because these cannot pay secured money bail. See Johnson, 958 F.2d at 94. But the County is liable for the legislative and administrative policies of its County Judges who knowingly or with reckless indifference acquiesce in and ratify a custom and practice that achieves pretrial preventive detention on secured financial conditions that defendants cannot pay in over 40 percent of all Harris County misdemeanor cases. See ODonnell, 2016 WL 7337549 at *27, 34–35. The court concludes that the plaintiffs are likely to succeed in proving that the County has a policy of violating equal protection by detaining indigent misdemeanor arrestees before trial.
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c. The County Judges’ Policies and Customs: Due Process Due process requires: (1) notice that the financial and other resource information Pretrial Services officers collect is for the purpose of determining a misdemeanor arrestee’s eligibility for release or detention; (2) a hearing at which the arrestee has an opportunity to be heard and to present evidence; (3) an impartial decisionmaker; (4) a written statement by the factfinder as to the evidence relied on to find that a secured financial condition is the only reasonable way to assure the arrestee’s appearance at hearings and law-abiding behavior before trial; and (5) timely proceedings within 24 hours of arrest.109 (Docket Entry No. 286 at 12-13, 16). The court concludes that the plaintiffs are likely to succeed on at least parts of their due process claim. Of the requirements listed above, Harris County meets only one at the probable cause and bail-setting hearing: an impartial decisionmaker. The County usually provides the hearing within 24 hours, but 20 percent of misdemeanor defendants who remain detained until the hearing wait longer than 24 hours for that hearing.110 The record evidence shows that misdemeanor defendants are sometimes confused about the financial and other resource information they are asked to provide and how it will affect their eligibility for release,111 and Hearing Officers do not make written findings or give reasons for their decisions.112 The rule requiring a Next Business Day Setting before a County Judge recently came into effect. See Rules of Court 4.3.1. Depending on the timing of arrest and booking, this first
109 See Part II.B.2.b supra. 110 See Part I.E.1 supra. 111 See Part I.D.2 supra. 112 See Part I.D.3 supra.
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appearance may occur within 24 hours after arrest, but the record does not indicate how often that happens. Harris County’s former court administrator testified that the Next Business Day setting is not a rule change, but a codification of prior practice.113 The record shows that the practice is for County Judges to routinely deny reductions in the bail amount and to refuse release on unsecured financial conditions in more than 99 percent of cases.114 The record does not show written findings made by County Judges explaining why money bail must be imposed on a secured basis in any specific case.
Except for the Texas Code requirement that misdemeanor defendants be released 24 hours after arrest if probable cause has not been found, the timing of County procedures is regulated by the County Judges’ Rules of Court promulgated by the County Judges in their legislative capacity. See TEX. CODE CRIM. PRO. art. 17.033. The record evidence shows that thousands of misdemeanor defendants each year are detained longer than 24 hours before they have a bail-setting hearing.115 Instead of releasing defendants who have not had a probable cause hearing within 24 hours, the County follows an unwritten policy of determining probable cause in absentia, using only the charging papers. The Harris County judicial officers agreed that bail is not meaningfully considered at these in absentia hearings.116
The court concludes that Harris County does not provide due process for indigent or impecunious misdemeanor defendants it detains for their inability to pay a secured financial
113 See id. 114 See Part I.E.2 supra. 115 See Part I.E.1 supra. 116 See Part I.D.2, I.E.1 supra.
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condition of release. Those who cannot pay the secured money bail set at the probable cause hearing before a Hearing Officer must wait days, sometimes weeks, before a County Judge provides a meaningful hearing to review the bail determination.117 Harris County is liable for the County Judges’ policies issued in their legislative or rulemaking capacities that result in systemwide delays in any meaningful determination of the conditions for release.
If the County complied with equal protection requirements, part of the plaintiffs’ concerns about due process would be mitigated. If Hearing Officers, as they are supposed to do under the Roberson order, tailored nonfinancial release conditions to address through supervision each defendant’s risk of nonappearance or new criminal activity, and then released those defendants, the need to present evidence and make written findings about financial conditions would be less urgent. Hearing Officers do not need to issue reasoned opinions explaining their decision to detain someone using secured money bail if the Officers cannot use secured money bail to detain indigent defendants in the first place.
d. The Sheriff’s Policies under Equal Protection and Due Process “The sheriff’s acquiescence in unsound and legally insufficient procedures effectively create[s] a county policy for which the county is liable” under § 1983. Doe v. Angelina County, 733 F.Supp. 245, 257 (E.D. Tex 1990). Whether a sheriff’s deliberate indifference gives rise to liability for a municipal policy, including an unconstitutional custom or practice, is determined by “an
117 Because it can take days or weeks for misdemeanor defendants to receive a formal adversarial hearing with the opportunity to present evidence and receive a reasoned opinion with findings on the record, this case is not, as the defendants argue, meaningfully different from other cases finding due process violations in the timing of bail settings and bail review. See Walker, 2016 WL 361612 (weekly bail hearings); Cooper, 2015 WL 10013003 at *1 (detention “for as long as a week” before meaningful bail hearing); Snow, No. 15-567 (M.D. La. 2016) (detention up to five days before a meaningful bail hearing); Jones, 2015 WL 5387219 (weekly bail hearings); Thompson, No. 15-182 (S.D. Miss. 2015) (weekly bail hearings); Pierce, No. 15-570 (E.D. Mo. 2015) (detention for three days awaiting a bail hearing).
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objective [standard]; it considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the plaintiff’s rights.” De Luna v. Hidalgo County, 853 F.Supp.2d 623, 641 (S.D. Tex. 2012) (quoting Lawson v. Dallas County, 286 F.3d 257, 264 (5th Cir. 2002)); see also Dodds v. Logan County Sheriff’s Dept, Civil No. 8-333, 2009 WL 8747487 (W.D. Okla. Aug. 3, 2009) (the sheriff was liable for his “deliberate indifference to the due process rights of arrestees whose bail had been pre-set” by acquiescing in a policy set by the local judges); Blumel v. Mylander, 954 F.Supp. 1547, 1557 (M.D. Fla. 1997) (a sheriff and jailer were liable for violating the right to pretrial release after 48 hours from arrest with no probable cause finding when they were “actually and constructively aware” that the 48-hour requirement had been exceeded).
In its Memorandum and Opinion on the County’s motion to dismiss, the court held that under Fifth Circuit case law, a Texas county may be liable for its sheriff’s policies of detaining arrestees and enforcing orders the sheriff knows or should reasonably know are unconstitutional. ODonnell, 2016 WL 7337549 at *30–31. At the hearing on the plaintiffs’ application for a preliminary injunction, the Harris County Sheriff testified that he knows that every day, misdemeanor arrestees who would be released if they could pay a secured financial condition of release are detained in the Harris County Jail solely because poverty prevents them from paying. Hearing Tr. 3-2:8–9, 18–19, 22–24. A major from the Sheriff’s Office testified about the delays in presenting arrestees at their probable cause hearings and confirmed that in many cases of arrest by the City of Houston Police Department, the Harris County Sheriff may not even take custody of arrestees within 24 hours and does not present those arrestees at probable cause and bail-setting hearings within 24 hours. Id. at 3-2:64, 67–71, 83. In his declaration, Sheriff Gonzalez stated that “[i]ndividuals should not be held
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in our Harris County jail just because they cannot pay an amount of money set according to an arbitrary schedule. In my view, this practice violates the U.S. Constitution.” Pls. Ex. 7(r) at 2.
The Sheriff’s detention of misdemeanor defendants while knowing: (1) that the misdemeanor defendants are detained because their indigence prevents them from paying secured money bail to obtain release, and (2) that this practice violates equal protection and due process principles, is a policy choice the Sheriff makes on Harris County’s behalf. That policy is not narrowly tailored to meet the County’s compelling interests in ensuring misdemeanor defendants’ court appearances and law-abiding conduct before trial. The plaintiffs have demonstrated a clear likelihood of success on the merits of their claim that the Sheriff, as a County policymaker, knowingly detains misdemeanor defendants on constitutionally invalid bases.
4. Judicial Conduct that Violates Constitutional Requirements Section 1983 does not permit injunctive relief against judicial officers acting in a judicial capacity unless either: (1) they violate a declaratory decree; or (2) declaratory relief is unavailable. 42 U.S.C. § 1983. Declaratory relief is available in this case; preliminary injunctive relief is not.118 See, e.g., MacPherson v. Town of Southampton, 664 F.Supp.2d 203, 211–12 (E.D.N.Y. 2009) (“Plaintiffs cannot allege that declaratory relief is unavailable because Plaintiffs can, and indeed have, pursued a claim seeking a declaration”); Besaro Mobile Home Park, LLC v. City of Fremont,
118 In Family Trust Foundation of Ky., Inc. v. Volnietzek, 345 F.Supp.2d 672 (E.D. Ky. 2004), the court granted preliminary injunctive relief against judicial officers on the reasoning that declaratory relief was “unavailable” until after a trial on the merits. Id. at 682, 689. Family Trust involved a claim for relief against an ethical provision in a state code of judicial conduct. Id. at 676–77. The court assumed the rule was enforced in a judicial capacity for the purpose of § 1983, but out-of-court conduct by judicial officers is clearly different from the in-court adjudications that are at issue in this case. A merely temporal unavailability of declaratory relief in this case would defeat Congress’s purpose in amending § 1983 to prohibit injunctive relief against judges except in extraordinary cases of recalcitrance against clearly defined court declarations. See S. Rep. No. 104-66 at 36–37 (1996) (“[t]his section restores the doctrine of judicial immunity to the status is occupied prior to the Supreme Court’s decision” in Pulliam v. Allen, 466 U.S. 522 (1984)).
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Civil No. 10-478, 2010 WL 2991592 at *2 (N.D. Cal. July 29, 2010) (declaratory relief is unavailable when as a matter of law no cause of action for declaratory relief is provided by statute). The record evidence shows that in individual adjudications, Harris County Hearing Officers and County Judges set secured financial conditions of release in order to detain misdemeanor defendants before trial. These de facto orders of pretrial preventive detention operate only against indigent misdemeanor defendants who are unable to pay the financial condition. The minimum due process protections required to issue a pretrial detention order are not provided in these hearings. The plaintiffs have demonstrated a clear likelihood of success on their claims for declaratory relief, but a preliminary injunction against the judicial officers in their judicial capacity is not available.
5. Conclusion on Likelihood of Success on the Merits Harris County is liable for the unconstitutional acts of the County Judges when they act as final policymakers in their legislative and administrative capacities. The County Judges are final policymakers who administratively direct Pretrial Services to gather information on misdemeanor arrestees and to present the information to the Hearing Officers. As a legislative and administrative body, the County Judges sitting en banc knowingly acquiesce in and ratify customs and practices so consistent and widespread as to have the force of policy. These policies 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. These de facto detention orders are not narrowly tailored to meet a compelling government interest. 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
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on wealth violates the Equal Protection Clause. Harris County does not provide misdemeanor defendants notice of the significance of the
financial information they are asked to give in order to even be considered for release from pretrial detention on unsecured or nonfinancial conditions. Harris County does not provide timely hearings at which misdemeanor defendants can be heard, can present evidence of their inability to pay, or can receive reasoned opinions with written findings on why a secured financial condition of release, and not a less restrictive condition, is the only reasonable means to assure their appearance at trial or lawabiding conduct before trial. The lack of adequate procedures violates the Due Process Clause.
Harris County is also liable for the unconstitutional acts of its Sheriff when he acts as a final policymaker for, and administrator of, the Harris County Jail. The Sheriff’s policy and practice of detaining misdemeanor defendants knowing that they are eligible for release, but are detained on secured money bail, is not narrowly tailored to meet the County’s compelling interests in assuring misdemeanor defendants’ appearance at trial and law-abiding conduct before trial.
The plaintiffs have demonstrated a clear likelihood of success on the merits of their equal protection and due process claims against Harris County. That showing weighs heavily in favor of granting the requested preliminary injunctive relief.119 See Rodriguez v. Providence Comm. Corr., Inc., 155 F.Supp.3d 758, 771 (M.D. Tenn. 2015), appeal dismissed, No. 16-5057 (6th Cir. Mar. 15,
119 The County Judge defendants summarily re-urge all of their arguments from their motion to dismiss. (Docket Entry No. 166 at 8 n.9, 25 n.26). The court denied the motion to dismiss on grounds of Younger abstention, the plaintiffs’ standing, and the identification of municipal policymakers with prejudice. ODonnell, 2016 WL 7337549 at *39. The County Judges’ arguments fail for all the reasons identified in the court’s Memorandum and Opinion on the motion to dismiss. In particular, the defendants’ claim that the plaintiffs have adequate remedies at law—both for purposes of Younger abstention as well as for irreparable injury analysis—is denied because “the adequacy of a timely hearing[] is precisely what the plaintiffs are challenging in this case.” ODonnell, 2016 WL 7337549 at *20. “Gerstein stands for the principle that when it comes to the adequacy of the state court proceedings as an opportunity to address constitutional harms, the opportunity must be available before the harm is inflicted.” Rodriguez, 155 F.Supp.3d at 766 (citing Gerstein, 420 U.S. at 107 n.9).
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2016) ; Walker, 2016 WL 361612 at *14, rev’d on other grounds, — F.App’x —, 2017 WL 929750; see also Jones, 2015 WL 5387219; Cooper, Civil No. 15-425 (M.D. Ala. June 18, 2015); Pierce, Civil No. 15-570 (E.D. Mo. June 3, 2015); Thompson, Civil No. 15-182 (S.D. Miss. Nov. 6, 2015).
C. Irreparable Injury “When an alleged deprivation of a constitutional right is involved, . . . most courts hold that no further showing of irreparable injury is necessary.” 11A WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE, § 2948.1 (3d ed. 1998). The plaintiffs have shown that Harris County detains misdemeanor defendants who are otherwise eligible for release because they cannot pay the secured financial condition necessary for release. Both the Harris County Sheriff and a County Judge credibly testified that without an injunction from this court, Harris County’s policies, practices, and customs will continue and misdemeanor defendants will be unnecessarily incarcerated. Hearing Tr. 3-1:52–53; 3-2:22–24. The incarceration deprives misdemeanor defendants of their state-created liberty interest. “Freedom from imprisonment—from government custody, detention, and other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”). The record evidence shows that the plaintiffs’ injury is irreparable. Misdemeanor defendants detained before trial face significant pressure to plead guilty, and in fact do so at much higher rates than those released before trial, in order to obtain release.120 Pretrial detention of misdemeanor defendants, for even a few days, increases the chance of conviction and of nonappearance or new
120 See Part I.D.5 supra.
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criminal activity during release.121 Cumulative disadvantages mount for already impoverished misdemeanor defendants who cannot show up to work, maintain their housing arrangements, or help their families because they are detained.122 This factor weighs strongly in favor of granting the plaintiffs’ request for the injunctive relief. See also Rodriguez, 155 F.Supp.3d at 771 (irreparable harm from jailing probationers on secured money bonds for probation violations supported injunction); Walker, 2016 WL 361612 at *14 (irreparable harm from jailing a misdemeanor defendant “simply because he could not afford to post money bail”), rev’d on other grounds, — F.App’x —, 2017 WL 929750.
D. Balancing the Harms Courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S. 531, 542 (1987). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982) (citation omitted). The defendants argue that proposed reforms expected to be implemented by July 1, 2017 will adequately address the plaintiffs’ injuries and that a court order could disrupt implementing these reforms. (Docket Entry No. 166 at 17–23); Hearing Tr. 8-2:25–26. The defendants note that they have been working on the reforms for eighteen months. The reforms require a bottom-up “buy-in” from Harris County’s “various criminal justice stakeholders” to be successful, not a top-down order
121 See Part I.F supra. 122 See id.
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imposed from outside.123 (Docket Entry No. 166 at 17–18); Hearing Tr. 8-2:95. Harris County’s adoption of the Arnold Tool and other reforms are commendable.124 But,
as noted above, the reforms will not address the plaintiffs’ allegations that Harris County imposes secured financial conditions of release to detain indigent misdemeanor defendants who cannot pay, despite Texas state-law prohibitions of pretrial detention orders for all but one narrow category of misdemeanor defendants.125 The use of bail to detain, rather than release, misdemeanor defendants based on their poverty is not just a possibility under the new system; it is Harris County’s stated policy purpose to use secured money bail to detain “high-risk” defendants, an as yet undefined category.126
The record evidence also calls into question the extent to which the forthcoming reforms will remedy the County’s due process violations. The Harris County Sheriff and one County Judge testified that counseled hearings are unlikely to change the Hearing Officers’ practice and custom of ordering indigent misdemeanor defendants to pay secured money bail, knowing that the orders operate as de facto pretrial detention orders. Hearing Tr. 3-1:113–14, 3-2:22. The record evidence shows that despite changing the County Rules of Court to presume release on personal bonds is appropriate in twelve offense categories, Hearing Officers and County Judges continue to detain misdemeanor defendants, including the indigent, at the same rate as they did in the two years before
123 Among the Harris County criminal justice stakeholders the defendants list the Public Defender’s Office, the District Attorney’s Office, the County Attorney’s Office, the District Court Judges, the County Judges, the Sheriff’s Office, the Houston Police Department, and the County Budget Office. (Docket Entry No. 166 at 22).
124 See Part I.H supra. 125 See id. 126 See Part 1.H.1 supra.
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the rule change.127 Hearing Officers and County Judges reject the recommendations the Pretrial Services officers make using the County’s current validated risk-assessment tool to release misdemeanor defendants on unsecured personal bonds about 67 percent of the time.128 The reformed system will permit Hearing Officers and County Judges to continue rejecting the recommendations that result from the County’s new validated Arnold Risk-Assessment Tool at the same rate.129 Although the new inmate-processing center may help the County to provide bail-setting hearings in 24 hours after arrests for more, or even all, misdemeanor defendants, the center will not be complete until March 2018.130
The court does not intend or want to interfere with the laudable reforms that will improve the fairness of the County’s pretrial arrest system. The proposed reforms will not take effect for months. The present system will continue during that time, detaining over 100 misdemeanor defendants every day in the Harris County Jail, defendants who are eligible for release but whose indigence makes them unable to pay a secured financial condition of release. The record shows that after July 1 (or the date the reforms are in fact implemented), the County’s system will not remedy the constitutional infirmities of its current policies. The County Judges suggest that the court should “craft any relief to work in conjunction with these new changes, rather than . . . wholly enjoining the present system.” (Docket Entry No. 166 at 28). That is the better approach. With carefully tailored relief, the balance of the harms between granting or denying a preliminary injunction strongly favors the plaintiffs.
127 See Part I.E.3 supra. 128 See Part I.H.1 supra. 129 See id. 130 See Part I.H.2 supra.
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E. The Public Interest “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F.Supp.2d 90, 105 (D.D.C. 2012) (collecting cases). In an amicus brief, the Harris County District Attorney emphasizes that “[h]olding un-adjudicated misdemeanor offenders in the Harris County Jail solely because they lack the money or other means of posting bail is counterproductive to the goal of seeing that justice is done. . . . It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time.” (Docket Entry No. 2016 at 1–2). The court agrees. Texas state law treats misdemeanor defendants, with one narrow exception, as eligible for pretrial release. The public interest is not served by incarcerating misdemeanor defendants who, because of poverty, are unable to pay secured money bail. This factor weighs strongly in favor of granting the plaintiffs’ request for relief. F. Bond A federal court may waive the bond requirement. FED. R. CIV. PRO. 65(c); City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. Unit B 1981); Corrigan Dispatch Co. v. Casaguzman, F.A., 569 F.2d 300, 303 (5th Cir.1978). The court finds that waiving the bond is appropriate in this case; the plaintiffs are indigent, see Wayne Chem., Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977), and the plaintiffs have brought this suit to enforce constitutional rights, see City of Atlanta, 636 F.2d at 1094. No bond is imposed. III. Remedy “In view of the fact that plaintiffs established a constitutional violation, . . . the task of fashioning a proper remedy is one that should be performed by the District Court after all interested
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parties have had an opportunity to be heard. The judicial remedy for a proven violation of law will often include commands that the law does not impose on the community at large.” Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 309 n.22 (1986); see also Swamm v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15–16 (1971); Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir. 1974). “Every order granting an injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C), describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.” FED. R. CIV. P. 65(d)(1). “Rule 65 protects those who are enjoined by informing them of . . . exactly what conduct is proscribed and ensures informed and intelligent appellate review.” Walker, 2017 WL 929750 at *2 (internal quotation marks and citation omitted; alteration in original); see also Hornbeck Offshore Serv., LLC v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013). The court has explained in detail its reasons for issuing preliminary injunctive relief. Several principles inform and guide the court in exercising its discretion and adhering to the record evidence and the law to fashion a suitable remedy.
First, because the plaintiffs have not alleged the facial unconstitutionality of Texas statutes or the County Rules of Court, the court will not require relief that is inconsistent with Texas law or the County Rules as written. (See Docket Entry No. 145 at 7; No. 288 at 10–11). Both Texas law and the County Rules provide for setting money bail in specific amounts, but neither requires that money bail be set in misdemeanor cases on a secured, rather than unsecured, basis.131 Using a bail schedule is not inherently unconstitutional. See Fields, 701 F.3d at 184; Terrell, 481 F.Supp.2d at 766–67. The constitutional problem in this case arises from rigid adherence to imposing secured
131 See Part II.B.2.b supra.
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money bail when that will obviously result in, and is often intended to effect, pretrial detention of indigent defendants charged only with misdemeanors who are eligible for release under Texas law.
Second, the court does not enjoin judicial officers acting in a judicial capacity, as prohibited by 42 U.S.C. § 1983. The County Judges argue that they are immune from an injunction in their legislative capacity as well. (Docket Entry No. 166 at 15 n.20). The court rejected that argument in its Memorandum and Opinion on the County Judges’ motion to dismiss. ODonnell, 2016 WL 7337549 at *36. Nevertheless, the only relief against the County Judges in their legislative capacity required at this time is that they do not legislate policy that contradicts this court’s order.
Third, as much as possible, the court avoids interfering with the salutary reforms the County is proposing to implement by July 2017. The court has worked with the parties’ briefs and arguments as guidance in fashioning relief that is consistent with, and can be implemented alongside, the proposed reforms. Additionally, the court will provide the County over fourteen days from the date of the Order of Preliminary Injunction to implement the ordered relief.
Fourth, the relief must be effective to address the serious constitutional violations proven at the motion hearing. The defendants propose that the court should substantially repeat the Roberson order and require the Hearing Officers to “consider[] an arrestee’s ability to pay if they impose secured bail.” (Docket Entry No. 259 at 3). That approach appears to enjoin judicial officers acting in judicial capacities, contrary to 42 U.S.C. § 1983. The approach would also permit Harris County to continue imposing secured money bail in order to detain indigent misdemeanor defendants who, if they could pay, would be released. These bail orders operate as de facto orders of pretrial preventive detention, without the procedures due process requires and in violation of equal protection. Adequate relief requires that those eligible for release before trial under state and federal
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law are released and not detained because their indigence makes them unable to pay a secured financial condition required for release.
Fifth, while relief must be effective, it must also balance the competing interests. The plaintiffs contend that no amount of differential treatment is tolerable under the Equal Protection Clause and that indigent misdemeanor arrestees must be released at substantially the same time as those who are able to pay secured money bail. (See Docket Entry No. 257, Ex. 1 at 1, 4). Various parties also suggest changing the timeline of the arrest process. The County Judges argue that the Sheriff should be compelled to book misdemeanor arrestees at the County Jail within 18 hours of their arrest. (Docket Entry No. 259 at 3). The plaintiffs suggest various limits on sobriety periods and on the time it takes to process misdemeanor arrestees when they bond out of jail. (Docket Entry No. 257, Ex. 1 at 4–5). The parties did not provide detail on how to set and implement the precise timing and speed of various procedures. Those questions are more appropriately resolved at the trial on the merits.
With these principles in mind, the court will order the following relief, to take effect by May 15, 2017, unless those enjoined move for more time and show good cause for a reasonable, brief extension. Any motions for extension will be set for prompt hearing and resolution. • Harris County and its policymakers—the County Judges in their legislative and rulemaking
capacity and the Harris County Sheriff in his law-enforcement capacity—are enjoined from detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail. • Pretrial Services officers, as County employees and subject to its policies, must verify an arrestee’s ability to pay a secured financial condition of release by an affidavit, and must
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explain to arrestees the nature and significance of the verification process. • The purpose of the explanation is to provide the notice due process requires that a
misdemeanor defendant’s right to liberty before trial is at stake in the proceedings. Pretrial Services may administer either the form of the affidavit currently used to determine eligibility for appointed counsel or the adapted form that Dr. VanNostrand testified is being prepared for Pretrial Services to be administered by July 1, 2017. See Hearing Tr. 6-1:136; see also id. at 4-1:48–49. Pretrial Services must deliver completed affidavits to the Harris County Sheriff’s Office before a declarant’s probable cause hearing. • The affidavit must give the misdemeanor arrestee sufficient opportunity to declare under penalty of perjury, after the significance of the information has been explained, the maximum amount of financial security the arrestee would be able to post or pay up front within 24 hours of arrest. The question is neither the arrestee’s immediate ability to pay with cash on hand, nor what assets the arrestee could eventually produce after a period of pretrial detention. The question is what amount the arrestee could reasonably pay within 24 hours of his or her arrest, from any source, including the contributions of family and friends. • The purpose of this requirement is to provide a better, easier, and faster way to get the information needed to determine a misdemeanor defendant’s ability to pay. The Hearing Officers and County Judges testified that they presently do not know who has the ability to pay. Hearing Tr. 4-1:141; 4-2:16; 5:72. The requirement is for a form of verification that Harris County already uses to determine who is indigent and therefore eligible for appointed counsel. Hearing Tr. 2-1:60–61. The affidavit can be completed within 24 hours after arrest; the current process of verifying references by phone extends for days after arrest. (See
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Docket Entry No. 166 at 10 n.13). • The court does not order relief against the Hearing Officers or against the County Judges in
their judicial capacities. The court does not order relief against the County Judges or Sheriff in their capacities as state actors, except that they may not legislate policies that directly conflict with this court’s order. • Misdemeanor defendants who are not subject to: (1) formal holds preventing their release from detention; (2) pending mental-health evaluations to determine competency; or (3) pretrial preventive detention orders for violating a condition of release for a crime of family violence, have a constitutionally protected state-created liberty interest in release before trial. If a misdemeanor defendant has executed an affidavit showing an inability to pay secured money bail and the Hearing Officer does not order release either: (1) on an unsecured personal bond with nonfinancial conditions of release; or (2) on a secured money bond for which the defendant could pay a commercial surety’s premium, as indicated on the affidavit, then the Harris County Sheriff must treat the financial condition as unsecured and release the misdemeanor defendant promptly after the probable cause hearing. All nonfinancial conditions of release ordered by the Hearing Officers, including protective orders, drug testing, alcohol intake ignition locks, or GPS monitoring, will remain in effect. The bail amount determined by the Hearing Officer will remain the bail required of the misdemeanor defendant, but the Sheriff must require it on an unsecured, rather than a secured, basis. An indigent defendant’s inability to pay secured money bail cannot be the basis for the Sheriff to continue to detain that defendant. • The purpose of this requirement is to provide timely protection for the state-created liberty
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interest in pretrial release and to prevent the pretrial detention of a misdemeanor defendant on a financial condition when that defendant would be able to obtain release by paying but is unable to do so. By “promptly,” the court means on the same time frame of release that a defendant who paid a secured money bail would receive. • The Sheriff must release on unsecured or nonfinancial conditions misdemeanor defendants identified above—those without holds preventing prompt release; pending competency evaluations; or preventive family violence detention orders—who have not had a bail-setting hearing before a Hearing Officer within 24 hours of arrest. In absentia hearings “on the papers” will not satisfy this requirement. If the City of Houston Police Department has detained a misdemeanor defendant more than 24 hours after arrest, the Sheriff must promptly release the defendant on unsecured or nonfinancial conditions when he takes custody of the defendant, on the same time frame and procedures as if the defendant had paid a secured financial condition of release. The bail amount set by Assistant District Attorneys according to the County Judges’ bail schedule will remain the bail required of the misdemeanor defendant, but the Sheriff must require it on an unsecured, rather than a secured, basis. • The purpose of this requirement is to give timely protection to the state-created liberty interest in release before trial and to enforce state and federal standards holding that, in Harris County, 24 hours is the outer boundary for completing the administrative incidents to arrest in misdemeanor cases. Sanders, 543 F.Supp. at 704; Roberson, Agreed Final Judgment, No. 84-2974 at 1. The 24-hour requirement is particularly intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention.
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• The Sheriff may not alter nonfinancial conditions of release ordered by Harris County
judicial officers. The Sheriff may not alter the bail amount determined by Harris County
judicial officers. The only determination the Sheriff must make under this order is the
decision to require bail on a secured or unsecured basis. The decision is an objective one.
If the misdemeanor defendant’s affidavit shows that the defendant is unable pay the bail up
front or pay a bondman’s premium for the principal sum required by the Hearing Officers,
the Sheriff must require the bail amount, but on an unsecured basis. The Sheriff may release
misdemeanor defendants on an unsecured bond without a Hearing Officer’s signature on the
release order. The Sheriff’s acceptance of bail on an unsecured basis accords with his
authority to accept bail and release misdemeanor defendants under Article 17.20 of the Texas Code of Criminal Procedure.132
• Texas law provides a significant role for sheriffs in setting and taking bail in misdemeanor
cases. Sheriffs ordinarily defer to magistrates in setting bail, unless “no magistrate is
available.” Hokr, 545 S.W.2d at 463. And a sheriff executes “legal process which it is
made his duty by law to execute.” TEX. CODE CRIM. PRO. art. 2.16; see also TEX. LOCAL
GOV’T CODE § 85.021. The purpose of this order is to inform the Harris County Sheriff that,
132 See Burkett v. City of El Paso, 513 F.Supp.2d 800, 815 (W.D. Tex. 2007) (“[T]he State of Texas, among other states, allows persons other than a neutral and detached magistrate to set bail. In Texas, individuals allowed to set bail include police officers, in various situations) (citing TEX. CODE CRIM. PRO. arts. 17.20, 17.22); State v. Martin, 833 S.W.2d 129, 133 (Tex. Cr. App. 1992) (officers can release misdemeanor defendants on unsecured bonds without a magistrate’s order); Texas Attorney General Opinion No. H–856 (1976) (“[S]ince article 17.20 authorizes the sheriff or other peace officer to take bail in misdemeanor cases, article 17.15 compels the conclusion that such officer is also to regulate the amount of bail in such cases.”). In Hokr v. State, 545 S.W.2d 463 (Tex. Cr. App. 1977), the Texas Court of Criminal Appeals held that, ordinarily, “an officer’s authority to set the amount of bail should be limited to situations in which no magistrate is available.” Id. at 465. For purposes of this order, the Harris County Sheriff must deem a magistrate to be unavailable if a Harris County magistrate has not provided release on unsecured or nonfinancial conditions to a misdemeanor defendant who cannot pay a secured financial condition of release as evident in the affidavit.
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as Sheriff Gonzalez recognized in his declaration, orders to detain misdemeanor defendants on a secured financial condition of release that they cannot pay because of their poverty are unconstitutional and invalid under federal law. See Pls. Ex. 7(r). Harris County and Sheriff Gonzalez as its policymaker are liable for, and enjoined from, executing invalid orders from the Hearing Officers or County Judges that operate to detain indigent misdemeanor defendants who are otherwise eligible for release if they cannot pay a secured financial condition of release. • For misdemeanor defendants who are subject to formal holds and who have executed an affidavit showing an inability to pay the secured financial condition of release, the Sheriff must treat the limitations period on their holds as beginning to run the earliest of: (1) after the probable cause hearing; or (2) 24 hours after arrest. The purpose of this requirement is to ensure that misdemeanor defendants are not prevented from or delayed in addressing their holds because they are indigent and therefore cannot pay a secured financial condition of release. • Misdemeanor defendants who do not appear competent to execute an affidavit may be evaluated under the procedures set out in the Texas Code of Criminal Procedure Article 16.22. If competence is found, the misdemeanor defendant is covered by the relief the court orders, with the exception that the 24-hour period begins to run from the finding of competence rather than from the time of arrest. As under Article 16.22, nothing in this order prevents the misdemeanor arrestee from being released on secured bail or unsecured personal bond pending the evaluation. • The court’s relief applies to misdemeanor arrestees who are re-arrested on misdemeanor
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charges only or on warrants for failure to appear while on pretrial release for their misdemeanor charges. Texas does not permit preventive pretrial detention orders in misdemeanor cases, even for multiple failures to appear or for new criminal activity before trial. Misdemeanor defendants unable to pay a secured financial condition of release do not lose their state-created liberty interest in release before trial by failing to appear or by committing new misdemeanor criminal activity. Those defendants may, of course, face additional charges and exposure to longer sentences, as well as enhanced nonfinancial conditions of release, such as more demanding supervisory techniques, for their pretrial misconduct. The court concludes that this relief strikes an equitable balance between the parties’ interests in this case. The plaintiffs seek to eliminate entirely any differential treatment between those able to pay secured money bail and those unable to do so. (See Docket Entry No. 188 at 19; No. 257, Ex. 1 at 1, 4). The defendants argue that a judicial officer should assess nonfinancial conditions of release and that both the judicial officer and the misdemeanor defendant require time to prepare for a full bail-setting hearing. (Docket Entry No. 260 at 5; No. 286 at 6–7, 15–16). Under the court’s relief, some misdemeanor defendants may be able to pay a secured financial condition and be released between having their charges formalized (about 15 hours after arrest, see Hearing Tr. 32:85) and appearing before a Hearing Officer (usually within 19 to 24 hours after arrest, if the defendant remains detained, see Def. Ex. 28 at 14–15). The court considers this difference de minimis at this stage, although the plaintiffs may re-urge their position at the merits trial. The time frames are expected to substantially decrease as the County implements its reforms. See Hearing Tr. 6-1:138–39, 145–46. And the court has tailored relief to address one significant cause of the
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differential treatment—extended periods of detention by the City of Houston Police Department before Harris County takes custody of arrestees.
The defendants’ many objections to relief as proposed by the plaintiffs do not apply to the relief as ordered by the court. The court is not striking down the use of secured money bail. (Cf. Docket Entry No. 161 at 8; No. 26 at 23–24). The court is not permitting arrestees to “set their own bail.” (Cf. Docket Entry No. 266 at 7; Hearing Tr. 6-1:159–60). Bail amounts—and the County’s right to collect forfeited bail—remain within the discretion Harris County officers have under state law. The County may continue to release defendants on secured financial conditions if those conditions serve to release, rather than detain, misdemeanor defendants before trial. What the County is enjoined from doing is setting the amount of bail on a secured basis in a way that detains, rather than releases, misdemeanor defendants who would be released if they could pay but who are unable to do so, in violation of the Constitution. And Harris County has long used affidavits of indigence as the basis to appoint publicly funded counsel. Hearing Tr. 2-1:60–61; 6-1:160–61. That is not a means of letting defendants confer public benefits on themselves. See, e.g., Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). In the context of pretrial bail, affidavits of indigence have been used in the United States for over 150 years.133
The defendants argue that the administration of criminal justice is a police power granted to state and local governments by the Tenth Amendment. (Docket Entry No. 259 at 4). It is. They argue that judicial officers must exercise discretion in setting conditions of release before trial. (Id. at 6, 9–10). They must. But neither police power nor judicial discretion are boundless. “Congress enacted § 1983 to enforce provisions of the Fourteenth Amendment against those who carry a badge
133 See Part I.C.2 supra; 1857 Mass. L. 489–97.
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of authority and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Hafer v. Melo, 502 U.S. 21, 28 (1991) (internal quotation marks and citation omitted). That enactment would be meaningless if the Tenth Amendment exempted state officers from liability under the Fourteenth Amendment.
The defendants argue that the putative plaintiff class is bound by the Roberson order issued in 1987 and that the consent decree can only be modified under Rule 60(b). (Docket Entry No. 264 at 10–11). But a consent decree does not bind nonparties. See, e.g., Martin v. Wilks, 490 U.S. 755, 761–62 (1989). On the defendants’ side, Harris County, the Hearing Officers, and the Sheriff were not parties to the Roberson litigation. See Def. Ex. 159. The Roberson defendants were twelve County Judges sued in their personal and official capacities. See id. The plaintiffs in this case do not seek relief against the Roberson County Judges in their personal capacities, and the number of County Judges acting in an official capacity has grown by four since 1987. On the plaintiffs’ side, the Roberson class did not include misdemeanor defendants arrested on a warrant, as this one does. See Def. Ex. 160. The Roberson class did include misdemeanor defendants asserting Fourth and Sixth Amendment claims against the County Judges; this class does not. See id.
For the reasons explained above, the Roberson order does not require the conduct the plaintiffs challenge.134 The relief ordered here is not inconsistent with Roberson and is not a modification of the consent decree. And even if the parties were identical and the relief here was inconsistent with that ordered in Roberson, courts have held that, in the context of civil-rights litigation, a “modern successor” class action better serves the public interest and is better at resolving the parties’ disputes than a Rule 60(b) modification of a decades-old consent decree. See Coffey v.
134 See Part I.C.2, Part I.D.6 supra.
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Braddy, 88 F.Supp.3d 1283, 1299 (M.D. Fla. 2015), aff’d, 834 F.3d 1184, 1193 (11th Cir. 2016). Finally, the defendants object that they cannot implement a rule against using secured
financial conditions of release as de facto orders of pretrial preventive detention, as other jurisdictions do, because Texas does not permit transparent orders of pretrial preventive detention in misdemeanor cases that are available in other jurisdictions. (See, e.g., Docket Entry No 159 at 9–10; No. 166 at 13; Hearing Tr. 8-2:24–25). The defendants’ dissatisfaction is with Texas law, not with the plaintiffs’ claims or the relief this court ordered. It may indeed be wise to keep risky defendants, including misdemeanor defendants, in jail from arrest forward. But Texas law makes a different choice. It prohibits pretrial preventive detention of all but one category of misdemeanor cases, and in that exceptional category it provides nonfinancial conditions of pretrial detention with extra procedural safeguards. Jailing the indigent by setting secured money bail that they cannot pay makes an end run around a Texas-created liberty interest without providing due process. If the defendants believe that some misdemeanor defendants present such a high risk of nonappearance or of new criminal activity as to require pretrial preventive detention, the defendants’ proper recourse is to petition the Texas Legislature to amend the Texas Constitution, not to accomplish a de facto amendment through imposing secured financial conditions of release that operate as detention orders only against those who cannot pay. IV. Conclusion
A. Summary Judgment In their motion for summary judgment, the defendants argue that: (1) there is no constitutional right to “affordable bail”; (2) the Harris County Rules of Court pass rational basis review; and (3) the County’s arrest procedures satisfy due process as a matter of law. (Docket Entry
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No. 101). The court has addressed at length the standard of review required by the Supreme Court and the Fifth Circuit in this case,135 and the reasons that Harris County’s procedures violate the Equal Protection and Due Process Clauses as a matter of law.136
As explained in detail above, the issue in this case is not the right to “affordable bail.” As cases and commentaries make clear, courts may impose secured money bail beyond a defendant’s ability to pay: (1) in cases of dangerous felony; (2) after finding that no alternative to secured money bail can reasonably assure the defendant’s appearance or public safety; (3) with the due process of a detention order if the secured money bail in fact operates to detain the defendant. Those factors do not apply to this case.137 Misdemeanor charges are not dangerous felonies. The credible and reliable record evidence shows that, in misdemeanor cases, secured money bail is not the only reasonable alternative to assure appearance and law-abiding conduct before trial.
That does not amount to a “right to affordable bail.” Under Texas law, Harris County magistrates—the Hearing Officers and County Judges—may weigh the state-law factors to arrive at a high amount of bail. TEX. CODE CRIM. PRO. art. 17.15. But they cannot, consistent with the federal Constitution, set that bail on a secured basis requiring up-front payment from indigent misdemeanor defendants otherwise eligible for release, thereby converting the inability to pay into an automatic order of detention without due process and in violation of equal protection. See Bearden, 461 U.S. at 672; Rainwater, 572 F.2d at 1056. The motion for summary judgment is denied.
135 See Part II.B.1 supra. 136 See Part II.B.3 supra. 137 See Part I.C.3–4, Part II.B.2 supra.
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B. Preliminary Injunction “Rules under which personal liberty is to be deprived are limited by the constitutional guarantees of all, be they moneyed or indigent, befriended or friendless, employed or unemployed, resident or transient, of good reputation or bad.” Rainwater, 572 F.2d at 1057. Misdemeanor arrestees are often, as Judge Truman Morrison testified, people “living on the edge at the point in their lives that intersects with getting involved in an arrest.” Hearing Tr. 2-2:135. In Harris County, they may be homeless. They may lack family, friends, and “co-indemnitors.” Some are, no doubt, of bad reputation and present a risk of nonappearance or of new criminal activity. But they are not without constitutional rights to due process and the equal protection of the law. The court has considered an extensive record consisting of hundreds of exhibits, thousands of hearing recordings, and eight days of arguments and briefing at the motion hearing. The record evidence, the arguments of able counsel, and the extensive case law and commentary on bail and pretrial detention all show that the plaintiffs are entitled to preliminary injunctive relief. Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention without proper procedures or an opportunity to be heard. This case is not easy. Institutions charged with safeguarding the public have an extraordinary trust and a difficult task. The difficulty and importance of the task cannot defeat an equally important public trust, which the court and the defendants share—to enforce the Constitution. The court has done its best to recognize and work toward both. Harris County is changing its bail procedures. That is commendable. The relief ordered here is intended to fit into that work, to discharge the responsibilities the court and the parties share.
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Case 4:16-cv-01414 Document 302 Filed in TXSD on 04/28/17 Page 193 of 193 The plaintiffs’ clear likelihood of success on the merits of their claims at trial, the irreparable
injuries they will suffer without an order of relief from this court, the public interest, and the relative weight of the harms should the court refuse relief all weigh strongly in the plaintiffs’ favor. The Order of Preliminary Injunction is separately entered.
SIGNED on April 28, 2017, at Houston, Texas. ______________________________________ Lee H. Rosenthal Chief United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

United States District Court Southern District of Texas
ENTERED
March 01, 2017
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al., On behalf of themselves and all others similarly situated,
Plaintiffs,
VS.
HARRIS COUNTY, TEXAS, et al.,
Defendants.

§ § § § § CIVIL ACTION NO. H-16-1414 § § § § § §

MEMORANDUM AND OPINION

Under McMillian v. Monroe County, 520 U.S. 781 (1997), district courts must assess “the

liability of local governments under § 1983” by “ask[ing] whether governmental officials are final

policymakers for the local government in a particular area, or on a particular issue.” Id. at 785. In

its December 16, 2016 Memorandum and Opinion, the court denied Harris County’s motion to

dismiss and found that, applying the McMillian factors, Harris County could be liable for the

legislative and administrative actions of the Harris County Sheriff and the 16 Harris County

Criminal Courts at Law Judges. (Docket Entry No. 125). Harris County moved the court to

reconsider its holding that the County Judges act as county, rather than as state, policymakers when

they promulgate their written Rules of Court and when they administratively enforce unwritten

policies that allegedly detain misdemeanor arrestees without timely consideration of their ability to

pay bail or their eligibility for nonfinancial conditions of release. (Docket Entry No. 131). Harris

County does not seek reconsideration of the court’s holding that Harris County could be liable for

the policymaking decisions of the Harris County Sheriff.

Harris County does not raise new arguments or evidence that the court did not already

1

carefully consider in its prior ruling. Based on the reasons set out in the prior ruling, as well as in this memorandum and opinion, the County’s motion for reconsideration is denied. I. The Legal Standard for a Motion for Reconsideration
The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration. See St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997) (“[T]he Federal Rules of Civil Procedure do not recognize a general motion for reconsideration.”). A court retains the power to revise an interlocutory order before entering judgment adjudicating the parties’ claims, rights, and liabilities. FED. R. CIV. P. 54(b). A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). A motion that asks the court to change an order or judgment is generally considered a motion to alter or amend under Rule 59(e). eTool Development, Inc. v. Nat’l Semiconductor Corp., 881 F.Supp.2d 745, 748–49 (E.D. Tex. 2012).
A Rule 59(e) motion “‘must clearly establish either a manifest error of law or fact or must present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should, have been made before the judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64 (5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Changing an order or judgment under Rule 59(e) is an “extraordinary remedy” that courts use sparingly. Templet, 367 F.3d at 479; see also 11 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2810.1 at 124 (2d ed. 1995). The Rule 59(e) standard “favors denial of motions to alter or amend a judgment.” S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). A motion to reconsider may not be used to relitigate matters, raise arguments, or submit evidence that could have been presented before the judgment or order was entered. 11 WRIGHT & MILLER
2

§ 2810.1 at 127–28 (footnotes omitted). II. Analysis
Harris County argues that the County Judges are policymakers for the State of Texas, and not for Harris County, because under Texas law: (1) the County Judges are statutory judges who differ from constitutional county judges with local administrative responsibilities; (2) the County Judges are similar to district court judges who have been found to be state actors; and (3) Harris County does not adjudicate state crimes or approve the County Rules of Court. (Docket Entry No. 131). The County extensively briefed these arguments and urged them at the hearings held on August 18 and November 28, 2016. (See Docket Entry No. 25 at 5–11; No. 44 at 48–69; No. 83 at 11–19; No. 102 at 2–7; No. 114 at 1–4; No. 122 at 72–94). The court carefully evaluated each argument in its earlier Memorandum and Opinion. (Docket Entry No. 125 at 42–55; see also id. at 41 (“The [McMillian] question is fact-intensive and requires careful judgment under applicable law.”)). The County raises no new arguments or case law in its motion that would merit the “extraordinary remedy” of a changed judgment. Templet, 367 F.3d at 479. Even if the County had presented new information, its arguments remain unpersuasive.
A. Constitutional County Judges Compared to Statutory County Judges The County argues that the court misapplied case law concerning Texas constitutional county judges to the statutory Harris County Criminal Courts at Law Judges. (Docket Entry No. 131 at 2–4). As the court noted in its Memorandum and Opinion, some Texas county courts are established directly by the State Constitution (“constitutional county courts”), while others with specialized functions, such as criminal adjudication, may be established by the Legislature (“statutory county courts”). TEX. CONST. ART. V, §§ 1, 15. The Harris County Criminal Courts at Law are statutory county courts. TEX. GOV’T CODE § 25.1033. In Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.
3

1980), the Fifth Circuit ruled that a constitutional county judge acted on behalf of the State, and not
the county, when he enforced a statute requiring disclosure of the membership lists of certain
organizations. Id. at 404. But the court noted that the “unique structure of county government in
Texas” gives constitutional county judges “numerous executive, legislative and administrative
chores in the day-to-day governance of the county,” some of which might support county, rather
than state, liability. Id.
The County argues that Familias Unidas is inapplicable to statutory county judges because
they “have absolutely no role in county governance” and only adjudicate crimes under state law.
(Docket Entry No. 131 at 2). But this court identified—and the County does not dispute—local
administrative and legislative functions the statutory County Judges perform. The court’s prior
ruling described some of these functions:
Three of the statutory County Judges in this case sit on a board responsible for appointing, supervising, and terminating Harris County Hearing Officers. TEX. GOV’T CODE § 54.852. One of the Harris County Criminal Courts at Law Judges acts as the presiding judge, tasked with serving “as chief administrator of the offices of county court manager and county court coordinators, and of pretrial release services and all other court-related ministerial services in misdemeanor cases as required by the judges having jurisdiction over those cases.” Id. § 75.403(d)(3). . . . The Harris County Criminal Courts at Law Rules of Court . . . are promulgated by the County Judges sitting en banc as a board, voting by two-thirds majority. See TEX. GOV’T CODE § 75.403(f). The Rules of Court apply not to a single court but to all the courts across one of the largest and most populous counties in the United States. The Rules of Court do not merely regulate “the orderly trial of cases” . . . . The Rules of Court mandate the use of secured financial bail; prescribe presumptions in certain misdemeanor cases; provide for the appointment of counsel; promulgate a code of judicial conduct; and instruct sheriffs, district attorneys, and other county officers in how to administer their tasks of imposing and collecting secured financial bail.
(Docket Entry No. 125 at 48, 51–52).
The County notes that § 25.0003(b) of the Texas Government Code states that “[a] statutory
county court does not have jurisdiction over causes and proceedings concerning roads, bridges, and
public highways and the general administration of county business that is within the jurisdiction of
4

the commissioners court of each county.” (Docket Entry No. 131 at 2) (quoting, with emphasis, TEX. GOV’T CODE § 25.0003(b)). But this case concerns County rules and policies regulating pretrial detention and release in misdemeanor cases. The question is not whether the County Judges have general regulatory authority over all local issues, including roads and public welfare, but whether the County Judges have specific regulatory authority over the local issues of setting bail and setting the conditions of the pretrial release of misdemeanor arrestees. Under Texas law, the County Judges do have this authority. Like constitutional county judges, “at least in those areas in which [a statutory County Judge], alone, is the final authority or ultimate repository of county power,” a statutory County Judge may be “a policymaker whose official conduct and decisions could be attributed to the county under section 1983.” Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir. 1988).
For the reasons explained in the court’s Memorandum and Opinion, the County Judges are “the final authority or ultimate repository of county power” when they choose among alternatives in their discretion to promulgate the written Rules of Court or administratively oversee unwritten customs or practices that apply countywide to the regulation of bail and pretrial detention of misdemeanor arrestees. (Docket Entry No. 125 at 42–55). The motion for reconsideration on this basis is denied.
B. County Judges Compared to District Judges The County argues that statutory county judges are not significantly distinguishable from Texas district judges, and that “district judges are state actors.” (Docket Entry No. 131 at 4). Although the McMillian Court considered certain generally applicable or categorical factors to analyze whether a sheriff was a local policymaker or a state actor, the Court made clear that “our understanding of the actual function of a government official, in a particular area, will necessarily
5

be dependant on the official’s functions under relevant state law.” 520 U.S. at 786. The McMillian
analysis is function-specific. See, e.g., Brewster v. Shasta County, 275 F.3d 803, n.1 (9th Cir. 2001)
(“McMillian clearly instructs that determination of whether a sheriff is a state or county actor
depends on an analysis of the precise function at issue, in this case, the sheriff’s crime investigation
function.”).
Applying this analysis, the Fifth Circuit has held that Texas district judges act as state
officials when they perform the specific function of appointing counsel in particular cases. See
Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir. 1989) (Texas district judges were not acting as
county policymakers when they failed to appoint counsel in civil contempt proceedings); Clanton
v. Harris County, 893 F.2d 757, 758 (5th Cir. 1990) (per curiam) (same). But the County cannot
extrapolate from these holdings a general rule that Texas district judges are always state actors,
much less extend that rule to the County Judges.1 Separate from analyzing whether county judges
are substantially similar to district judges, this court must analyze the McMillian factors for the
County Judges’ specific function of regulating countywide pretrial processes, including the setting
of bail.2
The comparison to Texas district judges does not provide a categorical basis to rule that
County Judges are state actors in all of their functions. The motion for reconsideration on this basis
1 Indeed, the County’s instructive comparison of Texas district judges and county judges may well support a finding that, in the particular function of regulating countywide pretrial processes and bail settings, the district judges act as local policymakers. That question is not before the court.
2 The County argues that the only identifiable difference between Texas district judges and statutory county judges is the process of appointment and removal. (Docket Entry No. 131 at 4). The County insists that this “difference cannot be dispositive.” (Id. at7). The court does not consider these factors dispositive, but it does give them some weight within the totality of the analysis, as did other cases on which the County principally relies. See Parsons v. Bourff, 739 F.Supp. 1266, 1267 (S.D. Ind. 1989) (vacancy appointment by governor was an important factor for finding that the court clerk acts on the behalf of the state); Pruitt v. Kimbrough, 536 F.Supp. 764, 766 (N.D. Ind. 1982) (county judges “appointed initially through a non-partisan selection process by the governor” contributed to finding they were state actors).
6

is denied. C. Harris County Functions The County argues that: (1) because Harris County has no judicial branch, the County Judges
serve no local County functions under McMillian; and (2) because the County does not approve the County Judges’ Rules of Court, it cannot be liable for the policies enacted in those rules. (Docket Entry No. 131 at 7–8). The court addressed this argument when it held that “ the existence of multiple and overlapping authorities cannot, on its own, shield officers or official bodies from liability.” (Docket Entry No. 125 at 76); see also McCollum v. Livingston, Civil No. 14-3253, 2017 WL 608665 (S.D. Tex. Feb. 3, 2017) (same). “[M]unicipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). The fact that the Texas Constitution does not vest judicial power in Harris County does not absolve the County from liability for local policymakers’ choices among alternatives to legislate and implement a pretrial-detention system for misdemeanor arrestees in Harris County. See McMillian, 520 U.S. at 786 (“This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy.”).
“[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing the final policy with respect to the subject matter in question.” Pembaur, 475 U.S. at 483. In its Memorandum and Opinion, the court examined the many factors supporting a finding that the Harris County Criminal Courts at Law Judges make policy on behalf of Harris County, including their electoral constituency; their jurisdiction; the processes of removal
7

and vacancy appointment; the sources of funding, equipment, and personnel; their local administrative, legislative, and judicial responsibilities; and their classification in federal and state case law. (Docket Entry No. 125 at 42–55). Other County employees, including arresting officers, pretrial services personnel, jailers, and administrative assistants implement policies that are not mandated by state law but are rather the decisions of local policymakers. In Harris County, those policymakers are the County Judges. D. Conclusion
Harris County’s motion for reconsideration, Docket Entry No. 131, is denied. SIGNED on March 1, 2017, at Houston, Texas. ______________________________________ Lee H. Rosenthal Chief United States District Judge
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 Case 4:16-cv-01414 Document 303 Filed in TXSD on 04/28/17
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 16
United States District Court Southern District of Texas
ENTERED
April 28, 2017
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al., §

On behalf of themselves and all others §

similarly situated,

§

§

Plaintiffs,

§

§

VS.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

§

Defendants.

§

CIVIL ACTION NO. H-16-1414

MEMORANDUM AND ORDER CERTIFYING A RULE 23(b)(2) CLASS

In accordance with this court’s Memorandum and Opinion of today’s date, the plaintiffs’

motion for class certification is granted. The following class is certified under Rule 23(b)(2):

All Class A and Class B misdemeanor arrestees who are detained by Harris County from the date of this order through the final resolution of this case, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on the secured money bail because of indigence.

For the purpose of the preliminary injunction, the class period extends from the date of this order

through the disposition of this case, or until further order from the court. “Indigence” is determined

by the affidavit of financial condition Harris County Pretrial Services will make available to

misdemeanor arrestees under this court’s Order of Preliminary Injunction. (See Docket Entry

No. 304).

I. Background

The named plaintiffs, Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder,

sued Harris County, the Harris County Sheriff, five Harris County Hearing Officers, and sixteen

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Harris County Criminal Courts at Law Judges, seeking injunctive and declarative relief under 42 U.S.C. § 1983. The plaintiffs allege that Harris County has a custom or practice having the force of policy of detaining before trial misdemeanor defendants who are too poor to pay a secured financial condition of release, in violation of the Equal Protection and Due Process Clauses. (Docket Entry No. 54). The parties vigorously dispute whether money bail set on a secured basis is the cause of pretrial detention in Harris County. The parties presented evidence and argument at an eight-day motion hearing in March 2017. The court has today issued a Memorandum and Opinion setting out findings of fact and conclusions of law. (Docket Entry No. 302). The Memorandum and Opinion extensively addresses the factual background of each plaintiff’s arrest, the nature of the plaintiffs’ claims, the legal standards governing this case, and the record evidence showing the plaintiffs’ likelihood of success on the merits and the balance of harms if an injunction does not issue. (Id).
The plaintiffs move to certify the following class under Rule 23(b)(2): All Class A and B misdemeanor arrestees who are or will be detained by Harris County for any amount of time after arrest because they are unable to pay money bail. (Docket Entry No. 146). For the reasons set out in detain below, the court finds that the Rule 23 requirements are met and certifies a Rule 23(b)(2) class. But the class definition the plaintiffs proposed is modified, as follows: All Class A and Class B misdemeanor arrestees who are detained by Harris County from the date of this order through the final resolution of this case, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on the secured money bail because of indigence.
The reasons for this ruling are set out below. II. The Legal Standard for Class Certification
To certify a Rule 23 class, the plaintiffs must show that their proposed class meets the
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requirements of Rule 23(a) and of at least one Rule 23(b) subsection. See FED. R. CIV. P. 23. The plaintiffs seek certification under Rule 23(b)(2). (Docket Entry No. 146).
Before granting certification, a court must conduct a rigorous analysis to determine whether the plaintiffs have met the Rule 23 requirements. Benavides v. Chi. Title Ins. Co., 636 F.3d 699, 701 (5th Cir. 2011); Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996). “Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (alterations, citations, and internal quotation marks omitted); see also Castano, 84 F.3d at 744 (“Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”).
Certification does not depend on showing that the plaintiffs will ultimately prevail on the merits of their claims. The certification ruling does not turn on the strengths and weaknesses of the claims or defenses. Rather, the court must be able to resolve issues and consider the evidence used to present them on a class-wide basis. FED. R. CIV. P. 23(c)(1) Committee n. (2003). The party seeking certification has the burden of showing that the Rule 23 requirements are satisfied. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013); Benavides, 636 F.3d at 701; Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998); Castano, 84 F.3d at 740. III. Analysis
A. Rule 23(a) The threshold question is whether the proposed class meets the four Rule 23(a) requirements:
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(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
FED. R. CIV. P. 23(a). The defendants1 argue that before analyzing whether the plaintiffs have satisfied Rule 23(a),
the court must find that “the class sought to be represented [is] adequately defined and clearly ascertainable.” (Docket Entry No. 164 at 4) (quoting In re Deepwater Horizon, 739 F.3d 790, 821 (5th Cir. 2014)). The defendants argue that ascertainability is not met here “because the bounds of the class are fluid and ever-changing.” (Id. at 5).
The First, Third, Sixth, and Tenth Circuits have ruled—two recently—that ascertainability is not required to certify a Rule 23(b)(2) class. Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972); Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015); Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016); Shook v. El Paso Cty., 386 F.3d 963 (10th Cir. 2004). The reasoning of these cases is persuasive. Because Rule 23(b)(2) classes seek only prospective relief, the notice requirements and preclusive effects of damages class actions are avoided. See Wal-Mart, 564 U.S. at 362 (“The Rule provides no opportunity for . . . (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action.”). The Sixth Circuit notes that the Advisory Committee’s 1966 comments “provide[] that ‘illustrative’ examples of a (b)(2) class are civil-rights actions where members of the class ‘are incapable of specific enumeration.’” Cole, 839 F.3d at 542 (quoting FED.
1 The defendant Harris County Sheriff and presiding judge of County Criminal Court at Law No. 16 did not join the opposition to the plaintiffs’ motion to certify a class. (See Docket Entry No. 164 at 1).
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R. CIV. P. 23 Advisory Committee’s Note to 1966 amendments). In DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970), the Fifth Circuit denied
Rule 23(b)(2) certification to a proposed class of Texas residents “active in the ‘peace movement’ who have been harassed and intimidated as well as those who fear harassment and intimidation” by the Houston Police Department. Id. at 734 n.1. The court found that “active in the ‘peace movement’” was too vague, and the plaintiffs had not presented evidence “which would have assisted the district court in more accurately delineating membership in a workable class.” Id. at 734. The proposed class was also overbroad; every Texas resident was not properly included in a class asserting claims only against the Houston police. Id.
Since DeBremaecker, the Supreme Court and the Fifth Circuit have made clear that courts should follow a “general rule encouraging liberal construction of civil rights class actions.” Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975). In Jones, the court reversed a denial of class certification in a case brought under § 1983 by a prisoner seeking to enjoin unsanitary conditions in a jail. Id. at 1093. The court reasoned that “[s]ince it is not necessary that the members of the class be so clearly identified that any member can be presently ascertained, the 23(b)(2) class action is an effective weapon for an across-the-board attack against systematic abuse.” Id. at 1100 (internal citation omitted); see also Wal-Mart, 564 U.S. at 361 (“‘[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples’ of what [Rule 23](b)(2) is meant to capture”) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997) (alteration in original)); Davis v. Weir, 497 F.2d 139, 146 (5th Cir. 1974) (Rule 23(b)(2) “does not mandate that all members of the (b)(2) class be aggrieved by or desire to challenge the defendant’s conduct” but does require “that the conduct or lack of it which is subject to challenge be premised on a ground that
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is applicable to the entire class.”); J.D. v. Nagin, 255 F.R.D. 406 (E.D. La. 2009); Cooper v. Kliebert, Civil No. 14-507, 2014 WL 7338846 (M.D. La. Dec. 22, 2014) (“The Fifth Circuit cautions the need to read Rule 23(a) liberally in the context of civil rights suits where plaintiffs seek injunctive relief on behalf of past, present, and future class members.”).
The defendants object to the proposed class definition because it is framed around the causation issue—whether a defendant is detained because of an inability to pay a secured financial condition of release. Under Supreme Court and Fifth Circuit law, that is not a ground for denying certification. The question is whether there are disputed issues common across the class, susceptible to class-wide proof and class-wide relief. See Wal-Mart, 564 U.S. at 363–65. Those requirements are met here. The Fifth Circuit permits certification of a “fail-safe class,” defined as “a class whose membership can only be ascertained by a determination on the merits of the case because the class is defined in terms of the ultimate question of liability.” In re Rodriguez, 695 F.3d 360, 369–79 (5th Cir. 2012). The class members must be “similarly linked by a common complaint.” If that is shown, “the fact that the class is defined with reference to an ultimate issue of causation does not prevent certification.” Id. at 370 (quoting Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)).
Other than DeBremaecker, the defendants rely on cases denying certification to unascertainable classes seeking damages. See, e.g., Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012); John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443 (5th Cir. 2007); Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015). But the strict ascertainability requirements for a proposed damages class action do not apply to a Rule 23(b)(2) class seeking prospective relief under the Fifth Circuit’s standard for civil rights litigation. The plaintiffs meet that
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ascertainability requirement. Unlike the proposed class in DeBremaecker, Class A and Class B misdemeanor arrestees detained by Harris County during the defined period is geographically and temporally limited. The fact that members will flow in and out of the class as they are arrested and released, or as they acquire or lose the means to pay a secured financial condition of release does not pose an obstacle to class certification. Indeed, the Rule 23(b)(2) class is the paradigm vehicle for addressing transient claims “capable of repetition yet evading review.” Gerstein v. Pugh, 420 U.S. 103, 110–11 & n.11 (1975). It has been frequently used, and approved, in cases challenging relatively short periods of detention or detention of those with conditions yet to be ascertained, such as disability or indigence. See, e.g., Gerstein, 420 U.S. at 110–11; Pugh v. Rainwater, 572 F.2d 1053 (1978); Hernandez v. County of Monterey, 305 F.R.D. 132, 149 (N.D. Cal. 2015); Bumgarner v. NCDOC, 276 F.R.D. 452, 454 (E.D.N.C. 2011); Cole v. Livingston, Civil No. 14-1698, 2016 WL 3258345 (S.D. Tex. June 14, 2016); Walker v. City of Calhoun, Civil No. 15-170, 2016 WL 361580 (N.D. Ga. Jan. 28, 2016).
Nevertheless, at the plaintiffs’ invitation and on the basis of the credible and reliable record evidence at the motion hearing, the court amends the plaintiffs’ proposed class. Instead of detention “for any amount of time after arrest,” the court substitutes misdemeanor arrestees “for whom a secured financial condition of release has been set,” who are readily ascertainable from Harris County’s records. As explained in detail in the court’s accompanying Memorandum and Opinion, misdemeanor arrestees for whom a secured money bail amount has been set are deemed by Texas law to be eligible for release before trial. Conditioning that state-created liberty interest on payment of a secured money bail triggers the protection of the Equal Protection and Due Process Clauses that the plaintiffs allege that Harris County is violating. Instead of detention “because they are unable
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to pay money bail,” the court substitutes those “who cannot pay the amount necessary for release on secured money bail because of indigence.” That alteration excludes from the class those who can pay a bondsman’s premium even if they cannot pay the full financial condition up front as a cash bond. As discussed in the accompanying Memorandum and Opinion, secured conditions of release do not violate Equal Protection when they truly result in release, even if they burden some classes more than others. But releasing those who can pay some type of secured money bail while detaining those who cannot pay any kind of secured money bail, and doing so without an opportunity present evidence and receive written findings on the reasonable necessity of the secured financial condition, violates both equal protection and due process requirements.
Those subject to secured money bail are readily ascertainable from the records Harris County maintains. Those who cannot pay because of indigence will be objectively and readily identifiable from the affidavits of financial ability to post bond, which the court’s relief requires the County to collect and maintain. If a misdemeanor defendant is able to pay a secured financial condition of release, an affidavit of financial condition will reflect that fact and no relief is required. But misdemeanor defendants detained because they cannot pay a secured financial condition of release are protected by the Constitution and are members of this class. The defendants’ threshold objections to the Rule 23(a) requirements are unpersuasive.
1. Numerosity There must be enough members in the proposed class that “joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). “‘[A] plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir. 2000) (quoting Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038
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(5th Cir. 1981)). “‘[A] party seeking class certification must . . . be prepared to prove that there are in fact sufficiently numerous parties. . . .’ Mere speculation as to the number of class members—even if such speculation is ‘a bet worth making’—cannot support a finding of numerosity.” Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 357 (3d Cir. 2013) (quoting Wal-Mart, 564 U.S. at 350; Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 596 (3d Cir. 2012)).
Reliable evidence in the record presented at the motion hearing shows that Harris County detains at least 100 misdemeanor arrestees a day only because they cannot pay a secured financial condition of release. Over 40 percent of all misdemeanor arrestees—around 20,000 people each year—remain detained until case disposition, most of them because they are indigent and cannot pay the financial condition required for release before trial. Even the defendants’ expert concluded, after inappropriately excluding thousands of indigent arrestees from his survey, that over the past two years Harris County has detained over 1,600 people because they could not pay the secured financial condition of release.
On any of these measures, the plaintiffs have shown that Rule 23(a)(1) is satisfied.2 2. Commonality and Typicality
Under Rule 23(a), the plaintiffs must demonstrate that “there are questions of law or fact common to the class” and “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(2)–(3). Both typicality and commonality
2 See also MOORE’S FEDERAL PRACTICE–CIVIL § 23.22(f) (Class-action plaintiffs seeking injunctive or declaratory relief frequently seek to define a class to include people who might be injured in the future. Courts in these cases often find that joinder of separate suits would be impracticable because those who have not yet been injured, or who do not know that they have been injured, are unlikely to join a lawsuit.”); Pederson, 213 F.3d at 868 n.11 (“the fact that the class includes unknown, unnamed future members also weighs in favor of certification”); Livingston, 2016 WL 3258345 at *6 (“The proposed [class] contains over 1,400 members, and there is ‘a constant flux of inmates into and out of [a jail housing unit],’ so joinder of all the proposed class members would be impracticable if not impossible.”).
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“serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). Commonality requires the plaintiffs “to demonstrate that the class members ‘have suffered the same injury.’” Wal-Mart, 564 U.S. at 350 (quoting Falcon, 457 U.S. at 157). “That common contention . . . must be of such a nature that it is capable of class-wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.
Under the Supreme Court’s decision in Wal–Mart, “Rule 23(a)(2)’s commonality requirement demands more than the presentation of questions that are common to the class because ‘any competently crafted class complaint literally raises common questions.’” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 840 (5th Cir. 2012) (quoting Wal-Mart, 564 U.S. at 348). “[T]he members of a proposed class do not establish that ‘their claims can productively be litigated at once,’ merely by alleging a violation of the same legal provision by the same defendant . . . .” Id. (quoting Wal-Mart, 564 U.S. at 350). “Thus, the commonality test is no longer met when the proposed class merely establishes that there is at least one issue whose resolution will affect all or a significant number of the putative class members.” Id. (emphasis, citation, and internal quotation marks omitted). “Rather, Rule 23(a)(2) requires that all of the class members’ claims depend on a common issue of law or fact whose resolution will resolve an issue that is central to the validity of each one of the class member’s claims in one stroke.” Id. (alteration, emphasis, citation, and internal quotation marks omitted).
The defendants rely on their proximate-cause theory of detention to argue against the
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commonality of the proposed class. (Docket Entry No. 164 at 7–11). They argue that each misdemeanor arrestee’s bail is set by judicial discretion based on a variety of factors—such as criminal history, past failures to appear, or the seriousness of the charge—so that each arrestee is detained for a different reason. (Id.). For the reasons explained in detail in the court’s accompanying Memorandum and Opinion, the defendants’ theory does not hold up. The evidence clearly shows that Harris County judicial officers adhere to imposing secured money bail using the preset bail-schedule amounts without making individualized determinations of each misdemeanor defendant’s case or circumstances. Even in those few cases in which the prescheduled bail amount is not used, every misdemeanor arrestee who is detained because he or she is unable to pay the bail on a secured basis is harmed in the same way and for the same reason. The plaintiffs challenge a municipal policy that, because it is a policy, applies to, and affects, indigent misdemeanor arrestees subjected to secured money bail the same way.3
The putative class claims depend on common issues of law and fact. Common fact issues include whether Harris County detains misdemeanor defendants solely because they cannot pay a secured financial condition of pretrial release, and whether secured money bail assures law-abiding conduct of defendants before trial as or more effectively than unsecured or nonfinancial conditions of release. Common legal issues include the due process protections required when secured money
3 The defendants and their amicus argue that because the plaintiffs bring an as-applied challenge to Harris County’s bail system, the plaintiffs inherently claim that every class member is harmed in a different way by a different judicial officer setting bail, and each member would be entitled to different relief. (See Docket Entry No. No. 182 at 21; No. 264 at 18–19). Although as-applied challenges are typically brought by individual plaintiffs, the plaintiffs in this case challenge a largely unwritten and customary policy to use bail as de facto detention orders and to convert a financial condition of release into an automatic detention order when a defendant cannot pay the financial condition up front. Because the policy is unwritten and customary, the plaintiffs are not bringing a facial challenge to the policy that is written. But because the policy is consistently applied to all misdemeanor defendants by the Harris County Sheriff and Hearing Officers, and consistently promulgated by the County Judges, an as-applied class challenge with a single injunctive order remedying the violation is appropriate.
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bail functions as a de facto order of pretrial detention, and whether the imposition of secured money bail meets a compelling government interest. And, as the court shows in its accompanying Order of Preliminary Injunction, relief can be provided to the entire class in “one stroke.” Stukenberg, 675 F.3d at 840.
The plaintiffs have shown that Rule 23(a)(2) and (a)(3) are satisfied. 3. Adequacy
The plaintiffs must “fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). “Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members; and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).
The defendants argue, unconvincingly, that none of the named plaintiffs is adequate because none is a class member. (Docket Entry No. 164 at 12–15). The defendants argue that Ms. ODonnell could pay the secured money bail imposed in her case because she had posted a secured money bond in the past.4 (Id. at 13). But the record shows that when she was arrested, Ms. ODonnell had been employed for only a week and could not have paid the secured financial condition of release. Pls. Ex. 7(a); 8(c)(i), ODonnell Pretrial Services Report. Reviving their arguments on typicality, the defendants argue that Mr. Ford was detained because of his criminal history. (Docket Entry No. 164
4 The defendants also re-urge their argument from their motion to dismiss that Ms. ODonnell should be barred from asserting a claim under the fugitive-disentitlement doctrine. (Docket Entry No. 164 at 13). Ms. ODonnell has satisfied the warrant for her arrest for failure to appear, so the basis for the argument is moot. (See Docket Entry No. 291). Even if a warrant remained outstanding, the fugitive-disentitlement doctrine does not apply, for the reasons explained in the court’s Memorandum and Opinion on the motion to dismiss. ODonnell v. Harris Cty., Tex., — F.Supp.3d —, 2016 WL 7337549 at *12 (S.D. Tex. Dec. 16, 2016).
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at 14). The defendants overlook that the sole mechanism for accomplishing that detention was by imposing a secured money bail Mr. Ford could not pay. Had he been able to pay, he would have been released, regardless of his criminal history. Finally, the defendants argue that Ms. McGruder is not a class member because she was detained because of the nature of her offense—failure to identify herself to a police officer—and because she was ultimately granted release on unsecured financial conditions. (Id. at 9–10, 14). Again, the defendants ignore the fact that Ms. McGruder’s detention was accomplished only by imposing a secured money bail that she could not pay because she was indigent. Despite the nature of the her offense, she would have been released had she been able to pay. And had she been able to pay, she would have been released several days earlier than the first opportunity her lawyer had to seek an unsecured personal bond at Ms. McGruder’s first appearance before a County Judge. Her claim and the claims of the other named plaintiffs are common to, and typical of, the claims of every other class member.
The plaintiffs have shown that Rule 23(a)(4) is satisfied. Ms. ODonnell was detained in the Harris County Jail for over three days after arrest because she could not pay the secured money bail imposed at the scheduled amount, despite a Pretrial Services recommendation that she be released on an unsecured personal bond. Mr. Ford was detained more than 24 hours before appearing before a Hearing Officer and was ultimately held in pretrial detention for over five days after arrest on his misdemeanor charge because he could not pay the amount needed for release under the secured money bail set at the prescheduled amount. Ms. McGruder was detained for 87 hours after her arrest before her lawyer could request release on an unsecured bond from a County Judge. Had any of the named plaintiffs been able to pay the secured financial condition of release, they would have been free days earlier. Each named plaintiff is a member of the class he or she seeks to represent, does
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not have claims in conflict with those of other class members, and adequately represents the class.5
B. Rule 23(b)(2)
Certification under Rule 23(b)(2) requires that “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P.
23(b)(2). Rule 23(b)(2) applies when:
a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Wal-Mart, 564 U.S. at 360. The plaintiffs’ amended complaint seeks only injunctive and declaratory
relief. (Docket Entry No. 54). Although the court provides detailed instructions in its Order of
Preliminary Injunction to comport with Rule 65, the relief ordered is simple and appropriate to the
whole class: Harris County may not detain misdemeanor defendants because they are too poor to pay
a secured financial condition of release. Implementing that order may require different procedures
in different cases. Misdemeanor defendants with formal holds, such as immigration detainers or
other outstanding warrants, are not released from the Harris County Jail to the general population
5 The defendants also argue that the named plaintiffs are not adequate representatives because there is insufficient proof that they are managing this litigation. (Docket Entry No. 164 at 12–13). They cite a securities class action case, Unger v. Amedisys, 401 F.3d 316 (5th Cir. 2005). But civil rights actions in general, and prisoner suits in particular, do not require the same degree of party management as shareholder actions seeking damages. See Livingston, 2016 WL 3258345 at *9 (“Although Plaintiffs’ counsel selected the named Plaintiffs, and not the other way around, that is not uncommon in this kind of impact litigation nor does it negate the named Plaintiffs’ demonstrated willingness and ability to represent the class.”). Each named plaintiff submitted a sworn declaration and has been made available to the defendants for a deposition. (Docket Entry No. 190 at 8). “Like most [prisoner] class representatives, they cannot be expected to have a sophisticated understanding of the legal intricacies involved in class action lawsuits such as this one. However, they can be expected to show a willingness to take an active role in, and control, the litigation.” Livinsgton, 2016 WL 3258345 at *9. The plaintiffs have made that showing.
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if they receive unsecured bail, but are instead released to the custody of other agencies imposing the hold. But in each case, the relief is the same. Misdemeanor defendants, whether with holds or without, cannot be detained by Harris County solely because indigence makes them unable to pay a secured financial condition of release, whether that release is to the general population or to another agency.
“[I]f the plaintiffs [seek] only injunctive and declaratory relief, [the] case [can] readily be certified as a class action under Rule 23(b)(2).” Allison, 151 F.3d at 411. A Rule 23(b)(2) class is, by its nature, “assumed to be a homogenous and cohesive group with few conflicting interests among its members.” Id. at 413. “When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.” Wal-Mart, 564 U.S. at 362–63.
The plaintiffs have satisfied Rule 23(b)(2). Their motion for class certification is granted. C. Appointing Class Counsel Before appointing class counsel, the court “must consider”: (i) the work counsel has done in identifying or investigating potential claims in
the action; (ii) counsel’s experience in handling class actions, other complex litigation, and
the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class[.] FED. R. CIV. P. 23(g)(1)(A). The court “may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” FED. R. CIV. P. 23(g)(1)(B). Although the defendants do not challenge the experience or qualifications of plaintiffs’ counsel, the court must satisfy itself that their appointment as class counsel would be in the best interests of the class. See
15

Case 4:16-cv-01414 Document 303 Filed in TXSD on 04/28/17 Page 16 of 16
FED. R. CIV. P. 23(g)(2). The plaintiffs are represented by Susman Godfrey LLP, Civil Rights Corps, and the Texas
Fair Defense Project. All three have extensive experience litigating complex matters and class actions. All have experience litigating claims under § 1983. “[I]t is clear from [the] plaintiffs’ filings that the[ir counsel] have expended more than a minimal amount of time and resources researching their client[s’] allegations.” Gross v. United States, 106 Fed. Cl. 369, 383 (2012) (applying a rule analogous to 23(g)(1)(A)). That these firms and lawyers are plaintiffs’ choice of counsel and that the defendants have asserted no opposition to the appointment of counsel from these firms weigh heavily in favor of appointment. See, e.g., Slipchenko v. Brunel Energy, Inc., Civil No. 11-1465, 2013 WL 4677918 (S.D. Tex. Aug. 30, 2013). The court is satisfied that all three firms and the lawyers who have appeared in this case fairly and adequately represent the class. IV. Conclusion
The plaintiffs’ motion for class certification, (Docket Entry No. 146), is granted. This case may be maintained as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The named plaintiffs are appointed as class representatives. The following class is certified: All Class A and Class B misdemeanor arrestees who are detained by Harris County from the date of this order through final resolution of this case, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on the secured money bail because of indigence.
SIGNED on April 28, 2017, at Houston, Texas. ______________________________________ Lee H. Rosenthal Chief United States District Judge
16

 
 Case 4:16-cv-01414 Document 304 Filed in TXSD on 04/28/17
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 4
United States District Court Southern District of Texas
ENTERED
April 28, 2017
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al., §

On behalf of themselves and all others §

similarly situated,

§

§

Plaintiffs,

§

§

VS.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

§

Defendants.

§

CIVIL ACTION NO. H-16-1414

ORDER OF PRELIMINARY INJUNCTION

In accordance with this court’s Memorandum and Opinion of today’s date, the following

relief is ordered against Harris County and its final policymakers for pretrial bail in misdemeanor

cases.

(1) Harris County Pretrial Services, both at the City of Houston Jail and at the Harris

County Jail, must make available to interviewed misdemeanor arrestees an affidavit

of financial condition.

•

Pretrial Services may administer either the form of the affidavit currently

used to determine eligibility for appointed counsel or the adapted form that is being prepared for Pretrial Services to be administered by July 1, 2017.1

•

The affidavit must permit the arrestee to declare under penalty of perjury the

maximum amount of financial security the arrestee would be able to post or pay up front within 24 hours of arrest.2

1 See Hearing Tr. 6-1:136 (Testimony of Dr. Marie VanNostrand: “[O]ne of the things that we have built in is the financial affidavit, the collection of information by Pretrial Services for people who aren’t released on a personal bond or who do not make a bond that was applied by the [District Attorney]. Pretrial Services will then meet with them in advance of that hearing and complete the financial affidavit which will then be presented and used for two purposes, one determination of indgency for appointment of counsel, as well as consideration of ability to pay if they are going to set the security bond.”)
2 The question is neither the arrestee’s immediate ability to pay with cash on hand, nor what assets the arrestee could eventually produce after a period of pretrial detention. The question is what amount the arrestee could reasonably pay within 24 hours of his or her arrest, from any source, including the contributions of family and friends.
1

Case 4:16-cv-01414 Document 304 Filed in TXSD on 04/28/17 Page 2 of 4

•

The arrestee must be informed by Pretrial Services that the affidavit of

financial condition will be used to assess alternatives to imposing secured

money bail.

•

Pretrial Services must deliver completed affidavits to the Harris County

Sheriff’s Office before the declarant’s probable cause hearing.

(2) All misdemeanor defendants in the custody of Harris County,

•

who have been deemed eligible for release at a live (videolink) probable

cause and bail-setting hearing (that is, those who are not subject to formal

holds, such as a federal immigration detainer or an outstanding warrant from

another county or municipal authority; those who are not subject to a pending

finding of mental competency; and those who are not subject to family

violence detention procedures governed by Texas Code of Criminal

Procedure Articles 17.152–153),

•

who have executed an affidavit of financial condition in accordance with

Section (1), and

•

who have not been granted release by a Hearing Officer either: (1) on an

unsecured personal bond with nonfinancial conditions of release; or (2) on a

secured money bond for which the defendant could pay a commercial surety’s premium, as indicated on the affidavit,3 must be promptly4 released on unsecured money bail by the Harris County Sheriff no

later than 24 hours after arrest. The bail amount determined by the Hearing Officer

will remain the bail required of the misdemeanor defendant, but the Sheriff must

require it on an unsecured, rather than a secured, basis. An indigent defendant’s

inability to pay secured money bail cannot be the basis for the Sheriff to continue to

detain that defendant. The Sheriff may not alter nonfinancial conditions of release

ordered by Harris County judicial officers, including but not limited to protective

orders, GPS monitoring, drug testing, or alcohol intake ignition locks.

(3) All misdemeanor defendants in the custody of Harris County:

•

who are not subject to formal holds, such as a federal immigration detainer

or an outstanding warrant from another county or municipal authority; those

who are not subject to a pending finding of mental competency; and those

who are not subject to family violence detention procedures governed by

Texas Code of Criminal Procedure Articles 17.152–153, and

•

who have not appeared at a live (videolink) probable cause and bail-setting

hearing within 24 hours of arrest

3 That is, if a commercial surety will put up the principal of the bond on behalf of an arrestee for a 10 percent premium, the secured condition of release may be no more than 10 times the amount declared on the affidavit of financial condition.
4 By “promptly,” the court means on the same time frame of release that a defendant who paid a secured money bail would receive. Verification of references must not delay release under this Order.
2

Case 4:16-cv-01414 Document 304 Filed in TXSD on 04/28/17 Page 3 of 4

must be released by the Harris County Sheriff on an unsecured personal bond. If the City of Houston Police Department has detained a misdemeanor defendant more than 24 hours after arrest, the Sheriff must promptly release the defendant on unsecured or nonfinancial conditions when he takes custody of the defendant.5 The bail amount set by Assistant District Attorneys according to the County Judges’ bail schedule will remain the bail required of the misdemeanor defendant, but the Sheriff must require it on an unsecured, rather than a secured, basis. In absentia hearings “on the papers” will not satisfy this Section’s 24-hour requirement.

(4) All misdemeanor defendants in the custody of Harris County:

•

who are subject to formal holds, and

•

who have executed an affidavit of financial condition in accordance with

Section (1),

must be deemed by the Harris County Sheriff to have satisfied their bond conditions

for purposes of the hold the earlier of: (1) their live (videolink) probable cause and

bail-setting hearing; or (2) 24 hours after arrest. The applicable limitations period on

holds begins to run from the time the Sheriff deems the bond conditions satisfied.

(5) Misdemeanor defendants in the custody of Harris County who, after being informed of the purpose of the affidavit of financial condition under Section (1), nevertheless refuse to execute the affidavit of financial condition are not subject to the relief ordered in Sections (2) or (4).

(6) Misdemeanor defendants in the custody of Harris County who do not appear mentally competent to execute an affidavit in accordance with Section (1) may be evaluated under the procedures governed by Texas Code of Criminal Procedure Article 16.22. If competence is found, the misdemeanor defendant is covered by the relief ordered in Sections (1) through (5), with the exception that the 24-hour period in Section (3) runs from the finding of competence rather than from the time of arrest.

(7) If a misdemeanor defendant appears before a County Judge at a Next Business Day Setting under County Rules of Court Rule 4.3.1 instead of a probable cause hearing before the Hearing Officers, the same procedures for release will apply as to probable cause hearings before a Hearing Officer under Sections (2) and (4) of this Order.

(8) This Order applies to misdemeanor arrestees who are re-arrested on misdemeanor charges only or on warrants for failure to appear while released before trial on bond (either secured or unsecured).

(9) The County Judges need not amend the County Rules of Court as written. If they choose to amend the County Rules of Court, they cannot create policies in direct

5 That is, the Sheriff must release the arrestee on the same time frame as if the arrestee paid a secured bond amount when the Sheriff takes custody of the arrestee.
3

Case 4:16-cv-01414 Document 304 Filed in TXSD on 04/28/17 Page 4 of 4
conflict with this Order. The County Judges must not promulgate a policy, written or unwritten, that permits the setting of secured financial conditions that operate to detain, rather than release, indigent misdemeanor arrestees before trial. (10) This Order will take effect on May 15, 2017. Before that date, Harris County and the Harris County Sheriff must deliver a copy of this Order to all Harris County Pretrial Services personnel; all jail supervisors and booking personnel employed by the Harris County Sheriff; the Harris County District Attorney; and the Harris County Chief Public Defender. (11) This Order expires on entry of final judgment in this case unless the court orders otherwise. Any party may seek modification of this Order, by written motion served on all parties and counsel and on a showing of good cause. SIGNED on April 28, 2017, at Houston, Texas.
______________________________________ Lee H. Rosenthal
Chief United States District Judge
4

 
 Case 4:16-cv-01414 Document 305 Filed in TXSD on 04/28/17
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 2
United States District Court Southern District of Texas
ENTERED
April 28, 2017
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al., §

On behalf of themselves and all others §

similarly situated,

§

§

Plaintiffs,

§

§

VS.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

§

Defendants.

§

CIVIL ACTION NO. H-16-1414

ORDER ON CONTINGENT MOTION TO STAY The defendants’ contingent motion to stay pending appeal,1 (Docket Entry No. 252), is denied

without prejudice. Specifically, the motion to stay filed before either the order of preliminary

injunction or a notice of appeal from that order was entered, is denied without prejudice. Cf. FED.

R. BANKR. P. 8007(a)(2) (permitting a motion to stay before notice of appeal in bankruptcy cases).

The defendants spent much of their briefing guessing—incorrectly—what relief the court would

order and explaining why this hypothetical relief would be unfeasible. (See Docket Entry No. 252

at 5–6 (assuming the need to revise the bail schedule and release all misdemeanor arrestees in Harris

County)).

The defendants may refile their motion after they have reviewed the preliminary injunction

the court has now issued and have filed a notice of appeal. At that time, they may update their briefs

on why the balance of the equities favors a stay in light of the relief ordered.

1 The defendant Harris County Sheriff and the defendant presiding judge of County Court at Criminal Law No. 16 do not join the motion to stay. (See Docket Entry No. 252 at 1).
1

Case 4:16-cv-01414 Document 305 Filed in TXSD on 04/28/17 Page 2 of 2 If some defendants do not join the motion to stay, the court requests a statement of position
from the nonmoving defendants no later than one day after the motion to stay is filed. SIGNED on April 28, 2017, at Houston, Texas. ______________________________________ Lee H. Rosenthal Chief United States District Judge
2

 
 Case: 17-20333 Document: 00514109264 Page: 1 Date Filed: 08/09/2017

No. 17-20333
In the United States Court of Appeals for the Fifth Circuit
__________________
MARANDA LYNN ODONNELL, Plaintiff-Appellee,
v.
HARRIS COUNTY, TEXAS; ET AL., Defendants-Appellants.
_________________
LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD Plaintiffs-Appellees,
v.
HARRIS COUNTY, TEXAS; ET AL., Defendants-Appellants.
__________________

On Appeal from the United States District Court for the Southern District of Texas No. 4:16-cv-01414
__________________

BRIEF OF LAW-ENFORCEMENT AND CORRECTIONS OFFICIALS AS AMICI CURIAE IN SUPPORT OF APPELLEES __________________

BRADLEY S. PHILLIPS Counsel of Record
KENNETH M. TRUJILLO-JAMISON MUNGER, TOLLES & OLSON LLP 350 South Grand Ave., Fiftieth Floor Los Angeles, CA 90071 Telephone: (213) 683-9100 brad.phillips@mto.com

LISA A. FOSTER 2422 Tracy Place, NW Washington, DC 20008 lafoster@gmail.com

Counsel for Amici Curiae Other Than Harris County Sheriff Ed Gonzalez

Additional Counsel Listed on Inside Cover

Case: 17-20333 Document: 00514109264 Page: 2 Date Filed: 08/09/2017
MURRAY FOGLER Counsel of Record
FOGLER, BRAR, FORD, O’NEIL & GRAY LLP 711 Louisiana Street, Suite 500 Houston, TX 77002 Telephone: (713) 481-1010 mfogler@fbfog.com
Counsel for Amicus Curiae Harris County Sheriff Ed Gonzalez

Case: 17-20333 Document: 00514109264 Page: 3 Date Filed: 08/09/2017

CERTIFICATE OF INTERESTED PERSONS The following listed persons and entities as described in the fourth sentence

of Circuit Rule 28.2.1 have an interest in the outcome of this case. These

representations are made so that members of the Court may evaluate possible

recusal.

Plaintiffs-Appellees Maranda Lynn ODonnell Robert Ryan Ford Loetha Shanta McGruder

Counsel Alec Karakatsanis Elizabeth Rossi CIVIL RIGHTS CORPS

Seth P. Waxman Daniel S. Volchok Arpit K. Garg WILMER CUTLER PICKERING HALE AND DORR LLP

Neal S. Manne Lexie Giselle White Michael Gervais SUSMAN GODFREY LLP

Rebecca Bernhardt Susanne Ashley Pringle TEXAS FAIR DEFENSE PROJECT

-i-

Case: 17-20333 Document: 00514109264 Page: 4 Date Filed: 08/09/2017

Defendants-Appellants Paula Goodhart Bill Harmon Natalie C. Fleming John Clinton Margaret Harris Larry Standley Pam Derbyshire Jay Karahan Judge Analia Wilkerson Dan Spjut Judge Diane Bull Judge Robin Brown Donald Smyth Jean Hughes Judge Mike Fields
Harris County, Texas Eric Stewart Hagstette Joseph Licata, III Ronald Nicholas Blanca Estella Villagomez Jill Wallace
Defendant Judge Darrell William Jordan

Counsel Charles J. Cooper Michael W. Kirk Harold S. Reeves William C. Marra John D. Ohlendorf COOPER & KIRK, PLLC
John Ellis O’Neill John R. Keville Sheryl Anne Falk Robert Lawrence Green, III Corinne Stone WINSTON AND STRAWN LLP
Bruce Powers HARRIS COUNTY ATTORNEY’S OFFICE John Odam Melissa Spinks HARRIS COUNTY ATTORNEY’S OFFICE
Michael Anthony Stafford Katharine D. David James G. Munisteri Stacy R. Obenhaus Philip J. Morgan Benjamin R. Stephens GARDERE WYNNE SEWELL LLP
Counsel Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S OFFICE

ii

Case: 17-20333 Document: 00514109264 Page: 5 Date Filed: 08/09/2017

Defendant-Amicus Curiae Sheriff Ed Gonzalez
Other Interested Parties American Bail Coalition Professional Bondsmen of Texas Professional Bondsmen of Harris County State of Texas State of Arizona State of Hawai’i State of Kansas State of Louisiana State of Nebraska

Counsel Murray Fogler FOGLER, BRAR, FORD, O’NEIL & GRAY, L.L.P.
Counsel Paul D. Clement Christopher G. Michel Andrew Lawrence KIRKLAND & ELLIS LLP Ken Paxton Jeffrey C. Mateer Scott A. Keller Joseph D. Hughes TEXAS ATTORNEY GENERAL
Mark Brnovich ARIZONA ATTORNEY GENERAL
Douglas S. Chin HAWAI’I ATTORNEY GENERAL
Derek Schmidt KANSAS ATTORNEY GENERAL
Jeff Landry LOUISIANA ATTORNEY GENERAL
Douglas J. Peterson NEBRASKA ATTORNEY GENERAL

iii

Case: 17-20333 Document: 00514109264 Page: 6 Date Filed: 08/09/2017

Other Interested Parties Conference of the Chief Justices
Kim K. Ogg Roy L. Austin Thomas Berg A. Bates Butler Robert Butterworth Bonnie Campbell Kimberly Cheney John T. Chisholm Steve Clark Tim Cole Scott Colom Thomas Corbett J. Joseph Curran Frankie Sue Del Pappa Thomas J. Donovan, Jr. Richard Doran Mark A. Dupree, Sr. Mark Earley John Farmer Brian E. Frosh Douglas Gansler Gil Garcetti George Gascón Terry Goddard Mark Gonzalez Christian A. Gossett Scott Harshbarger Peter Harvey David J. Hickton Peter Holmes Robert Johnson Peter Keisler Miriam Aroni Krinsky Scott Lassar Peg Lautenschlager

Counsel Thomas Phillips Evan A. Young BAKER BOTTS, L.L.P. Mary B. McCord Joshua A. Geltzer Robert Friedman INSTITUTE FOR CONSTITUTIONAL
ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER
iv

Case: 17-20333 Document: 00514109264 Page: 7 Date Filed: 08/09/2017

Other Interested Parties Rory K. Little Pamela Marsh Mary B. McCord Barbara McQuade Kenneth Mighell Jeff Modisett Marilyn J. Mosby, Esq. Carlos R. Moreno J. Tom Morgan Charles Oberly Jerome O’Neill James Petro Richard Pocker Earnest Preate Karl A. Racine Ira Reiner James H. Reynolds Stephen Rosenthal Donald Santarelli Carol A. Siemon Robert Spagnoletti Carter Stewart Robert Stephan James Tierney Mary Sue Terry Raúl Torrez Anthony M. Troy Cyrus R. Vance Jr. Lynneice O. Washington Francis Wikstrom William Wilmoth Grant Woods Clarence O’Neal Bradford Joseph E. Brann Lee Brown Ronald Davis Kathleen Dennehy Steve Downing

Counsel
Bradley S. Phillips Kenneth M. Trujillo-Jamison MUNGER, TOLLES & OLSON LLP Lisa A. Foster v

Case: 17-20333 Document: 00514109264 Page: 8 Date Filed: 08/09/2017

Other Interested Parties Neill Franklin Adrian Garcia Thomas Hoffman William Lansdowne James L. Manfre Charles H. Ramsey Norman H. Stamper Darrel W. Stephens James Trainum Roger Werholtz

Counsel
/s/ Bradley S. Phillips____ Bradley S. Phillips
Counsel of Record for Amici Curiae Other Than Harris County Sheriff Ed Gonzalez /s/ Murray Fogler____
Murray Fogler Counsel of Record for Amicus Curiae Harris County Sheriff Ed Gonzalez

vi

Case: 17-20333 Document: 00514109264 Page: 9 Date Filed: 08/09/2017
TABLE OF CONTENTS Page
STATEMENT REGARDING AMICI CURIAE ......................................................1 SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................3 I. CRIMINAL DEFENDANTS MAY NOT BE DETAINED PENDING
TRIAL SOLELY DUE TO THEIR INABILITY TO POST MONEY BAIL. ...............................................................................................................3 II. THE DISTRICT COURT’S ORDER PROMOTES PUBLIC SAFETY AND COMMUNITY STABILITY.................................................................6 A. Pretrial Detention Leads To Increased Crime.......................................8 B. Pretrial Detention Undermines Community Stability.........................11 C. Pretrial Detention Wastes Public Resources. ......................................16 D. Ending Pretrial Detention Of Indigent Defendants Will Enhance
Confidence In The Criminal Justice System.......................................18 III. PRETRIAL RELEASE WILL NOT CAUSE MORE DEFENDANTS
TO FAIL TO APPEAR AT TRIAL. .............................................................21 CONCLUSION ........................................................................................................24
vii

Case: 17-20333 Document: 00514109264 Page: 10 Date Filed: 08/09/2017
TABLE OF AUTHORITIES Page(s)
FEDERAL CASES Barker v. Wingo,
407 U.S. 514 (1972)............................................................................................14 Bearden v. Georgia,
461 U.S. 660 (1983)..............................................................................................5 Gerstein v. Pugh,
420 U.S. 103 (1975)............................................................................................11 Pugh v. Rainwater,
572 F.2d 1053 (5th Cir. 1978) ..........................................................................5, 6 Stack v. Boyle,
342 U.S. 1 (1951)..................................................................................................3 Tate v. Short,
401 U.S. 395 (1971)..............................................................................................5 United States v. McConnell,
842 F.2d 105 (5th Cir. 1988) ................................................................................6 United States v. Salerno,
481 U.S. 739 (1987)..........................................................................................3, 4 Williams v. Illinois,
399 U.S. 235 (1970)..............................................................................................5 Women’s Med. Ctr. of Nw. Houston v. Bell,
248 F.3d 411 (5th Cir. 2001) ................................................................................2 Zadvydas v. Davis,
533 U.S. 678 (2001)..............................................................................................4 CONSTITUTIONAL PROVISIONS TEX. CONST. art. 1, §§ 11b–11c .................................................................................5
viii

Case: 17-20333 Document: 00514109264 Page: 11 Date Filed: 08/09/2017

TABLE OF AUTHORITIES (continued)

Page(s)

OTHER AUTHORITIES

Anderson, Monica, Vast majority of blacks view the criminal justice system as unfair (Pew Research Ctr.), Aug. 12, 2014, http://pewrsr.ch/1sGJJ38.....................................................................................18

Borstein, Brian H., et al., Reducing Courts’ Failure to Appear Rate: A Procedural Justice Approach (Nat’l Crim. Justice Ref. Serv.), May 2011, available at http://bit.ly/2unmKie ............................................................20

Confidence in Institutions, GALLUP.COM, http://bit.ly/K86edV ..............................18

Dobbie, Will, et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges (Nat’l Bureau of Econ. Research, Working Paper No. 22,511), Mar. 2017, http://bit.ly/2h0g0DN......................................12, 15, 23

Final Report of the President’s Task Force on 21st Century Policing, May 2015 ......................................................................................................18, 19

Gupta, Arpit, et al., The Heavy Costs of High Bail: Evidence from Judge Randomization, 45 J. LEGAL STUD. 471 (2016)........................................13

Heaton, Paul, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711 (2017)........................................passim

Jones, Michael R., Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (Pretrial Justice Institute), Oct. 2013 ..................................................................................................................... 22

Laura and John Arnold Foundation, Results from the First Six Months of the Public Safety Assessment-Court in Kentucky, July 2014, http://bit.ly/2vI5nLS ...........................................................................................10

Leslie, Emily & Pope, Nolan G., The Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from NYC Arraignments (Working Paper), Nov. 9, 2016, available at http://bit.ly/2uGVrBF .................................................................................................................12, 13, 14

ix

Case: 17-20333 Document: 00514109264 Page: 12 Date Filed: 08/09/2017

TABLE OF AUTHORITIES (continued)

Page(s)

Lowenkamp, Christopher T., et al., The Hidden Costs of Pretrial Detention (Laura and John Arnold Found.), Nov. 2013, http://bit.ly/2uHxJ8k .................................................................................9, 10, 23

Mueller-Smith, Michael, The Criminal and Labor Market Impacts of Incarceration (Aug. 18, 2015) (unpublished manuscript) ...................................9

Pretrial Services Agency for the District of Columbia, Release Rates for Pretrial Defendants within Washington, DC, http://bit.ly/2eS9e2C ...........................................................................................20

Stevenson, Megan, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (Working Paper), Nov. 8, 2016, http://bit.ly/2tLIbaL ............................................................................................14

VanNostrand, Marie & Keebler, Gena, Pretrial Risk Assessment in Federal Court (U.S. Dep’t of Justice, Office of the Fed. Detention Trustee), Apr. 14, 2009, http://bit.ly/2h0KhlX.............................................16, 17

Wiseman, Samuel R., Pretrial Detention and the Right to Be Monitored, 123 YALE L.J. 1344 (2014) ........................................................14, 17

x

Case: 17-20333 Document: 00514109264 Page: 13 Date Filed: 08/09/2017
STATEMENT REGARDING AMICI CURIAE1 Amici curiae are current and former police chiefs, sheriffs, law-enforcement and corrections officials who are or have been responsible for law enforcement in their respective jurisdictions. Amici have a strong interest in this case because Harris County’s practice of detaining indigent misdemeanor defendants pending trial solely because of their inability to pay money bail leads to increased crime, undermines community stability, wastes scarce public resources, is unnecessary to ensure defendants’ appearance at trial, and erodes public confidence in the criminal justice system. Amici believe that the district court’s injunction will foster the efficient administration of justice in Harris County without undermining public safety. A full list of amici appears in the Appendix.
SUMMARY OF ARGUMENT The issue presented in this appeal is narrow: whether the district court abused its discretion by issuing a preliminary injunction that temporarily prohibits the pretrial detention of indigent misdemeanor defendants in Harris County, Texas, solely because they are unable to post bail, on the ground that the County’s
1 No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the amici curiae and their counsel made such a monetary contribution. The parties to this appeal have consented to the filing of this brief.
1

Case: 17-20333 Document: 00514109264 Page: 14 Date Filed: 08/09/2017
practice likely violates the Fourteenth Amendment. See Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 418–19 (5th Cir. 2001) (standard of review on a motion for preliminary injunction is abuse of discretion). As ably explained in the appellees’ brief, the district court did not abuse its discretion and the preliminary injunction should therefore be affirmed.
In this brief, amici curiae—law-enforcement and corrections officials from around the country, including from Harris County, Texas—seek to emphasize that the unnecessary pretrial detention of indigent defendants, of the sort practiced in Harris County, does not further any substantial or compelling law-enforcement interest. To the contrary, arbitrarily imposed pretrial detention undermines public safety, damages the lives of detainees and their communities, and wastes public resources. Based on our experience, we believe that the district court’s order will improve public safety in Harris County. It will enhance the confidence of members of the Harris County community in the criminal justice system. Research also shows that permitting defendants to be released only on bonds secured by money bail—which for indigent defendants usually results in pretrial detention—is
2

Case: 17-20333 Document: 00514109264 Page: 15 Date Filed: 08/09/2017
not more effective in assuring appearance in court than other forms of release.2 For these reasons, we strongly urge this Court to affirm the preliminary injunction.
ARGUMENT I. CRIMINAL DEFENDANTS MAY NOT BE DETAINED PENDING
TRIAL SOLELY DUE TO THEIR INABILITY TO POST MONEY BAIL. The Supreme Court long ago acknowledged that: [F]ederal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle would lose its meaning. Stack v. Boyle, 342 U.S. 1, 4 (1951) (internal citations omitted). Bail can take many forms and does not necessarily mean a financial condition secured by a cash bond. Except under carefully limited circumstances, bail must be in an amount and in a form that allows for pretrial release. In the criminal justice system, “liberty is the norm[] and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).
2 To avoid confusion, this brief refers to all defendants-appellants collectively as “Harris County” and uses “defendants” to refer to those charged with crimes in Harris County or elsewhere.
3

Case: 17-20333 Document: 00514109264 Page: 16 Date Filed: 08/09/2017
In Harris County, forty percent of all misdemeanor defendants are detained until case disposition. ROA.5682. No person could reasonably contend that pretrial detention in Harris County falls within the “carefully limited exception” authorized by the Supreme Court. Salerno, 481 U.S. at 755. The question before this Court is whether Harris County’s extensive use of pretrial detention for indigent defendants can be justified under the Constitution. Amici submit that it cannot.
Harris County tries to justify the detention of indigent defendants before trial by arguing that doing so assures public safety. See Brief of Appellants Fourteen Judges of Harris County Criminal Courts At Law [hereinafter Judges’ Brief], at 53–55; Brief of Appellants Harris County, Texas, et al. [hereinafter County Brief], at 56 (adopting the arguments asserted in the Judges’ Brief). Not only is this purported justification wrong as a factual matter, see Part II, infra, but it also fails as a matter of law.
A court may detain a dangerous defendant before trial to protect the public, but it may do so only after finding, based on clear and convincing evidence presented in an adversarial hearing, that no conditions of release could reasonably assure the safety of the community. Salerno, 481 U.S. at 751; see also Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001) (“[W]e have upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and
4

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subject to strong procedural protections.”). Here, the record is devoid of evidence establishing that Harris County followed the procedures and applied the standards required by Salerno before detaining forty percent of all misdemeanor defendants. Harris County’s practice of detaining indigent defendants pending trial without affording them the procedural protections required by Salerno is therefore illegal. In any event, Texas law does not generally permit misdemeanor defendants to be detained pending trial on dangerousness grounds. See TEX. CONST. art. 1, §§ 11b– 11c.
The Supreme Court has repeatedly held that incarcerating an indigent person solely because of his inability to pay is unconstitutional under the Fourteenth Amendment. See Bearden v. Georgia, 461 U.S. 660, 673–74 (1983); Tate v. Short, 401 U.S. 395, 397–98 (1971); Williams v. Illinois, 399 U.S. 235, 240–41 (1970). This Court itself long ago “accept[ed] the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc). And this Court warned that, “in the case of an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, pretrial confinement for inability to post money bail would constitute imposition of an excessive restraint.” Id. at 1058. Harris County’s detention practices are precisely
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the kind of pretrial confinement the Pugh court acknowledged would be unconstitutional. Id.
This Court has also expressly acknowledged that federal law prohibits the setting of high bail as a de facto means of detaining defendants. See United States v. McConnell, 842 F.2d 105, 109 (5th Cir. 1988). That is precisely what the district court found was occurring in Harris County. ROA.5682. Bail was routinely set at amounts that guaranteed indigent defendants would be detained through trial. ROA.3239. Such de facto pretrial detention orders, made without an individual assessment of whether the defendant poses a danger to the community, are squarely at odds with both the Supreme Court’s decision in Salerno and this Court’s decision in Pugh. II. THE DISTRICT COURT’S ORDER PROMOTES PUBLIC SAFETY
AND COMMUNITY STABILITY. The district court’s order prohibiting Harris County’s practice of detaining indigent defendants before trial based solely on their ability to pay will enhance public safety and community stability in several ways. First, unnecessary pretrial detention leads to more crime, not less. Research shows that defendants detained before trial are more likely to commit crimes in the future than similarly situated defendants who are released before trial.
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Second, detaining indigent defendants pending trial solely because they cannot afford bail undermines community stability. When defendants are detained pretrial, they frequently lose their jobs and may, as a result, lose their homes and custody of their children. Pretrial detainees are more likely to plead guilty and serve longer sentences than similarly situated defendants who are released before trial, exacerbating these collateral consequences of pretrial detention. Because pretrial detainees are more likely to come from poor neighborhoods, the effects of pretrial detention are likely concentrated and compounded in those communities.
Third, unnecessary pretrial detention wastes public dollars. The costs of detention outweigh the costs associated with monitoring defendants who are released.
Fourth, ending the arbitrary pretrial detention of indigent defendants will enhance confidence in the criminal justice system. Releasing low-risk indigent defendants pending trial will help restore a sense in the community that Harris County treats everyone fairly. Research indicates that enhancing confidence in the criminal justice system will decrease the failure-to-appear rate for released defendants, the very issue money bail is supposedly intended to address. Given that Harris County is in the process of reforming its bail system, affirming the district court’s order will promote those positive reforms and help the County restore lawfulness and fairness to its bail system.
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A. Pretrial Detention Leads To Increased Crime. Research shows that unnecessary pretrial detention of misdemeanor defendants leads to increased crime. In a comprehensive study, researchers analyzed data for approximately 380,000 misdemeanor cases in Harris County filed between 2008 and 2013. Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 734 (2017) [hereinafter Heaton Study]. The researchers used regression analysis to account for the impact of other variables on the likelihood of committing crime (such as the defendant’s prior criminal history), which allowed them to isolate the effect of pretrial detention. The researchers also used a natural-experiment methodology (used by social-science researchers to mirror the rigorous controls used in randomized laboratory studies) to confirm their findings from the regression analysis. What the Heaton Study found is startling. Pretrial detention of misdemeanor defendants in Harris County, when isolated from other potential causal factors, led to a significant increase in the likelihood that a defendant would commit crimes. Specifically, the study shows that misdemeanor defendants detained before trial in Harris County were 9.7 percent more likely to be charged with a new misdemeanor more than eighteen months after their bail hearings than similarly situated misdemeanor defendants who were released before trial. Id. at 767. The effect for felony charges was even more pronounced: Misdemeanor defendants detained
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before trial were 32.2 percent more likely to be charged with a new felony eighteen months after their bail hearings than misdemeanor defendants who were released before trial. Id. These stark findings strongly suggest that, as the authors put it, pretrial detention “may ultimately serve to compromise public safety.” Id. at 768.3
Other studies have found a similar effect of pretrial detention on the incidence of crime. For example, in one study using data on approximately 150,000 defendants from Kentucky, researchers assessed the relationship between pretrial detention and criminal activity. Christopher T. Lowenkamp, et al., The Hidden Costs of Pretrial Detention (Laura and John Arnold Found.), Nov. 2013, at 3–4, http://bit.ly/2uHxJ8k [hereinafter Lowenkamp Study]. That study found that misdemeanor defendants detained for more than one day before trial were more likely to commit new crimes after being released than similarly situated defendants detained for only one day. Id. at 4. The study also found that being detained for any amount of time pending trial is associated with an increased likelihood of committing a new crime after being released. Id. at 19–20.
3 Another study analyzing over 2.6 million criminal court records for 1.1 million unique defendants in Harris County found that, for misdemeanor defendants, incarceration was associated with a 6.0 percentage point increase in the likelihood of being charged with a new misdemeanor and a 6.7 percentage point increase in the likelihood of being charged with a new felony. See Heaton Study, supra, at 766 n. 9 (citing Michael Mueller-Smith, The Criminal and Labor Market Impacts of Incarceration (Aug. 18, 2015) (unpublished manuscript), at 24–27).
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Each of these studies used rigorous controls that were intended to isolate the effect of pretrial detention on crime from other potential causal factors. The Heaton Study controlled for, among other things, each defendant’s prior criminal history and the amount of their bail. Heaton Study, supra, at 761. (The Heaton researchers controlled for bail amount because they reasoned that it reflects the government’s assessment of the defendants’ risk of committing additional crimes if they were released. Id.) The Lowenkamp Study controlled for the defendant’s risk of recidivism and incarceration history, as well as other factors. Lowenkamp Study, supra, at 20. The use of appropriate control variables increases our confidence in the accuracy of the Heaton and Lowenkamp studies’ findings.
Other research indicates that releasing more defendants pending trial may lead to a decrease in crime. A study focused on Kentucky showed that, after judges across the state in 2013 implemented a new data-driven, risk-assessment program to identify more effectively defendants suitable for release, the pretrial release rate rose to 70 percent of all defendants, up from 68 percent. See Laura and John Arnold Foundation, Results from the First Six Months of the Public Safety Assessment-Court in Kentucky, July 2014, at 2, http://bit.ly/2vI5nLS. In the first six months after the new system was implemented, the average arrest rate for defendants who were released before trial decreased 15 percent. Id.
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By contrast, neither Harris County nor its amici point to any evidence establishing that releasing defendants before trial will lead to an increase in crime. See Judges’ Brief, at 53–54; Brief of Amici Curiae American Bail Coalition, et al., at 12 (“Released defendants would have significantly less incentive to appear in court and might commit additional crimes while released.”) (emphasis added). Rather than indulge in speculation, the district court properly found, based on actual data, that the use of secured bail in Harris County did not lead to lower rates of crime committed by defendants. ROA.5661–62.
B. Pretrial Detention Undermines Community Stability. The Supreme Court long ago recognized that, “[p]retrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Research confirms the Court’s observations: Pretrial detention has a profound effect on the outcomes of detainees’ cases and their employment. First, pretrial detention increases the likelihood that defendants will plead guilty, even to charges that they might have fought successfully. Second, pretrial detention is associated with longer sentences, keeping detained defendants from their families and their communities for a longer period of time than their counterparts who are released pending trial. Third, defendants who are detained before trial are less likely to earn any income (as reported to the IRS) and to receive unemployment insurance and the earned
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income tax credit after being released. These consequences have a profound effect on the defendants’ families as well as the communities where they live. Without a job or other source of income, it is difficult to maintain stable housing for oneself or one’s family or provide for the basic necessities of life.
Research shows that defendants detained before trial are more likely to plead guilty than those released before trial. One study analyzing approximately 400,000 cases from Philadelphia and Miami-Dade County from 2006 to 2014 found that defendants detained before trial were 14 percent more likely to plead guilty than similarly situated defendants who were released pending trial. See Will Dobbie et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges (Nat’l Bureau of Econ. Research, Working Paper No. 22,511), Mar. 2017, at 2, http://bit.ly/2h0g0DN [hereinafter Dobbie Study]. Another study analyzing case data from around the United States found that being detained before trial was associated with a 7.4 percent increase in the probability of pleading guilty. Emily Leslie & Nolan G. Pope, The Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from NYC Arraignments (Working Paper), Nov. 9, 2016, at 13, available at http://bit.ly/2uGVrBF [hereinafter Leslie Study].
It is theoretically possible that defendants detained before trial are more likely to plead guilty because, on average, those defendants are more likely to be
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convicted than defendants who are released pending trial. Research indicates, however, that the real reason pretrial detainees are more likely to plead guilty is that, by the time they negotiate disposition of their case, they have, in effect, already served their sentences in pretrial detention. “Because time spent in jail awaiting the resolution of the case is counted against sentence length, the cost of pleading guilty is lower for detained defendants because they have effectively paid part of the price of conviction in advance.” Leslie Study, supra, at 2. Prosecutors commonly offer “time served” as a proposed sentence in plea deals for detained defendants. See Arpit Gupta et al., The Heavy Costs of High Bail: Evidence from Judge Randomization, 45 J. LEGAL STUD. 471, 476 (2016). Consequently, detained defendants routinely face a choice: plead guilty and go home, or stay in jail for longer—sometimes much longer—in order to fight your case. Many defendants decide to go home. Defendants released before trial, by contrast, are free to decide whether to plead guilty without the specter of continued detention influencing their decision.
Pretrial detainees tend to get longer sentences than defendants released pending trial. In Harris County, misdemeanor defendants detained before trial are 43 percent more likely to receive a jail sentence than similarly situated defendants released before trial, and their sentences are on average nine days longer. Heaton Study, supra, at 747. According to another study from Philadelphia, defendants
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detained pending trial were sentenced on average to 124 more days of incarceration than defendants who were released before trial, corresponding to a 42-percent increase in the length of incarceration. Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (Working Paper), Nov. 8, 2016, at 3, http://bit.ly/2tLIbaL. Another study analyzing approximately 82,000 felony and misdemeanor cases in New York City from 2009 to 2013 found that the maximum sentence for defendants detained before trial is on average about two-and-a-half years longer than the maximum sentence for those released pending trial. Leslie Study, supra, at 13. Longer sentences for pretrial detainees means being absent from their families and their communities for longer than their counterparts released before trial.
The Supreme Court has recognized that pretrial detention “often means loss of a job.” Barker v. Wingo, 407 U.S. 514, 532 (1972). “Many detainees lose their jobs even if jailed for a short time, and this deprivation can continue after the detainee’s release.” Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 YALE L.J. 1344, 1356–57 (2014). Research confirms these observations. A study analyzing 400,000 cases from Philadelphia and MiamiDade County, Florida, found that defendants detained before trial were 11.3 percent less likely than defendants released before trial to earn any income (as reported to the IRS) two years after a bail hearing, and 9.4 percent less likely to
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earn any income three-to-four years after a bail hearing. Dobbie Study, supra, at 22. The same study found that defendants released before trial earned on average $948 more per year than pretrial detainees. Id. at 23.
Pretrial detention also reduces the amount of public benefits received by defendants. A study focused on defendants from Philadelphia and Miami-Dade County found that a defendant detained before trial received on average $179 less per year in benefits from the Earned Income Tax Credit (EITC) one to two years after his bail hearing. Dobbie Study, supra, at 23. Three to four years after the bail hearing, a defendant detained before trial received $293 less on average in unemployment insurance benefits and $205 less in EITC benefits. Id. These findings show that a defendant detained before trial not only receives fewer public benefits in the future than one who had been released before trial. In addition, being detained pending trial decreases the likelihood of a defendant’s staying connected to the formal labor market, which is a prerequisite to obtaining unemployment insurance benefits and EITC. Id.
All of these effects have a profound impact not just on defendants, but also on their families and their communities. Research shows that defendants from poor ZIP codes are more likely to be detained pending trial than defendants from wealthier ZIP codes. Heaton Study, supra, at 737. In that study, 60–70 percent of all detained defendants came from the poorest ZIP codes. Id. Because pretrial
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detainees tend to come from poor communities, the families and businesses in those neighborhoods are more likely to feel the cumulative effect of longer jail stays, lower employment, lower income, and lower receipt of employment-related public benefits than their counterparts located in wealthier areas.
C. Pretrial Detention Wastes Public Resources. Harris County asserts that the district court’s order will “cause irreparable harm to the public fisc.” Judges’ Brief, at 55; County Brief, at 56 (adopting the arguments asserted in the Judges’ Brief). But the County has it exactly backwards: The costs associated with detaining defendants before trial dwarf the costs associated with monitoring defendants after being released. A recent study conducted by the United States Department of Justice’s Office of the Federal Detention Trustee demonstrates that pretrial detention costs much more than monitoring defendants who have been released pending trial. That study analyzed the costs associated with pretrial detention as compared to alternative measures of monitoring defendants after release, such as computer monitoring, third-party custody, and mental-health treatment. Marie VanNostrand & Gena Keebler, Pretrial Risk Assessment in Federal Court (U.S. Dep’t of Justice, Office of the Fed. Detention Trustee), Apr. 14, 2009, at 34–36, http://bit.ly/2h0KhlX [hereinafter VanNostrand Study]. The study found that the average cost of detaining a defendant through case disposition, across all risk
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levels for defendants, was between $18,768 and $19,912, whereas the average cost of monitoring a defendant under one of the alternatives to detention was $3,860. Id. at 34, 36. The study further showed that the average cost of detaining a lowrisk defendant before trial was four to six times more than the average cost associated with monitoring such defendants after release, even after factoring in additional costs for rearresting fugitives. Compare id. at 34 fig. 21 (Average Cost of Pretrial Detention) with id. at 35 fig. 22 (Average Cost of Release on Alternatives to Detention Program).
Other studies confirm the findings of the Department of Justice study. One study estimates that detaining a defendant before trial costs more than four times what it would cost to monitor him in the community, Wiseman, supra, at 1348, while another study concludes that it costs an average of $19,000 to detain a federal defendant before trial but only an average of $4,600 to monitor a released defendant, VanNostrand Study, supra, at 6.
Harris County Sheriff Ed Gonzalez, one of the amici, testified that “[t]he County’s widespread detention of arrestees, because they are too poor to pay arbitrary amounts of money, is a waste [of] public resources and actually undermines public safety.” Dist. Ct. Dkt. No. 281, Hear. Tr. Day 3, at 8:23–9:1. The research findings just described support his observations specific to Harris County. The district court’s order temporarily stops the County’s wasteful
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detention practices, which will help conserve scarce and valuable resources for other aspects of law enforcement.
D. Ending Pretrial Detention Of Indigent Defendants Will Enhance Confidence In The Criminal Justice System.
“Decades of research and practice support the premise that people are more likely to obey the law when they believe that those who are enforcing it have the legitimate authority to tell them what to do. But the public confers legitimacy only on those they believe are acting in procedurally just ways.” Final Report of the President’s Task Force on 21st Century Policing, May 2015, at 9–10 [hereinafter Task Force Report]. In our experience, detaining indigent defendants who are unable to post bail because they are too poor to pay undermines the community’s belief that the criminal justice system operates fairly for all defendants, eroding the legitimacy of law enforcement in the eyes of the community.
A 2017 Gallup survey found that only 27 percent of Americans have a “great deal” or “quite a lot” of confidence in the criminal justice system. See Confidence in Institutions, GALLUP.COM, http://bit.ly/K86edV. Even fewer Americans of color express confidence in the justice system. For example, the Pew Research Center reports that 76 percent of black Americans believe the criminal justice system is biased against them. Monica Anderson, Vast majority of blacks view the criminal justice system as unfair (Pew Research Ctr.), Aug. 12, 2014,
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http://pewrsr.ch/1sGJJ38. A justice system like Harris County’s—which allows people with money to be released pretrial while incarcerating poor people and, disproportionately, people of color—can only serve to exacerbate people’s distrust of the criminal justice system.
As the face of the criminal justice system in our communities, law enforcement depends on the cooperation of all members of those communities. Based on our collective experience as law-enforcement and corrections officials, we believe that the district court’s order will help restore a sense in the community that poor defendants will be treated fairly throughout the criminal justice process. Being treated fairly by the criminal justice system leads in turn to increased trust in law enforcement. See Task Force Report, supra, at 9–10. Mutual trust between the community and law enforcement helps to promote community policing, which in our view is vital to reducing crime and strengthening communities. See id. at 41. We believe that affirming the district court’s order will make law enforcement better able to keep our communities safe.
For defendants released pending trial, confidence in the criminal justice system is associated with an increased likelihood of appearing in court. In a survey of approximately 450 misdemeanor defendants in Nebraska from March 2009 to May 2010, researchers found that defendants who successfully appeared in court had higher general trust in government and in the courts than those who
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failed to appear. Brian H. Borstein et al., Reducing Courts’ Failure to Appear Rate: A Procedural Justice Approach (Nat’l Crim. Justice Ref. Serv.), May 2011, at 10, 19–20, available at http://bit.ly/2unmKie. Those who failed to appear, by contrast, were more likely to report that they believed that people in power use the law to control people like themselves. Id. Because the district court’s order will enhance confidence in the criminal justice system in Harris County, we believe that the order will make it more likely that defendants released pending trial will successfully appear for their required court appearances, helping to conserve public resources and promote public safety.
Affirming the district court’s order will also support Harris County’s efforts to reform its bail system. Harris County is in the process of implementing, among other reforms, a nationally validated risk-assessment tool designed to more accurately identify risky defendants. See ROA.5669–5675 (outlining reforms scheduled to be implemented starting on July 1, 2017). Other jurisdictions have adopted similar reforms, allowing them to release a larger percentage of defendants pending trial. For example, the shift to a risk-based assessment system in Washington, D.C., enabled the city in 2016 to release 98.6 percent of misdemeanor defendants pending trial. Pretrial Services Agency for the District of Columbia, Release Rates for Pretrial Defendants within Washington, DC, http://bit.ly/2eS9e2C. Harris County is also implementing a risk-assessment tool
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to aid its bail system, but that and other proposed reforms will not be fully implemented for months at the earliest. See ROA.5728–29. The reforms will likely not, however, cure all of the constitutional infirmities present in the County’s bail practices. Id. Accordingly, affirming the district court’s injunction will both further the County’s existing efforts to reform its bail system and ensure that it will remedy additional constitutional problems with that system. III. PRETRIAL RELEASE WILL NOT CAUSE MORE DEFENDANTS
TO FAIL TO APPEAR AT TRIAL. Harris County asserts that releasing low-risk indigent defendants before trial, as required by the district court’s order, will result in more defendants’ failing to appear at trial. See Judges’ Brief, at 53; County Brief, at 56 (adopting the arguments asserted in the Judges’ Brief). But Harris County cites to no persuasive evidentiary basis for this assertion. In fact, research shows that criminal defendants released on bonds secured by money bail are not more likely to appear at trial than defendants released on other conditions of supervision. Contrary to Harris County’s argument, detaining defendants pretrial because they cannot post bail does not enhance the ability of the government to prosecute individuals accused of crimes and does not further public safety. In one study, researchers found that defendants released on unsecured bonds were just as likely to appear in court as those released on a bond secured by money
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bail. Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (Pretrial Justice Institute), Oct. 2013, at 3 [hereinafter Jones Study]. That study analyzed data on successful court appearances made by approximately 2,000 defendants booked into 10 Colorado jails over a 16-month period. Id. at 6. The study found that there was no statistically significant difference in the rate of appearance between defendants released on unsecured bonds4 and those released on secured bonds. Id. at 11.
The Jones Study’s findings indicate that, if anything, those released on unsecured bonds are more likely to appear in court than those released on secured bonds. The study showed that 88 percent of defendants released on unsecured bonds appeared as required by the court, while only 81 percent of defendants released on secured bonds made their required appearances. Id. For those defendants rated in the lowest risk category, 97 percent of those released on an unsecured bond appeared for their court appearances, while only 93 percent of their counterparts released on secured bonds faithfully made their appearances. Id.
4 In Colorado, unsecured bonds are personal recognizance bonds required to have a monetary amount set. Id. at 7 n.3. The defendant does not need to post any money as a condition of release, but if the defendant fails to appear the court may require the defendant to pay the full amount of the bond. Id.
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Another study analyzing data from Kentucky found that, the longer defendants were detained before trial, the more likely that they would fail to appear. Lowenkamp Study, supra, at 10. Specifically, defendants detained two to three days before trial were more likely to fail to appear (assuming, of course, that they were released at some point before case disposition) than defendants detained for only one day. Id. This effect was especially pronounced for low-risk defendants, who were 22 percent more likely to fail to appear if they were detained for a period of four to seven days, and 41 percent more likely to fail to appear if they were detained fifteen to thirty days. Id. Even a relatively short period of pretrial detention before trial may decrease the likelihood that defendants will appear for trial. Far from ensuring that crimes will be prosecuted, detaining defendants before trial because they cannot post money bail may exacerbate the very problem of defendants’ failure to appear that, according to Harris County, money bail is supposed to address. Judges’ Brief, at 53–55.5
5 One study on which we rely did find that pretrial detention reduced missed court appearances. See Dobbie Study, supra, at 21 (defendant released before trial is 15.6 percent more likely to fail to appear in court). In amici’s estimation, however, the clear preponderance of recent research indicates that detaining defendants before trial does not increase the likelihood of their appearing in court. See Jones Study, supra; Lowenkamp Study, supra. That conclusion is also consistent with amici’s experience.
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CONCLUSION For the reasons set forth above, the district court’s order granting the

plaintiffs’ motion for a preliminary injunction should be affirmed.

Date: August 9, 2017

Respectfully submitted,

/s/ Bradley S. Phillips BRADLEY S. PHILLIPS Counsel of Record KENNETH M. TRUJILLO-JAMISON MUNGER, TOLLES & OLSON, LLP 350 S. Grand Ave, Fiftieth Floor Los Angeles, CA 90071 Telephone: (213) 683-9100 Facsimile: (213) 687-3702

LISA A. FOSTER 2422 Tracy Place, NW Washington, DC 20008 lafoster@gmail.com

Counsel for Amici Curiae Other Than Harris County Sheriff Ed Gonzalez

/s/ Murray Fogler MURRAY FOGLER
Counsel of Record FOGLER, BRAR, FORD, O’NEIL & GRAY LLP 711 Louisiana Street, Suite 500 Houston, TX 77002 Telephone: (713) 481-1010 mfogler@fbfog.com

Counsel for Amicus Curiae Harris County Sheriff Ed Gonzalez

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Appendix List of Amicus Curiae1
Clarence O’Neal Bradford Chief, Houston (TX) Police Department (1997-2004)
Joseph E. Brann Director, United States Department of Justice, Office of Community-Oriented
Policing (1994-1999) Chief, Hayward (CA) Police Department (1989-1994)
Lee Brown Mayor, Houston (1998-2004) Director, Office of National Drug Control Policy (1993-1995) Commissioner, New York Police Department (1990-1992) Chief, Houston (TX) Police Department (1982-1990) President, International Association of Chiefs of Police (1990-1991) Commissioner, Georgia Public Safety Commission (1978-1982) Sheriff, Multnomah County (OR) (1974-1976)
Ronald Davis Director, United States Department of Justice, Office of Community-Oriented
Policing (2013-2016) Executive Director, President’s Task Force on 21st Century Policing (2014-2016) Chief, East Palo Alto (CA) Police Department (2005-2013) Officer, Oakland (CA) Police Department (1986-2005)
Kathleen Dennehy Commissioner, Massachusetts Department of Corrections (2003-2007)
Steve Downing Deputy Chief (Ret.), Los Angeles (CA) Police Department
Neill Franklin Major (Ret.), Maryland State Police; Baltimore (MD) Police Department
1 The amici’s affiliations are listed for identification purposes only.
-1-

Case: 17-20333 Document: 00514109264 Page: 38 Date Filed: 08/09/2017
Appendix (Cont.)
Adrian Garcia Sheriff, Harris County (TX) (2009-2015)
Thomas Hoffman Director, California Dept. of Corrections & Rehabilitation, Division of Adult
Parole Operations (2006-2009) Captain, Deputy Chief, and Interim Chief of Police, West Sacramento (CA) Police
Department (1994-2004) Inglewood (CA) Police Department (1974-1994)
William Lansdowne Chief, San Diego (CA) Police Department (2013-2014)
James L. Manfre Sheriff, Flagler County (FL) (2001-2005; 2012-2016)
Charles H. Ramsey Commissioner, Philadelphia (PA) Police Department (2008-2016) Chief, Metropolitan Police Department of the District of Columbia (1998-2007) Deputy Superintendent, Chicago (IL) Police Department (1994-1998) Deputy Chief, Patrol Division, Chicago (IL) Police Department (1992-1994) Chicago (IL) Police Department (1971-1998)
Norman H. Stamper Chief (Ret.), Seattle (WA) Police Department (1994-2000)
Darrel W. Stephens Chief, Charlotte-Mecklenburg (NC) Police Department (1999-2008) Director, Police Executive Research Forum (1986-1992)
James Trainum Detective, Metropolitan Police Department of the District of Columbia, Criminal
Case Review & Consulting (1983-2010)
-2-

Case: 17-20333 Document: 00514109264 Page: 39 Date Filed: 08/09/2017
Appendix (Cont.) Roger Werholtz Interim Executive Director, Colorado Department of Corrections (2013) Secretary, Kansas Department of Corrections (2002-2010) Deputy Secretary, Kansas Department of Corrections (1987-2002)
-3-

Case: 17-20333 Document: 00514109264 Page: 40 Date Filed: 08/09/2017
CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) because, excluding the parts of the brief exempted by Fed. R. App. P. 32(f), this document contains 5,594 words. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman 14-point type face.
/s/ Bradley S. Phillips Bradley S. Phillips
Counsel of Record for Amici Curiae Other Than Harris County Sheriff Ed Gonzalez /s/ Murray Fogler
Murray Fogler Counsel of Record for Amicus Curiae Harris County Sheriff Ed Gonzalez

Case: 17-20333 Document: 00514109264 Page: 41 Date Filed: 08/09/2017
CERTIFICATE OF SERVICE I certify that, on August 9, 2017, the foregoing brief of Law-Enforcement and Corrections Officials as Amici Curiae in Support of Appellees was filed via the Court’s CM/ECF Document Filing System. Pursuant to Fifth Circuit Rule 25.2.5, the Court’s Notice of Docket Activity constitutes service on all registered CM/ECF filing users, including counsel of record for all parties to this appeal.
/s/ Bradley S. Phillips Bradley S. Phillips
Counsel of Record for Amici Curiae Other Than Harris County Sheriff Ed Gonzalez
Date: August 9, 2017

 
 Case: 17-20333 Document: 00514109764 Page: 1 Date Filed: 08/09/2017
NO. 17-20333
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MARANDA LYNN ODONNELL, Plaintiff – Appellee,
v. HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL
HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JUDGE MIKE
FIELDS; JEAN HUGHES, Defendants – Appellants.
LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD, Plaintiffs – Appellees,
v. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH
LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ, Defendants – Appellants.
On Appeal from the United States District Court for the Southern District of Texas, Case Nos. 4:15-CV-1414 and 4:16-CV-1436
BRIEF OF CONFERENCE OF CHIEF JUSTICES AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY
BAKER BOTTS L.L.P. Thomas R. Phillips
Counsel of Record Evan A. Young Janet M. Himmel Morgan M. Menchaca Mary Margaret Roark 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701-4078 T: (512) 322-2500

Case: 17-20333 Document: 00514109764 Page: 2 Date Filed: 08/09/2017

CERTIFICATE OF INTERESTED PARTIES No. 17-20333
The undersigned counsel of record certifies that the following listed persons and entities described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

Plaintiffs-Appellees:
Maranda Lynn ODonnell Loetha Shanta McGruder Robert Ryan Ford

Counsel for Plaintiffs-Appellees:
Michael Gervais Neal Stuart Manne Alexandra Giselle White Alejandra C. Salinas Krisina Janaye Zuniga SUSMAN GODFREY LLP
Rebecca Bernhardt Susanne Ashley Pringle TEXAS FAIR DEFENSE PROJECT
Alec George Karakatsanis Elizabeth Anne Rossi CIVIL RIGHTS CORPS
Daniel Volchok Seth Paul Waxman Arpit Kumar Garg WILMER CUTLER PICKERING HALE AND DORR LLP

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Defendants-Appellants Harris County, Texas; and Hearing Officers:
Harris County, Texas; Eric Stewart Hagstette; Joseph Licata, III; Ronald Nicholas; Blanca Estela Villagomez; Jill Wallace

Counsel for Defendants-Appellants Harris County, Texas; and Hearing Officers:

Stacy R. Obenhaus Katharine D. David Philip J. Morgan Mike Anthony Stafford Ben Stephens GARDERE WYNNE SEWELL LLP

John Odam Melissa Spinks OFFICE OF THE ATTORNEY

HARRIS

COUNTY

Defendants-Appellants County Criminal Court at Law Judges:
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; Mike Fields; Jean Hughes

Counsel for Defendants-Appellants County Criminal Court at Law Judges:
John E. O’Neill John R. Keville Sheryl Anne Falk Robert L. Green WINSTON & STRAWN, LLP
Charles Justin Cooper Michael Kirk William C. Marra John David Ohlendorf Harold Reeves COOPER & KIRK, PLLC
Bruce Stephen Powers OFFICE OF THE HARRIS COUNTY ATTORNEY

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Amici Curiae:
American Bail Coalition; Professional Bondsmen of Texas; Professional Bondsmen of Harris County

Counsel for Amici Curiae:
Paul D. Clement Andrew Lawrence Christopher George Michel KIRKLAND & ELLIS LLP

Amici Curiae:
The States of Texas, Arizona, Hawaii, Kansas, Louisiana, and Nebraska

Counsel for Amici Curiae:
Ken Paxton Jeffrey C. Mateer Scott A. Keller Joseph D. Hughes OFFICE OF THE ATTORNEY GENERAL OF TEXAS

Amicus Curiae: Conference of Chief Justices
Dated: August 9, 2017

Counsel for Amicus Curiae:
Thomas R. Phillips Evan A. Young Janet M. Himmel Morgan M. Menchaca Mary Margaret Roark BAKER BOTTS L.L.P.
/s/ Thomas R. Phillips Thomas R. Phillips

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TABLE OF CONTENTS
Page
Supplemental Statement of Interested Parties .......................................................... ii Table of Authorities ................................................................................................ vii Statement of Interest of Amicus Curiae.....................................................................1 Summary of Argument...............................................................................................3 Argument....................................................................................................................5
I. Clear constitutional principles that protect public safety and the pretrial rights of indigent defendants are essential for achieving comprehensive bail reform....................................................................5 A. Current bail practices result in widespread discrimination against indigent defendants.........................................................6 1. The nationwide rate of pretrial detention has increased significantly. .....................................................6 2. Pretrial detention exacts considerable costs on individual defendants and our criminal justice system. ..............................................................................8 B. Despite general consensus and some notable reform, the promise of equal pretrial treatment for indigent defendants remains elusive..........................................................................11 1. Early bail reform efforts identified the fundamental flaws that characterize current bail practices in many state and local jurisdictions...................................11 2. Current bail reform practices will remain largely stalled pending clearly articulated constitutional principles that protect public safety and the pretrial rights of indigent defendants. .........................................13
II. The Fourteenth Amendment prohibits the use of monetary bail that results in the detention of indigent defendants solely due to inability to pay. ....................................................................................20 A. The Supreme Court has long held that special burdens cannot be imposed on indigent criminal defendants.................20
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B. If special burdens cannot constitutionally be imposed on indigents convicted of a crime, still less should they be imposed on indigents merely charged with a crime.................23
Conclusion ...............................................................................................................27 Certificate of Compliance ........................................................................................29 Certificate of Service ...............................................................................................30 Addendum to Brief of Amicus Curiae Conference of Chief Justices................... A-1
Bail Reform Act of 1966 ............................................................................ A-2
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TABLE OF AUTHORITIES Page(s)
CASES Bandy v. United States,
82 S.Ct. 11 (1961).........................................................................................23, 24 Bearden v. Georgia,
461 U.S. 660 (1983)......................................................................................22, 23 Carlisle v. Desoto County, Mississippi,
No. 2:09CV212-M-A, 2010 WL 3894114 (N.D. Miss. Sept. 30, 2010) ...................................................................................................................25 Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) ..........................................................................27 Griffin v. Illinois, 351 U.S. 12 (1956)........................................................................................20, 21 Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981), vacated Murphy v. Hunt, 455 U.S. 478 (1982)...........................................................................................................26 Jones v. City of Clanton, No. 215CV34-MHT, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015) ...................................................................................................................25 Lee v. Lawson, 375 So.2d 1019 (Miss. 1979)..............................................................................25 Martinez v. City of Dodge City, No. 2:15-cv-09344, 2016 WL 9051913 (D. Kan. April 26, 2016).....................25 McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010)............................................................................................26 Meechaicum v. Fountain, 696 F.2d 790 (10th Cir. 1983) ............................................................................26
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Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc) ......................................................24, 25
Robertson v. Goldman, 369 S.E.2d 888 (W.Va. 1988).............................................................................25
Schlib v. Kuebel, 404 U.S. 357 (1971)............................................................................................26
Sistrunk v. Lyons, 646 F.2d 64 (3d Cir. 1981) .................................................................................26
Stack v. Boyle, 342 U.S. 1 (1951)..........................................................................................10, 26
State v. Brown, 338 P.3d 1276 (N.M. 2014) ................................................................................16
Tate v. Short, 401 U.S. 395 (1971)............................................................................................22
U.S. ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972) ...............................................................................26
United States v. Abrahams, 604 F.2d 386 (5th Cir. 1979) ..............................................................................26
United States v. Salerno, 481 U.S. 739 (1987)............................................................................................27
Williams v. Illinois, 399 U.S. 235 (1970)........................................................................................5, 21
CONSTITUTIONAL PROVISIONS N.M. CONST. art. III, §13 .........................................................................................16 U.S. CONST. amend. VIII .........................................................................................26
STATUTES AND BILLS 18 U.S.C. §§ 3141-56 ..............................................................................................12
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A.B. 42, 2016-2017 Reg. Sess. (Cal. 2017).............................................................18 Bail Reform Act of 1966, Pub. L. No. 89-465, 80 Stat. 214 (1966) .......................12 Bail Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1979 (1984) ............................13 COLO. REV. STAT. §§ 16-4-103 & 16-4-113 ............................................................17 District of Columbia Court Reform and Criminal Procedure Act of
1970, Pub. L. No. 91-358, 84 Stat. 473 (1970) ..................................................13 H.R. 7044, Gen. Assemb., Jan. Sess. (Conn. 2017) ..........................................15, 17 L.B. 259, 105th Leg., 1st Reg. Sess. (Neb. 2017) .............................................15, 17 Pretrial Integrity and Safety Act of 2017, S. 1593, 115th Cong. (2017).................15 S.B. 10, 2016-2017 Reg. Sess..................................................................................18 S.B. 1338, 85th. Leg., R.S. (Tex. 2017) ..................................................................18 S.B. 2034, 100th Gen. Assemb., 1st Reg. Sess. (Ill. 2017) .....................................15 S.B. 59, 65th Leg., 2017 Sess. (Mont. 2017)...........................................................15
RULES AND COURT ORDERS ARIZ. R. CRIM. P. 7.3(b)(2) ......................................................................................16 Court of Appeals of Maryland, Rules Order (Feb. 17, 2017)..................................15 IND. R. CRIM. P. 26 ...................................................................................................17 Md. Rule 4-216.1(e)(1)(A) ......................................................................................16 Supreme Court of Arizona, Administrative Order No. 2016-16
(March 3, 2016) ..................................................................................................16 Supreme Court of Arizona, Order No. R-16-0041 (Dec. 14, 2016) ..................15, 16 OTHER AUTHORITIES Laura and John Arnold Foundation, Pretrial Criminal Justice
Research (Nov. 2013) ...........................................................................................9
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Attorney General Strengthens Bail Reform Directive to Better Ensure that Dangerous and Recidivist Criminals are Kept in Jail Pending Trial, Office of the Attorney General of the State of New Jersey News Release (May 24, 2017)............................................................................19
Arthur L. Beeley, The Bail System in Chicago (Univ. of Chicago Press, 1927).........................................................................................................11
Patricia Breckenridge, C.J. Sup. Ct. Mo., State of the Judiciary Address (Jan. 24, 2017); Washington Pretrial Reform Task Force launched to review risk assessment and release practices, Washington Courts (June 22, 2017) ...................................................................15
Jennifer Bronson, Laura M. Maruschak & Marcus Berzofsky, Disabilities Among Prison and Jail Inmates, 2011-12 (Bureau of Justice Statistics, Dec. 2015) ................................................................................8
Changes to Md. bail system appear unlikely to pass General Assembly this year, Washington Post (March 16, 2017) ....................................................19
Conference of Chief Justices, Resolution 3, Endorsing the Conference of State Court Administrators Policy Paper on Evidence-Based Pretrial Release (January 30, 2013) .................................................................8, 9
Thomas H. Cohen & Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts (Bureau of Justice Statistics, Nov. 2007) ............................................................................................................7
F.E. Devine, Commercial Bail Bonding, A Comparison of Common Law Alternatives (Praeger Publishers, 1991) .......................................................7
Guidance for Setting Release Conditions, National Conference of State Legislatures (May 13, 2015)......................................................................17
Doris J. James, Profile of Jail Inmates, 2002 (Bureau of Justice Statistics, 2004).....................................................................................................8
Justice Policy Institute, Bail Fail: Why the U.S. should end the practice of using money for bail (September 2012) .............................................7
Tracey Kyckelhahn, Local Government Corrections Expenditures, FY 2005-2011 (Bureau of Justice Statistics, Dec. 2013)............................................9
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Lake Research Partners, Support for Risk Assessment Programs Nationwide (July 19, 2013) ................................................................................10
Hermine Herta Meyer, Constitutionality of Pretrial Detention, 60 Geo. L. J. 1381 (June 1972)................................................................................12
Todd D. Minton & Zhen Zeng, Jail Inmates in 2015 (Bureau of Justice Statistics, Dec. 2016) ............................................................................7, 9
Pretrial Services Agency for the District of Columbia, Research and Data .....................................................................................................................14
Stuart Rabner, Opinion, Chief justice: Bail reform puts N.J. at the forefront of fairness (Jan 9, 2017) ......................................................................16
Remarks at the Signing of the Bail Reform Act of 1966 (June 22, 1966) ................11
Report of the Joint Committee on Criminal Justice (March 10, 2014) ...................16
National Research Council, The Growth of Incarceration in the United States (Jeremy Travis et al. eds., The National Academies Press, 2014).......................................................................................................7, 8
Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (National Institute of Corrections, Aug. 2014) ................................13, 14
Timothy R. Schnacke, Michael R. Jones and Claire M. B. Brooker, The History of Bail and Pretrial Release (Pretrial Justice Institute, Sep. 2010) ...........................................................................................................12
Ram Subramanian, et al., Vera Institute of Justice, Incarceration’s Front Door (updated July 29, 2015).....................................................................6
Supreme Court Approves Changes to Pretrial Release Recommendations for Gun Crimes, Repeat Offenders, New Jersey Courts News Release (May 25, 2017) ................................................................19
Dave Tomlin, New Mexico Chief Justice Daniels Backs Bail Reform Amendment, Albuquerque Journal (July 20, 2016) ............................................16
Jazmine Ulloa, Legislation to overhaul bail reform in California hits a hurdle in Assembly, Los Angeles Times (June 1, 2017) ....................................18
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STATEMENT OF INTEREST OF AMICUS CURIAE The Conference of Chief Justices (CCJ) is a non-profit organization that seeks to improve the administration of justice throughout the United States.1 Its membership consists of the highest judicial officer of each U.S. state, the District of Columbia, and each U.S. commonwealth and territory. Since its founding in 1949, CCJ has addressed numerous issues of significance to the fair and impartial administration of justice nationwide. This amicus brief is being filed pursuant to a policy unanimously approved by CCJ’s Board of Directors. The policy authorizes the filing of a brief if critical interests of state courts are at stake, as they are in this case. This brief has been reviewed by the members of a special committee of CCJ chaired by the Chief Justice of North Dakota and composed of the current or former Chief Justices of Arizona, Indiana, New Hampshire, New Jersey, North Carolina, Pennsylvania, Texas, Wisconsin, and Utah, a majority of whom, along with the members of CCJ’s executive committee, have approved the brief for filing. CCJ has long been involved, along with its sister organization, the
1 All parties, through their counsel of record, have consented to the filing of this amicus brief, which complies with the deadline in this Court’s order signed by Judge Graves on July 20, 2017. Amicus affirms that no counsel for any party authored this brief in whole or in part. No party, counsel for any party, or any other person other than the amicus, its members, or its counsel contributed money that was intended to fund preparing or submitting the brief.
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Conference of State Court Administrators (COSCA), in studying and implementing improvements in American bail systems. CCJ thus has a strong interest in this appeal, which could have significant ramifications for how release from pretrial detention is determined in jurisdictions far beyond the misdemeanor courts of Harris County, Texas.
In 2016, CCJ and COSCA, with the assistance of the National Center for State Courts, formed the National Task Force on Fines, Fees and Bail Practices (the Task Force) to address the impact of these financial obligations on the economically disadvantaged and to propose reforms. The Task Force is co-chaired by Ohio Chief Justice Maureen O’Connor and Kentucky State Court Administrator Laurie K. Dudgeon. Multiple CCJ members are part of the Task Force, including Texas Chief Justice Nathan L. Hecht, who co-chairs the Transparency, Governance & Structural Reform working group.
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SUMMARY OF ARGUMENT CCJ takes no position with respect to the specific features of the Harris County bail system or as to any particular relief that the district court afforded. Nor does it propose a detailed framework to govern every aspect of pretrial detention. Indeed, there is considerable diversity of opinion among the Chief Justices regarding the details of bail systems and there should be a wide array of solutions appropriately tailored to local conditions. But CCJ does submit that, for criminal defendants who are indigent and pose no serious risk of flight or injury to others, the design and operation of pretrial bail systems have federal constitutional implications. Multiple concerns underlie any system of pretrial detention, some of which may be of constitutional magnitude:  individual liberty—is it infringed upon no more than necessary?  potential distortion of the criminal process—does pretrial deten-
tion itself contribute to unreliable guilty pleas or increase the likelihood of recidivism?  fiscal concerns—could resources now devoted to pretrial detention be dedicated to more essential aspects of the criminaljustice system?  public safety—does the system reliably deny pretrial release to
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those defendants who, if released, would threaten the safety and property of others or intimidate witnesses?  integrity of judicial proceedings—does the system reliably deny pretrial release to those who, if released, would likely abscond? Any pretrial detention system clearly involves multiple considerations, and it is almost certain that the Constitution does not require a one-size-fitsall solution. But the Constitution imposes some meaningful limits to protect the pretrial rights of indigent defendants because, as with other constitutional rights, an unconvicted person’s right to liberty may not be infringed solely because of an inability to pay. The precise contours of each state’s or locality’s bail system should remain with policymakers, of course. But such efforts need to be made against the backdrop of a settled understanding of the minimum federal constitutional requirements. To date, bail reform efforts across the nation have on the whole been too slow, too sporadic, and too often stillborn, at least in part because of uncertainty in distinguishing what must be done from what merely can be done. This clarity will not merely guarantee at least minimum constitutional rights to every detainee, but may encourage the “laboratories of democracy” to enact further reforms in systems across the country.
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ARGUMENT I. Clear constitutional principles that protect public safety and the pretri-
al rights of indigent defendants are essential for achieving comprehensive bail reform.
The issues before the Court are not novel. They are, however, of increasingly grave consequence to the administration of criminal justice within the United States. As the district court noted below, “[t]wenty years ago, not quite one-third of [Texas’s] jail population was awaiting trial. Now that number is three-fourths.” ROA.5555 (quotation marks omitted) (quoting Hon. Nathan L. Hecht, Chief Justice of the Texas Supreme Court, State of the Judiciary Address to the 85th Texas Legislature, Feb. 1, 2017). This marked increase in pretrial detention is, unfortunately, by no means unique to Texas.
Nearly half a century ago, the Supreme Court held in Williams v. Illinois that an indigent defendant, due to failure to pay a fine, may not be imprisoned beyond the statutory maximum for the underlying offense. 399 U.S. 235, 243 (1970). In reaching this result, Williams observed that “new cases expose old infirmities which apathy or absence of challenge has permitted to stand. But the constitutional imperatives of the Equal Protection Clause must have priority over the comfortable convenience of the status quo.” Id. at 245. The district court concluded that the bail system in America’s third largest county was similarly defec-
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tive, not for novel reasons, but under bedrock constitutional principles.2 An appellate decision articulating the extent to which this ruling was right or wrong will provide valuable guidance to state and local jurisdictions and perhaps to other federal courts as well.
A. Current bail practices result in widespread discrimination against indigent defendants. 1. The nationwide rate of pretrial detention has increased significantly. Instances of detention for inability to pay bail have occurred since the
nation’s founding, but both the extent of pretrial detention and our knowledge regarding its effects have markedly increased in recent times. Over the past thirty years, the percentage of jail inmates detained pretrial rather than serving adjudicated sentences has risen from approximately 40% to over 60%. Ram Subramanian, et al., Vera Institute of Justice, Incarceration’s Front Door 10 (updated July 29, 2015) (hereinafter “Vera Institute”), https://storage.googleapis.com/vera-webassets/downloads/Publications/incarcerations-front-door-the-misuse-of-jails-inamerica/legacy_downloads/incarcerations-front-door-report_02.pdf. In absolute terms, this means that well over 400,000 individuals—a population approaching Wyoming’s—are on any given day incarcerated while awaiting trial somewhere in
2 The lower court’s opinion applies only to misdemeanor offenses; this brief discusses principles that are relevant to all criminal defendants.
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the United States. Todd D. Minton & Zhen Zeng, Jail Inmates in 2015 1, 5 (Bu-
reau of Justice Statistics, Dec. 2016), https://www.bjs.gov/content/pub/pdf/ji15.pdf
(since 2005, the pretrial detention rate has remained above 60%; in 2015, there
were 10.9 million admissions to jails and an average daily population of 721,300 inmates).3
This increase logically traces to another development: Release on
non-financial conditions has become rarer. Just between 1990 and 1998, for ex-
ample, non-financial releases decreased from 40% to 28% of all releases for felony
defendants. Thomas H. Cohen & Brian A. Reaves, Pretrial Release of Felony De-
fendants in State Courts 1 (Bureau of Justice Statistics, Nov. 2007),
https://www.bjs.gov/content/pub/pdf/prfdsc.pdf. Unsurprisingly, as release with-
out financial requirements has become rarer, the use of commercial security bonds has proliferated.4 See, e.g., Justice Policy Institute, Bail Fail: Why the U.S. should
3 The increase in the pretrial population has occurred against the larger backdrop of increased incarceration rates nationally. See National Research Council, The Growth of Incarceration in the United States 4 (Jeremy Travis et al. eds., The National Academies Press, 2014), http://johnjay.jjay.cuny.edu/nrc/ NAS_report_on_incarceration.pdf (following a fifty-year period of stability, the rate of incarceration in the U.S. has more than quadrupled since the early 1970s); Minton & Zeng, supra at 1 (2,168,400 total persons in custody in prison or jail in 2015). 4 One study reveals that the Philippines is the only other country in the world that utilizes commercial bondsmen. F.E. Devine, Commercial Bail Bonding, A Comparison of Common Law Alternatives 9-13 (Praeger Publishers, 1991). In England and many other countries, commercial bond contracts are illegal. Id. at 41-58.
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end the practice of using money for bail 2 (September 2012), http:// www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf (the use of financial release, primarily through commercial bonds, increased by 32% from 1992 to 2006).
2. Pretrial detention exacts considerable costs on individual defendants and our criminal justice system.
Most jail inmates are not being held for violent offenses. See Doris J. James, Profile of Jail Inmates, 2002 3 (Bureau of Justice Statistics, 2004) https://www.bjs.gov/content/pub/pdf/pji02.pdf (in 2002, 74% of jail inmates were being held for nonviolent offenses). But most jail inmates do come from the most disadvantaged segments of our society.5 As discussed below, the effects of pretrial detention frequently compound pre-existing disadvantages.
CCJ has recognized that the decision to release or detain a defendant has a “significant, and sometimes determinative” impact on individual defendants and their families. See Conference of Chief Justices, Resolution 3, Endorsing the
5 See, e.g., Travis et al., supra at 2, 5-7 (the incarcerated “comprise mainly minority men under 40, poorly educated, and often carrying additional deficits of drug and alcohol addiction, mental and physical illness, and a lack of work preparation or experience”); Vera Institute, supra at 11 (47% of jail inmates lack high-school diploma or GED); Jennifer Bronson, Laura M. Maruschak & Marcus Berzofsky, Disabilities Among Prison and Jail Inmates, 2011-12 1 (Bureau of Justice Statistics, Dec. 2015), https://www.bjs.gov/content/pub/pdf/dpji1112.pdf (40% of jail inmates report having at least one disability, a rate 4 times greater than the general population).
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Conference of State Court Administrators Policy Paper on Evidence-Based Pretrial Release (January 30, 2013), http://www.pretrial.org/wp-content/uploads/ 2013/05/CCJ-Resolution-on-Pretrial.pdf. Detention often entails loss of employment, home, and social-support structures. Id. CCJ is also concerned that defendants detained pretrial may “receive more severe sentences, [be] offered less attractive plea bargains and [be] more likely to become reentry clients because of their pretrial detention regardless of charge or criminal history.” Id. (citation and quotation omitted); see also Justice Policy Institute, supra at 3.
Beyond the frequently crippling effects on individual defendants and their families, burgeoning pretrial-detention systems place great strain on jails and consume ever-increasing proportions of state and local budgets. See Tracey Kyckelhahn, Local Government Corrections Expenditures, FY 2005-2011 1-4, 7 (Bureau of Justice Statistics, Dec. 2013), https://www.bjs.gov/content/pub/pdf/ lgcefy0511.pdf (in 2011, local governments spent $26.2 billion on corrections); Minton & Zeng, supra at 6 (in 2015, 24% of jail jurisdictions with an average daily population of 1,000 to 2,499 inmates were operating at over 100% capacity). The estimated annual cost of incarcerating pretrial defendants is $9 billion. Laura and John Arnold Foundation, Pretrial Criminal Justice Research 1 (Nov. 2013), https://www.pretrial.org/download/featured/Pretrial%20Criminal%20Justice% 20Research%20Brief%20-%20LJAF%202013.pdf.
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While the purpose of bail is to facilitate release while ensuring future
appearance and public safety, in practice most current systems inflict immense
human and financial cost while selectively and increasingly denying pretrial liberty
to society’s most vulnerable members. As a singularly outstanding prosecutor and
jurist once observed:
The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense. Stack v. Boyle, 342 U.S. 1, 7-8 (1951) (Jackson, J., concurring) (emphasis added).
Taken together, these concerns pose a further concern for CCJ—that reliance on
money-bail systems without appropriately considering risk erodes public trust in the administration of justice.6
6 See, e.g., Lake Research Partners, Support for Risk Assessment Programs Nationwide (July 19, 2013), https://www.pretrial.org/download/advocacy/Support %20for%20Risk%20Assessment%20Nationwide%20-%20Lake%20Research% 20Partners.pdf (while 70% of those surveyed support replacing money bail with risk assessments, “the majority of voters are uninformed of the current situation 33% of voters believe risk assessment already exists and 30% are unsure,” while 36% “know risk assessment programs are not happening.”).
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B. Despite general consensus and some notable reform, the promise of equal pretrial treatment for indigent defendants remains elusive. 1. Early bail reform efforts identified the fundamental flaws that characterize current bail practices in many state and local jurisdictions. The shortcomings of a bail system predicated solely on monetary con-
ditions of release have been long recognized.7 In signing the Bail Reform Act of 1966, for example, President Lyndon Johnson stated that “[the bail] system has endured—archaic, unjust, and virtually unexamined—ever since the Judiciary Act of 1789. Because of the bail system, the scales of justice have been weighted for almost two centuries not with fact, nor law, nor mercy. They have been weighted with money.” Remarks at the Signing of the Bail Reform Act of 1966 (June 22, 1966), http://www.presidency.ucsb.edu/ws/?pid=27666.
The 1966 Act’s stated purpose was “to revise the practices relating to bail to assure that all persons, regardless of their financial status, shall not needlessly be detained . . . when detention serves neither the ends of justice nor the pub-
7 In 1927, Dr. Arthur Beeley’s research on Chicago’s bail system concluded that “[t]he alternative bail processes are employed altogether too sparingly,” and that bail “is determined arbitrarily and with little or no regard to the personality, the social history, and financial ability of the accused.” Arthur L. Beeley, The Bail System in Chicago 155 (Univ. of Chicago Press, 1927). Beeley lamented that standardized bail “according to the offense charged is diametrically opposed to the spirit and purpose of the bail law.” Id.
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lic interest.”8 Bail Reform Act of 1966, Pub. L. No. 89-465, 80 Stat. 214, § 2 (1966).9 To that end, the Act established a presumption in favor of release on personal recognizance or unsecured bond in federal courts for noncapital offenses. Id. § 3(a) (adopting new version of 18 U.S.C. § 3146(a)).10 The Act also required consideration of alternative conditions of release and an individualized assessment to determine which conditions of release would reasonably assure a defendant’s appearance, including consideration of financial resources. Id. (new 18 U.S.C. § 3146(a) & (b)).11 Following the Act’s passage, pretrial detention rates in the states also fell with increased reliance on non-financial release conditions. See Timothy R. Schnacke, Michael R. Jones and Claire M. B. Brooker, The History of Bail and Pretrial Release 12-13 (Pretrial Justice Institute, Sep. 2010), http://www.pretrial.org/download/pji-reports/PJI-History%20of%20Bail%20 Revised.pdf.
This era of reform, however, was soon replaced by public concern
8 Nearly seventy years earlier, the British Parliament addressed this problem in the Bail Act of 1898, which authorized judicial officers to “dispense with sureties, if, in [their] opinion, the so dispensing will not tend to defeat the ends of justice.” Hermine Herta Meyer, Constitutionality of Pretrial Detention, 60 Geo. L. J. 1381, 1159 (June 1972) (quotations omitted) (quoting the Bail Act of 1898). 9 Repealed by Bail Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1978 (1984) (codified as amended at 18 U.S.C. §§ 3141-56). 10 Now codified, as amended, at 18 U.S.C. § 3142(b). 11 Now codified, as amended, at 18 U.S.C. § 3142(c) & (g).
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over rising crime rates. Congress passed the District of Columbia Court Reform and Criminal Procedure Act of 1970 and the Bail Reform Act of 1984 (part of the Comprehensive Crime Control Act of 1984), which established “the safety of any other person or the community” as a basis for limiting pretrial freedom. Pub. L. No. 91-358, 84 Stat. 473, § 23-1321(a) (1970); Pub. L. No. 98-473, 98 Stat. 1977, § 3142(b) (1984). The 1984 Act also expanded the availability of pretrial detention for certain categories of offenses and offenders. Pub. L. 98-473, 98 Stat. 1979, § 3142(d) & (e) (1984). Since the 1984 Act, the general trend in most federal and state courts has been an increase in pretrial detention. See, e.g., https://www.bjs.gov/content/pub/pdf/prd-bra84.pdf (documenting increase after the 1984 Act).
2. Current bail reform practices will remain largely stalled pending clearly articulated constitutional principles that protect public safety and the pretrial rights of indigent defendants.
While pretrial-detention rates have increased and non-financial conditions have plummeted, broad support has developed among many who study the criminal-justice system for evidence-based pretrial decisions, including “risk assessment and fair and transparent preventive detention.” Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform 93 (National Institute of Corrections, Aug. 2014), http://static.nicic.gov/UserShared/2014-11-05_final_bail_fundamentals_
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september_8,_2014.pdf. Prominent supporters include the National Association of Counties, International Association of Chiefs of Police, Association of Prosecuting Attorneys, American Council of Chief Defenders, National Association of Criminal Defense Lawyers, American Jail Association, American Bar Association, National Judicial College, National Sheriff’s Association, American Probation and Parole Association, and National Association of Pretrial Services Agencies, as well as CCJ and COSCA. Id.
Many, although not all, studies have confirmed the effectiveness of alternative ways to ensure indigent defendants’ appearance. See, e.g., Pretrial Services Agency for the District of Columbia, Research and Data, https://www.psa.gov/?q=data/performance_measures (in fiscal year 2015, 90% of released defendants made all court appearances, 91% were not rearrested while on release, and 98% were not arrested for a violent crime while on release). Responding to this impetus, various state and local jurisdictions have enacted, or are considering, comprehensive or partial pretrial-bail reform. On paper, this movement appears impressive, but it is hampered by disagreement about whether various proposals are constitutionally required or merely good policy. If the constitutional paradigm were settled, all states could use those principles as a baseline, while being free to experiment, improvise, and adjust to local conditions as appropriate.
Just this year, Connecticut, Illinois, Montana, and Nebraska have
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passed pretrial justice reform legislation.12 Other states mounted serious attempts
at reform; some may yet pass. Most efforts have been legislative initiatives, but
the highest courts of Arizona and Maryland have reformed the pretrial process by judicial rule,13 and the highest courts in Missouri and Washington have created pretrial-reform task forces.14 U.S. Senators Kamala Harris and Rand Paul recently
introduced legislation to provide grants to states to “encourage the replacement of
the use of payment of secured money bail as a condition of pretrial release in criminal cases, and for other purposes.”15
State-court judicial leaders, keenly aware of the potential injustices
and systemic costs of excessive reliance on monetary bail, have been at the fore-
front of reform. In New Mexico, bail reform was sparked by a state supreme court
decision holding that the use of bail to detain a defendant when less restrictive
conditions of release would protect the public violated New Mexico’s constitution 12 H.R. 7044, Gen. Assemb., Jan. Sess. (Conn. 2017); S.B. 2034, 100th Gen. Assemb., 1st Reg. Sess. (Ill. 2017); S.B. 59, 65th Leg., 2017 Sess. (Mont. 2017); L.B. 259, 105th Leg., 1st Reg. Sess. (Neb. 2017). 13 Supreme Court of Arizona, Order No. R-16-0041, Dec. 14, 2016 (effective April 3, 2017); Court of Appeals of Maryland, Rules Order, Feb. 17, 2017 (effective July 1, 2017). 14 Patricia Breckenridge, C.J. Sup. Ct. Mo., State of the Judiciary Address (Jan. 24, 2017), https://www.courts.mo.gov/page.jsp?id=109213; Washington Pretrial Reform Task Force launched to review risk assessment and release practices, Washington Courts (June 22, 2017), https://www.courts.wa.gov/newsinfo/ ?fa=newsinfo.pressdetail&newsid=12727. 15 Pretrial Integrity and Safety Act of 2017, S. 1593, 115th Cong. § 2 (2017).
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and court rules.16 The voters amended the New Mexico Constitution in 2016 to
enshrine that holding, with Chief Justice Charles Daniels lending active support to the campaign.17 New Jersey Chief Justice Stuart Rabner chaired the Joint Commit-
tee on Criminal Justice that recommended sweeping bail reforms that were enacted in 2014, and he has remained a vocal proponent of the reforms.18 Arizona’s new
rules were based on recommendations of a task force on fines, fees, and pretrialrelease policies appointed by Arizona Chief Justice Scott Bales.19
Despite these advances, both longtime state and local practices and
the newly-enacted reforms vary widely. Only Arizona, Maryland, and New Mexi-
co expressly forbid imposing financial conditions of release on a defendant if the result is continued detention solely because of inability to pay.20 In twenty-one
states and the District of Columbia, there is a statutory presumption that any de-
16 State v. Brown, 338 P.3d 1276, 1278 (N.M. 2014). 17 Dave Tomlin, New Mexico Chief Justice Daniels Backs Bail Reform Amendment, Albuquerque Journal (July 20, 2016), https://www.abqjournal.com/811174/ nm-chief-justice-daniels-backs-bail-reform-amendment.html. 18 Report of the Joint Committee on Criminal Justice (March 10, 2014), https://www.judiciary.state.nj.us/courts/assets/criminal/finalreport3202014.pdf; Stuart Rabner, Opinion, Chief justice: Bail reform puts N.J. at the forefront of fairness, NJ.com (Jan 9, 2017), http://www.nj.com/opinion/index.ssf/2017/01/ nj_chief_justice_bail_reform_puts_nj_at_the_forefr.html). 19 Supreme Court of Arizona, Order No. R-16-0041 (Dec. 14, 2016); Supreme Court of Arizona, Administrative Order No. 2016-16 (March 3, 2016). 20 ARIZ. R. CRIM. P. 7.3(b)(2); Md. Rule 4-216.1(e)(1)(A); N.M. CONST. art. III, § 13.
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fendant eligible for pretrial release shall be released on personal recognizance or unsecured bond unless the court determines that the defendant is a flight risk or a danger to the community.21 Other states have made more modest reforms in recent years. Connecticut requires that most misdemeanor defendants be released on personal recognizance or unsecured bond.22 Colorado has similarly eliminated secured money bond for certain classes of low-risk defendants.23 Nebraska now requires judges to consider a defendant’s ability to pay as one factor when setting bond and to impose the “least onerous” conditions of release.24 And Indiana’s Criminal Rule 26 advises courts that they “should” release low-risk defendants without money bail and “should” use a risk assessment tool in setting conditions of release.25
More telling than these success stories, however, are reports from jurisdictions where reform has been thwarted. In Texas, an ambitious bail-reform bill with wide bipartisan support based on two years of research from the Texas
21 Guidance for Setting Release Conditions, National Conference of State Legislatures (May 13, 2015), http://www.ncsl.org/research/civil-and-criminal-justice/ guidance-for-setting-release-conditions.aspx. 22 H.R. 7044, Gen. Assemb., Jan. Sess. (Conn. 2017). 23 COLO. REV. STAT. § 16-4-113; § 16-4-103 (amended by 2013 pretrial reform legislation). 24 L.B. 259, 105th Leg., 1st Reg. Sess. (Neb. 2017). 25 IND. R. CRIM. P. 26 (adopted by 2016 rules order).
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Judicial Council passed the Senate but failed to advance to the floor of the lower house.26 In California, a bail reform bill introduced in the Assembly was voted down by a narrow margin, and a nearly identical bill that passed the Senate appears doomed to fail.27 In those states, achieving bail reform was a priority for many individuals and groups, but defeating it was the priority for those whose livelihood depends on widespread impositions of monetary bail. And while some states use task forces or pilot programs as a precursor to larger reforms, others use such techniques to deflect systemic change. In more than a few states, indeed, the political culture keeps bail reform entirely off the policy agenda.
Even in states where pretrial reforms are well underway, their permanency is far from assured. Just four months after New Jersey’s historic bail-reform act took effect, for example, the Attorney General successfully convinced the Supreme Court to change the decision-making framework so that pretrial detention would be automatically recommended for most gun crimes and for certain repeat
26 S.B. 1338, 85th. Leg., R.S. (Tex. 2017). 27 A.B. 42, 2016-2017 Reg. Sess. (Cal. 2017); S.B. 10, 2016-2017 Reg. Sess. Jazmine Ulloa, Legislation to overhaul bail reform in California hits a hurdle in Assembly, Los Angeles Times (June 1, 2017), http://www.latimes.com/politics/ essential/la-pol-ca-essential-politics-updates-legislation-to-overhaul-bail-reformin-1496385464-htmlstory.html.
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offenders.28 In Maryland’s 2017 legislative session, multiple bills were introduced to repeal or modify the Court of Appeals’ rule prohibiting money bail for most indigent defendants.29
Without clear constitutional principles establishing the conditions under which indigent arrestees may be held pending trial, state and local bail reforms will continue to be haphazard and uneven. Absent state court decisions mandating definite rights under state or federal constitutional provisions, many policymaking bodies and many individual judges will never muster the will to change local rules and practices which automatically default to money bail. Conversely, those reforms that local jurisdictions do undertake may prove too ambitious to secure permanent approval or too timid to rectify real constitutional deficiencies. Clarifying what the Constitution requires will facilitate reform initiatives, giving confidence to policymakers that their efforts will not be in vain.
28 Supreme Court Approves Changes to Pretrial Release Recommendations for Gun Crimes, Repeat Offenders, New Jersey Courts News Release (May 25, 2017), https://www.judiciary.state.nj.us/pressrel/2017/pr051725a.pdf); Attorney General Strengthens Bail Reform Directive to Better Ensure that Dangerous and Recidivist Criminals are Kept in Jail Pending Trial, Office of the Attorney General of the State of New Jersey News Release (May 24, 2017), http://nj.gov/oag/ newsreleases17/pr20170524c.html). 29 Changes to Md. bail system appear unlikely to pass General Assembly this year, Washington Post (March 16, 2017), http://wapo.st/2nsVpui? tid=ss_mail&utm_term=.1c753337ebb3.
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II. The Fourteenth Amendment prohibits the use of monetary bail that results in the detention of indigent defendants solely due to inability to pay. CCJ takes no position on whether the district court reached the right
result or imposed the right remedy on the particular record in this case. But it does believe that one essential premise should accompany any analysis: some bail systems do violate the constitutional guarantees of indigent defendants.
A. The Supreme Court has long held that special burdens cannot be imposed on indigent criminal defendants. The Supreme Court has consistently reaffirmed the principle that due
process and equal protection serve “the central aim of our entire judicial system— all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court,’” such that “at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like [indigent defendants] from invidious discriminations.” Griffin v. Illinois, 351 U.S. 12, 17-18 (1956) (citations omitted; emphasis added). In practice, “[p]roviding equal justice for poor and rich, weak and powerful alike is an age-old problem.” Id. at 16. Some factors contributing to the problem may be beyond the reach of the U.S. Constitution, but others may be rooted in practices that, whether by long-standing custom or recent innovation, violate the fundamental principle of equal justice under the law.
In Griffin, the petitioners’ indigence left them unable to purchase a
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transcript of the trial proceedings, which Illinois required for direct appellate review by writ of error. Id. at 13-14. Although Illinois was not required to provide appellate review, it could not choose to “do so in a way that discriminates against some convicted defendants on account of their poverty.” Id. at 18. In so holding, the Court emphasized that “to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside.” Id. at 20. The Court remanded to the Supreme Court of Illinois to develop procedures for securing “adequate and effective appellate review to indigent defendants.” Id. at 20.
Thereafter, the Court reaffirmed its commitment to these principles in the context of nonpayment of a fine, which operated to extend the sentence of an indigent defendant beyond the maximum term otherwise allowed by law. Williams v. Illinois, 399 U.S. 235 (1970). Applying Griffin, the Court held that involuntary nonpayment—indigence—could not lead to imprisonment beyond the maximum term. Id. at 241, 244. As in Griffin, the facially neutral statute at issue “work[ed] invidious discrimination solely” due to inability to pay, with the result that “the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.” Id. at 242.
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In Tate v. Short, 401 U.S. 395 (1971), the Supreme Court held that a state may not establish fine-only offenses and then “convert the fine into a prison term for an indigent defendant without the means to pay his fine.” Id. at 399. Imprisonment of an indigent defendant who is unable to pay a fine does not advance the state’s interests in punishment or revenue generation, and the state has alternative methods for securing its interest in payment of fines. Id. at 399.
In Bearden v. Georgia, 461 U.S. 660 (1983), the Court explained that “[d]ue process and equal protection principles converge in the Court’s analysis” of cases involving indigent criminal defendants, so that the inquiry under either clause is “substantially similar.” Id. at 665-66. Applying this framework, the Court held that “in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay.” Id. at 672. If the Court finds that the probationer was unable to pay, it “must consider alternate measures of punishment other than imprisonment.” Id. A probationer who has made bona fide efforts to pay may not be imprisoned, as to do so “would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. at 672-73.
In reaching this conclusion, the Court closely examined Georgia’s stated interests in restitution, rehabilitation, public safety, punishment, and deter-
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rence. As to restitution, the Court noted that revoking probation “will not make restitution suddenly forthcoming.” Id. at 670. With respect to rehabilitation and protecting society, the Court held that “[g]iven the significant interest of the individual in remaining on probation, [] the State cannot justify incarcerating a probationer . . . solely by lumping him together with other poor persons and thereby classifying him as dangerous. This would be little more than punishing a person for his poverty.” Id. at 671 (internal citations omitted).
B. If special burdens cannot constitutionally be imposed on indigents convicted of a crime, still less should they be imposed on indigents merely charged with a crime. While the Supreme Court has not explicitly extended the Bearden
lines of cases to pretrial criminal proceedings, at least one justice long ago “conclude[d] that no man should be denied release because of indigence. Instead, under our constitutional system, a man is entitled to be released on ‘personal recognizance’ where other relevant factors make it reasonable to believe that he will comply with the orders of the Court.” Bandy v. United States, 82 S. Ct. 11, 13 (1961) (Douglas, J.) (denying applications for release on personal recognizance because “question of whether a single Justice had power to fix bail pending disposition of petition for certiorari to review denial of reduction of bail” was unresolved). As explained in Bandy, the use of bail “is based on the assumption that a defendant has property. To continue to demand a substantial bond which the defendant is un-
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able to secure raises considerable problems for the equal administration of the
law.” Id. at 12.
Thus, all the concerns that attend post-conviction deprivations based
on indigence apply with even greater force where a defendant has not been con-
victed of a crime. See Id. at 12-13 (in addition to the denial of pretrial liberty, if
the defendant’s case is reversed, “he will have served all or part of a sentence un-
der an erroneous judgment. Imprisoned, a man may have no opportunity to inves-
tigate his case, to cooperate with his counsel, to earn the money that is still neces-
sary for the fullest use of his right to appeal.”). If a state may not imprison con-
victed indigent defendants solely “on account of their poverty,” how can a state
constitutionally detain presumably innocent persons for the same reason? An en
banc Fifth Circuit decision acknowledged the heightened constitutional concerns at
stake in this precise context:
At the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible. The punitive and heavily burdensome nature of pretrial confinement has been the subject of convincing commentary. We view such deprivation of liberty of one who is accused but not convicted of crime as presenting a question having broader effects and constitutional implications than would appear from a rule stated solely for the protection of indigents. . . . [S]uch individuals remain clothed with a presumption of innocence and with their constitutional guarantees intact. Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc) (citations omit-
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ted; emphasis added). Pugh declined to hold that Florida’s bail rule was facially unconstitutional for failure to include a presumption against monetary bail in the case of indigent defendants because the “rule mandates that ‘all relevant factors’ be considered in determining ‘what form of release is necessary to assure the defendant’s appearance.’” Id. at 1058. But, the Court added, “[w]e have no doubt that in the case of an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, pretrial confinement for inability to post money bail would constitute imposition of an excessive restraint.” Id. at 1058. Applying Pugh, then-Chief Judge Mills concluded that “the right to equal protection requires the court to consider all factors when setting bail, and requires that an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, not suffer pretrial confinement because of his inability to post monetary bail.” Carlisle v. Desoto Cnty., Miss., No. 2:09CV212-M-A, 2010 WL 3894114, at *5 (N.D. Miss. Sept. 30, 2010) (citing Pugh, 572 F.2d at 1058).
Courts across the nation have similarly concluded that it is unconstitutional to detain an indigent defendant pretrial solely due to inability to pay monetary bail. See, e.g., Jones v. City of Clanton, No. 215CV34-MHT, 2015 WL 5387219, at *2 (M.D. Ala. Sept. 14, 2015); Martinez v. City of Dodge City, No. 2:15-cv-09344, 2016 WL 9051913, at *1 (D. Kan. April 26, 2016) (slip op.); Lee v. Lawson, 375 So.2d 1019 (Miss. 1979); Robertson v. Goldman, 369 S.E.2d 888,
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891 (W.Va. 1988). Moreover, using monetary bail to detain indigent defendants
implicates the Eighth Amendment, which instructs that “[e]xcessive bail shall not
be required[.]” U.S. CONST. amend. VIII. While the plaintiffs here did not bring
an Eighth Amendment complaint, its strictures are clearly implicated when liberty
is denied solely because of indigence.30 “Since the function of bail is limited, the
fixing of bail for any individual defendant must be based upon standards relevant
to the purpose of assuring the presence of that defendant.” Stack, 342 U.S. at 5.
Thus, “[b]ail set at a figure higher than an amount reasonably calculated to [assure
the presence of the accused] is ‘excessive’ under the Eighth Amendment.” Id.
Therefore, a financial condition of release that operates to detain an
indigent defendant must be based on a finding that such condition is necessary to
30 While not directly addressing the issue, the Supreme Court has indicated that the Eighth Amendment’s prohibition against excessive bail applies to the states through the Fourteenth Amendment. See McDonald v. City of Chicago, Ill., 561 U.S. 742, 764 n.12 (2010) (listing the excessive bail clause among the Bill of Rights provisions incorporated by the Supreme Court); Schlib v. Kuebel, 404 U.S. 357, 365 (1971) (“Bail, of course, is basic to our system of law . . . and the Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment.”). Other circuits have explicitly held that the clause is incorporated to the states. See Meechaicum v. Fountain, 696 F.2d 790, 791 (10th Cir. 1983); Sistrunk v. Lyons, 646 F.2d 64, 70-71 (3d Cir. 1981); Hunt v. Roth, 648 F.2d 1148, 1156 (8th Cir. 1981), vacated Murphy v. Hunt, 455 U.S. 478 (1982) (vacated on other grounds); U.S. ex rel. Goodman v. Kehl, 456 F.2d 863, 868 (2d Cir. 1972). In this vein, this Court has stated that “[t]he right to be free from excessive bail underlies the entire structure of the constitutional rights enumerated in the Bill of Rights.” United States v. Abrahams, 604 F.2d 386, 393 (5th Cir. 1979).
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secure the state’s interest in ensuring appearance at trial or public safety. Further, because a defendant has a protected interest in pretrial liberty, any deprivation of that liberty must comport with the requirements of procedural due process. See United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”); Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010) (“the right of an accused to freedom pending trial is inherent in the concept of a liberty interest protected by the due process clause of the Fourteenth Amendment.”) (citation and quotation omitted). In Salerno, the Court rejected a facial challenge to the adequacy of the pretrial detention procedures required by the 1984 Act and held that the Act’s “extensive safeguards” satisfied the requirements of due process. Salerno, 481 U.S. at 751-52 (describing procedures). Salerno upholds procedural safeguards for defendants “arrested for a specific category of extremely serious offenses,” that “Congress specifically found . . . more likely to be responsible for dangerous acts in the community after arrest.” An indigent defendant deprived of pretrial liberty is no less entitled to the safeguards of due process.
CONCLUSION For the foregoing reasons, CCJ respectfully requests that the Court address the significant and pressing constitutional issues in this appeal by articulating the constitutional principles that, while protecting public safety, likewise pro-
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tect the pretrial rights of indigent defendants.

Dated: August 9, 2017

Respectfully submitted,

BAKER BOTTS L.L.P.

By: /s/ Thomas R. Phillips Thomas R. Phillips Counsel of Record Texas State Bar No. 00000022 tom.phillips@bakerbotts.com Evan A. Young Texas State Bar No. 24058192 evan.young@bakerbotts.com Janet M. Himmel Texas State Bar No. 24162509 Morgan M. Menchaca Texas State Bar No. 24103877 Mary Margaret Roark Texas State Bar No. 24102418 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701-4078 T: (512) 322-2500 F: (512) 322-2501
ATTORNEYS FOR AMICUS CURIAE CONFERENCE OF CHIEF JUSTICES

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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the length limits of Fed. R. App. P. 29(a)(5) and the type-volume limits of Fed. R. App. P. 32(a)(7) because, excluding the items exempted by Fed. R. App. R. 32(f), this brief contains 6,258 words. I further certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word Times New Roman 14-point font.
/s/ Thomas R. Phillips Thomas R. Phillips
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CERTIFICATE OF SERVICE I hereby certify that on August 9, 2017, I electronically filed a copy of

the foregoing brief with the Clerk of the Court for the United States Court of Ap-

peals for the Fifth Circuit by using the CM/ECF system. I certify that all partici-

pants in this case are registered CM/ECF users and that service will be accom-

plished by the CM/ECF system.

Michael Gervais mgervais@susmangodfrey.com Neal Stuart Manne nmanne@susmangodfrey.com Alexandra Giselle White lwhite@susmangodfrey.com Alejandra C. Salinas Krisina Janaye Zuniga krisina.zuniga@susmangodfrey.com SUSMAN GODFREY LLP 32nd Floor 1301 Avenue of the Americas New York, NY 10019

John E. O’Neill joneill@winston.com John R. Keville jkeville@winston.com Sheryl Anne Falk SFalk@winston.com Robert L. Green rlgreen@winston.com WINSTON & STRAWN, LLP 25th Floor 1111 Louisiana Street Houston, TX 77002

Rebecca Bernhardt rbernhardt@fairdefense.org Susanne Ashley Pringle springle@fairdefense.org TEXAS FAIR DEFENSE PROJECT 314 E. Highland Mall Boulevard Austin, TX 78752

Charles Justin Cooper ccooper@cooperkirk.com Michael Kirk mkirk@cooperkirk.com William C. Marra wmarra@cooperkirk.com John David Ohlendorf johlendorf@cooperkirk.com Harold Reeves hreeves@cooperkirk.com COOPER & KIRK, PLLC 1523 New Hampshire Avenue, N.W. Washington, DC 20036

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Alec George Karakatsanis alec@civilrightscorps.org Elizabeth Anne Rossi elizabeth@civilrightscorps.org CIVIL RIGHTS CORPS Suite 500 910 17th Street, N.W. Washington, DC 20006
Daniel Volchok daniel.volchok@wilmerhale.com Seth Paul Waxman seth.waxman@wilmerhale.com Arpit Kumar Garg arpit.garg@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, DC 20006
Stacy R. Obenhaus sobenhaus@gardere.com Katharine D. David kdavid@gardere.com Philip J. Morgan pmorgan@gardere.com Mike Anthony Stafford mstafford@gardere.com Ben Stephens bstephens@gardere.com GARDERE WYNNE SEWELL LLP 1000 Louisiana Street, Suite 2000 Houston, TX 77002

Bruce Stephen Powers bruce.powers@cao.hctx.net John Odam john.odam@cao.hctx.net Melissa Spinks melissa.spinks@cao.hctx.net OFFICE OF THE HARRIS COUNTY ATTORNEY 15th Floor 1019 Congress Houston, TX 77002
Paul D. Clement paul.clement@kirkland.com Andrew Lawrence andrew.lawrence@kirkland.com Christopher George Michel christopher.michel@kirkland.com KIRKLAND & ELLIS LLP Suite 1200 655 15th Street, N.W. Washington, DC 20005
Ken Paxton ken.paxton@texasattorneygeneral.gov Jeffrey C. Mateer jeffrey.mateer@texasattorneygeneral.gov Scott A. Keller scott.keller@oag.texas.gov Joseph D. Hughes jody.hughes@oag.texas.gov OFFICE OF THE SOLICITOR GENERAL FOR THE STATE OF TEXAS Suite MC-059 209 W. 14th Street Austin, TX 78701

/s/ Thomas R. Phillips Thomas R. Phillips
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ADDENDUM TO BRIEF OF AMICUS CURIAE CONFERENCE OF CHIEF JUSTICES
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214

PUBLIC LAW 89-465-JUNE 22, 1966

[80 STAT.

Public Law 89-465

June 22, 1966

AN ACT

_ _rs_._1_3_s7_J_ _ To reviHe exi>'ting bail pradiee..; in courts of the United States, and for other

purposE's.

Be it enacted by the Senate and House of Repre8entatives of the

Bail Reform Act of 1966.

United State8 of America in Congre88 a88embled, That this Act may

be cited as the "Bail Reform Act of 1966".

SEc. 2. The purpose of this Act is to revise the practices relating to

bnil to assure that all _Persons, regardless of their financial status, shall

llOt needlessly be detamed pending their appearance to answer charges,

to testify, or pending appeal, when detention serves neither the ends

of justice nor the public interest.

SEc. 3. (a) Chapter 207 of title 18, United States Code, is amended

62 Stat. 821;
68Stat. 747.

by striking out section 3146 and inserting in lieu thereof the following new sections:

"§ 3146. Release in noncapital cases prior to trial

" (a) Any person charged ·with an offense, other than an offense punishable by death, shall, at his appearance before a judicial officer, be ordered relensed pending trial on his personal recognizance or upon the execution of nn unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release \vill not reasonably assure the appear:mce of the person as required. 'Vhen such a determination is made, the judicial officer shall, either in lieu of or in addition to the above
methods of release, impose the first of the following conditions of release which w·ill reasonably assure the appearance of the person for trial or, if no single condition gives that assurance, any combination
of the following conditions: " (1) place the person in the custody of a designated person or
organization agreeing to supervise him; "(2) place restrictions on the travel, association, or place of
abode of the person during the period of release; "(3) require the execution of an appearance bond in a specified
amount and the deposit in the registry of the court, in cash or other security as directed, of a sum not to exceed 10 per centum of the amount of the bond, such deposit to be returned upon the performance of the conditions of release;
" (4) require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or
" (5) impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours. "(b) In determining ·which conditions of release will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused~s family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at, court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.
" (c) A judicial officer authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such I?erson of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation.

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80 STAT. J

PUBLIC LAW 89-465-JUNE 22, 1966

215

" (d) A person for whom conditions of release are imposed and 'vho after twenty-four hours from the time of the release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon application, be entitled to ham the conditions reviewed by the judicial officer who imposed them. "Gnless the conditions of release are amended and the person is thereupon released, the judicial officer shall set forth in writing the reasons for requiring the conditions imposed. A person \vho is ordered released on a condition which requires that he return to custody after specified hours shall, upon application, be entitled to lL review by the judicial officer who imposed the condition. l~nless the requirement is remoYed and the person is thereupon released on another condition, the judicial officer shall set forth in writing the reasons for continuing the requirement. In the eYent that the judicial officer who imposed conditions of release is not available, any other judicial officer in the district may review such conditions.
'"(e) A judicial officer ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release: Pr·o1.:ided, That, if the imposition of such additional or different conditions results in the detention of the person as a result of his inability to meet such conditions or in the release of the person on a condition requiring him to return to custody after specified hours, the provisions of subsection (d) shall apply.
" (f) Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.
"(g) Nothing contained in this section shall be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security ·where such disposition is authorized by the court.

"§ 3147. Appeal from conditions of release

"(a) A person who is detained, or whose release on a condition

requiring him to return to custody after specified hours is continued,

after review of his application pursuant ki section 3146(d) or section

:3146(e) by a judicial officer, other than a judge of the court having

original jurisdiction over the offense with which he is charged or

a judge of a United States court of appeals or a Justice of the Supreme

Court, may move the court having original jurisdiction over the offense

with which he is charged to amend the order. Said motion shall be

determined promptly.

·

"(b) In any case in which a person is detained after (1) a court

denies a motion under subsection (a) to amend an order imposing

conditions of release, or (2) conditions of release have been imposed

or amended by a judge of the court having original jurisdiction over

the offense charged, an appeal may be taken to the court having appel-

late jurisdiction over such court. Any order so appealed shall be

affirmed if it is supported by the proceedings below. If the order

is not so supported, the court may remand the case for a further

hearing, or may, with or without additional evidence, order the person

released pursuant to section 3146 (a). The appeal shall be determined

promptly.

"§ 3148. Release in capital cases or after conviction

"A person (1) \vho is charged with an offense punishable by death, or (2) who has been convicted of an offense and is either awaiting sentence or has filed an appeal or a petition for a writ of certiorari, shall be treated in accordance with the provisions of section 3146 unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose

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Case: 17-20333 Document: 00514109764 Page: 46 Date Filed: 08/09/2017

216

PUBLIC LAW 89-465-JUNE 22, 1966

[80 STAT.

a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is :frivolous or taken for delay, the person may be ordered detained. The :provisions of section 3147 shall not apply to persons described in this section: Provided, That other rights to judicial review of conditions of release or orders of detention shall not be affected.
"§ 3149. Release of material witnesses
"If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpena, a judicial officer shall impose conditions of release pursuant to section 3146. No material witness shall be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
"§ 3150. Penalties for failure to appear
"Whoever, having been released pursuant to this chapter, .willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which 'vas given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or ·while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both, or (2) if he was released in connection with a ·charge of misdemeanor, be fined not more than the maximum provided for such misdemeanor or imprisoned for not more than one year, or both, or (3) if he was released for appearance as a material wi'.:ness, shall be fined not more than $1,000 or imprisoned for not more than one year, or both.
"§ 3151. Contempt
"Nothing in this chapter shall interfere with or prevent the exercise by any court of the United States of its power to punish for contempt.
"§ 3152. Definitions
"As used in sections 3146-3150 of this chapter" (1) The term 'judicial officer' means, unless otherwise indi-
cated, any person or court authorized pursuant to section 3041 of this title, or the Federal Rules of Criminal Procedure, to bail or otherwise release a person before trial or sentencing or pending appeal in a court of the United States, and any judge of the District of Columbia Court of General Sessions; and
"(2) The term 'offense' means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established J?y Act of Congress." (b) The ana]Y.sis of chapter 207 of title 18, United States Code, is amended by striking out the last item and inserting in lieu thereof the following:
"3146. Release in noncapital eases prior to trial. "3147. Appeal from conditions of release. "3148. Release in caoital case8 or after conyhtion. "3149. Release of material witnesses. "3150. Penalties for failure to appear. "3151. Contempt. "3152. Definitions."

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J 80 STAT.

PUBLIC LAW 89-466-JUNE 22, 1966

217

SEc. 4. The first paragraph of section 3568 of title 18, United States

Code, is amended to read as follows:

.

"The sentence of imprisonment of any person convicted of an of-

fense shall commence to run from the date on which such person is

received at the penitentiary, reformatory, or jail for service of such

sentence. The Attorney General shall give any such person credit

toward service of his sentence for any days spent in custody in

connection with the offense or acts for which sentence was imposed.

As used in this section, the term 'offense' means any criminal offense,

other than an offense triable by court-martial, military commission,

provost court, or other military tribunal, which is in violation of an

Act of Congress and is triable in any court established by Act of

Congress."

SEC. 5. (a) The first sentence of section 3041 of title 18, United

States Code, is amended by striking out "or bailed" and inserting in

lieu thereof "or released as provided in chapter 207 of this title".

(b) Section 3141 of such title is amended by striking out all that

follows "offenders," and inserting in lieu thereof the following: "but

only a court of the United States having original jurisdiction in

criminal cases, or a justice or judge thereof, may admit to bail or other-

>vise release a person charged with an offense punishable by death."

(c) Section 3142 of such title is amei1ded by striking out "and

admitted to bail" and inserting in lieu thereof "who is released on the

execution of an appearance bail bond with one or more sureties".

(d) Section 3143 of such title is amended by striking out "admitted

to bail" and inserting in lieu thereof "released on the execution of an

appearance bail bond with one or more sureties".

(e) (1) The heading to chapter 207 of such title is amended by

striking out "BAIL" and inserting in lieu thereof "RELEASE".

(2) The table of contents to part II of such title is amended by

striking out "207. Bail"' nnd inserting in lieu thereof "207. Release''.

SEc. 6. This Act shall take effect ninety days after the date on which

it is enacted: Provided, That the provisions of section 4 shall be appli-

cable only to sentences imposed on or after the effective date.

Approved June 22, 1966.

74 Stat. 738. 62 Stat. 815. Effective date.

Public Law 89-466

AN ACT

June 22, 1966

To amend title 38, united States Code, to increase dependency and indemnity -'['-H_._R_• ...;;.3.;;..17;...;7_,_l_

compensation in certain cases.

Be it e'/Ulcted by the Senate and H ou-se of Representatives of the

Cnited States of Anierica in Congress assembled, That subsection 6:~':n~:~cy and

-!12(b), title 38, t.::"nited States Code, is amended to read as follows: indemnity compen-

''(h) In any case where the amount of dependency and indemnity compensation payable under this chapter to a widow who has children

sai~0~~at.

566 _

is less than the amount of pension which would be payable to (1)

such widow, or (2) such children if the widow were not entitled, under chapter 15 of this title had the death occurred under circumstanoos 38 use 501 et authorizing payment of death pension, the Administrator shall pay seq.

dependency and indemnity compensation to such widow in an amount

equal to such amount of pension."

Approved June 22, 1966.

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 Case: 17-20333 Document: 00514107922 Page: 1 Date Filed: 08/08/2017

No. 17-20333
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
________________________________ MARANDA LYNN ODONNELL; ROBERT RYAN FORD; LOETHA SHANTA MCGRUDER,
Plaintiffs-Appellees,

v.

HARRIS COUNTY, TEXAS, ET AL., Defendants-Appellants.

On Appeal from the United States District Court, Southern District of Texas, No. 4:16-cv-01414
_______________________________

BRIEF OF AMICI CURIAE CURRENT AND FORMER DISTRICT AND STATE’S ATTORNEYS, STATE ATTORNEYS GENERAL, UNITED STATES ATTORNEYS, ASSISTANT UNITED STATES ATTORNEYS, AND DEPARTMENT OF JUSTICE OFFICIALS, IN SUPPORT OF PLAINTIFFS-APPELLEES _______________________________

August 8, 2017

MARY B. MCCORD Counsel of Record JOSHUA A. GELTZER ROBERT FRIEDMAN INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER 600 New Jersey Ave. NW Washington, D.C. 20001 (571) 447-3902 mbm7@georgetown.edu Counsel for Amici Curiae

Case: 17-20333 Document: 00514107922 Page: 2 Date Filed: 08/08/2017

CERTIFICATE OF INTERESTED PERSONS

Maranda ODonnell et al. v. Harris County, Texas et al., No. 17-20333

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the

outcome of this case. These representations are made in order that the judges of this

Court may evaluate possible disqualification or recusal.

Plaintiffs-Appellees
Maranda Lynn ODonnell Loetha Shantae McGruder Robert Ryan Ford

Counsel Alec Karakatsanis Elizabeth Anne Rossi CIVIL RIGHTS CORPS
Seth P. Waxman Daniel S. Volchok Arpit K. Garg WILMER CUTLER PICKERING HALE AND
DORR LLP
Michael Gervais Neal S. Manne Lexie Giselle White Alejandra C. Salinas Krisina Janaye Zuniga SUSMAN GODFREY LLP

Defendants-Appellants
Paula Goodhart Bill Harmon Natalie C. Fleming John Clinton Margaret Harris

Rebecca Bernhardt Susanne Ashley Pringle TEXAS FAIR DEFENSE PROJECT
Counsel Charles J. Cooper Michael W. Kirk Harold S. Reeves William C. Marra John D. Ohlendorf

i

Case: 17-20333 Document: 00514107922 Page: 3 Date Filed: 08/08/2017

Larry Standley Pam Derbyshire Jay Karahan Judge Analia Wilkerson Dan Spjut Judge Diane Bull Judge Robin Brown Donald Smyth Jean Hughes (Fourteen Judges for Harris County Criminal Courts of Law) Judge Mike Fields (Judge for Harris County Criminal Court of Law) Harris County, Texas Eric Stewart Hagstette Joseph Licata, III Ronald Nicholas Blanca Estella Villagomez Jill Wallace (County and Hearing Officers)
Defendants Sheriff Ed Gonzalez
Judge Darrell William Jordan
Other Interested Parties Kim K. Ogg Roy L. Austin Thomas Berg A. Bates Butler

COOPER & KIRK, PLLC
John Ellis O’Neill John R. Keville Sheryl Anne Falk Robert Lawrence Green, III Corinne Stone WINSTON AND STRAWN LLP
Bruce Powers HARRIS COUNTY ATTORNEY’S OFFICE
John Odam Melissa Spinks HARRIS COUNTY ATTORNEY’S OFFICE
Michael Anthony Stafford Katharine D. David James G. Munisteri Stacy R. Obenhaus Philip J. Morgan Benjamin R. Stephens GARDERE WYNNE SEWELL LLP
Counsel Murray Jules Fogler FOGLER, BRAR, FORD, O’NEIL & GRAY,
L.L.P. Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S OFFICE
Counsel Mary B. McCord Joshua A. Geltzer Robert Friedman INSTITUTE FOR CONSTITUTIONAL

ii

Case: 17-20333 Document: 00514107922 Page: 4 Date Filed: 08/08/2017

Robert Butterworth Bonnie Campbell Kimberly Cheney John T. Chisholm Steve Clark Tim Cole Scott Colom Thomas Corbett J. Joseph Curran Frankie Sue Del Pappa Thomas J. Donovan, Jr. Richard Doran Mark A. Dupree, Sr. Mark Earley John Farmer Brian E. Frosh Douglas Gansler Gil Garcetti George Gascón Terry Goddard Mark Gonzalez Christian A. Gossett Scott Harshbarger Peter Harvey David J. Hickton Peter Holmes Robert Johnson Peter Keisler Miriam Aroni Krinsky Scott Lassar Peg Lautenschlager Rory K. Little Pamela Marsh Mary B. McCord Barbara McQuade Kenneth Mighell Jeff Modisett Marilyn J. Mosby, Esq. Carlos R. Moreno J. Tom Morgan

ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW
CENTER
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Case: 17-20333 Document: 00514107922 Page: 5 Date Filed: 08/08/2017

Charles Oberly Jerome O’Neill James Petro Richard Pocker Earnest Preate Karl A. Racine Ira Reiner James H. Reynolds Stephen Rosenthal Donald Santarelli Carol A. Siemon Robert Spagnoletti Carter Stewart Robert Stephan James Tierney Mary Sue Terry Raúl Torrez Anthony M. Troy Cyrus R. Vance Jr. Lynneice O. Washington Francis Wikstrom William Wilmoth Grant Woods American Bail Coalition Professional Bondsmen of Texas Professional Bondsmen of Harris County State of Texas State of Arizona State of Hawai’i State of Kansas State of Louisiana State of Nebraska

Paul D. Clement Christopher G. Michel Andrew C. Lawrence KIRKLAND & ELLIS LLP Ken Paxton Jeffrey C. Mateer Scott A. Keller Joseph D. Hughes TEXAS ATTORNEY GENERAL
Mark Brnovich ARIZONA ATTORNEY GENERAL
Douglas S. Chin HAWAI’I ATTORNEY GENERAL
Derek Schmidt
iv

Case: 17-20333 Document: 00514107922 Page: 6 Date Filed: 08/08/2017

Conference of the Chief Justices

KANSAS ATTORNEY GENERAL
Jeff Landry LOUISIANA ATTORNEY GENERAL
Douglas J. Peterson NEBRASKA ATTORNEY GENERAL Thomas Phillips Evan A. Young BAKER BOTTS, L.L.P.
/s/Mary B. McCord Mary B. McCord
Counsel of Record for Amici Curiae

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Case: 17-20333 Document: 00514107922 Page: 7 Date Filed: 08/08/2017
TABLE OF CONTENTS Page
Certificate of Interested Persons ................................................................................ i Table of Contents ..................................................................................................... vi Table of Authorities ...................................................................................................v Interest of Amici Curiae.............................................................................................1 Summary of Argument ..............................................................................................1 Argument....................................................................................................................3
I. A Fair Criminal Justice System That Does Not Discriminate Based on Wealth Is Critical to Its Legitimacy ...........................................................3 A. Federal bail reform replaced a discriminatory money bail system……………………………………………………………….3 B. Individualized assessments and non-financial conditions of release, where appropriate, build confidence in the criminal justice system and are more effective than financial conditions……………………6
II. Appellants' and Their Amici's Attempts to Distinguish Supreme Court and Fifth Circuit Precedent on the Constitutional Infirmity of Wealth-Based Discrimination in the Criminal Justice System are Unavailing…………13
III. Amici's Additional Arguments Should be Rejected.................................16 A. The historical use of bail does not make discrimination based solely on inability to pay constitutionally permissible……………………16 B. Prosecutor amici do not advocate a "uniform" or "categorical" system, but a system based on individualized assessments…..……20 C. The facial neutrality of Harris County's bond schedule does not save it from constitutional infirmity…………………………………….24
Conclusion ...............................................................................................................27 Appendix: List of Amici ......................................................................................... 29 Certificate of Service ...............................................................................................34 Certificate of Compliance ……………………………………………………...…35
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Case: 17-20333 Document: 00514107922 Page: 8 Date Filed: 08/08/2017
TABLE OF AUTHORITIES
Cases Bearden v. Georgia,
461 U.S. 660 (1983)................................................................................. 15, 16, 26 Griffin v. Illinois,
351 U.S 12 (1956).......................................................................................... 15, 25 Pugh v. Rainwater,
572 F.2d 1053 (5th Cir. 1978) (en banc) ...................................................... passim Stack v. Boyle,
342 U.S. 1 (1951)....................................................................................... 3, 16, 17 Tate v. Short,
401 U.S. 395 (1971)................................................................................. 14, 15, 25 United States v. Salerno,
481 U.S. 739 (1987)..............................................................................................15 United States v. Scott,
450 F.3d 863 (9th Cir. 2006) ......................................................................... 22, 23 Williams v. Illinois,
399 U.S. 235 (1970)...................................................................................... passim Statutes 13 V.S.A. § 7554........................................................................................................7 15 M.R.S.A. § 1002 ...................................................................................................7 15 M.R.S.A. § 1026 ...................................................................................................7 18 U.S.C. § 3142 ....................................................................................................5, 6 725 ILCS 5/110-2.......................................................................................................6
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Case: 17-20333 Document: 00514107922 Page: 9 Date Filed: 08/08/2017
C.G.S.A. § 54-63b......................................................................................................6 C.G.S.A. § 54-63d......................................................................................................6 D.C. Code § 23-1321 .................................................................................................6 K.R.S. § 431.066........................................................................................................6 M.C.A. § 46-9-108 ....................................................................................................6 M.C.L.A. § 780.62 .....................................................................................................6 M.G.L. Ch. 276, § 58 .................................................................................................6 M.R.S.A. § 1002.........................................................................................................6 M.R.S.A. § 1026.........................................................................................................6 N.C.G.S.A. § 15A-534...............................................................................................7 N.H.R.S.A. § 597:2 ....................................................................................................7 N.M. Const. art. II, § 13 ......................................................................................... 6-7 Neb. Rev. Stat. § 29-901............................................................................................6 O.R.S. § 135.245........................................................................................................7 O.R.S. § 135.260........................................................................................................7 Pub. L. 89-465, 80 Stat. 214 ......................................................................................5 Pub. L. 98-473, 98 Stat. 1837 ....................................................................................5 R.I. Stat. § 12-13-1.3..................................................................................................7 S.C. Code § 17-15-10.................................................................................................7 S.D.C.L. § 23A-43-3..................................................................................................7 T.C.A. § 40-11-116 ....................................................................................................7
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Case: 17-20333 Document: 00514107922 Page: 10 Date Filed: 08/08/2017
Tex. Const. art. I, § 11................................................................................................5 Tex. Const. art. I, § 11a..............................................................................................5 Tex. Const. art. I, § 11b .............................................................................................5 Tex. Const. art. I, § 11c..............................................................................................5 W.S.A. § 969.01.........................................................................................................7 W.S.A. § 969.02.........................................................................................................7 W.S.A. § 969.03.........................................................................................................7 Rules 49 M.S.A., Rules Crim. Proc. § 3.02 .........................................................................6 Ariz. R. Crim. P. 7.2 ..................................................................................................6 Ariz. R. Crim. P. 7.3 ..................................................................................................6 Ark. R. Crim. P. 9.1 ...................................................................................................6 Ark. R. Crim. P. 9.2 ...................................................................................................6 Md. Rule 4-216.1 .......................................................................................................6 Mo. Sup. Ct. R. 33.01 ................................................................................................6 N.D.R. Crim. P. 46.....................................................................................................7 Wash. Super. Ct. Crim. R. 3.2 ...................................................................................7 Wy. R.C.R.P. 46.1......................................................................................................7 Other Authorities Arpit Gupta et al., The Heavy Costs of High Bail: Evidence from Judge
Randomization, 45 J. Leg. Studies 471 (2016) .....................................................11
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Case: 17-20333 Document: 00514107922 Page: 11 Date Filed: 08/08/2017
Arthur J. Goldberg, Equality and Governmental Action, 39 N.Y.U.L. Rev. 205 (1964) .................................................................................8
Byron L. Warnken, Warnken Report on Pretrial Release (2002) ...........................22
Christopher T. Lowenkamp & Marie VanNostrand, Exploring the Impact of Supervision on Pretrial Outcomes (2013) ............................................................10
Claire M.B. Brooker et al., The Jefferson County Bail Project: Impact Study Found Better Cost Effectiveness for Unsecured Recognizance Bonds Over Cash and Surety Bonds (2014) .............................................................................11
Clifford T. Keenan, Pretrial Services Agency for the District of Columbia, It’s About Results, Not Money (2014) .........................................................................13
Criminal Justice Policy Program, Harvard Law School, Moving Beyond Money: A Primer on Bail Reform (2016) ............................................................20
Eric Helland & Alexander Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J. L. & Econ. 93 (2004) ............................................................................ 22, 26
H.R. Rep. No. 89-1541 (1966), reprinted in 1966 U.S.C.C.A.N. 2293 ................ 3-4
Kentucky Pretrial Services, Administrative Office of the Courts (“Kentucky 2014-2016 Data”)..............................................................................10
Kentucky Pretrial Services, Administrative Office of the Courts, Pretrial Reform in Kentucky (2013) ............................................................................ 10, 12
Laura and John Arnold Foundation, Results from the First Six Months of the Public Safety Assessment-Court in Kentucky (2014) ....................................... 9-10
National Conference of State Legislatures, Trends in Pretrial Release: State Legislation (2015) .................................................................................................12
National Conference of State Legislatures, Trends in Pretrial Release: State Legislation Update (2017) ....................................................................................12
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Case: 17-20333 Document: 00514107922 Page: 12 Date Filed: 08/08/2017
Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017) ................................................................11
Pretrial Justice Institute, Pretrial Justice, How Much Does it Cost? (2017) ..........13 Pretrial Services Agency for the District of Columbia, Congressional
Budget Justification and Performance Budget Request Fiscal Year 2018 (2017) ..................................................................................... 10, 12, 13 S. Rep. No. 89-750 (1965) .....................................................................................4, 5 Southern Poverty Law Center, SPLC Prompts 50 Alabama Cities to Reform Discriminatory Bail Practices (Dec. 6, 2016) ........................................................7 Thomas H. Cohen & Brian A. Reaves, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts (2007)................................... 12, 13 Timothy R. Schnacke, National Institute of Corrections, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (2014).................................................................. 17, 18
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Case: 17-20333 Document: 00514107922 Page: 13 Date Filed: 08/08/2017
INTEREST OF AMICI CURIAE Amici curiae are 67 current and former District and State’s Attorneys, state Attorneys General, United States Attorneys, Assistant United States Attorneys, and Department of Justice officials, representing 30 states and the District of Columbia and including numerous elected and appointed officials from both political parties. Amici all have been responsible for public safety in their jurisdictions. They have a strong interest in this case because Harris County’s practice of detaining indigent misdemeanor defendants based solely on their inability to pay money bail, while others similarly situated but able to pay are released, offends the Constitution, undermines confidence in the criminal justice system, impedes the work of prosecutors, and fails to promote safer communities.1
SUMMARY OF ARGUMENT Whether elected, appointed, or career, amici current and former prosecutors and senior government officials (“prosecutors”) are accountable to their communities to pursue justice fairly and without regard to race, religion, ethnicity, gender, sexual orientation, disability, or wealth. Their work depends on building relationships with community members, so that those community members will report crimes, cooperate with law enforcement, testify in court proceedings, and sit
1 No party’s counsel authored this brief in whole or in part, and no person, other than amici curiae’s counsel, funded the preparation or submission of this brief. All parties have consented to the filing of this brief.
1

Case: 17-20333 Document: 00514107922 Page: 14 Date Filed: 08/08/2017
fairly as jurors. Fostering such relationships and thus protecting the public cannot be achieved when the legitimacy of the criminal justice system is undermined by a practice of detaining indigent misdemeanor defendants before trial solely because of their inability to pay monetary bail, while releasing similarly situated defendants who can.
The failures of wealth-based bail systems, from the personal harm inflicted on those detained to the widespread adverse impact on the justice system, led to the Federal Bail Reform Act of 1966 and similar reform efforts in many states. Reformed jurisdictions base pretrial release decisions on individualized determinations of flight risk and dangerousness, and utilize non-financial conditions of release with pretrial supervision where appropriate. In the experience of amici, these types of reformed bail practices not only are more effective than money bail at ensuring appearance, but also contribute to the legitimacy of the criminal justice system, enhance public safety, better address the underlying causes of misdemeanor offenses and recidivism, and ultimately save taxpayers money.
Amici urge this court to adhere to the principle espoused in this circuit’s en banc opinion in Pugh v. Rainwater that “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” 572 F.2d 1053, 1056 (5th Cir. 1978). Rainwater correctly relied on Supreme Court precedent invalidating state practices that resulted in the imprisonment of indigent convicted
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Case: 17-20333 Document: 00514107922 Page: 15 Date Filed: 08/08/2017
defendants based solely on their inability to pay criminal fines. Attempts by appellants and their amici to distinguish those cases are unpersuasive. Moreover, reliance on the centuries-old history of bail does not make Harris County’s practice constitutionally permissible, nor does the fact that the county’s bond schedule is facially neutral, given its discriminatory implementation.
ARGUMENT I. A Fair Criminal Justice System That Does Not Discriminate Based on
Wealth Is Critical to Its Legitimacy The Supreme Court has recognized that, [f]rom the passage of the Judiciary Act of 1789 to the present Federal Rules of Criminal Procedure, federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. Stack v. Boyle, 342 U.S. 1, 4 (1951) (citations omitted). A. Federal bail reform replaced a discriminatory money bail system As many advocates for bail reform over the decades have recognized, a bail system that detains certain people based solely on their inability to afford money bail “‘results in serious problems for defendants of limited means, imperils the effective operation of the adversary system, and may even fail to provide the most effective deterrence of nonappearance by accused persons.’” H.R. Rep. No. 89-1541 (1966),
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reprinted in 1966 U.S.C.C.A.N. 2293, 2298 (quoting report of Attorney General’s Committee on Poverty and the Administration of Criminal Justice Procedure). As the House Committee on the Judiciary recognized in its report on the Bail Reform Act of 1966, “mere incarceration is not the only evil effect of the monetary bail system. Studies have shown that failure to release has other adverse effects upon the accused’s preparation for trial, retention of employment, relations with his family, his attitude toward social justice, the outcome of the trial, and the severity of the sentence.” Id. at 2299. The Senate Committee on the Judiciary had the same view:
There was widespread agreement among witnesses that the accused who is unable to post bond, and consequently is held in pretrial detention, is severely handicapped in preparing his defense. He cannot locate witnesses, cannot consult his lawyer in private, and enters the courtroom—not in the company of an attorney—but from a cell block in the company of a marshal. Furthermore, being in detention, he is often unable to retain his job and support his family, and is made to suffer the public stigma of incarceration even though he may later be found not guilty. S. Rep. No. 89-750, at 7 (1965).2 The Federal Bail Reform Act of 1966 took the first major step toward ensuring that all persons, regardless of financial status, would have an opportunity for pretrial release. It required judicial officers to order the pretrial release of a non-capital
2 See also H.R. Rep. No. 89-1541, 1966 U.S.C.C.A.N. at 2297 (during subcommittee hearings, “all [witnesses] favored the enactment of this proposal,” except bail bondsmen).
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defendant on personal recognizance or an unsecured appearance bond unless the judicial officer determined “that such a release will not reasonably assure the appearance of the person as required.” Pub. L. 89-465, § 3(a), 80 Stat. 214, 214 (codified as amended at 18 U.S.C. § 3142). Upon such a finding, and after an individualized assessment of the defendant’s circumstances, it permitted the judicial officer to impose conditions of release, giving priority to non-financial conditions. Id. The Federal Bail Reform Act of 1984 addressed what had been purposefully unaddressed in 1966, see S. Rep. No. 89-750, at 5, permitting courts to consider dangerousness when imposing conditions of release and, in turn, permitting detention where no conditions could reasonably ensure the defendant’s appearance or public safety, though only after an individualized hearing affording the defendant due process. Pub. L. 98-473, § 203(a), 98 Stat. 1837, 1976-80 (codified at 18 U.S.C. § 3142(e)-(g)).3 Significantly, the 1984 Act also added a provision explicitly prohibiting the imposition of a financial condition that results in pretrial detention. § 203(a), 98 Stat. at 1978 (codified at 18 U.S.C. § 3142(c)(2)).
In amici’s experience, the procedures afforded under the federal bail system have been effective not only in mitigating the risk of non-appearance, but also in fashioning conditions of release that ensure public safety and protect victims, see,
3 With limited exceptions, Texas law provides that most misdemeanor defendants are bailable on sufficient sureties and cannot be detained based on dangerousness. Tex. Const. art. I, §§ 11-11c. This exercise of state rights poses no constitutional concerns.
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e.g., 18 U.S.C. § 3142(c)(1)(B)(v) (avoid contact with alleged victim), (vi) (report regularly to designated law enforcement or pretrial services agency), (viii) (refrain from possessing a firearm or dangerous weapon), and address personal circumstances that may have contributed to the unlawful behavior, see, e.g., id. § 3142(c)(1)(B)(ii) (maintain or seek employment), (iii) (maintain or commence education), (ix) (refrain from excessive use of alcohol or any non-prescribed use of controlled substances), (x) (undergo medical, psychological, or psychiatric treatment). The federal system allows custom-tailoring of conditions to individual circumstances and encourages compliance by providing that violations may result in revocation of release and prosecution for contempt of court. Id. § 3148. And all of this is accomplished without the negative consequences associated with detaining indigent defendants solely because they cannot post money bail.
B. Individualized assessments and non-financial conditions of release, where appropriate, build confidence in the criminal justice system and are more effective than financial conditions
Although many states have reformed their bail statutes to allow for different pretrial release options based on individualized determinations of flight risk and dangerousness,4 the use of monetary bail and the evils it imposes on indigents who
4 See, e.g., Arizona (Ariz. R. Crim. P. 7.2(a), 7.3); Arkansas (Ark. R. Crim. P. 9.1, 9.2(a)); Connecticut (C.G.S.A. §§ 54-63b(b), 54-63d(a), (c)); D.C. (D.C. Code § 23-1321); Illinois (725 ILCS 5/110-2); Kentucky (K.R.S. § 431.066); Maine (15 M.R.S.A. §§ 1002, 1026); Maryland (Md. Rule 4-216.1(b)); Massachusetts (M.G.L. Ch. 276, § 58); Michigan (M.C.L.A. § 780.62); Minnesota (49 M.S.A., Rules Crim. Proc. § 6.02(1)); Missouri (Mo. Sup. Ct. R. 33.01(d)-(e)); Montana (M.C.A. § 46-9-108(2)); Nebraska (Neb. Rev. Stat. § 29-901); New Mexico (N.M. Const.
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cannot pay persist in many jurisdictions today, including Harris County. As prosecutors, amici know that detention of a misdemeanor defendant before trial may result in loss of employment, shelter, education, and even child custody. The individual detained may be unable to access mental health and other medical treatment, including drug treatment. Opportunities for pretrial diversion programs, often available to those on pretrial release for misdemeanor offenses, are unavailable to detainees.5 And access to counsel may be severely hampered, undermining the preparation of a defense, enlistment of witnesses, and accumulation of evidence.
To avoid these consequences, the accused may see an early guilty plea as the most expedient way to obtain release, as many misdemeanor defendants are sentenced to time served. This in turn may result in the conviction of innocent people, caught in the Hobson’s choice between pleading guilty and being released or contesting their charges and continuing to be detained even while retaining, at least formally, the presumption of innocence. As then-Supreme Court Justice Arthur Goldberg cautioned more than 50 years ago,
art. II, § 13); North Carolina (N.C.G.S.A. § 15A-534(b)); North Dakota (N.D.R. Crim. P. 46(a)); New Hampshire (N.H.R.S.A. § 597:2); Oregon (O.R.S. §§ 135.245, 135.260); Rhode Island (R.I. Stat. § 12-13-1.3); South Carolina (S.C. Code § 17-15-10(A)); South Dakota (S.D.C.L. § 23A-433); Tennessee (T.C.A. § 40-11-116); Vermont (13 V.S.A. § 7554); Washington (Wash. Super. Ct. Crim. R. 3.2(b)); Wisconsin (W.S.A. §§ 969.01, 969.02, 969.03); Wyoming (Wy. R.C.R.P. 46.1(c)-(d)); see also Southern Poverty Law Center, SPLC Prompts 50 Alabama Cities to Reform Discriminatory Bail Practices (Dec. 6, 2016), ROA.17047. 5 Pretrial diversion programs divert misdemeanor defendants away from incarceration and address underlying factors that contribute to criminal behavior, such as drug abuse, mental illness, and veteran-related issues. See infra at 12.
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Think of the needless waste—to the individual, the family, and the community—every time a responsible person presumed by a law to be innocent is kept in jail awaiting trial solely because he is unable to raise bail money. Careful screening and release without bail should be made the rule rather than the exception throughout the country. Equality and Governmental Action, 39 N.Y.U.L. Rev. 205, 222 (1964). Many of amici prosecutors have seen firsthand the adverse consequences that can result from pretrial detention of misdemeanor defendants. In amici’s experience, individualized risk-based assessments and pretrial release with non-financial conditions where appropriate are more effective than money bail not only in mitigating the risk of non-appearance, but also in ensuring a fair criminal justice system, enhancing public safety, addressing the underlying causes of misdemeanor offenses and recidivism, and saving money. For those amici who have prosecuted in the federal, state, and local courts, the importance of a fair criminal justice system, including at the critical early moment of setting pretrial release conditions, cannot be overstated. Because the people most adversely impacted by wealth-based bail systems are often those from communities where crime is more prevalent, victims and witnesses on whom prosecutors rely for evidence and testimony often are or have been defendants in criminal cases, especially misdemeanor cases. And it is quite common for a family member or close friend of a victim or witness to have been charged with a crime at some point. The willingness of these victims and witnesses to report crimes to law enforcement,
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cooperate with prosecutors, show up for court proceedings, and testify truthfully depends on their confidence that the system will treat them and their loved ones fairly. Seeing indigent defendants detained (or experiencing it themselves) for no reason other than indigency, while others similarly situated but able to post bail go free, undermines the legitimacy of the criminal justice system and the credibility of those entrusted to prosecute crimes within it.
A fair criminal justice system that does not discriminate based on wealth is also critical to the effective functioning of our jury system. Jurors are drawn from the communities in which the crimes being prosecuted occur; and, in amici’s experience, potential jurors—much like victims and witnesses—often have, themselves, been charged with a crime or are close to someone who has been charged with a crime. When jurors perceive the criminal justice system as unfair or illegitimate, the result can be a hung jury or, worse, jury nullification.
Moreover, as the extensive evidence on which the district court relied reveals, pretrial release with non-financial conditions determined by individual risk-based assessments is very effective at ensuring appearance for court proceedings.6 In Kentucky, for example, county judges in 2013 began using a new risk-based assessment tool to inform decisions about pretrial release options. Laura and John
6 Risk assessment tools can vary widely in form and function, and Amici do not endorse any particular model.
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Arnold Foundation, Results from the First Six Months of the Public Safety Assessment-Court in Kentucky 1 (2014), ROA.14782. Data from July 1, 2014, through June 30, 2016, showed that 85 percent of defendants released before trial appeared as required; in the low-risk category, the appearance rate was 91 percent. Kentucky Pretrial Services, Administrative Office of the Courts (“Kentucky 20142016 Data”), ROA.9639.7 In the District of Columbia, which also utilizes a riskbased assessment to evaluate pretrial release options and “almost never” requires secured money bail in misdemeanor cases, ROA.5591, data from FY 2016 showed that 91 percent of defendants released before trial made all scheduled court appearances. See Pretrial Services Agency for the District of Columbia, Congressional Budget Justification and Performance Budget Request Fiscal Year 2018 16 (2017), https://www.psa.gov/sites/default/files/FY%202018%20PSA% 20Congressional%20Budget%20Justification.pdf (“DC PSA Budget Request”)8; cf. Christopher T. Lowenkamp & Marie VanNostrand, Exploring the Impact of Supervision on Pretrial Outcomes 3, 12 (2013), ROA.16928, 16937 (in two-state
7 Even prior to 2013, Kentucky used pretrial risk assessments and dictated presumptive, nonfinancial release for low- and moderate-risk defendants. Kentucky Pretrial Services, Administrative Office of the Courts, Pretrial Reform in Kentucky 13 (2013), ROA.17070. 8 The data on pretrial criminal activity for released defendants are equally impressive: In Kentucky, between July 1, 2014, and June 30, 2016, 94 percent of released defendants assessed to be low-risk committed no new criminal activity, Kentucky 2014-2016 Data, ROA.9639; in Washington, D.C., in FY 2016, 98 percent of all released defendants remained arrest-free from violent crimes during pretrial release, while 88 percent remained arrest free from all crimes. DC PSA Budget Request at 16.
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study, defendants who received supervision were significantly more likely to appear for assigned court dates than those released without supervision); Claire M.B. Brooker et al., The Jefferson County Bail Project: Impact Study Found Better Cost Effectiveness for Unsecured Recognizance Bonds Over Cash and Surety Bonds 1, 67 (2014), ROA.15978, 15983-84 (in study of impact of bond type on pretrial release outcomes where pretrial supervision was ordered in all cases, no significant difference found in court appearance rate or public safety rate).
Studies of the use of money bail, meanwhile, reveal no greater effectiveness in mitigating the risk of non-appearance, while resulting in significant negative outcomes, including increased rates of conviction and recidivism. See Arpit Gupta et al., The Heavy Costs of High Bail: Evidence from Judge Randomization, 45 J. Leg. Studies 471, 472-475 (2016), ROA.9737-40 (in study of Philadelphia and Pittsburgh court data, using issuance of bench warrants as proxies for failures to appear, concluding that money bail did not increase probability of appearance, but was significant independent cause of convictions and recidivism); cf. Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 714-15 (2017) (using Harris County misdemeanor case data, finding compelling evidence that pretrial detention “causally increases the likelihood of conviction, the likelihood of receiving a carceral sentence, the length of a carceral sentence, and the likelihood of future arrest for new crimes”).
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As the federal system and more and more states have realized, pretrial supervision can be used to address some of the underlying drivers of misdemeanor criminal activity, thus breaking the cycle of recidivism and enhancing public safety. In Kentucky, dozens of misdemeanor diversion programs allow misdemeanor defendants to agree to successfully comply with individually tailored terms in order to obtain dismissal of the original criminal charges. Terms may include alcohol and drug treatment, mental health and counseling services, educational, vocational, and job training requirements, and volunteer work, among others. In 2012, Kentucky Pretrial Services supervised more than 4,000 misdemeanor diversion cases; 87 percent of misdemeanor clients successfully completed their programs, resulting in reduced trial dockets, decreased recidivism, and 25,000 hours of community service. Kentucky Pretrial Services, Administrative Office of the Courts, Pretrial Reform in Kentucky 6-7 (2013), ROA.17063-64.9
In the District of Columbia, the Pretrial Services Agency (PSA) has responsibility for over 17,000 misdemeanor and felony defendants each year, and supervises approximately 4,600 on any given day. DC PSA Budget Request at 1.

9 In the last five years, approximately two-thirds of states passed legislation creating, authorizing,

and expanding pretrial diversion programs. See National Conference of State Legislatures

(NCSL), Trends in Pretrial Release: State Legislation Update (2017),

http://www.ncsl.org/portals/1/html_largeReports/trends_pretrial_release17.htm; NCSL, Trends in

Pretrial

Release:

State

Legislation

3-4

(2015),

http://www.ncsl.org/Portals/1/Documents/cj/pretrialTrends_v05.pdf.

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PSA assigns supervision levels based on risk, but also provides or makes referrals for treatment to defendants with substance use disorders, mental health disorders, or both. Id. at 20, 24. In FY 2016, 88 percent of all defendants in pretrial supervision remained on release status through the conclusion of the release period without any request for revocation based on non-compliance. Id. at 16.
Although pretrial supervision and diversion programs require resources, the financial cost is far less than the cost of pretrial detention. In the District of Columbia, for example, the supervision cost per defendant was about $18 per day in 2014, and it is considered one of the costlier jurisdictions because PSA personnel are paid on a federal pay schedule. Clifford T. Keenan, Pretrial Services Agency for the District of Columbia, It’s About Results, Not Money (2014), ROA.17086. Compared to the conservative $85-per-day estimate for pretrial detention, pretrial supervision is far more cost-effective. See Pretrial Justice Institute, Pretrial Justice, How Much Does it Cost? 1, 5 (2017), ROA.18067, 18071. II. Appellants’ and Their Amici’s Attempts to Distinguish Supreme Court
and Fifth Circuit Precedent on the Constitutional Infirmity of WealthBased Discrimination in the Criminal Justice System are Unavailing Sitting en banc, this circuit has said: “At the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978). Although the court went on to hold that Florida’s then-new bail rule, adopted
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while the appeal was pending, was not facially unconstitutional for failing to include a presumption against money bail among the six forms of release permitted, id. at 1058-59, the court also stated, “We have no doubt that in the case of an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, pretrial confinement for inability to post money bail would constitute imposition of an excessive restraint.” Id. at 1058. With regard to the use of a set bond schedule—which has particular applicability to this case—the en banc court stated, “Utilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting[] its requirements. The incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057.
Despite these clear pronouncements, Appellants Fourteen Judges of Harris County Criminal Courts at Law (“appellants”), Amici Curiae American Bail Coalition, Professional Bondsmen of Texas, and Professional Bondsmen of Harris County (“bondsmen”), and Amici Curiae States of Texas, Arizona, Hawai’i, Kansas, Louisiana, and Nebraska (“states”) largely ignore Rainwater and argue that the Supreme Court cases on which Rainwater relied are inapposite. They suggest that, because Williams v. Illinois, 399 U.S. 235 (1970), and Tate v. Short, 401 U.S. 395 (1971), involved imprisonment of convicted defendants for failure to pay a fine, their
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holdings—that such imprisonment violates the Equal Protection Clause when based solely on the inability of an indigent to pay the fine, Williams, 399 U.S. at 242; Tate, 401 U.S. at 398—have no applicability to detention pretrial based solely on inability to pay money bail. See Appellants’ Br. at 36-38; Bondsmen Br. at 24 (relying on United States v. Salerno, 481 U.S. 739, 748 (1987) (pretrial detention “is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause”), to argue that Williams and Tate apply only to sentencing after conviction); States Br. at 4-5.
Appellants and their amici are wrong. As the Supreme Court noted in Bearden v. Georgia, 461 U.S. 660, 664 (1983), the Court “has long been sensitive to the treatment of indigents in our criminal justice system,” and has applied the principle of “equal justice,” articulated in Griffin v. Illinois, 351 U.S 12, 19 (1956) (plurality), in numerous contexts.10 See Bearden, 461 U.S. at 664 (citing cases invalidating state practices denying indigents access to appellate review, appellate counsel, transcripts and other materials for appeal, and Williams and Tate). In Bearden, the Court applied the rule of Williams and Tate to invalidate a state practice of automatically revoking probation for failure to pay a fine or restitution, without considering
10 In Griffin, the Supreme Court invalidated a practice of limiting appellate review of criminal convictions only to persons who could afford a trial transcript, pronouncing: “[b]oth equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’” 351 U.S. at 17 (quotation omitted).
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whether the probationer has made all efforts to pay yet cannot do so, and without considering whether other alternative measures are adequate to meet the state’s interest in punishment and deterrence. Id. at 672. “To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.” Id. at 672-73.
If anything, the principles articulated in these cases have even greater applicability before trial, when the accused is presumed innocent and the liberty interest is therefore notably higher than after conviction. See Stack, 342 U.S. at 4 (“Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”); Rainwater, 572 F.2d at 1056 (accused persons “remain clothed with a presumption of innocence and with their constitutional guarantees intact”). The legitimacy of our criminal justice system and its presumption of innocence before trial—essential to the effectiveness of prosecutors and law enforcement officials—should not be undermined by a bail system that infringes on both due process and equal protection requirements. III. Amici’s Additional Arguments Should be Rejected
A. The historical use of bail does not make discrimination based solely on inability to pay constitutionally permissible
The bondsmen argue that the district court overlooked the history of bail as a “liberty-promoting institution” older than the Republic. Bondsmen Br. at 6. They argue that the Eighth Amendment’s provision that “[e]xcessive bail shall not be
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required,” and similar provisions of early state constitutions, guaranteed the option of bail for bailable offenses, but “never guaranteed that particular defendants would be able to post bail.” Id. at 7-8.
Although the bondsmen are correct that bail has a long history, they are wrong to suggest that money bail has a long history. As the Supreme Court explained in Stack, “[t]he right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty.” 342 U.S. at 4. Indeed, Stack recognized that assurances had evolved over time from “the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused” to “the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture.” Id. at 5.
The “liberty-promoting institution” to which the bondsmen refer did not even include money bail until the 1800s, with the first commercial surety reportedly opened for business in America in 1898. See Timothy R. Schnacke, National Institute of Corrections, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (2014), ROA.17329, 17400-01. For centuries before that, bail was based on a personal surety system whereby the surety agreed to stand in for the accused upon default, but was not permitted to be repaid or otherwise profit from the arrangement. Id., ROA.17329. It was only when the demand for personal sureties outgrew the supply, leading to
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many bailable defendants being detained, that American states began permitting money bail. Id. Ironically, the purposeful move toward money bail to help more bailable defendants be released evolved quickly to unnecessary pretrial detention due to bondmen’s demands for payment up front, id., ROA.17330, which, as this case illustrates, many misdemeanor defendants are unable to pay.
Even if the bondsmen are relying on the much shorter history of money bail, that history cannot sustain a system that offends equal protection by detaining indigent misdemeanor defendants solely based on their inability to pay while releasing those who can. The Supreme Court rejected a similar historical argument in Williams. Acknowledging that the custom of imprisoning indigent defendants for non-payment of fines dated back to medieval England and that “almost all States and the Federal Government have statutes authorizing incarceration under such circumstances”—all factors that should be “weighed in the balance”—the Supreme Court made clear that “neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.” 399 U.S. at 239-40. The Court continued: “[t]he need to be open to reassessment of ancient practices other than those explicitly mandated by the Constitution is illustrated by the present case since the greatly increased use of
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fines as a criminal sanction has made nonpayment a major cause of incarceration in this country.” Id. at 240.11
In Williams, the Court considered the state’s interests in enforcing judgments against those financially unable to pay a fine, and made clear that numerous alternatives to imprisonment existed that could be enacted by state legislatures or imposed by judges within the scope of their authority. Id. at 244-45 & n.21. In its final nod to history, the Court concluded:
We are not unaware that today’s holding may place a further burden on States in administering criminal justice. Perhaps a fairer and more accurate statement would be that new cases expose old infirmities which apathy or absence of challenge has permitted to stand. But the constitutional imperatives of the Equal Protection Clause must have priority over the comfortable convenience of the status quo. Id. at 245. Here, not only is the “comfortable convenience of the status quo” constitutionally barred, it also is not a sensible way to ensure appearance in court and advance community safety in light of more effective alternatives that are consistent with a fair and impartial criminal justice system. The bondsmen argue that the commercial bail industry “provides the most effective means of allowing
11 The bondsmen also argue that no Fourteenth Amendment equal protection challenge should lie because the Eighth Amendment provides the textual source for the right to bail. Bondsmen Br. at 24; see also Appellants’ Br. at 29-30. But in Rainwater, analyzing the equal protection challenge to Florida’s then-new bail rule, this Circuit recognized “the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” 572 F.2d at 1056.
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defendants to obtain release before trial while ensuring the protection of communities.” Bondsmen Br. at 10-11. But as the studies relied on by the district court establish, commercial bail is not more effective at ensuring appearance or lawabiding conduct than release on unsecured bonds and non-financial conditions of supervision. ROA.5661-62. It thus cannot be the basis for a practice that discriminates against the indigent solely because they cannot post money bail, particularly where, as in Williams, other effective alternatives exist.12
B. Prosecutor amici do not advocate a “uniform” or “categorical” system, but a system based on individualized assessments
The bondsmen suggest that the money bail system is preferable to “uniform detention, uniform unsecured bail, or uniform release subject to liberty-infringing conditions,” Bondsmen Br. at 11, while the states argue that a “categorical rule” requiring the pretrial release of indigent misdemeanor defendants will increase failures to appear and crime. See States Br. at 10. Neither appellees nor prosecutor amici advocate any of these extremes.
In the diverse and extensive experience of amici prosecutors, any “uniform system” or “categorical rule” that fails to take into consideration the personal
12 The commercial bail bond industry has been strongly criticized for failing to post low-money bail, inadequate training, and physically and economically coercive practices. Criminal Justice Policy Program, Harvard Law School, Moving Beyond Money: A Primer on Bail Reform 12-13 (2016), ROA.17017-18. The commercial bail bond industry has been banned in Illinois, Kentucky, Oregon, and Wisconsin. Thomas H. Cohen & Brian A. Reaves, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts 4 (2007), ROA.4090.
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circumstances of individual defendants and the circumstances of their alleged crimes would not enhance public confidence in the system and—other than uniform detention—would do little to ensure appearance and public safety.
The bondsmen nonetheless argue that the modern commercial surety system is statistically the most effective at ensuring court appearances, relying briefly on a handful of studies that largely do not purport to compare failure-to-appear (FTA) rates of defendants released on commercial surety bonds with those released on nonfinancial conditions based on individualized risk assessments. Bondsmen Br. at 1415. Discussing the one study (of felony defendants only) that included a category for “conditional release,” the bondsmen neglect this category and instead compare the FTA rate of those released on secured bonds (18 percent) to those given emergency release to relieve jail overcrowding (45 percent) and those released on unsecured bonds (30 percent). Id. at 15 (citing Thomas H. Cohen & Brian A. Reaves, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts 8 (2007), ROA.4094). The FTA rate of those in the “conditional release” category (representing just 12 percent of the sample), was 22 percent—much closer to the FTA rate of those released on secured bonds. Pretrial Release at 2, 9, ROA.4088, 4095. Notably, in one very dated study relied on by the bondsmen for its conclusion that surety bonds are more effective than personal recognizance, Bondsmen Br. at 15, the same study credited some of the success of surety bonds to
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bondsmen using many of the same tools that pretrial services agencies use: collecting information about defendants’ residences, employers, and families; monitoring defendants and requiring them to check in periodically; and reminding defendants of court dates. See Eric Helland & Alexander Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J. L. & Econ. 93, 96-97 (2004), ROA.4066.13 14
The bondsmen’s assertion that the imposition of pretrial conditions of release is not only “invasive” and “liberty-infringing,” but also “raise[s] serious constitutional concerns,” Bondsmen Br. at 13-14, is not well founded, particularly when it is made to support continuing a practice of detaining indigent misdemeanor defendants solely based on their inability to pay. This practice is not merely “libertyinfringing”; it is a wholesale deprivation of liberty. Moreover, the sole case cited by the bondsmen, United States v. Scott, 450 F.3d 863 (9th Cir. 2006), hardly calls into question the constitutionality of pretrial supervision. In Scott, the defendant had agreed as a condition of pretrial release to random drug testing and home searches
13 Although this study included defendants released with supervision in the “own-recognizance” category for comparison purposes, the authors acknowledged that “supervised release” is not a standard term. The Fugitive at 102, ROA.4069. Moreover, the study used data from 1990-1996, when imposition of non-financial conditions of release supervised by pretrial services was much less prevalent than today. 14 In addition to these two studies of felony defendants only, the bondsmen cite one dated study commissioned by the Maryland Bail Bond Association, which compared FTA rates from 1992 for those released on unsecured bail, 10-percent deposit bail, full cash bail, and corporate security bail, but not with those released on non-financial conditions. Bondsmen Br. at 14 (citing Byron L. Warnken, Warnken Report on Pretrial Release 17-18 (2002)).
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without a warrant, and later sought to suppress evidence found during a warrantless search. Id. at 865. Because the “unconstitutional conditions doctrine” limits the government’s ability to exact waivers of constitutional rights—particularly Fourth Amendment rights—as a condition of benefits, the court held that Scott’s consent to search was valid only if the search was reasonable. Id. at 866-68. The court never purported to address other pretrial conditions of release, nor did it suggest that conditions that do not directly infringe on well established constitutional rights, such as those protected by the Fourth Amendment, raised any concerns.
Appellant’s amici complain that release on non-financial conditions is costly, both in terms of funding and the drain on pretrial supervision systems. Bondsmen Br. at 16; States Br. at 11. But the financial cost of pretrial supervision pales in comparison to the cost of detention. See supra at 13. And pretrial detention does nothing to address underlying conditions, such as drug abuse, mental health issues, or lack of employment and educational opportunities, which can be addressed through non-financial conditions, thus contributing to better outcomes for misdemeanor defendants and lowering the risk of recidivism. Amici prosecutors do not deny that greater reliance on pretrial supervision of misdemeanor defendants instead of detention will increase the resource burden on pretrial supervision agencies. But the net benefit, in both financial savings and investment in the
23

Case: 17-20333 Document: 00514107922 Page: 36 Date Filed: 08/08/2017
community, makes for an easy trade-off that also supports prosecutors’ efforts to
build bonds with the people they serve and to enhance public safety.
C. The facial neutrality of Harris County’s bond schedule does not save it from constitutional infirmity
Finally, the bondsmen attempt to deflect the constitutional challenge to Harris
County’s practice by arguing that “[d]efendants who cannot post bail are not
detained because they are poor. Instead they are detained because the government
had probable cause to arrest and charge them with crimes, and wishes to secure their
appearance at trial and protect the community.” Bondsmen Br. at 17. The Supreme
Court rejected this very argument in Williams:
It is clear, of course, that the sentence was not imposed upon appellant because of his indigency but because he had committed a crime. And the Illinois statutory scheme does not distinguish between defendants on the basis of ability to pay fines. But, as we said in Griffin v. Illinois, ‘a law nondiscriminatory on its face may be grossly discriminatory in its operation.’ Id. at 17 n.11. Here, the Illinois statute as applied to Williams works an invidious discrimination solely because he is unable to pay the fine. On its face the statute extends to all defendants an apparently equal opportunity for limiting confinement to the statutory maximum simply by satisfying a money judgment. In fact, this is an illusory choice for Williams or any indigent who, by definition, is without funds. Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.
399 U.S. at 242.
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Appellants and the bondsmen dispute that what they perceive as Harris County’s equal treatment of charged defendants could violate the Equal Protection Clause. Appellants’ Br. at 31; Bondsmen Br. at 5. Indeed, appellants argue that “the only potential equal protection violation in this case comes from the classification created by the injunction itself” because those who cannot post bail must be released while those who are similarly situated but are able to pay must pay or be detained. Appellants’ Br. at 31-32. But this argument, too, was rejected by the Supreme Court in Williams. Williams recognized that non-enforcement of judgments against those financially unable to pay “would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.” 399 U.S. at 244. But non-enforcement was unnecessary, Williams explained, because states could rely on alternative enforcement mechanisms that did not result in imprisonment of indigents beyond the statutory maximum for involuntary nonpayment of fines and court costs. Id. This solution was reiterated in Tate v. Short a year later, when the Court applied Williams’s equal protection analysis to invalidate the practice of imprisoning indigents for failure to pay the fine on a fines-only offense: “There are, however, other alternatives to which the State may constitutionally resort to serve its concededly valid interest in enforcing payment of fines.” 401 U.S. at 399 (citing
25

Case: 17-20333 Document: 00514107922 Page: 38 Date Filed: 08/08/2017
Williams); see also Bearden, 461 U.S. at 668-69 (“fundamentally unfair” to revoke probation automatically without considering alternatives).
Amici prosecutors recognize and share the interest of Harris County, the State of Texas and its fellow States, and the public at large in ensuring that misdemeanor defendants appear for trial and do not commit crimes while on pretrial release. But there are numerous alternatives to pretrial detention available to Harris County, including release on unsecured bond with such non-financial conditions deemed necessary based on the circumstances of the individual and offense. These are not only effective; they are constitutional. They also promote a justice system that avoids perpetuating modern-day debtors’ prisons that incarcerate individuals based on wealth and that inherently delegitimize and erode community trust.
26

Case: 17-20333 Document: 00514107922 Page: 39 Date Filed: 08/08/2017

CONCLUSION The district court’s judgment and injunction should be affirmed.

August 8, 2017

Respectfully Submitted,
/s/Mary B. McCord MARY B. MCCORD Counsel of Record JOSHUA A. GELTZER ROBERT FRIEDMAN Institute for Constitutional Advocacy and Protection Georgetown University Law Center 600 New Jersey Ave. NW Washington, D.C. 20001 (571) 447-3902 mbm7@georgetown.edu Counsel of Record for Amici Curiae

27

Case: 17-20333 Document: 00514107922 Page: 40 Date Filed: 08/08/2017
APPENDIX: LIST OF AMICI Kim K. Ogg District Attorney, Harris County, Texas (2017-present)
Roy L. Austin Deputy Assistant to the President for Urban Affairs, Justice and Opportunity, White House Domestic Policy Council (2014-2017); Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice (2010-2014); Senior Assistant U.S. Attorney, District of Columbia (2009-2010); Assistant U.S. Attorney, District of Columbia (2002-2007, 2009-2010)
Thomas Berg United States Attorney, District of Minnesota (1979-1981)
A. Bates Butler U.S. Attorney, District of Arizona (1980-1981); First Assistant U.S. Attorney, District of Arizona (1977-1980)
Robert Butterworth Attorney General, State of Florida (1987-2002)
Bonnie Campbell Attorney General, State of Iowa (1991-1995)
Kimberly Cheney Attorney General, State of Vermont (1973-1975)
John T. Chisholm District Attorney, Milwaukee County, Wisconsin (2007-Present)
Steve Clark Attorney General, State of Arkansas (1979-1990)
Tim Cole Assistant District Attorney, 271st District of Texas (2010-2014); District Attorney, 97th District of Texas (1993-2006)
Scott Colom District Attorney, 16th Circuit Court, Mississippi (2016-Present)
28

Case: 17-20333 Document: 00514107922 Page: 41 Date Filed: 08/08/2017
Thomas Corbett Governor, State of Pennsylvania (2011-2015); Attorney General, State of Pennsylvania (1995-1997, 2005-2011); U.S. Attorney, Western District of Pennsylvania (1989-1993)
J. Joseph Curran Attorney General, State of Maryland (1987-2007)
Frankie Sue Del Pappa Attorney General, State of Nevada (1991-2003)
Thomas J. Donovan, Jr. Attorney General, State of Vermont (2017-Present); State’s Attorney, Chittenden County, Vermont (2007-2016)
Richard Doran Attorney General, State of Florida (2002-2003); Chief Deputy Attorney General of Florida (1997-2002)
Mark A. Dupree, Sr. District Attorney, Wyandotte County, Kansas (2017-Present)
Mark Earley Attorney General, State of Virginia (1998-2001)
John Farmer Attorney General, State of New Jersey (1999-2002); Assistant U.S. Attorney, District of New Jersey (1990-1994)
Brian E. Frosh Attorney General, State of Maryland (2015-Present)
Douglas Gansler Attorney General, State of Maryland (2007-2015)
Gil Garcetti District Attorney, Los Angeles County, California (1992-2000)
George Gascón District Attorney, City and County of San Francisco, California (2011-Present)
29

Case: 17-20333 Document: 00514107922 Page: 42 Date Filed: 08/08/2017
Terry Goddard Attorney General, State of Arizona (2003-2011)
Mark Gonzalez District Attorney, Nueces County, Texas (2017-Present)
Christian A. Gossett District Attorney, Winnebago County, Wisconsin (2007-Present)
Scott Harshbarger Attorney General, State of Massachusetts (1991-1999); District Attorney, Middlesex County (1982-1990)
Peter Harvey Attorney General, State of New Jersey (2003-2006)
David J. Hickton U.S. Attorney, Western District of Pennsylvania (2010-2016)
Peter Holmes City Attorney, Seattle (2010-Present)
Robert Johnson District Attorney, Anoka County, Minnesota (1982-2010)
Peter Keisler Acting Attorney General of the United States (2007); Assistant Attorney General for the Civil Division, U.S. Department of Justice (2003-2007); Acting Associate Attorney General and Principal Deputy Associate Attorney General (2002-2003)
Miriam Aroni Krinsky Assistant U.S. Attorney, Central District of California (1987-1988; 1990-2002); Criminal Appellate Chief and Chief, General Crimes; Former Assistant U.S. Attorney, District of Maryland (1988-1990); Chair, Solicitor General’s Criminal Appellate Advisory Group
Scott Lassar United States Attorney, Northern District of Illinois (1997-2001)
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Case: 17-20333 Document: 00514107922 Page: 43 Date Filed: 08/08/2017
Peg Lautenschlager Attorney General, State of Wisconsin (2003-2007); U.S. Attorney, Western District of Wisconsin (1989-1993)
Rory K. Little Associate Deputy Attorney General, U.S. Department of Justice (1996-1997); Assistant U.S. Attorney, Chief, Appellate Section, Northern District of California (1989-1994); Trial Attorney, Organized Crime & Racketeering Strike Force, U.S. Department of Justice (1987-1989)
Pamela Marsh U.S. Attorney, Northern District of Florida (2010-2015); Assistant U.S. Attorney, Middle District of Florida (1999-2006)
Mary B. McCord Acting Assistant Attorney General (2016-2017) and Principal Deputy Assistant Attorney General (2014-2017) for National Security, Department of Justice; Assistant U.S. Attorney (1994-2014); Chief, Criminal Division (2012-2014); Deputy Chief, Appellate Division (2006-2012)
Barbara McQuade U.S. Attorney, Eastern District of Michigan (2010-2017); Assistant U.S. Attorney, Eastern District of Michigan (1998-2010)
Kenneth Mighell U.S. Attorney, Northern District of Texas (1977-1981)
Jeff Modisett Attorney General, State of Indiana (1996-2000)
Marilyn J. Mosby, Esq. State’s Attorney, Baltimore City, Maryland (2015-Present)
Carlos R. Moreno Associate Justice, California Supreme Court (2001-2011); Deputy City Attorney, Los Angeles, California (1975-1979)
J. Tom Morgan District Attorney, DeKalb County, Georgia (1992-2003)
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Case: 17-20333 Document: 00514107922 Page: 44 Date Filed: 08/08/2017
Charles Oberly Attorney General, State of Delaware (1983-1995); U.S. Attorney, District of Delaware (2010-2017)
Jerome O’Neill Acting U.S. Attorney, District of Vermont (1981); Assistant U.S. Attorney, District of Vermont (1973-1981)
James Petro Attorney General, State of Ohio (2003-2007)
Richard Pocker U.S. Attorney, District of Nevada (1989-1990); Assistant U.S. Attorney, District of Nevada (1985-1989)
Earnest Preate Attorney General, State of Pennsylvania (1989-1995)
Karl A. Racine Attorney General, District of Columbia (2014-Present)
Ira Reiner District Attorney, Los Angeles County, California (1984-1992); City Attorney, Los Angeles, California (1981-1984)
James H. Reynolds Former U.S. Attorney, Northern District of Iowa
Stephen Rosenthal Attorney General, State of Virginia (1993-1994)
Donald Santarelli Administrator, Law Enforcement Assistance Administration, Department of Justice (1973-1974); Associate Deputy Attorney General (1969-1972); Assistant U.S. Attorney, District of Columbia, (1966-1967)
Carol A. Siemon Prosecuting Attorney, Ingham County, Michigan (2017-Present)
32

Case: 17-20333 Document: 00514107922 Page: 45 Date Filed: 08/08/2017
Robert Spagnoletti Attorney General, District of Columbia (2004-2006) Carter Stewart U.S. Attorney, Southern District of Ohio (2009-2016) Robert Stephan Attorney General, State Kansas (1979-1995) James Tierney Attorney General, State of Maine (1980-1990) Mary Sue Terry Attorney General, State of Virginia (1986-1993) Raúl Torrez District Attorney, Bernalillo County, New Mexico (2017-Present) Anthony M. Troy Attorney General, State of Virginia (1977-1978) Cyrus R. Vance Jr. District Attorney, New York County, New York (2010-Present) Lynneice O. Washington District Attorney, 10th Judicial Circuit, Bessemer, Alabama (2017-Present) Francis Wikstrom U.S. Attorney, District of Utah (1981) William Wilmoth U.S. Attorney, Northern District of West Virginia (1993-1999); Assistant U.S. Attorney, Northern District of West Virginia (1977-1980) Grant Woods Attorney General, State of Arizona (1991-1999)
33

Case: 17-20333 Document: 00514107922 Page: 46 Date Filed: 08/08/2017
CERTIFICATE OF SERVICE I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit on August 8, 2017, by using the appellate CM/ECF system, and service was accomplished on all counsel of record by the appellate CM/ECF system.
/s/Mary B. McCord Mary B. McCord
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Case: 17-20333 Document: 00514107922 Page: 47 Date Filed: 08/08/2017
CERTIFICATE OF COMPLIANCE 1. This brief complies with: (1) the type-volume limitation of Federal Rules of Appellate Procedure 29(a)(5), 32(a)(7)(B)(i) because it contains 6,495 words, excluding the parts of the brief exempted by Rule 32(a)(7)(f). 2. This brief complies with the typeface requirements of Fed. R. App. P. Rule 32(a)(5) and the type style requirements of Fed. R. Appl. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word(14point Times New Roman).
/s/Mary B. McCord Mary B. McCord
35

 
 Case: 17-20333 Document: 00514109926 Page: 1 Date Filed: 08/09/2017
CASE NO. 17-20333 IN THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
MARANDA LYNN O’DONNELL, Plaintiff-Appellee, v.
HARRIS COUNTY, TEXAS, ET. AL., Defendants-Appellants.
LOETHA SHANTA MCGRUDER & ROBERT RYAN FORD, Plaintiffs-Appellees, v.
HARRIS COUNTY, TEXAS, ET. AL., Defendants-Appellees.
On Appeal from the United States District Court for the Southern District of Texas, Houston Division
BRIEF FOR AMERICAN BAR ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

Of Counsel: Lindsay C. Harrison Peter A. Goldschmidt Grace C. Signorelli-Cassady

Linda A. Klein AMERICAN BAR ASSOCIATION 321 North Clark Street Chicago, IL 60654 (312) 988-5000 abapresident@americanbar.org

Case: 17-20333 Document: 00514109926 Page: 2 Date Filed: 08/09/2017
CERTIFICATE OF INTERESTED PERSONS
On Appeal from the United States District Court for the Southern District of Texas, Houston Division, Civil Action No. 16-01414
The American Bar Association and undersigned counsel of record certify that
the following listed persons and entities as described in the fourth sentence of Fifth
Circuit Rule 28.2.1 have an interest in the outcome of this case. These
representations are made in order that the judges of this Court may evaluate possible
disqualification or recusal:
Amicus and Counsel:
• American Bar Association • Linda Klein, Counsel • Lindsay Harrison, Counsel • Peter Goldschmidt, Counsel • Grace Signorelli-Cassady, Counsel • Jenner & Block LLP
Plaintiffs-Appellees and Counsel:
• Maranda Lynn O’Donnell • Loetha Shanta McGruder • Robert Ryan Ford • Similarly Situated Class Members • Alec Karakatsanis, Counsel • Krisina Janaye Zuniga, Counsel • Neal S Manne, Counsel • Lexie Giselle White, Counsel • Alejandra C. Salinas, Counsel • Elizabeth Anne Rossi, Counsel • Michael Gervais, Counsel
i

Case: 17-20333 Document: 00514109926 Page: 3 Date Filed: 08/09/2017
• Rebecca Bernhardt, Counsel • Susanne Ashley Pringle, Counsel • Civil Rights Corps • Texas Fair Defense Project • Susman Godfrey LLP
Defendants-Appellants and Counsel:
• Harris County, Texas • Eric Stewart Hagstette • Joseph Licata, III • Ronald Nicholas • Blanca Estela Villagomez • Jill Wallace • Paula Goodhart • Bill Harmon • Natalie C. Fleming • John Clinton • Margaret Harris • Larry Standley • Pam Derbyshire • Jay Karahan; • Judge Analia • Wilkerson • Dan Spjut • Judge Diane Bull • Judge Robin Brown • Donald Smyth • Judge Mike Fields • Jean Hughes • James G Munisteri, Counsel • Katharine Davenport David, Counsel • Melissa Lynn Spinks, Counsel • Michael A Stafford, Counsel • Charles J Cooper, Counsel • John Ellis O'Neill, Counsel • Michael W Kirk, Counsel • Corinne Stone, Counsel • John R Keville, Counsel
ii

Case: 17-20333 Document: 00514109926 Page: 4 Date Filed: 08/09/2017
• Robert Lawrence Green , III, Counsel • Sheryl Anne Falk, Counsel • Laura Beckman Hedge, Counsel • Michael Robert Hull, Counsel • Kenneth Wayne Good, Counsel • Kimbra Kathryn Ogg, Counsel • Gardere Wynne Sewell LLP • Winston and Strawn LLP • Harris County Attorney’s Office
Additional Amici and Attorneys:
• The State of Texas • The State of Arizona • The State of Hawai‘i • The State of Kansas • The State of Louisiana • The State of Nebraska • Ken Paxton, Texas Attorney General • Jeffrey C. Mateer, First Assistant Attorney • Scott A. Keller, Solicitor General • Joseph D. Hughes, Assistant Solicitor General • Mark Brnovich, Arizona Attorney General • Douglas S. Chin, Hawai‘i Attorney General • Derek Schmidt, Kansas Attorney General • Jeff Landry, Louisiana Attorney General • Douglas J. Peterson, Nebraska Attorney General • American Bail Coalition • Honorable Lee H. Rosenthal, Chief United States District Judge • Andrew C Lawrence, Counsel • Christopher G. Michel, Counsel • Paul D Clement, Counsel • Kirkland & Ellis LLP • Professional Bondsmen of Texas • Devin Paul Cole, Harris County Jail • Pct One Commissioner Rodney Ellis • Kathryn Kase, Counsel • NAACP Legal Defense and Educational Fund, Inc.
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Case: 17-20333 Document: 00514109926 Page: 5 Date Filed: 08/09/2017

Trial Judge: • Honorable Lee H. Rosenthal, Chief United States District Judge

Date: August 9, 2017

/s/ Linda A. Klein Linda A. Klein American Bar Association 321 North Clark Street Chicago, IL 60654 (312) 988-5000 abapresident@americanbar.org

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Case: 17-20333 Document: 00514109926 Page: 6 Date Filed: 08/09/2017
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .........................................................i STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE...........1 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................5 I. THE ABA’S CRIMINAL JUSTICE STANDARDS REJECT
MONEY-BAIL SYSTEMS THAT FAIL TO CONSIDER ADEQUATELY A DEFENDANT’S ABILITY TO PAY. ............................5 II. MONEY BAIL HARMS CRIMINAL DEFENDANTS AND DOES NOT SERVE THE FAIR AND PROPER ADMINISTRATION OF JUSTICE. .......................................................................................................12 A. Money Bail Unfairly Harms Criminal Defendants and
Undermines the Criminal Justice System. ..........................................12 B. Money Bail That Results in Pretrial Wealth-Based Incarceration
Does Not Advance Public Safety or the Interests of Justice...............17 C. A Consensus Has Developed that Money-Bail Schemes Are
Unfair and Do Not Work.....................................................................20 III. HARRIS COUNTY, TEXAS’ BAIL SYSTEM ILLUSTRATES THE
CONSTITUTIONAL PROBLEMS WITH MONEY BAIL.........................23 CONCLUSION ........................................................................................................27 CERTIFICATE OF COMPLIANCE.......................................................................28 CERTIFICATE OF SERVICE ................................................................................29
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Case: 17-20333 Document: 00514109926 Page: 7 Date Filed: 08/09/2017
TABLE OF AUTHORITIES
Page(s)
CASES
Barker v. Wingo, 407 U.S. 514 (1972)............................................................................................15
Bearden v. Georgia, 461 U.S. 660 (1983)............................................................................................24
Frank v. Blackburn, 646 F.2d 873 (5th Cir. 1980), modified, 646 F.2d 902 (5th Cir. 1981) .....................................................................................................................3
Fuentes v. Shevin, 407 U.S. 67 (1972)..............................................................................................26
Griffin v. Illinois, 351 U.S. 12 (1956)..........................................................................................7, 25
Hardin v. Estelle, 365 F. Supp. 39 (W.D. Tex.) judgment aff’d, 484 F.2d 944 (5th Cir. 1973) ..............................................................................................................3
Moore v. Quarterman, No. CV H-08-2309, 2009 WL 10654176 (S.D. Tex. June 25, 2009) ..................3
ODonnell v. Harris Cty., No. CV H-16-1414, 2017 WL 1735456 (S.D. Tex. Apr. 28, 2017)...................25
Padilla v. Kentucky, 559 U.S. 356 (2010)..............................................................................................3
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) ............................................................................25
Reno v. Flores, 507 U.S. 292 (1993)............................................................................................27
Smith v. Bennett, 365 U.S. 708 (1961)............................................................................................24
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Case: 17-20333 Document: 00514109926 Page: 8 Date Filed: 08/09/2017
Strickland v. Washington, 466 U.S. 668 (1984)..............................................................................................3
Tate v. Short, 401 U.S. 395 (1971)........................................................................................7, 24
Turner v. Rogers, 564 U.S. 431 (2011)............................................................................................26
United States v. Salerno, 481 U.S. 739 (1987)................................................................................25, 26, 27
Williams v. Illinois, 399 U.S. 235 (1970)............................................................................................24
OTHER AUTHORITIES
American Bar Association, ABA Standards for Criminal Justice: Pretrial Release (3d ed. 2007)..........................................................................6, 8
American Bar Association, Standards Relating to Pretrial Release— Approved Draft, 1968 .. 1, 9American Bar Association Crim. J. Sec., Report 107 (2002). .................................................................................................................19
American Bar Association Project on Standards for Criminal Justice, Standards Relating to Pretrial Release—Approved Draft, 1968 ................passim
American Bar Association, ABA Standards for Criminal Justice, ch. 10, Pretrial Release (2d ed. 1979).........................................................................7
American Jail Association, Resolutions of the American Jail Association (2017) ..............................................................................................21
American Probation and Parole Association, Resolution – Pretrial Supervision (enacted June 2010) ........................................................................21
Arnold Foundation, More Than 20 Cities and States Adopt Risk Assessment Tool To Help Judges Decide Which Defendants To Detain Prior to Trial (June 26, 2015).................................................................22
Beck, Allen J., Bureau of Justice Statistics, U.S. Dep’t of Justice, Profile of Jail Inmates, 1989 (1991).............................................................14, 19
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Case: 17-20333 Document: 00514109926 Page: 9 Date Filed: 08/09/2017
Beck, Allen J., et al., Bureau of Justice Statistics, U.S. Dep’t of Justice, Sexual Victimization in Prisons and Jails Reported by Inmates (2013) ....................................................................................................15
Bibas, Stephanos, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463 (2004)..................................................................................16
Boruchowitz, Robert C., et al., Nat’l Ass’n of Criminal Defense Lawyers, Minor Crimes, Massive Waste (Apr. 2009) ........................................16
Cohen, Thomas & Reaves, Brian, Bureau of Justice Statistics, U.S. Dep’t of Justice, Pretrial Release of Felony Defendants in State Court (Nov. 2007)...............................................................................................18
Conference of Chief Justices, Resolution 3 (adopted Jan. 30, 2013) ......................21
Council of Economic Advisers, Issue Brief, Fines, Fees, and Bail (Dec. 2015) .........................................................................................................19
Dear Colleague Letter from Gupta, Principal Dep. Ass’t Att’y Gen., Civil Rights Division and Foster, Director, Office for Access to Justice 2 (Mar. 14, 2016) ....................................................................................22
Foderaro, Lisa W., New Jersey Alters Its Bail System and Upends Legal Landscape, N.Y. Times (Feb. 6, 2017) ....................................................23
Freed, Daniel J., et al., ABail in the United States (1964) .......................................10
Heaton, Paul et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 716-17 (2017)...................................17
Herian, Mitchel N. & Bornstein, Brian H., Reducing Failure to Appear in Nebraska: A Field Study, 9 Nebraska Lawyer (Sept. 2010) ...................................................................................................................18
Jones, Michael R., Pretrial Justice Institute, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (2013).............................17
Lowenkamp, Christopher T., et al., Exploring the Impact of Supervision on Pretrial Outcomes (2013) ..........................................................18
Lowenkamp, Christopher T., et al., The Hidden Costs of Pretrial Detention (2013) .................................................................................................18
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Case: 17-20333 Document: 00514109926 Page: 10 Date Filed: 08/09/2017
Lowenkamp, Christopher T. et al., Investigating the Impact of Pretrial Detention on Sentencing Outcomes (Arnold Foundation, Nov. 2013) .............................................................................................................15, 16
Marcus, Martin, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23 Crim. Just. 10 (Winter 2009) ...............................1
Minton, Todd D. & Zeng, Zhen, Bureau of Justice Statistics, U.S. Dep’t of Justice, Jail Inmates in 2015 (2016) ....................................................19
Montopoli, Brian, Is the U.S. Bail System Unfair?, CBS News (Feb. 8, 2013) ...................................................................................................................13
Moving Beyond Money: A Primer on Bail Reform, Criminal Justice Policy Program at Harvard Law School (Oct. 2016)...................................passim
National Association of Counties, The American County Platform and Resolutions 2016-2017 .......................................................................................21
National Association of Criminal Defense Lawyers, Policy on Pretrial Release and Limited Use of Financial Bond (2017)...........................................21
Nat’l Sheriffs Ass’n, Resolution 2012-6, National Sheriffs’ Association Supports & Recognizes The Contribution Of Pretrial Services Agencies To Enhance Public Safety (2012) .........................................22
National Symposium on Pretrial Justice, Summary Report of Proceedings (2011).............................................................................................21
Noonan, Margaret, et al., U.S. Dep’t of Justice, Mortality in Local Jails and State Prisons, 2000-2013 (2015) ........................................................15
NPR: All Things Considered, The Grim Reality of Suicide in Jail (July 27, 2015) .............................................................................................................15
Phillips, Mary T., New York City Criminal Justice Agency, Inc., A Decade of Bail Research in New York City (Aug. 2012) ...................................13
Pinto, Nick, The Bail Trap, N.Y. Times (Aug. 13, 2015) .......................................14
Pretrial Justice Institute, Guidelines for Analyzing State and Local Pretrial Laws (2017).............................................................................................2
Pretrial Justice Institute, Pretrial Justice: How Much Does It Cost? (2017) ..................................................................................................................20 ix

Case: 17-20333 Document: 00514109926 Page: 11 Date Filed: 08/09/2017
Pretrial Services Agencies, Standards on Pretrial Release (3d ed. 2004) ...................................................................................................................21
Pretrial Services Agency for the District of Columbia, Performance Measures, https://www.psa.gov/?q=data/performance_measures (data as of June 30, 2015) ...................................................................................18
Rankin, Anne, The Effect of Pretrial Detention, 39 N.Y.U. L. Rev. 641 (1964)...........................................................................................................15
Schlesinger, Traci, Racial and Ethnic Disparity in Pretrial Criminal Justice Processing, 22 Just. Q. 170 (2005)...................................................20, 22
U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness (2014) ......................................................19
Vetter, Stephanie & Clark, John, National Association of Counties, The Delivery of Pretrial Justice in Rural Areas: A Guide for Rural County Officials (2012) ......................................................................................13
Widgery, Amber, National Conference of State Legislators, Guidance for Setting Release Conditions (May 13, 2015) .................................................22
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Case: 17-20333 Document: 00514109926 Page: 12 Date Filed: 08/09/2017
STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE The American Bar Association (the “ABA”) is one of the largest voluntary
professional membership organizations and the leading organization of legal professionals in the United States. Its more than 400,000 members come from all fifty States, the District of Columbia, and the United States territories, and include prosecutors, public defenders, and private defense counsel. Its membership includes attorneys in law firms, corporations, nonprofit organizations, and local, state, and federal governments. Members also include judges, legislators, law professors, law students, and non-lawyer associates in related fields.1
Since its founding in 1878, the ABA has worked to protect the rights secured by the Constitution, including the rights under the Due Process and Equal Protection Clauses of those accused of crimes. The ABA Standards for Criminal Justice (the “Criminal Justice Standards”) is a comprehensive set of principles articulating the ABA’s recommendations for fair and effective systems of criminal justice, and reflects the legal profession’s conclusions on the requirements for the proper administration of justice and fairness in the criminal justice system.2 Now in their

1

Neither this brief nor the decision to file it should be interpreted to reflect the views of any

judicial member of the ABA. No member of the Judicial Division Council participated in the

adoption or endorsement of the positions in this brief, nor was the brief circulated to any member

of the Judicial Division Council before filing.

2

The Criminal Justice Standards are available at https://www.americanbar.org/

groups/criminal_justice/standards.html; see also Martin Marcus, The Making of the ABA Criminal

Justice Standards: Forty Years of Excellence, 23 Crim. Just. 10, 14-15 (2009). Pertinent

provisions of the Standards are set forth in an appendix to this brief.

1

Case: 17-20333 Document: 00514109926 Page: 13 Date Filed: 08/09/2017
third edition, the Criminal Justice Standards were developed and revised by the ABA Criminal Justice Section, working through broadly representative task forces made up of prosecutors, defense lawyers, judges, academics, and members of the public, and then approved by the ABA House of Delegates, the ABA’s policymaking body. Courts have frequently looked to the Standards for guidance about the appropriate balance between individual rights and public safety in the field of criminal justice. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 367 (2010); Strickland v. Washington, 466 U.S. 668, 688-89 (1984); Frank v. Blackburn, 646 F.2d 873, 880 (5th Cir. 1980), modified, 646 F.2d 902 (5th Cir. 1981); Hardin v. Estelle, 365 F. Supp. 39, 46 (W.D. Tex.) judgment aff’d, 484 F.2d 944 (5th Cir. 1973); Moore v. Quarterman, No. CV H-08-2309, 2009 WL 10654176, at *7 (S.D. Tex. June 25, 2009). In fact, the Standards have been either quoted or cited in more than 120 U.S. Supreme Court opinions, 700 federal circuit court opinions, 2,400 state supreme court opinions, and 2,100 law journal articles. Pretrial Justice Institute, Guidelines for Analyzing State and Local Pretrial Laws II-ii (2017).
The ABA’s Criminal Justice Standards on pretrial release (“Pretrial Release Standards”) memorialize exhaustive study by the ABA about systems of pretrial release and detention that will secure the rights of the accused to a fair trial and the effective assistance of counsel, protect the community, and ensure that persons accused of crimes appear for court dates. As discussed below, those Standards reflect the ABA’s conclusion that, although there may be rare circumstances in which
2

Case: 17-20333 Document: 00514109926 Page: 14 Date Filed: 08/09/2017

monetary conditions of release are necessary to ensure a defendant’s appearance, money-bail requirements that fail to consider defendants’ individual circumstances, especially their ability to pay, should be abolished. Such money-bail systems seriously impair the rights of the accused, and provide little if any benefit to the public. In addition, they result in the systemic jailing of release-eligible defendants solely because they cannot purchase their freedom. Money-bail systems that fail to incorporate individualized determinations of the appropriate conditions of release, and that result in large-scale wealth-based incarceration, violate the Fourteenth Amendment’s Due Process and Equal Protection Clauses.
The ABA submits this brief to assist this Court with its examination of the money-bail system under review in this case. Under our system of justice, the right of any individual to liberty, and to effective defense against criminal charges, should not depend on that person’s ability to pay. The Standards provide guidance on how jurisdictions can protect the constitutional rights of the accused while advancing their legitimate criminal justice interests.3
SUMMARY OF ARGUMENT For decades, the ABA has urged jurisdictions to reduce their reliance on financial conditions on pretrial release. When the First Edition of the ABA’s

3

Undersigned counsel have fully authored the brief, with no counsel for a party authoring

this brief in whole or part. Likewise, no person other than the amicus curiae, its members, and its

counsel made any monetary contribution to the preparation and submission of this brief, with no

counsel or party making a monetary contribution to fund the preparation or submission of this

brief. The parties have consented to the filing of this brief.

3

Case: 17-20333 Document: 00514109926 Page: 15 Date Filed: 08/09/2017
Criminal Justice Standards was adopted in 1968, the ABA emphasized the serious constitutional concerns with money-bail systems, which discriminate against the indigent and impair defendants’ ability to prepare an effective defense. The ABA’s concerns about money bail have only deepened over time, and the Third Edition now provides that monetary conditions on pretrial release are appropriate only once the court considers the defendant’s individual circumstances and the possibility of alternative conditions of release. Furthermore, a defendant’s ability to pay bail must be reviewed both when bail is set and whenever a pretrial defendant who has been granted bail remains incarcerated based on an inability to pay.
Decades of research and study have shown that money bail harms defendants, with little offsetting public benefit. Money-bail systems frequently lead to wealthbased jailing of pretrial detainees. Pretrial detention disrupts indigent defendants’ lives, leads to worse legal outcomes, and pressures innocent defendants to plead guilty. At the same time, money-bail systems do not improve appearance rates or public safety, and substantially consume public resources. It is no surprise, therefore, that a wide range of criminal justice stakeholders and a growing number of States and local jurisdictions have joined the ABA in rejecting the use of money bail.
Money-bail systems that result in the incarceration of presumptively innocent and otherwise release-eligible pretrial defendants violate the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The Supreme Court has repeatedly affirmed that individuals may not be jailed solely because of their
4

Case: 17-20333 Document: 00514109926 Page: 16 Date Filed: 08/09/2017
inability to pay fines, fees, and court costs. Money-bail systems that do not account sufficiently for a defendant’s ability to pay cannot satisfy due process. The district court’s order entering a preliminary injunction should be affirmed.
ARGUMENT I. THE ABA’S CRIMINAL JUSTICE STANDARDS REJECT MONEY-
BAIL SYSTEMS THAT FAIL TO CONSIDER ADEQUATELY A DEFENDANT’S ABILITY TO PAY. The ABA’s Standards have long rejected money-bail systems that fail to consider adequately a defendant’s ability to pay. Such systems are inherently discriminatory, deleterious to the rights of the accused, unnecessary to ensure justice and public safety, and contrary to the bedrock constitutional principles that the ABA’s Standards embrace. The ABA’s current Standards—shaped by decades of exhaustive research—promote alternatives to money bail and pretrial detention, and endorse only those bail systems that adequately consider pretrial detainees’ individual circumstances. The First Edition of the ABA’s Standards The First Edition of the ABA’s Criminal Justice Standards (the “First Edition”), adopted by the House of Delegates in 1968 following years of research, reflected the ABA’s judgment that a person’s liberty and ability to defend against criminal charges should not be determined by that person’s financial resources. Animated by due process principles, the First Edition urged that reliance on money bail be reduced to minimal proportions and be “required only in cases in which no
5

Case: 17-20333 Document: 00514109926 Page: 17 Date Filed: 08/09/2017
other condition will reasonably ensure the defendant’s appearance.” American Bar Association Project on Standards for Criminal Justice, Standards Relating to Pretrial Release—Approved Draft, 1968 at 1.2 (the “First Edition”); see also id. at 5.3(a). The First Edition expressed the ABA’s judgment that money bail is rarely necessary to serve the criminal justice system’s legitimate needs: protecting the public and ensuring the defendant’s appearance in court.
The accompanying Commentary likewise recognized money bail’s serious harms.4 It described how money bail “inevitably discriminates against the poor,” citing studies showing that a significant percentage of defendants could not make bail of just $500. Id. at p. 3. The Commentary also recognized the human toll of pretrial detention, which subjects defendants “to the psychological and physical deprivations of jail life,” jeopardizes defendants’ employment, impacts defendants’ innocent family members, and unnecessarily drains valuable public resources. Id. at pp. 2-3, 23.
The Second Edition of the ABA’s Standards Following a decade of further study, the ABA sharpened its criticism of money bail in the Second Edition of its Pretrial Release Standards, adopted in 1979.

4

Unlike the Standards themselves, which set forth black-letter principles adopted by the

ABA House of Delegates, commentary accompanying the Standards is not adopted by the House

of Delegates. The commentary “does not necessarily represent the official position of the ABA,”

but it nonetheless “serves as a useful explanation of the black-letter standards.” See ABA Standards

for Criminal Justice: Pretrial Release at ii (3d ed. 2007).

6

Case: 17-20333 Document: 00514109926 Page: 18 Date Filed: 08/09/2017
See ABA Standards for Criminal Justice, ch. 10, Pretrial Release (2d ed. 1979) (the “Second Edition”). The ABA again noted serious constitutional concerns with systemically jailing people due to their inability to buy their liberty, stressing that “[r]elease on monetary conditions should be reduced to minimal proportions. Id. at 10.78-79 (citing, inter alia, Griffin v. Illinois, 351 U.S. 12 (1956), and Tate v. Short, 401 U.S. 395 (1971)); id. at 10-1.3(c). The ABA approved money bail “only in cases in which no other conditions will reasonably ensure the defendant’s appearance” and recommended that, when monetary bail is used, bail should be set “with regard for the defendant’s ability to post bond” and only “at the lowest level necessary to ensure the defendant’s reappearance.” Id. (emphasis added).
Again recognizing that monetary release conditions rarely serve a legitimate function and are far less desirable than other non-monetary alternatives, the Second Edition suggested that any monetary pretrial release conditions at least take the form of an unsecured bond, or an unsecured bond accompanied by a partial cash payment. See id. at 10.78, 10-5.4(d). In other words, only in very rare circumstances should an otherwise release-eligible defendant’s freedom be conditioned on the payment of any sum of money to the court.
The Third Edition of the ABA’s Standards Two decades of additional study and experience confirmed the ABA’s conclusion that money-bail systems serve no legitimate public safety purpose, needlessly harm pretrial defendants, and impose unnecessary public costs. The Third
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Case: 17-20333 Document: 00514109926 Page: 19 Date Filed: 08/09/2017
Edition of the ABA’s Criminal Justice Standards, adopted in 2007 and currently in force, counsels that jurisdictions impose monetary release conditions only after considering defendants’ individual circumstances, and ensure that defendants’ finances never prevent their release. See ABA Standards for Criminal Justice: Pretrial Release (3d ed. 2007) (the “ABA Standards”).
First, the ABA Standards include a presumption that money bail should rarely be used to secure a defendant’s appearance in court. Importantly, the ABA Standards urge jurisdictions to adopt procedures designed to promote the release of defendants on their own recognizance—effectively a promise to appear in court—or, when necessary, on an unsecured bond. Id. at 10-1.4(a) & (c), 10-5.1(a). If release on personal recognizance would pose a “substantial risk” that a person will not show up for a court proceeding, endanger others’ safety, or imperil the judicial system’s “integrity” (through, for example intimidation of a witness), the Standards still promote release subject to the “least restrictive” condition or conditions that will “reasonably ensure” the person’s later reappearance and deter the person from imperiling others or undermining the judicial process’ integrity. Id. at 10-5.1(a)-(b), 10-5.2(a). The Standards encourage jurisdictions to impose conditions of release other than secured monetary bonds both because financial release conditions substantially undermine the Fourteenth Amendment’s guarantees, and because the ABA’s extensive research shows that, particularly when the defendant has community ties, non-financial release conditions such as supervised release or
8

Case: 17-20333 Document: 00514109926 Page: 20 Date Filed: 08/09/2017

simple court-date reminders are equally effective. The ABA Standards also recognize that consideration of non-financial release conditions is particularly important because of the disproportionate burden money bail imposes on indigent defendants. Id. at 10-5.3(d).
Second, the ABA Standards make secured money bail a last resort when setting pretrial release conditions. The Standards permit the imposition of “[f]inancial conditions other than unsecured bond . . . only when no other less restrictive condition of release will reasonably ensure the defendant’s appearance in court.”5 And the Standards counsel that because a defendant’s ability to pay has no rational connection to whether the defendant poses a danger to the community, monetary release conditions should be used only to ensure reappearance, not “to respond to concerns for public safety.” See id. at 10-1.4(d).6 The obvious corollary is that, if monetary release is only intended to ensure the defendant’s later reappearance, the defendant must first actually be released. No release-eligible defendant should remain incarcerated simply because they cannot buy this freedom.
Third, the Standards prohibit bail systems that fail to account for an individual’s ability to pay. Id. at 10-5.3(a). Consistent with the demands of due

5

ABA Standard at 10-5.3(a); see also id. at 10-5.3(d) (providing that judicial officer imposing

financial conditions should first consider an unsecured bond).

6

The Standards also recognize pretrial release conditions should be only be imposed as

necessary to serve their legitimate purposes of ensuring defendants’ reappearance and protecting

the public; pretrial release conditions should never be imposed to punish or frighten the defendant,

or to placate the public opinion. Standard 10-5.3(c).

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Case: 17-20333 Document: 00514109926 Page: 21 Date Filed: 08/09/2017
process, the Standards urge that “[f]inancial conditions should be the result of an individualized decision taking into account the special circumstances of each defendant, the defendant’s ability to meet the financial conditions and the defendant’s flight risk.” Id. (emphasis added).
Moreover, the Standards unequivocally state that “[t]he judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.” Id. at 10-1.4(e). The ABA takes this position because, without such an ability-to-pay determination, a moneybail system “undermin[es] basic concepts of equal justice” and means that only “those who can afford a bondsman go free.” Id. at pp. 111-12 (quoting Daniel J. Freed & Patricia Wald, Bail in the United States 21 (1964)). Accordingly, jurisdictions must fully consider each defendant’s individual financial situation, including whether secured bail will prevent that person’s release, and also must reconsider that defendants’ financial situation whenever a release-eligible defendant remains incarcerated due to their inability to make bail.
The Pending ABA Resolution Since the publication of its Standards, the ABA has continued to study and research the issue of money bail. Later this month, the ABA House of Delegates will consider a Resolution, prepared by the ABA Criminal Justice Section’s Chair, urging jurisdictions “to adopt procedures favoring release of defendants upon their own recognizance or unsecured bond” and recommending that Courts “not impose
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Case: 17-20333 Document: 00514109926 Page: 22 Date Filed: 08/09/2017
financial conditions of release that a defendant is unable to meet.”7 ABA, Resolution Regarding Financial Conditions of Pretrial Release 1:1-11 (under consideration). The Resolution is the culmination of a tremendous amount of research and will be accompanied by a detailed report prepared by experts in the field, updating the ABA on the state of the bail system since the ABA’s adoption of the Standards in 2002.
Among these findings, the Report confirms that financial release conditions are not only rarely necessary, but that they have “adverse, and sometimes profoundly harmful, effects of which there was no knowledge fourteen years ago.” Id., Report at III. The report also recognizes that release conditions other than money bail are always sufficient to “reasonably ensure the defendant’s appearance in court.’” Id.
Still, the ABA’s research shows that, despite wide acceptance of the ABA’s standards, pretrial confinement has increased substantially. In fact, the majority of individuals currently incarcerated have not yet been convicted of a crime. Id. As such, this Resolution reiterates the ABA’s call to federal, state, local, and territorial governments to replace unconstitutional money-bail procedures with practices that rationally and effectively promote individual liberty, public safety, and the efficient administration of justice.

7

The ABA will update the Court after the Resolution has been considered.

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Case: 17-20333 Document: 00514109926 Page: 23 Date Filed: 08/09/2017
II. MONEY BAIL HARMS CRIMINAL DEFENDANTS AND DOES NOT SERVE THE FAIR AND PROPER ADMINISTRATION OF JUSTICE. The ABA’s Standards result from decades of research demonstrating that
money-bail systems harm criminal defendants and their families, with no countervailing benefit to public safety or the administration of justice.
A. Money Bail Unfairly Harms Criminal Defendants and Undermines the Criminal Justice System.
Extensive research shows that money bail adversely affects criminal defendants and undermines the fairness, effectiveness, and credibility of our criminal justice system. In addition to depriving release-eligible persons of their liberty because of their inability to buy it, money bail often impairs pretrial detainees’ ability to mount a defense to the charges against them and destabilizes their lives and those of their families.
First, money bail systematically places defendants in pretrial detention for no reason other than their inability to pay. In theory, money bail exists to facilitate a defendant’s release; by definition, any defendant for whom bail is set is, by definition, release-eligible. Yet for many defendants, there is no option other than to wait in jail. Defendants and their families are frequently unable to afford a fixed monetary bond or a nonrefundable 10 or 20% commercial surety fee. Indeed, in many cases a commercial surety is not even an option; many bail bondsmen will not even offer small bonds—meaning that, ironically, indigent defendants who are charged with the least serious offenses may be more likely to stay in jail. See Brian
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Case: 17-20333 Document: 00514109926 Page: 24 Date Filed: 08/09/2017
Montopoli, Is the U.S. Bail System Unfair?, CBS News (Feb. 8, 2013). Data show that many defendants are unable to meet even relatively small bond amounts; in New York City, for example, only 26% of criminal defendants made bail set at less than $500 at arraignment, and only 7% made bail set at $5,000 (the median amount for a felony). Mary T. Phillips, New York City Criminal Justice Agency, Inc., A Decade of Bail Research in New York City, 51 tbl. 7 (Aug. 2012). Even for those defendants who are ultimately able to secure the necessary resources, the process of doing so may take days or weeks.8
Second, the consequences of pretrial detention are profound: even a few days in jail can disrupt a defendant’s life, leading to long-term negative consequences. Pretrial detainees cannot work or earn income while incarcerated and may lose their jobs while waiting for a hearing, making it even more difficult to make bail. See Moving Beyond Money: A Primer on Bail Reform, Criminal Justice Policy Program at Harvard Law School 7 (Oct. 2016) (“Moving Beyond Money”); Barker v. Wingo, 407 U.S. 514, 532-33 (1972). Children may be left unsupervised, and elderly or sick relatives may have no one else to take care of them. Defendants living in shelters

8

In rural areas, long distances and limited staff further increase the likelihood of prolonged

detention before a defendant’s first appearance before a judicial officer. It is therefore particularly

important to find alternatives to money-bail systems in those jurisdictions. See Stephanie Vetter &

John Clark, National Association of Counties, The Delivery of Pretrial Justice in Rural Areas: A

Guide for Rural County Officials (2012). The ABA’s Criminal Justice Standards state that “the

defendant should in no instance be held by police longer than 24 hours without appearing before

a judicial officer,” Standard 10-4.1, but in many areas of the country, suspects are held for much

longer times.

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Case: 17-20333 Document: 00514109926 Page: 25 Date Filed: 08/09/2017
may lose housing for missing curfews or for prolonged absences. See Nick Pinto, The Bail Trap, N.Y. Times (Aug. 13, 2015). For indigent defendants, even short periods of confinement can wreak havoc on an already precarious financial situation. Given indigent defendants’ already diminished level of economic security and often shaky social safety nets, a prolonged pretrial detention may trigger a debilitating downward spiral, even if they are ultimately acquitted.
Moreover, detention does not just disrupt a defendant’s life and hamper his or her ability to provide for the family. Incarcerated persons are also more likely to be sexually victimized, contract infectious diseases, and be exposed to unsafe and unsanitary living conditions, undermining their continued health and welfare. See Allen J. Beck et al., Bureau of Justice Statistics, U.S. Dep’t of Justice, Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12, at 9 (2013); Moving Beyond Money, at 6. Alarmingly, pretrial detainees also commit four-fifths of jail suicides, a risk that is highest during the first seven days of incarceration, when detainees are experiencing the initial “shock of confinement.” Margaret Noonan et al., U.S. Dep’t of Justice, Mortality in Local Jails and State Prisons, 2000-2013 – Statistical Tables 3, 10, 12 (2015); The “Shock of Confinement”: The Grim Reality of Suicide in Jail, NPR: All Things Considered (July 27, 2015).
Third, needless pretrial detention undermines the criminal justice system and frustrates detainees’ legal rights. Pretrial detention impairs detainees’ ability to prepare their case, including their “ability to gather evidence, contact witnesses, or
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Case: 17-20333 Document: 00514109926 Page: 26 Date Filed: 08/09/2017
otherwise prepare [a] defense.” Barker, 407 U.S. at 533. For more than fifty years, researchers have found that pretrial detention leads to worse case outcomes for indigent defendants. See generally Anne Rankin, The Effect of Pretrial Detention, 39 N.Y.U. L. Rev. 641 (1964). Contemporary research too bears this out. Pretrial detainees are more likely to be convicted, more likely to receive jail or prison sentences, and, when convicted, are more likely to receive a longer prison or jail sentence. Phillips, supra at 115-21; Christopher T. Lowenkamp et al., Arnold Found., Investigating the Impact of Pretrial Detention on Sentencing Outcomes (Nov. 2013). These consequences are particularly perverse because they may weigh heaviest on the lowest-risk defendants; one study found that low-risk defendants detained for the entire pretrial period are more than five times more likely to be sentenced to jail compared to low-risk defendants released at some point before trial, and nearly four times more likely to be sentenced to prison—with sentences that, on average, are nearly three times longer. See Lowenkamp, Investigating the Impact, supra at 11.
Pretrial confinement contributes directly to these disparities. In part, pretrial detainees’ adverse outcomes occur because their confinement prevents them from demonstrating their ability to comply with the law and contribute to society, including through employment, schooling, rehabilitation, and family obligations. Phillips, supra at 118. Furthermore, the prospect of prolonged pretrial detention may encourage guilty pleas from defendants who are innocent or have potential defenses
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Case: 17-20333 Document: 00514109926 Page: 27 Date Filed: 08/09/2017
to the charges. Moving Beyond Money, at 7. In many cases, the anticipated length of pretrial detention may exceed the length of an actual post-conviction sentence; for some minor crimes, post-conviction incarceration may not even be an option. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2492 (2004) (noting that defendants charged with misdemeanors or lesser felonies are more likely to be incarcerated before than after conviction). Thus, when given the choice between immediate release and trial after prolonged detention, many defendants, including innocent defendants, reasonably decide to plead guilty. Robert C. Boruchowitz et al., Nat’l Ass’n of Criminal Defense Lawyers, Minor Crimes, Massive Waste 32-33 (Apr. 2009).
Pretrial detainees’ adverse case consequences are apparent in Harris County, Texas. Harris County misdemeanor defendants—otherwise eligible for release but imprisoned solely because of their inability to buy it—are twenty-five percent more likely to be convicted and forty-three percent more likely to be sentenced to jail than similarly-situated defendants who can afford their freedom. Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 716-17 (2017). In fact, after controlling for “a wide range of confounding factors,” including demographics and criminal history, researchers studying Harris County’s bail system concluded that these adverse case outcomes were solely attributable to detainees’ confinement. Id. at 717.
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Case: 17-20333 Document: 00514109926 Page: 28 Date Filed: 08/09/2017
B. Money Bail That Results in Pretrial Wealth-Based Incarceration Does Not Advance Public Safety or the Interests of Justice.
For all of its costs to indigent defendants, money bail—particularly when imposed without regard to a defendant’s individual circumstances—often fails to advance the primary interests of a pretrial release system: ensuring that released defendants appear for their court dates, and keeping high-risk defendants in detention. See Standard 10.1-1.
First, the available evidence indicates that money bail is rarely necessary to ensure defendants’ future reappearance in court. Non-high risk defendants released on unsecured bonds reappeared for court dates at rates slightly higher than those posting secured bonds. See Michael R. Jones, Pretrial Justice Institute, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option 11 (2013). For example, the District of Columbia does not use money bail and maintains appearance rates for released defendants of 90%—as compared to a national average of less than 80%. Compare Pretrial Services Agency for the District of Columbia, Performance Measures, https://www.psa.gov/?q=data/performance_measures (data as of June 30, 2015) (last visited Aug. 7, 2017) with Thomas Cohen & Brian Reaves, Bureau of Justice Statistics, U.S. Dep’t of Justice, Pretrial Release of Felony Defendants in State Court 8 fig. 5 (Nov. 2007), http://www.bjs.gov/content/pub/pdf/prfdsc.pdf. Furthermore, research shows significant increases in appearance rates from nonfinancial approaches, such as supervised release or basic reminders to pretrial
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Case: 17-20333 Document: 00514109926 Page: 29 Date Filed: 08/09/2017
defendants of upcoming court dates. See Christopher T. Lowenkamp & Marie Van Nostrand, Arnold Found., Exploring the Impact of Supervision on Pretrial Outcomes 17 (2013); Mitchel N. Herian & Brian H. Bornstein, Reducing Failure to Appear in Nebraska: A Field Study, 9 Nebraska Lawyer, Sept. 2010, at 11, 12-13 .
Second, there is no evidence that money-bail systems improve public safety. In fact, the opposite is true—low- and moderate-risk people who are detained for more than a day are significantly more likely to engage in a future crime, as compared with low- and moderate-risk people who are not. Christopher T. Lowenkamp et al., Arnold Found., The Hidden Costs of Pretrial Detention 17-18 (2013). And because innocent people will plead guilty to relatively low-level crimes in order to secure their release, the guilty person remains free and community safety suffers. Moving Beyond Money, at 7.
Third, despite the minimal benefit, excessive use of money bail imposes heavy costs on the criminal justice system. Needless incarceration based on someone’s inability to afford their freedom bloats an already swollen criminal justice population—in 2015, pretrial detainees comprised over 62% of the people incarcerated in jails, up from 40% in 1983—and cost taxpayers an estimated $9 billion per year. Todd D. Minton & Zhen Zeng, Bureau of Justice Statistics, U.S. Dep’t of Justice, Jail Inmates in 2015, at 5, Table 4 (2016); Allen J. Beck, Bureau of Justice Statistics, U.S. Dep’t of Justice, Profile of Jail Inmates, 1989, at 2 Table 1 (1991); Council of Economic Advisers, Issue Brief, Fines, Fees, and Bail 8 (Dec.
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Case: 17-20333 Document: 00514109926 Page: 30 Date Filed: 08/09/2017
2015) (estimating the average daily cost per inmate at between $50 to $500). Wealthbased bail schemes thus impose substantial public costs and run counter to the ABA’s policy of promoting fiscal responsibility by “eliminate[ing] unnecessary correctional expenditures, enhance[ing] cost effectiveness, and promot[ing] justice.” ABA Crim. J. Sec., Report 107 (2002). In addition, jailed persons cannot contribute to society in other ways, including through employment, taxes, and spending. Pretrial detention’s superfluous costs are particularly staggering when compared to the modest price of supervised release programs, estimated at only 10 dollars per individual per day. U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 9-12, 19 (2014); see also Pretrial Justice: How Much Does It Cost?, Pretrial Just. Inst. 1-7 (2017).
Finally, wealth-based incarceration harms communities and worsens societal inequity by inherently discriminating against those with limited resources, disadvantaging them as compared to their more affluent peers. Moving Beyond Money, at 7. And because wealth strongly correlates with race, cash bail also exacerbates pre-existing racial disparities in the criminal justice system. Id. For example, a study of defendants accused of drug crimes found that Latinos and Blacks’ odds of making bail were half those of Whites’ with the same bail amounts and legal characteristics, suggesting that, on the whole, “Latinos and Blacks have fewer economic resources and networks than Whites with similar legal
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Case: 17-20333 Document: 00514109926 Page: 31 Date Filed: 08/09/2017

characteristics.” Traci Schlesinger, Racial and Ethnic Disparity in Pretrial Criminal Justice Processing, 22 Just. Q. 170, 183 (2005). The study’s authors found that “Latino defendants are 67 percent more likely to be denied bail, 29 percent less likely to be granted a non-financial release, and receive bails that are 26 percent higher,” and, most alarmingly for this Court’s purposes, concluded that “ethnic disparity” is most notable “during the decision to grant a non-financial release.” Id. at 183-84 (emphasis added). If Black and Hispanic defendants are less able to post bail, or more likely to receive higher bail amounts or be denied bail altogether, they are more likely to suffer the adverse consequences of pretrial confinement listed above.
C. A Consensus Has Developed that Money-Bail Schemes Are Unfair and Do Not Work.
Numerous organizations across the spectrum of the criminal justice system have joined the ABA in rejecting money-bail systems in favor of individualized pretrial release assessments.9 For example, key recommendations from the U.S.

9

See, e.g., Nat’l Ass’n of Counties, The American County Platform and Resolutions 2016-

2017,

at

102,

http://www.naco.org/sites/default/files/documents/2016-

2017%20American%20County%20Platform.pdf (recommending that states and localities make

greater use of non-financial pretrial release options, such as citation release and release on

recognizance); Conference of Chief Justices, Resolution 3, at 2 (adopted Jan. 30, 2013) (urging

court leaders to advocate for the presumptive use of nonfinancial release conditions); Am. Jail

Ass’n, Resolutions of the American Jail Association 40 (2017),

http://www.americanjail.org/files/About%20PDF/_AJA%20Resolutions%20-

%20January%202017.pdf (recognizing that pretrial supervision can be a safe and cost-effective

alternative); Nat’l Ass’n of Criminal Defense Lawyers, Policy on Pretrial Release and Limited

Use

of

Financial

Bond

1,

https://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=25175&libID=25144 (last visited

August 7, 2017) (“Consistent with the current ABA Standards on Pretrial Release, these guidelines

permit the denial of bail only when the judicial officer finds clear and convincing evidence the

accused represents a significant risk of flight or imminent physical harm to others.”); Am.

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Case: 17-20333 Document: 00514109926 Page: 32 Date Filed: 08/09/2017

Department of Justice, Office of Justice Program’s 2011 National Symposium on Pretrial Justice included “[e]liminating the use of the automatic, predetermined money bail.” National Symposium on Pretrial Justice, Summary Report of Proceedings 39 (2011). In 2016, the Department of Justice again reminded courts that they “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.” Dear Colleague Letter from Gupta, Principal Dep. Ass’t Att’y Gen., Civil Rights Division and Foster, Director, Office for Access to Justice 2 (Mar. 14, 2016). Likewise, the National Sherriff’s Association recognized that “a justice system relying heavily on financial conditions of release at the pretrial stage is inconsistent with a fair and efficient justice system.” Nat’l Sheriffs Ass’n, Resolution 2012-6, National Sheriffs’ Association Supports & Recognizes The Contribution Of Pretrial Services Agencies To Enhance Public Safety (2012).
Several state and local governments have likewise abandoned their moneybail schemes. As of 2015, 21 States expressly provided a presumption in favor of releasing defendants on personal recognizance or an unsecured bond, and 16 required courts to impose the least-restrictive condition on pretrial release. See

Probation and Parole Ass’n, Resolution – Pretrial Supervision (enacted June 2010),

https://www.appa-

net.org/eweb/Dynamicpage.aspx?site=APPA_2&webcode=IB_Resolution&wps_key=3fa8c704-

5ebc-4163-9be8-ca48a106a259 (recognizing pretrial supervision as a safe and cost-effective

alternative to jail for many individuals awaiting trial); see also Nat’l Ass’n of Pretrial Services

Agencies,

Standards

on

Pretrial

Release

(3d

ed.

2004),

https://www.pretrial.org/download/performance-measures/napsa%20standards%202004.pdf.

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Case: 17-20333 Document: 00514109926 Page: 33 Date Filed: 08/09/2017

Amber Widgery, Nat’l Conference of State Legislators, Guidance for Setting

Release Conditions (May 13, 2015); cf. Standard 10.1-6 (recognizing “policy

favoring release”); id. at 10.1-2 (“In deciding pretrial release, the judicial officer

should assign the least restrictive condition(s) of release.”).

Several states and local jurisdictions have either authorized or adopted fact-

sensitive risk assessment tools evaluating appropriate conditions of pretrial release.

See Press Release, Arnold Found., More Than 20 Cities and States Adopt Risk

Assessment Tool To Help Judges Decide Which Defendants To Detain Prior to Trial

(June 26, 2015); cf. Standard 10-1.10 (“Every jurisdiction should establish a pretrial

services agency or program to collect and present the necessary information, [and]

present risk assessments[.]”). Most recently, New Jersey has nearly eliminated cash

bail. See Lisa W. Foderaro, New Jersey Alters Its Bail System and Upends Legal

Landscape,

N.Y.

Times

(Feb.

6,

2017),

https://www.nytimes.com/2017/02/06/nyregion/new-jersey-bail-system.html.

In sum, evidence and experience show that money bail imposed without

consideration of a defendant’s ability to pay has no place in a modern system of

criminal justice. In the few circumstances where a financial condition of release is

necessary to ensure a defendant’s appearance at trial, a court can impose one,

provided that it is tailored so that defendants are never held in jail merely because

they cannot afford to pay the bond. But in the great majority of cases, money bail—

and certainly a money-bail system in which the amount of the bail is mechanically 22

Case: 17-20333 Document: 00514109926 Page: 34 Date Filed: 08/09/2017
set by reference to a schedule of charges, with no consideration of the defendant’s ties to the community or financial circumstances—is unnecessary, and will only hobble the accused person’s ability to muster a defense to the charges against him, all while imposing a grave human toll. III. HARRIS COUNTY, TEXAS’ BAIL SYSTEM ILLUSTRATES THE
CONSTITUTIONAL PROBLEMS WITH MONEY BAIL. The ABA’s Criminal Justice Standards are built on the basic constitutional premise that individuals should not be incarcerated solely based on their inability to purchase freedom. Faithful application of the Standards—including individualized risk and financial assessments, the imposition of only the least restrictive release conditions, and a general presumption in favor of pretrial release—should ensure that defendants’ constitutional rights will be protected. Here, however, Harris County’s wealth-based bail scheme falls far short of ABA guidelines and violates both the Equal Protection and Due Process Clauses. In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court emphasized that depriving a person of “conditional freedom simply because, through no fault of his own, he cannot pay … would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. at 672-73. Consistent with this basic principle, the Court has rejected a number of other government policies and practices in a wide range of contexts for “punishing a person for his poverty.” Id. at 671 (revocation of probation for inability to pay fine); see, e.g., Tate v. Short, 401 U.S. 395, 398 (1971)
23

Case: 17-20333 Document: 00514109926 Page: 35 Date Filed: 08/09/2017
(incarceration for inability to pay traffic fines); Williams v. Illinois, 399 U.S. 235, 240-41 (1970) (incarceration beyond statutory maximum due to inability to pay fine); Smith v. Bennett, 365 U.S. 708, 711 (1961) (inability to pay fee to file petition for writ of habeas corpus); see also Griffin v. Illinois, 351 U.S. 12, 19 (1956) (holding trials must not depend on the amount of money a person is able to pay).
Before overriding a defendant’s “strong interest in liberty,” jurisdictions must recognize the “importance and fundamental nature” of the right to pretrial release and must carefully consider whether the government has advanced “sufficiently weighty” interests to the contrary. United States v. Salerno, 481 U.S. 739, 750-51 (1987). Money-bail systems that fail to account for defendants’ ability to pay and continue to incarcerate release-eligible persons based on their inability to buy their freedom do not meet that standard. As this Court explained in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc), when an indigent defendant’s appearance can be assured by an alternate form of release, “pretrial confinement for inability to post money bail would constitute imposition of an excessive restraint.” Id. at 1058. Following this Circuit’s reasoning, even if money bail might be constitutionally acceptable in certain circumstances, it can never be the only option available to indigent defendants. As the District Court found, that has effectively been the case in Harris County. ODonnell v. Harris Cty., No. CV H-16-1414, 2017 WL 1735456, at *3 (S.D. Tex. Apr. 28, 2017).
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Case: 17-20333 Document: 00514109926 Page: 36 Date Filed: 08/09/2017
In addition to treating defendants differently and arbitrarily depending on their financial status, money-bail systems violate the fundamental constitutional right to due process. “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Salerno, 481 U.S. at 755. Wealth-based bail schemes violate the bedrock constitutional principle that, prior to being deprived of liberty or property, persons must have notice and a meaningful opportunity to be heard. See Fuentes v. Shevin, 407 U.S. 67, 80 (1972). Rigorous procedural requirements must be followed before a person can be jailed for non-payment; in any proceeding where ability to pay is at issue, an individual must both receive notice that ability to pay may be a critical question in the proceedings and must also have an opportunity to present their financial information, and the court must make an express finding that the person has the ability to pay. Turner v. Rogers, 564 U.S. 431, 446-48 (2011). Moreover, the amount of monetary bail must be revisited whenever any release-eligible defendant remains in jail following a bail determination; the purpose of bail is to enable a defendant’s release, so if the amount set does not result in release, the setting of bail has not served its purpose. Procedural safeguards such as these are especially important in the context of pretrial detention, where the presumption of innocence is at its peak, and where every person granted bail is, by definition, release-eligible. Bail systems like Harris County’s, which penalize persons who cannot afford to pay bail with pretrial detention, cannot satisfy these procedural due process requirements.
25

Case: 17-20333 Document: 00514109926 Page: 37 Date Filed: 08/09/2017
Due process also prohibits the government from limiting certain fundamental liberty interests—no matter how much process is provided—“unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). In Salerno, the Court held that a pretrial detention system that applied to those “arrested for a specific category of extremely serious offenses” who “Congress specifically found [were] far more likely to be responsible for dangerous acts in the community after arrest” was narrowly tailored to serve such a compelling state interest. Salerno, 481 U.S. at 750. Critically, however, the Court explained that the pretrial detention system there required the government to demonstrate “probable cause” that the arrestee committed the charged crime and to convince a neutral decision-maker, following a “full-blown adversary hearing,” and a finding “that no conditions of release can reasonably assure the safety of the community or any person[s].” See id.
Harris County’s pretrial detention scheme cannot satisfy this burden. Conditioning a person’s release on their ability to buy it does nothing to further community safety. Quite the opposite, unwarranted pretrial detention often undermines public safety. Thus, wealth-based pretrial detention schemes—such as Harris County’s—not only violate the ABA’s Standards, but also are unconstitutional.
26

Case: 17-20333 Document: 00514109926 Page: 38 Date Filed: 08/09/2017
CONCLUSION The judgment of the district court invalidating the Harris County money-bail system should be affirmed.

Dated: August 9, 2017
Of Counsel: Lindsay C. Harrison Peter A. Goldschmidt Grace C. Signorelli-Cassady

Respectfully Submitted,
/s/ Linda A. Klein Linda A. Klein American Bar Association 321 North Clark Street Chicago, IL 60654 (312) 988-5000 abapresident@americanbar.org

27

Case: 17-20333 Document: 00514109926 Page: 39 Date Filed: 08/09/2017
CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because the brief contains 7,590 words. This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6), respectively, because this brief has been prepared in a proportionately spaced typeface using Microsoft Word 2007 in Times New Roman 14-point font.

Date: August 9, 2017

/s/ Linda A. Klein Linda A. Klein American Bar Association 321 North Clark Street Chicago, IL 60654 (312) 988-5000 abapresident@americanbar.org

28

Case: 17-20333 Document: 00514109926 Page: 40 Date Filed: 08/09/2017
CERTIFICATE OF SERVICE I certify that on August 9, 2017, I caused the foregoing Brief for American Bar Association as Amicus Curiae in Support of Plaintiffs-Appellees and Affirmance to be electronically filed via the Court’s CM/ECF System. Counsel for all parties will be served via the Court’s CM/ECF system at the email addresses on file.

Date: August 9, 2017

/s/ Linda A. Klein Linda A. Klein American Bar Association 321 North Clark Street Chicago, IL 60654 (312) 988-5000 abapresident@americanbar.org

29

 
 Case: 17-20333 Document: 00514108112 Page: 1 Date Filed: 08/09/2017
No. 17-20333

MARANDA LYNN O’DONNELL,
PLAINTIFF – APPELLEE, V.
HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C. FLEMNG; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN
BROWN; DONALD SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES,
DEFENDANTS – APPELLANTS.

LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,
PLAINTIFFS - APPELLEES V. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ,
DEFENDANTS - APPELLANTS

On Appeal from the United States District Court for the Southern District of Texas

Brief of the Cato Institute as Amicus Curiae in Support of Plaintiff-Appellee

August 9, 2017

Ilya Shapiro Counsel of Record
Devin Watkins CATO INSTITUTE 1000 Mass. Ave., N.W. Washington, D.C. 20001 (202) 842-0200 ishapiro@cato.org

Case: 17-20333 Document: 00514108112 Page: 2 Date Filed: 08/09/2017

Supplemental Certificate of Interested Persons

Case 17-20392, Maranda O’Donnell v. Harris County, Texas, et al.

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Rule 28.2.1

have an interest in the outcome of this case. These representations are

made in order that the judges of this court may evaluate possible disqual-

ification or recusal.

Person or Entity

Connection to Case

Ilya Shapiro

Counsel to amicus

Devin Watkins

Counsel to amicus

Cato Institute

Amicus curiae

Amicus curiae Cato Institute is a Kansas nonprofit corporation. It

has no parent companies, subsidiaries, or affiliates. It does not issue

shares to the public.

/s/ Ilya Shapiro

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Case: 17-20333 Document: 00514108112 Page: 3 Date Filed: 08/09/2017
Table of Contents Page
Supplemental Certificate of Interested Persons .......................................i Table of Authorities................................................................................. iii INTEREST AND INDEPENDENCE OF AMICUS CURIAE ..................1 SUMMARY OF ARGUMENT ...................................................................1 ARGUMENT .............................................................................................2 I. THE RIGHT TO BAIL EXISTED AT COMMON LAW AND
WAS INCORPORATED INTO THE U.S. CONSTITUTION ............2 A. English Authorities from Before the Magna Carta to the
Revolution Confirm the Right to Bail .......................................... 2 B. American Constitutional and Common Law Incorporates
and Upholds a Right to Bail ......................................................... 8 II. THE RIGHT TO BAIL GUARANTEES NON-EXCESSIVE,
INDIVIDUALIZED ASSESSMENTS NOT FIXED BY A PREDETERMINED SCHEME................................................................15 A. Pre- and Post-Revolutionary Constitutional and Common
Law Commits Bail to Judicial Discretion to Avoid Excessive Bail for Indigents and to Ensure Sufficient Sureties ................ 16 B. Pre-Determined, Non-Individualized Bail Schemes Violate the Right to Pre-Trial Liberty, the Right to Bail, and the Right Against Excessive Bail ..................................................... 22 CONCLUSION ........................................................................................23
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Case: 17-20333 Document: 00514108112 Page: 4 Date Filed: 08/09/2017
Table of Authorities Page(s)
Cases Bates v. Pilling, 149 Eng. Rep. 805 (K.B. 1834) ..................................... 19 Daw v. Swaine,
1 Sid. 424, 21 Car. 2 424, 88 Eng. Rep. 1195 (C.P. 1670) ...............18-19 Darnel’s Case, 3 How. St. Tr. 1 (1627) ....................................... 6-7, 17, 18 Ex Parte Hutchings, 11 Tex. App. 28 (Tex. 1881) ................................... 21 Jones v. Kelly, 17 Mass. 116 (1821) ........................................................ 21 Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963) ............................... 5 King v. Bowes, 1 T.R. 696, 99 Eng. Rep. 1327 (K.B. 1787)............... 16, 19 Neal v. Spencer, 10 Will. 3 257, 88 Eng. Rep. 1305 (K.B. 1698)............. 19 New Mexico v. Brown, 338 P.3d 1276 (N.M. 2014) ................................... 8 Parker v. Langley, 11 Anne 145, 88 Eng. Rep. 667 (Q.B. 1712) ............. 19 Smith v. Boucher, 10 Geo. 2 136, 27 Eng. Rep. 782 (K.B. 1736) ........ 6, 19 Stack v. Boyle, 342 U.S. 1 (1951) ............................................................ 12 United States v. Brawner, 7 Fed. 86 (W.D. Tenn. 1881) ............. 11, 20-21 United States v. Edwards, 430 A.2d 1321 (D.C. Cir. 1981)...................5-6 United States v. Lawrence,
26 Fed. Cas. 887 (No. 15,557) (D.C. Cir. 1835) ......................... 10-11, 21 United States v. Radford, 361 F.2d 777 (4th Cir. 1966) ......................... 21 United States v. Salerno, 481 U.S. 739 (1987)............................ 12, 13, 21 Whiting v. Putnam, 17 Mass. 175 (1821) ................................................ 21
Constitutional Provisions U.S. Const. amend. V .......................................................................... 9, 22 U.S. Const. amend. VIII .................................................................... 20, 22 U.S. Const. amend. XIV § 1................................................................. 9, 22
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Case: 17-20333 Document: 00514108112 Page: 5 Date Filed: 08/09/2017
U.S. Statutes Judiciary Act of 1789, 1 Stat. 73, § 33 ...................................................... 9 Northwest Ordinance of 1787, art. 2 ...................................................... 10
Other Authorities Bill of Rights, 1 W. & M., c. 2 (1689)....................................... 7, 14, 18, 20 Caleb Foote, The Coming Constitutional Crisis in Bail: I,
113 U. Pa. L. Rev. 959 (1965) ............................................... 8, 17, 18, 22 Co. Inst. 190...............................................................................................5 Co. Inst. 191..................................................................................... 2, 5, 13 Daniel J. Freed & Patricia M. Wald,
Bail in the United States: 1964 (1964)...................................................3 Elsa De Haas, Antiquities of Bail: Origin and Development in
Criminal Cases to the Year 1275 (1966) ...................................... passim George Arthur Malcolm, The Constitutional Law of the Philippine
Islands Together with Studies in the Field of Comparative Constitutional Law (1920)....................................................................12 Habeas Corpus Act of 1679, 31 Cha. II, c. 2 ...................................... 7, 18 Henri de Bracton, De Legibus et Consuetudinibus Angliae (c. 1235, reprinted 1990)................................................................2-3, 13 J. Chitty, A Practical Treatise on the Criminal Law (William Brown, Philadelphia 1819).............................................. 11, 20 Magna Charta ch. 29 (1225)......................................................................5 Magna Charta ch. 32 (1216)............................................................ 5, 9, 14 Magna Charta ch. 39 (1215)......................................................................5 Mass. Body of Liberties (1641)..................................................................8 Matthew J. Hegreness, America’s Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909 (2013) .............................................. 8 N.C. Const. Declaration of Rights § x (Dec. 18, 1776). ............................. 8 New York Charter of Liberties and Privileges (1683) .............................. 8 Petition of Right, 3 Car. I, c.1 (1628) .................................................. 6, 18
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Sir Edward Coke, A Little Treatise of Baile and Maineprize (1635) ............................................................................. 2, 13
Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke 1270 (Steve Sheppard, ed., 1st ed. 2003) .................. 7, 18
Sir Frederick William Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I (2d ed. 1898, reprinted 1984) .................................................... 3-4, 5, 17
Statute of Westminster I, 3 Edw. III, c. 3, 15 ........................................... 5 Timothy R. Schacke, Fundamentals of Bail: A Resource Guide for
Pretrial Practitioners and a Framework for American Pretrial Reform (2014) ..................................................................................... 4, 6 William Blackstone, Commentaries ................................................. 2, 4, 7 William Hawkins, A Treatise on the Pleas of the Crown (8th ed., 1716, reprinted 1824) .............................................. 2, 16, 19-20 William Smithers Church, A Treatise of the Writ of Habeas Corpus (1886) ...............................................................................................11-12
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Case: 17-20333 Document: 00514108112 Page: 7 Date Filed: 08/09/2017
INTEREST AND INDEPENDENCE OF AMICUS CURIAE1 The Cato Institute is a nonpartisan public policy research founda-
tion dedicated to advancing individual liberty, free markets, and limited government. Cato’s Center for Constitutional Studies helps restore the principles of constitutionalism that are the foundation of liberty. This case concerns amicus because holding prisoners through non-individualized bail schemes undermines due process and the Eighth Amendment.
SUMMARY OF ARGUMENT The right to affordable bail is supported by nearly a millennium of Anglo-American constitutional and common law. The Eighth Amendment protects the specific right to non-excessive pre-trial bail that takes into account defendants’ indigency. That right specifically incorporates a more general right to pre-trial liberty protected by the Fifth and Fourteenth Amendments’ Due Process Clauses. A predetermined, scheduled bail scheme that does not take into account individual indigency factors— like Harris County’s—violates those rights. Accordingly, this Court should affirm the court below and uphold the preliminary injunction.
1 No one other than amicus and its counsel wrote any part of this brief or paid for its preparation. The parties have consented to this filing.
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Case: 17-20333 Document: 00514108112 Page: 8 Date Filed: 08/09/2017
ARGUMENT I. THE RIGHT TO BAIL EXISTED AT COMMON LAW AND
WAS INCORPORATED INTO THE U.S. CONSTITUTION Anglo-American law from the Saxon tribes to the Rehnquist Court support the existence of a procedural right to bail for bailable offenses attendant to the fundamental right to pre-trial liberty. A. English Authorities from Before the Magna Carta to
the Revolution Confirm the Right to Bail Since time immemorial, concomitant to the general right to pretrial liberty, bail has been a procedural right for all offenses against the Crown, except for those specifically excluded at law. See, e.g., 4 William Blackstone, Commentaries *295 (“By the ancient common law, before and since the [Norman] conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case.” (footnotes omitted)); accord generally 2 William Hawkins, A Treatise on the Pleas of the Crown, bk. 2, ch. 15, at 138 (8th ed., 1716, reprinted 1824); 2 Co. Inst. 191; Sir Edward Coke, A Little Treatise of Baile and Maineprize (1635) (listing the offenses for which a person had a right to bail and no right to bail at common law); 2 Henri de Bracton, De Legibus et Consuetudinibus Angliae 295 (c. 1235,
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Case: 17-20333 Document: 00514108112 Page: 9 Date Filed: 08/09/2017
reprinted 1990). This tradition of bail rights continued through the Magna Carta, the English Revolution, the English Restoration, the Colonial Era, and into American jurisprudence.
“[T]he root idea of the modern right to bail” originates from “tribal customs on the continent of Europe,” developing far earlier than parchment barrier guarantees of freedom like the Magna Carta or the Constitution. Elsa De Haas, Antiquities of Bail: Origin and Development in Criminal Cases to the Year 1275, at 128 (1966); accord 2 Sir Frederick William Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I, at 458-60 (2d ed. 1898, reprinted 1984). Those customs used a financial bond “as a device to free untried prisoners.” Daniel J. Freed & Patricia M. Wald, Bail in the United States: 1964, at 1 (1964). Pre-Normal England was largely governed by the Germanic tribal custom of wergild2 carried over by the Saxons—wergild payment is the ancient root of surety bail. De Haas, supra, at 3-15. Wergild was the payment due to a family for the slaying or assault of a relative. Id. at 1113. By providing sufficient surety that the wergild would be paid, the blood feud between the families subsided and the perpetrator was given
2 Also known as wirgeld or wergeld.
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safe conduct. Id. at 12-13. The surety of the wergild evolved into the concept of bail thereafter. This system pervaded until William the Conqueror imported Frankish law.
As the Germanic law evolved into the classic common law of postNorman Conquest England, the wergeld surety became the crown pleas of replevy and mainprize, secured by bail pledges circa 1275. See 2 Pollock & Maitland, supra, at 584; De Haas, supra, at 32-33, 64-65, 68, 85 (noting that the pleas are listed in the Statute of Westminster I). The writs were aimed at the “release of the alleged criminal,” as “bail as a right of free men assumed greater proportions of importance.” De Haas, supra, at 85, 129. Near the end of the Danish and Wessex Kings’ rule over the British Isles in the 1000s, King Canute II (the Great) instituted the frankpledge system which subdivided the people of the realm by household into groups of ten—a tithing—that were bound for the surety of each-other to appear in criminal offenses. Timothy R. Schacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform 25 (2014); 4 William Blackstone, Commentaries, *249. The frankpledge system complimented a robust private surety system. De Haas, supra at 49-50.
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In 1215, the Magna Carta codified the fundamental right to pretrial liberty: “No free man shall be arrested or imprisoned . . . or victimized in any other way . . . except by the lawful judgment of his peers or by the law of the land.” Magna Carta ch. 32 (1216); accord Magna Carta ch. 39 (1215); Magna Carta ch. 29 (1225); 2 Co. Inst. 190, 191 (“To deny a man replevin that is replisable, and thereby to detain him in prison, is a great offense.”); see also Kennedy v. Mendoza–Martinez, 372 U.S. 144, 186 (1963) (noting the same). Thus, men were to be left at liberty until there is a verdict in their cases. Indeed, “the King’s courts at Westminster” were greatly concerned with “‘the liberty of the subject’” in bail cases. Cf. 2 Pollock & Maitland, supra, at 586. The 1275 Statute of Westminster laid out which crimes were bailable and those where the right to bail may be abrogated by the risk of disturbance of the peace of the community, as well as creating severe punishments for corrupt sheriffs. Statute of Westminster I, 3 Edw. III, c. 3, 15; De Haas, supra, at 95.
Following the Norman Conquest, it became apparent that the sheriffs (shire-reeves) responsible for groups of frankpledged tithings were corrupt in their administration of bail through writs of bail, replevy, and mainprize. United States v. Edwards, 430 A.2d 1321, 1326 (D.C. Cir.
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1981) (en banc) (noting that sheriffs’ bail “power was widely abused by sheriffs who extorted money from individuals entitled to release without charge” and “accepted bribes from those who were not otherwise entitled to bail”); De Haas, supra at 90-95. In 1166, bail, mainprize, and replevy for crimes of royal “concern” were thus committed to judicial discretion as crown pleas that must be heard by a crown court. De Haas, supra, at 60-61. The Normans also incorporated grand juries into the justice system, and established a system of circuit-riding judges. Schacke, supra, at 25; De Haas, supra at 58-63 (discussing the 1166 Assize of Clarendon); see also Smith v. Boucher, 10 Geo. 2 136, 136, 27 Eng. Rep. 782, 783 (Hardwicke, J.) (K.B. 1736) (“[T]o settle the quantum of that bail . . . is still subject to the power of the Judge.”).
Statutes between 1150 and the 1400s curtailed the powers of the sheriffs in bail in response to malpractice and heaped on penalties for abuses. De Haas, supra at 95-96 & n.277 (collecting statutes). Abuse of the right to bail by the Stuart King Charles I lead to the adoption of the Petition of Right in 1628, overruling the King’s judges in Darnel’s Case who interpreted the Magna Carta as not applying to pre-trial liberty. Petition of Right, 3 Car. I, c.1 (1628); Darnel’s Case, 3 How. St. Tr. 1, 25
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(1627) (opening request to the judges was “that he may be bailed from his imprisonment . . . for it being before trial and conviction had by law, it is but an accusation, and he that is only accused ought by law to be let to bail.”); 3 Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke 1270 (Steve Sheppard, ed., 1st ed. 2003) (MP Sir Edward Coke’s report on the framing of the Petition of Right to the Committee of the Whole Commons). In 1679, in response to further abuses of the Stuart kings and their sheriffs, Parliament passed the Habeas Corpus Act, securing judicial review of detention, including whether a person was entitled to bail release. Habeas Corpus Act of 1679, 31 Cha. II, c. 2.
In 1689, Parliament underscored the importance of the right to pretrial liberty by expressly including a right against excessive bail in the Bill of Rights, thereby legislating against a chief form of attack on the fundamental right to bail employed by the Stuart Kings—the unlawful holding of prisoners through unaffordable bail. Bill of Rights, 1 W. & M., c. 2 (1689). The common law of the right to pre-trial liberty through bail continued through to the Revolution and was carried into the U.S. Constitution, state constitutions, and federal law. E.g., 4 William Blackstone, Commentaries *295.
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B. American Constitutional and Common Law Incorporates and Upholds a Right to Bail
“In crossing the Atlantic, American colonists carried concepts embedded in these documents [the Magna Carta, 1275 Statute of Westminster I, Habeas Corpus Act of 1679, and the 1689 Bill of Rights] that became the foundation for our current system of bail.” New Mexico v. Brown, 338 P.3d 1276, 1284 (N.M. 2014).
Both the colonies that became states and later states incorporated the right to bail into their own law. “One commentator who surveyed the bail laws in each of the states found that forty-eight states have protected, by constitution or statute, a right to bail ‘by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.’” Id. (quoting Matthew J. Hegreness, America's Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 916 (2013)). Pennsylvania, New York, Massachusetts, North Carolina, and Virginia all adopted right to bail clauses either before or immediately after the founding. Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 974-77 (1965); see also generally N.Y. Charter of Liberties and Privileges (1683); Mass. Body of Liberties (1641); N.C. Const. Declaration of Rights § x (Dec. 18, 1776).
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On the federal level, this right to bail has been woven into the Constitution, federal statutory law, and federal court decisions. The general right to pre-trial liberty from the time of the Magna Carta was preserved on a constitutional level in the Constitution’s Due Process Clauses. Compare U.S. Const. amend. V (“nor shall any person . . . be deprived of . . . liberty . . . without due process of law”) and amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law”) with Magna Carta ch. 32 (1216) (“No free man shall be arrested or imprisoned . . . or victimized in any other way . . . except by the lawful judgment of his peers or by the law of the land.”).
In the Judiciary Act of 1789, Congress codified bail as the procedural mechanism for preserving the right to pre-trial liberty by enacting an absolute right to bail in non-capital cases and a limited right to bail in capital cases. 1 Stat. 73, § 33, at 91 (“Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.”). The Articles of Confederation Congress also recognized the right to pre-trial liberty through bail—the
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Northwest Ordinance of 1787 enacted that “[a]ll persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land.” Northwest Ordinance of 1787, art. 2.
It is worth examining an example of how the right to bail applied even for the most serious non-capital crimes during the Founding Era by considering United States v. Lawrence, 4 Cranch C. C. 518 (1835). In this case, Richard Lawrence attempted to assassinate President Andrew Jackson, failing only because two properly loaded pistols both misfired. Because no physical harm occurred, the laws of the time considered this act to be the common law crime of assault with intent to murder (which did not carry the death penalty). Any crime that was not a capital crime— even one as serious as this—was bailable and the Constitution was understood to prohibit bail more than the defendant could provide. Id. (“The chief judge then said . . . that the constitution forbade him to require excessive bail; and that to require larger bail than the prisoner could give
10

Case: 17-20333 Document: 00514108112 Page: 17 Date Filed: 08/09/2017
would be to require excessive bail, and to deny bail in a case clearly bailable by law.”). The judge initially suggested a bail of $1000. The government recognized the right to bail here, but suggested that the amount be increased to $1500 on the possibility that the defendant had friends who could assist in posting bail—a request to which the judge agreed. Id.
The understanding in Lawrence, that bail cannot be required of indigent defendants beyond what they could reasonably acquire, was broadly accepted for over 100 years. Joseph Chitty, A Practical Treatise on the Criminal Law 130-31 (1832) (“The rule is, where the offense is prima facie great, to require good bail; moderation, nevertheless, is to be observed, and such bail only is to be required as the party is able to procure; for otherwise the allowance of bail would be a mere colour for imprisoning the party on the charge.”); United States v. Brawner, 7 F. 86, 89 (W.D. Tenn. 1881) (citing Lawrence for the proposition that “to require larger bail than the prisoner could give would be to require excessive bail, and to deny bail in a case clearly bailable by law”); William Smithers Church, A Treatise of the Writ of Habeas Corpus 532, § 397 (1886) (“To require larger bail than the prisoner can give is to require excessive bail,
11

Case: 17-20333 Document: 00514108112 Page: 18 Date Filed: 08/09/2017
and to deny bail in a case clearly bailable by law.”); George Arthur Malcolm, The Constitutional Law of the Philippine Islands Together with Studies in the Field of Comparative Constitutional Law 497 (1920) (“It is substantially a denial of bail, and a violation of constitutional guaranties against excessive bail, to require a larger sum than, from the circumstances, the prisoner can be expected to give.”).
Modern Supreme Court precedent has reaffirmed these ancient principles of bail: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). The Supreme Court in Stack v. Boyle made clear that a “right to bail” is a component of pre-trial liberty as understo bod in American law “[f]rom the passage of the Judiciary Act of 1789 . . . to the present Federal Rules of Criminal Procedure”:
[F]ederal law has unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. Stack v. Boyle, 342 U.S. 1, 4 (1951) (Vinson, C.J.).
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Since Stack v. Boyle, the Supreme Court has backed away from the idea that the Eighth Amendment’s Excessive Bail Clause incorporates a general right to bail. United States v. Salerno, 481 U.S. 739, 752-54 (1987) (“The above-quoted dictum in Stack v. Boyle is far too slender a reed on which to rest this argument. The Court in Stack had no occasion to consider whether the Excessive Bail Clause requires courts to admit all defendants to bail”). Yet Salerno still incorporated a fundamental right to pre-trial liberty under the Due Process Clauses. Id. at 746-53.
The Salerno Court is correct that certain crimes are not and have not been bailable at common law; “the right to bail they have discovered in the Eighth Amendment is not absolute.” Id. at 753. That has been clear since Bracton and Coke, 2 Co. Inst. 191; Sir Edward Coke, A Little Treatise of Baile and Maineprize (1635) (listing the offenses for which a person had a right to bail and no right to bail at common law); 2 Bracton, supra at 295, and as the Statute of Westminster I and the 1628 Petition of Right shows, the legislature clearly has the power to make policy decisions about who is and is not bailable—at least within the bounds of reason. See supra Part I.A; cf. Salerno, 481 U.S. at 755 (upholding the Bail Reform Act of 1984).
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The confusion of the Salerno Court as to the Eighth Amendment is understandable and easily corrected. This amendment is not the textual anchor for the general right to bail and pre-trial liberty—though it clearly provides support in that it presumes such a right. As the Salerno Court found, the general right to pre-trial liberty is preserved in the Due Process Clauses—and bail is the due process mechanism for achieving pretrial liberty—but the Eighth Amendment affirms a different yet related right against excessive bail. That right is conceptually separate from the general right to pre-trial liberty via bail, but it evolved out of the same common law. Compare Magna Carta ch. 32 (1216) (protecting pre-trial liberty in general with the predecessor to the Due Process Clauses), with Bill of Rights, 1 W. & M., c. 2 (1689) (incorporating a right against excessive bail); see infra Part II.A (discussing the common law considerations for setting “sufficient” bail and the codification of that right in 1689).
The heavy lifting of the general right to bail and pre-trial liberty is more properly done by the Due Process Clauses, while excessive bail challenges arise under the Eighth Amendment. Excessive bail claims give
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rise to claims of denial of bail altogether, however, so the Eighth Amendment can protect against a specific type of encroachment on rights generally guaranteed by the Due Process Clauses.
In sum, American law incorporates over 950 years of English constitutional and common law in establishing a fundamental right to the process of bail in order to secure pretrial liberty.
II. THE RIGHT TO BAIL GUARANTEES NON-EXCESSIVE, INDIVIDUALIZED ASSESSMENTS NOT FIXED BY A PREDETERMINED SCHEME Amici American Bail Coalition, Professional Bondsmen of Texas,
and Professional Bondsmen of Harris County are absolutely correct that “[s]ince before the Founding, American communities have relied on bail systems to give criminal defendants an option to secure their liberty before trial” and that “[t]he American colonies developed bail procedures based on English practices, and they retained those practices at independence.” Am. Bail Coal. Br. at 7. But they are incorrect that those English and colonial practices—and modern practice—would countenance non-individualized, pre-determined “bail systems like Harris County’s.” Id. at 10. Since Norman England, bail has been supposed to be set with respect to the individual wealth circumstances of the criminal defendant.
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A. Pre- and Post-Revolutionary Constitutional and Common Law Commits Bail to Judicial Discretion to Avoid Excessive Bail for Indigents and to Ensure Sufficient Sureties
After the Norman Conquest of England and during the changes to pre-trial liberty and bail laws contemplated in the Magna Carta and the 1275 Statute of Westminster I, it became clear that bail is to be set with respect to the individual wealth circumstances of the defendant.
Defendants are required to put up “sufficient sureties,” but what is “sufficient” depended on the individual wealth circumstances of the defendant. See, e.g., King v. Bowes, 1 T.R. 696, 700, 99 Eng. Rep. 1327, 1329 (K.B. 1787) (per curiam) (noting that “[e]xcessive bail is a relative term; it depends on the nature of the charge for which bail is required, upon the situation in life of the parties, and on various other circumstances”), (Archbald, J.) (allowing for a “lessening” of bail as there may be “difficulty” in procuring the sums); 2 Hawkins, at ch. 15, at 138-39 (discussing “[w]hat is said to be sufficient bail” and noting that judges ought to “take care that every one of the bail be of ability sufficient to answer the sum in which they are bound . . . upon consideration of the ability and quality of the prisoners, and the nature of the offence.”). The rule Hawkins discusses extends back to early Norman common law. See De Haas, supra,
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at 84 (“It is noteworthy that no fixed amount seems to have been charged for the privilege of bail release . . . . It is our conclusion that they allowed themselves considerable leeway in writing out the order for release, and that they failed generally to abide by any set formula.”); 2 Pollock & Maitland, supra, at 514 (noting that in applying amercements to the sureties of those who fled on bail bond, “[a]ccount can now be taken of the offender’s wealth or poverty . . . . there also seem to be maximum amercements depending on the wrong-doer’s rank; the baron will not have to pay more than a hundred pounds, nor the routier more than five shillings”).
These common-law roots were expanded and became more solidified with the abuses of the Stuart Kings before and after the English Civil War. In Darnel’s Case in 1627, judges of the King’s Bench “proved their subservience to the King [Charles I] by denying [habeas] release” to five knights committed to prison by special royal command for unnamed offenses. Foote, supra, at 966; Darnel’s Case, 3 How. St. Tr. 1 (1627). That court found that, on due process grounds, the Magna Carta did not secure pre-trial liberty. Foote, supra, at 966; Darnel’s Case, 3 How. St. Tr. 1 (1627). The House of Commons, under the leadership of Sir Edward Coke, took up the case and responded with the 1628 Petition of Right, asserting
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the right to pre-trial liberty under the Magna Carta and overruling Darnel’s Case—“no freeman in any such manner as is before mentioned, be imprisoned or detained.” Petition of Right, 3 Car. I, c.1 (1628); 3 How. St. Tr. 1, at 224 ¶ x; 3 Coke, Selected Writings and Speeches, at 1270; Foote, supra, at 967.
Further abuses of loopholes by Stuart King Charles II lead to the adoption of the Habeas Corpus Act of 1679, which noted that “many of the King's subjects have been and hereafter may be long detained in prison, in such cases where by law they are bailable.” 31 Cha. II, c. 2 (1679). Having exhausted all of those loopholes, Charles II turned to “setting impossibly high bail” in order to “erect[] another obstacle to thwart the purpose of the law on pretrial detention.” Foote, supra, at 967.
After William and Mary assumed the throne, Parliament responded to the Stuart high bail policy with the 1689 Bill of Rights. Bill of Rights, 1 W. & M., c. 2 (1689). Clause 10 of the Bill of Rights expressly provided that “excessive bail ought not be required.” Id. The courts of the King’s Bench bent to parliamentary supremacy after the destruction of Stuart absolutism and examined actions for excessive bail, respecting the rank and ability of the individual to post bond. E.g., Daw v. Swaine, 1 Sid. 424,
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21 Car. 2 424, 88 Eng. Rep. 1195, 1195 (C.P. 1670) (action for excessive bail); Neal v. Spencer, 10 Will. 3 257, 257-58, 88 Eng. Rep. 1305, 1305-06 & n.a (K.B. 1698) (collecting cases that note the diversity of bails given for the same offense in an action for excessive bail); Parker v. Langley, 11 Anne 145, 145-46, 88 Eng. Rep. 667, 667 (Q.B. 1712) (action for excessive bail); Smith v. Boucher, 10 Geo. 2 136, 136 27 Eng. Rep. 782, 783 (Hardwicke, J.) (K.B. 1736) (“[T]o settle the quantum of that bail . . . . is still subject to the power of the Judge.”); King v. Bowes, 1 T.R. 696, 700, 99 Eng. Rep. 1327, 1329 (K.B. 1787) (Archbald, J.) (allowing for a “lessening” of bail as their may be “difficulty” in procuring the sums.”); Bates v. Pilling, 149 Eng. Rep. 805, 805 (K.B. 1834) (“[A] defendant might be subjected to as much inconvenience by being compelled to put in bail to an excessive amount, as if he had been actually arrested.”); accord 2 Hawkins, at ch. 15, at 138-39.
In the King v. Bowes, the per curiam King’s Bench noted that “[e]xcessive bail is a relative term; it depends on the nature of the charge for which bail is required, upon the situation in life of the parties, and on various other circumstances.” 1 T.R. at 700, 99 Eng. Rep. at 1329. Hawkins in his Pleas of the Crown repeated the rule that “sufficient” bond
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must take into account the wealth status of the defendant. 2 Hawkins, at ch. 15, at 138-39. Thus, “excessive” bail was not determined by examining a pre-determined, fixed amount, but rather by asking whether the amount was appropriate given the wealth of the defendant, for “a defendant might be subjected to as much inconvenience by being compelled to put in bail to an excessive amount, as if he had been actually arrested.” Bates, 149 Eng. Rep. at 805; accord 1 J. Chitty, A Practical Treatise on the Criminal Law *131, at 88-89 (William Brown, Philadelphia 1819) (“[S]uch bail is only to be required as the party is able to procure; for otherwise the allowance of bail would be a mere colour for imprisoning the party on the charge.”)
After the Revolution, the United States affirmed the specific right against excessive bail from the English Bill of Rights but with stronger language. Compare U.S. Const. amend. VIII (“Excessive bail shall not be required”), with 1 W. & M., c. 2, cl. 10 (1689) (“excessive bail ought not be required”) (emphases added). Early American common law adopted the English understanding that setting bail includes particularization to a defendant’s wealth, lest it be unconstitutionally “excessive” considering individual circumstances. “‘[T]o require larger bail than the prisoner
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could give would be to require excessive bail, and to deny bail in a case clearly bailable by law.’” United States v. Brawner, 7 Fed. 86 (W.D. Tenn. 1881) (quoting United States v. Lawrence, 26 Fed. Cas. 887, 888 (No. 15,557) (D.C. Cir. 1835)); United States v. Radford, 361 F.2d 777, 780 (4th Cir. 1966) (“[I]n a case clearly bailable by law, to require larger bail than the prisoner could give, would be to require excessive bail.”); see also, e.g., Jones v. Kelly, 17 Mass. 116, 116-17 (1821) (finding bail to be excessive when a man could not secure sufficient sureties and reducing it from $3000 to $1000); Whiting v. Putnam, 17 Mass. 175, 175-78 (1821); Ex Parte Hutchings, 11 Tex. App. 28, 29 (Tex. 1881) (whether bail is “excessive and oppressive” depends “upon the pecuniary condition of the party. If wealthy the amount would be quite insignificant compared to a term in the penitentiary; if poor, very oppressive, if not a denial of the bail.”). The Supreme Court has often reaffirmed “the Eighth Amendment’s proscription against excessive bail.” Salerno, 481 U.S. at 746.
Accordingly, the established common law of the sufficiency of bail from the Norman Conquest of England through to the modern American law requires that magistrates and judges take into account the individual wealth circumstances of the defendant in setting bail.
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B. Pre-Determined, Non-Individualized Bail Schemes Violate the Right to Pre-Trial Liberty, the Right to Bail, and the Right Against Excessive Bail
A pre-determined, scheduled bail scheme as applied by Harris County’s, by its very nature, does not give individualized determinations that the Fifth, Eighth and Fourteenth Amendments demand. U.S. Const. amend. V (granting a general right to pre-trial liberty and bail, see supra Part I); U.S. Const. amend. VIII (requires bail determinations with individualized wealth determination per common law, see supra Part II.A); U.S. Const. amend. XIV, § 1 (requiring the law not to abridge the fundamental right to pretrial liberty). The facts of this case demonstrate, as the district court found, that Harris County’s “Hearing Officers treat the bail schedule, if not as binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount,” ROA.5626, thus failing to set bonds respecting the individual defendant’s wealth circumstances. Like the impetus behind the Excessive Bail Clause when King Charles II’s “setting impossibly high bail” that defendants could not possibly pay, Foote, supra, at 967, Harris County’s practically fixed bail system sets bail beyond the ability of some defendants to pay.
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Nor did Harris County even provide “timely hearings at which misdemeanor defendants can be heard, can present evidence of their inability to pay, or can receive reasoned opinions with written findings on why a secured financial condition of release, and not a less restrictive condition, is the only reasonable means to assure their appearance at trial or lawabiding conduct before trial.” ROA.5725.
Accordingly, the district court properly concluded that Harris County’s policies violated Due Process Clause. That decision is supported by nearly a millennium of Anglo-American common law on bail. This Court should not deviate from that long common law tradition.

CONCLUSION

For the foregoing reasons, amicus Cato Institute urges the court to

uphold the preliminary injunction and establish clearly that bail must

take into account the wealth of indigent defendants.

August 9, 2017

Respectfully Submitted
Ilya Shapiro Counsel of Record
Devin Watkins CATO INSTITUTE 1000 Mass. Ave., N.W. Washington, D.C. 20001 (202) 842-0200 ishapiro@cato.org

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Case: 17-20333 Document: 00514108112 Page: 30 Date Filed: 08/09/2017
Certificate of Compliance 1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 4,982 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it was prepared using Word 2016 and uses a proportionally spaced typeface, Century Schoolbook, in 14-point type for body text and 12-point type for footnotes.
/s/ Ilya Shapiro Certificate of Filing and Service On August 9, 2017, I filed this Brief of the Cato Institute as Amicus Curiae using the CM/ECF System, which will send a Notice of Filing to all counsel of record.
/s/ Ilya Shapiro
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 Case: 17-20333 Document: 00514109963 Page: 1 Date Filed: 08/09/2017
No. 17-20333
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
______________________________
MARANDA LYNN ODONNELL, Plaintiff-Appellee,
v. HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III;
RONALD NICHOLAS; BLANCA ESTALA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN
BROWN; DONALD SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES, Defendants-Appellants.
_______________________________
LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD, Plaintiffs-Appellees,
v. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH
LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ, Defendants-Appellants.
_______________________________
On Appeal from the United States District Court for the Southern District of Texas, No. 4:16-cv-01414
_______________________________
BRIEF FOR TEXAS BAPTISTS CHRISTIAN LIFE COMMISSION, TEXAS CATHOLIC CONFERENCE OF BISHOPS, AND CLERGY AND
RELIGIOUS LEADERS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES
_______________________________
Jonathan Marcus Counsel of Record Paul M. Kerlin Ryan Travers Michael Leo Pomeranz SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 (202) 371-7000 Counsel for Amici Curiae

Case: 17-20333 Document: 00514109963 Page: 2 Date Filed: 08/09/2017

CERTIFICATE OF INTERESTED PERSONS Maranda ODonnell et al. v. Harris County, Texas et al., No. 17-20333

Pursuant to Rule 28.2.1, the undersigned counsel of record certifies that the

following listed persons and entities have an interest in the outcome of this case.

These representations are made so that the judges of this Court may evaluate

potential disqualification or recusal.

Plaintiffs-Appellees

Counsel

Maranda Lynn ODonnell Robert Ryan Ford Loetha Shanta McGruder

Alec Karakatsanis Elizabeth Rossi CIVIL RIGHTS CORPS
Seth P. Waxman Daniel S. Volchok Arpit K. Garg WILMER CUTLER PICKERING HALE AND DORR LLP
Neal S. Manne Lexie Giselle White Michael Gervais SUSMAN GODFREY LLP
Rebecca Bernhardt Susanne Ashley Pringle TEXAS FAIR DEFENSE PROJECT

Defendants-Appellants Paula Goodhart Bill Harmon Natalie C. Fleming John Clinton Margaret Harris Larry Standley Pam Derbyshire Jay Karahan

Counsel Charles J. Cooper Michael W. Kirk Harold S. Reeves William C. Marra John D. Ohlendorf COOPER & KIRK, PLLC
John Ellis O’Neill
i

Case: 17-20333 Document: 00514109963 Page: 3 Date Filed: 08/09/2017

Judge Analia Wilkerson Dan Spjut Judge Diane Bull Judge Robin Brown Donald Smyth Jean Hughes (Fourteen Judges for Harris County Criminal Courts of Law)
Judge Mike Fields (Judge for Harris County Criminal Court of Law)
Harris County, Texas Eric Stewart Hagstette Joseph Licata, III Ronald Nicholas Blanca Estella Villagomez Jill Wallace (County and Hearing Officers)

John R. Keville Sheryl Anne Falk Robert Lawrence Green, III Corinne Stone WINSTON AND STRAWN LLP
Bruce Powers HARRIS COUNTY ATTORNEY’S OFFICE
John Odam Melissa Spinks HARRIS COUNTY ATTORNEY’S OFFICE
Michael Anthony Stafford Katharine D. David James G. Munisteri Stacy R. Obenhaus Philip J. Morgan Benjamin R. Stephens GARDERE WYNNE SEWELL LLP

Defendants Sheriff Ed Gonzalez Judge Darrell William Jordan

Counsel
Murray Jules Fogler FOGLER, BRAR, FORD, O’NEIL & GRAY, L.L.P.
Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S OFFICE

Other Interested Parties
American Bail Coalition Professional Bondsmen of Texas Professional Bondsmen of Harris County

Counsel
Paul D. Clement Christopher G. Michel Andrew C. Lawrence KIRKLAND & ELLIS LLP
ii

Case: 17-20333 Document: 00514109963 Page: 4 Date Filed: 08/09/2017

State of Texas State of Arizona State of Hawai’i State of Kansas State of Louisiana State of Nebraska

Ken Paxton Jeffrey C. Mateer Scott A. Keller Joseph D. Hughes TEXAS ATTORNEY GENERAL
Mark Brnovich ARIZONA ATTORNEY GENERAL
Douglas S. Chin HAWAI’I ATTORNEY GENERAL
Derek Schmidt KANSAS ATTORNEY GENERAL
Jeff Landry LOUISIANA ATTORNEY GENERAL
Douglas J. Peterson NEBRASKA ATTORNEY GENERAL

Conference of the Chief Justices

Thomas Phillips Evan A. Young BAKER BOTTS, L.L.P.

Texas Baptists Christian Life Commission Texas Catholic Conference of Bishops Archbishop Joseph A. Fiorenza Rabbi Samuel E. Karff Reverend William A. Lawson The Right Reverend C. Andrew Doyle Reverend Michael Rinehart

Jonathan Marcus Paul M. Kerlin Ryan Travers Michael Leo Pomeranz SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

Date: August 9, 2017

s/Jonathan Marcus JONATHAN MARCUS

iii

Case: 17-20333 Document: 00514109963 Page: 5 Date Filed: 08/09/2017
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .....................................................................................v INTEREST OF AMICI CURIAE ...............................................................................1 INTRODUCTION AND SUMMARY ARGUMENT ..............................................3 ARGUMENT .............................................................................................................4 I. The Harris County bail system imposes a moral cost, offending
religious principles regarding the treatment of the poorest members of society. .............................................................................................................4 II. Harris County’s bail system imposes human costs. ......................................10 (A) Detainees are cut off from family, friends, work, and education. ......10 (B) The current bail system induces plea bargains and affects case
outcomes. ............................................................................................. 14 (C) Pretrial detention has long-term consequences...................................16 III. Harris County’s bail system imposes a social cost, burdening taxpayers and the community as a whole. .....................................................17 IV. Harris County’s bail system severely injures misdemeanor arrestees, outweighing any harm from enjoining that system during the pendency of this litigation. ............................................................................19 CONCLUSION ........................................................................................................23
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Case: 17-20333 Document: 00514109963 Page: 6 Date Filed: 08/09/2017
TABLE OF AUTHORITIES
Page CASES Barker v. Wingo, 407 U.S. 514 (1972).......................................................................................16 Daniels Health Scis. L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579 (5th Cir. 2013) .........................................................................20 Heil Trailer Int’l Co. v. Kula, 542 F. App’x 329 (5th Cir. 2013)..................................................................20 Jones v. City of Clanton, Civil Action No. 2:15-cv-34-MHT, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015).................................................................................................6 Stack v. Boyle, 342 U.S. 1 (1951).....................................................................................15, 21 United States v. Salerno, 481 U.S. 739 (1987).......................................................................................21 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).................................20
STATUTES Tex. Code Crim. Proc. Ann. art. 17.033(a) (West 2015).........................................23 Tex. Code Crim. Proc. Ann. art. 22.01-02 (West 2009)..........................................22 Tex. Const. art. 1 § 11..........................................................................................3, 22 U.S. Const. amend. XIV § 1 ......................................................................................3
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OTHER AUTHORITIES
Michael Barajas, Why the Harris County Jail is Overcrowded with Legally Innocent People, Houston Press (July 1, 2015), http://www.houstonpress.com/news/why-the-harris-county-jail-isovercrowded-with-legally-innocent-people-7555627. ....................................7
The Bible, Deuteronomy 1:16-17......................................................................................9
The Bible, Leviticus 19:15 ................................................................................................4
Thomas H. Cohen & Brian A. Reaves, “Pretrial Release of Felony Defendants in State Courts: State Court Processing Statistics, 19902004,” Special Report (NCJ 214994), Nov. 2007, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, http://bjs.ojp.usdoj.gov/content/pub/pdf/prfdsc.pdf ......................................10
Criminal Justice Policy Program, Harvard Law School, Moving Beyond Money: A Primer on Bail Reform, (Oct. 2016) http://cjpp.law.harvard.edu/assets/FINAL-Primer-on-BailReform.pdf ....................................................................................................22
Sharon Dolovich, Incarceration American Style, 3 Harv. L. Pol’y Rev. 237 (2009) ..................................................................14
Meagan Flynn, Harris County Sheriff May Hand Over 17-Year-Olds to Private Prison Contractor, Houston Press (Sept. 29, 2016), http://www.houstonpress.com/news/harris-county-sheriff-may-handover-17-year-olds-to-private-prison-contractor-8812196. ..............................7
Lisa Foster, Director of the Office for Access to Justice, Remarks at ABA’s 11th Annual Summit on Public Defense, Feb. 6, 2016, https://www.justice.gov/opa/speech/director-lisa-fosteroffice-access-justice-delivers-remarks-aba-s-11th-annual-summit ..............13
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Case: 17-20333 Document: 00514109963 Page: 8 Date Filed: 08/09/2017
Arthur J. Goldberg, Equal Justice for the Poor, Too, The New York Times (Mar. 15, 1964), http://www.nytimes.com/1964/03/15/equal-justice-for-the-poortoo.html ............................................................................................................6
Andrea Greer, Turns Out, It’s Expensive to Violate People’s Rights, Burnt Orange Report (June 7, 2016), http://www.burntorangereport.com/diary/32159/turns-expensiveviolate-peoples-rights ...................................................................................17
Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017).................................10, 15, 16, 17, 18
Jailhouse Stories: Voices of Pretrial Detention in Texas: Leonardo Onescu Harris County Jail, Houston, TX, http://www.jailhousestories.org/leonardo-onescu .................12
Rev. Bill Lawson, Archbishop Joseph Fiorenza & Rabbi Samuel Karff, Our Shared Morals and Sense of Justice Demand Bail Reform, Houston Chronicle, July 16, 2016, http://www.houstonchronicle.com/ opinion/outlook/article/Lawson-Fiorenza-and-Karff-Our-sharedmorals-and-8382340.php .................................................................................4
Oliver Lazarus, America’s System of Requiring Bail Can Keep the Innocent in Prison for Months — or Years, (Jul. 24, 2015), https://www.pri.org/stories/2015-07-24/americassystem-requiring-bail-can-keep-innocent-prison-months-or-years. .............. 12
Christopher T. Lowenkamp et al., The Hidden Costs of Pretrial Detention, Laura and John Arnold Foundation Report, 4, 11 (Nov. 2013), http://www.arnoldfoundation.org/wpcontent/uploads/2014/02/LJAF_Report_hidden-costs_FNL.pdf ..................17
Memorandum from Harris Cty., Tex. Comm’rs Court, Harris County FY2017 Budget, (Feb. 10, 2017), https://www.harriscountytx.gov/agenda/2017/2017-02-14-Vol3FY2017-18-Policy%20Issues%20and%20Budgets-FINAL.pdf.............18, 19
Todd D. Minton & Daniela Golinelli, Jail Inmates in 2015, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics (Dec. 2016) ......................................................................................................7
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Case: 17-20333 Document: 00514109963 Page: 9 Date Filed: 08/09/2017
National Criminal Justice Reference Service, Proceedings and Interim Report from the National Conference on Bail and Criminal Justice, (1965) https://www.ncjrs.gov/pdffiles1/photocopy/355ncjrs.pdf. ..................5
Amanda Petteruti & Natassia Walsh, Jailing Communities: The Impact of Jail Expansion and Effective Public Safety Strategies, Justice Policy Institute Report (Apr. 2008), http://www.justicepolicy.org/images/upload/0804_rep_jailingcommunities_ac.pdf ...............................................................16
James Pinkerton & Anita Hassan, Jailhouse Jeopardy: Guards Often Brutalize and Neglect Inmates in Harris County Jail, Records Show, Houston Chronicle (Oct. 3, 2015), http://www.houstonchronicle.com/news/specialreports/article/Violence-neglect-by-jailers-common-in-county6548623.php ....................................................................................................6
James Pinkerton, Anita Hassan, & Lauren Caruba, Harris County Jail Considered ‘Unsafe and Unhealthy’ for Inmates, Public, Houston Chronicle (Nov. 21, 2015), http://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-Jail-is-unsafe-and-unhealthy-for6649163.php ................................................................................................7, 8
James Pinkerton, Anita Hassan, & Lauren Caruba, Some Inmates Who Died in County Jail Had Treatable Conditions, Houston Chronicle (Nov. 21, 2015), http://www.houstonchronicle.com/news/article/Withouttreatment-some-inmates-have-died-at-6649389.php. ...................................... 8
James Pinkerton & Lauren Caruba, Tough Bail Policies Punish the Poor and the Sick, Critics Say, Houston Chronicle (Dec. 28, 2015), http://www.houstonchronicle.com/news/houstontexas/houston/article/Tough-bail-policies-punish-the-poor-and-thesick-6721984.php.............................................................................7, 8, 11, 12
Nick Pinto, The Bail Trap, The New York Times Magazine (Aug. 13, 2015), https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html. .............. 5
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Case: 17-20333 Document: 00514109963 Page: 10 Date Filed: 08/09/2017
Bernadette Rabuy & Daniel Kopf, Detaining the Poor, Prison Policy Institute, May 10, 2016, https://www.prisonpolicy.org/reports/incomejails.html .........................13, 17
Brian Rogers, Jail Reform Tackles Racial Disparities, Houston Chronicle (Apr. 13, 2016), http://www.houstonchronicle.com/news/houstontexas/houston/article/Jail-reform-tackles-racial-disparities7247268.php ................................................................................................6, 7
Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Social Sci. Res. Network (Jan. 12, 2017) (Working Paper, Univ. of Pa.), https://ssrn.com/abstract=2777615........................................................14
Ram Subramanian et al., Vera Institute of Justice, Incarceration’s Front Door: The Misuse of Jails in America, (Feb. 2015) (updated July 19, 2015) ............................................................15
Texas Commission on Jail Standards, Abbreviated Population Report for 7/1/2017, http://www.tcjs.state.tx.us/docs/AbbreRptCurrent.pdf ................10
Texas Fair Defense Project Report, Depenalizing Poverty: A Proposal for Improving Harris County Bail Policies, (2014), https://www.pretrial.org/download/research/Depenalizing%20Poverty %20A%20Proposal%20for%20Improving%20Harris%20County%20 Bail%20Policies%20-%20TFDP%202014.pdf ......................................13, 14
Samuel Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L. J. 1344 (2014) ............................................................................16
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INTEREST OF AMICI CURIAE Representatives of diverse religious communities throughout the State of Texas join here as amici curiae in support of plaintiffs-appellees. Detainees at Harris County Jail and other facilities receive frequent visits from local churches and their jail ministries. As a result, those serving their churches and religious communities possess unique, firsthand insight regarding the moral and other harms arising from a bail system like the one in Harris County. The Texas Baptists Christian Life Commission (“CLC”) is the ethics and public policy ministry of the Baptist General Convention of Texas, which includes 5,400 churches. The CLC does not speak for Texas Baptists, but it addresses policy issues that are of concern to Texas Baptists from a biblical perspective. The Texas Catholic Conference of Bishops (“TCCB”) is a federation of all Roman Catholic dioceses and ordinariates located in the State of Texas. The public policy issues addressed by the TCCB include institutional concerns of the Catholic Church as well as issues related to Catholic moral and social teaching. Archbishop Joseph A. Fiorenza is Archbishop Emeritus, Archdiocese of Galveston-Houston in Houston, Texas. Rabbi Samuel E. Karff is Rabbi Emeritus, Congregation Beth Israel in Houston, Texas.
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Reverend William A. Lawson is Pastor Emeritus, Wheeler Avenue Baptist Church in Houston, Texas.
The Right Reverend C. Andrew Doyle is Bishop of the Episcopal Diocese of Texas, encompassing Austin, Beaumont, Galveston, Houston, Waco, and Longview/Tyler, Texas.
Reverend Michael Rinehart is Bishop of the Texas-Louisiana Gulf Coast Synod, Evangelical Lutheran Church in America.
Notwithstanding their differences in theology, amici share the conviction that the incarceration of individuals because they are impoverished cannot be morally justified. Such discrimination violates the ethical standards of American society, the moral obligations owed to those most disadvantaged, and the Constitutional guarantee of equal protection of the laws.1
1 No counsel for any party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to the filing of this brief.
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INTRODUCTION AND SUMMARY OF ARGUMENT The Harris County bail system exacerbates the harsh circumstances in which so many impoverished men and women find themselves, depriving them of liberty solely because they cannot afford to purchase their freedom. The costs of this policy—moral, human, and societal—are unacceptable. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall . . . deny to any person . . . the equal protection of the laws.” U.S. Const. amend. XIV § 1. Yet Harris County and its officers have denied plaintiffs-appellees and other indigent arrestees equal protection by denying them the right to bail, see Tex. Const. art. 1 § 11 (guaranteeing the right to bail), because they, unlike others more fortunate, cannot afford the bondsman’s premium. As representatives of a cross-section of faiths and communities, amici believe it important to provide their perspective on defendants-appellants’ immoral and unconstitutional bail policy. Views grounded in the moral imperatives that exist among us all—that the poor are human beings, that discriminating against them signifies and results in spiritual decay, and that the unique suffering experienced in jail harms not only the jailed and the jailor but also the families and communities of both—must guide the evaluation of the constitutionality of Harris County’s bail system.
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ARGUMENT I. The Harris County bail system imposes a moral cost, offending
religious principles regarding the treatment of the poorest members of society. The Harris County bail system corrodes the moral foundation of our common good—that all of us are equal in the eyes of justice. This fundamental principle is articulated both in founding documents and in scripture: “You shall do no injustice in judgment; you shall not be partial to the poor or defer to the great, but you are to judge your neighbor fairly.” Leviticus 19:15. That we are all judged—as individuals, as leaders, as the government itself—by our treatment of those who are most disadvantaged is a throughline connecting ecclesiastical and ecumenical communities. Such an intrinsic moral requirement has no special regard for particular interpretations of faith; it compels us all in equal measure— those of different faiths and no faith alike—to treat all others with mercy. See Rev. Bill Lawson, Archbishop Joseph Fiorenza & Rabbi Samuel Karff, Our Shared Morals and Sense of Justice Demand Bail Reform, Houston Chronicle, July 16, 2016, http://www.houstonchronicle.com/opinion/outlook/article/Lawson-Fiorenzaand-Karff-Our-shared-morals-and-8382340.php. And yet, despite this core tenet, failure is all too common in fulfilling ethical obligations to those most in need. The religious community has witnessed defendants-appellants force those arrested merely for misdemeanor offenses to battle a punitive bail system before
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any trial or any verdict, despite the presumption of innocence. Through the use of secured-money bail requirements in amounts individuals cannot afford to pay, the Harris County bail system imposes extended punishment in the form of pretrial detention on those individuals who cannot afford to pay the required amount. Because this detention is ordered without respect to detainees’ risk of flight, public safety, or guilt of the underlying offense, this punishment solely arises from their poverty. Detention for no other reason than an individual’s financial condition— particularly in light of the availability of non-financial conditions of release— sends a demoralizing message to the detainee and inflicts collateral damage on families and communities.
Former U.S. Attorney General Robert F. Kennedy spoke to similar equitable concerns decades ago: “[U]sually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money.” National Criminal Justice Reference Service, Proceedings and Interim Report from the National Conference on Bail and Criminal Justice at 297 (1965), https://www.ncjrs.gov/pdffiles1/photocopy/355ncjrs.pdf. More than 50 years later, the Harris County bail system continues to ignore these warnings. Without funds to spare, without adequate access to health care, without necessary support for children and family, the disadvantaged face severe risks from excessive
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bail and extended detention. Justice that is blind to these dangers and that indiscriminately forces poor defendants to pay for their physical liberty is no justice at all. See Jones v. City of Clanton, Civil Action No. 2:15-cv-34-MHT, 2015 WL 5387219, at *3 (M.D. Ala. Sept. 14, 2015) (explaining that a new bail policy accounting for individual circumstances demonstrates “marked strides in improving the quality of the justice” delivered).
The most vulnerable members of society experience harmful and too often tragic results because they cannot purchase their freedom.2 See Nick Pinto, The Bail Trap, The New York Times Magazine (Aug. 13, 2015), https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html. For some, the physical harm from extended detention has been likened to the abuse inflicted in the worst kinds of animal shelters. See James Pinkerton & Anita Hassan, Jailhouse Jeopardy: Guards Often Brutalize and Neglect Inmates in Harris County Jail, Records Show, Houston Chronicle (Oct. 3, 2015), http://www.houstonchronicle .com/news/special-reports/article/Violence-neglect-by-jailers-common-in-county6548623.php. Defendants who cannot afford bail can remain incarcerated for
2 Up to 75 percent of Harris County Jail’s inmates—half of whom face nonviolent felony or misdemeanor charges—remain incarcerated for an inability to pay bail and not as a result of any conviction. Brian Rogers, Jail Reform Tackles Racial Disparities, Houston Chronicle (Apr. 13, 2016), http://www.houstonchronicle.com/news/houston-texas/houston/article/Jail-reformtackles-racial-disparities-7247268.php.
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months in overcrowded conditions, at times for periods longer than actual sentences, and are subject to an ever-present risk of assault. See Rogers, Jail Reform Tackles Racial Disparities, supra.3
Since 2009, more than 75 Harris County inmates have died, including those suffering from treatable conditions. Id.; see also Michael Barajas, Why the Harris County Jail is Overcrowded with Legally Innocent People, Houston Press (July 1, 2015), http://www.houstonpress.com/news/why-the-harris-county-jail-is-over crowded-with-legally-innocent-people-7555627; James Pinkerton & Lauren Caruba, Tough Bail Policies Punish the Poor and the Sick, Critics Say, Houston Chronicle (Dec. 28, 2015), http://www.houstonchronicle.com/news/houstontexas/houston/article/Tough-bail-policies-punish-the-poor-and-the-sick6721984.php; Meagan Flynn, Harris County Sheriff May Hand Over 17-Year-Olds to Private Prison Contractor, Houston Press (Sept. 29, 2016), http://www.houstonpress.com/news/harris-county-sheriff-may-hand-over-17-yearolds-to-private-prison-contractor-8812196. Recent reports attribute most of these deaths to natural causes. James Pinkerton, Anita Hassan, & Lauren Caruba, Harris County Jail Considered ‘Unsafe and Unhealthy’ for Inmates, Public, Houston
3 Nationally, local jails may hold up to 467,000 detainees merely awaiting trials for crimes. Todd D. Minton & Daniela Golinelli, Jail Inmates in 2015, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics (Dec. 2016).
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Chronicle (Nov. 21, 2015), http://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-Jail-is-unsafe-and-unhealthy-for-6649163.php. Ten people died of Hepatitis B or C; ten committed suicide; another eight suffered from HIV or AIDS; and five were infected with the MRSA staph infection. Id. Of these deaths, at least 19 were treatable or preventable, including deaths from chronic conditions—diabetes, tuberculosis, and mental illness—exacerbated by substandard treatment in jail. Id. Issues around mental illness alone plague the approximately 2,200 inmates taking psychotropic medication. Id.
More than mere statistics, these figures reflect real harm to real people. For example, Kenneth Beckett died in the Harris County jail in 2009 from respiratory failure, believed to have resulted from exposure in jail to swine flu. James Pinkerton, Anita Hassan, & Lauren Caruba, Some Inmates Who Died in County Jail Had Treatable Conditions, Houston Chronicle (Nov. 21, 2015), http://www.houstonchronicle.com/news/article/Without-treatment-some-inmateshave-died-at-6649389.php. Tung Nguyen, described as a Vietnamese refugee, ultimately died as a detainee in the Harris County Jail, succumbing to mental illness and heart disease because his family was unable to satisfy the county’s bail demand. James Pinkerton & Lauren Caruba, Tough Bail Policies Punish the Poor and the Sick, Critics Say, Houston Chronicle (Dec. 28, 2015), http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-
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policies-punish-the-poor-and-the-sick-6721984.php. In the face of these tragic outcomes, defendants-appellants nevertheless have
chosen to perpetuate this immoral system, subjecting detainees to pretrial detention based on their financial status—eschewing available non-financial conditions for release—regardless of an arrestee’s flight risk, threat to public safety, or guilt of the underlying offense. Harris County’s bail regime exacts too high a moral cost. To hinge extended detention on a defendant’s empty pocketbook fails as a matter of compassion, of common sense, of public purpose, and of basic morality. By not considering alternative measures to ensure indigent defendants return to court, defendants-appellants have degraded our justice system, denying plaintiffsappellees equal treatment under the law.
Scripture provides guidance in highlighting the ethical and constitutional shortcomings in the Harris County bail system. Moses declared: “And I charged your judges at that time, saying: ‘Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. . . . [Y]ou shall hear the small and the great alike; you shall not be afraid of the face of any person.’” Deuteronomy 1:16-17. This then is the charge across faiths: to denounce this bail system, to urge an end to the primacy of wealth over justice, and to spare individuals, families, and communities the harms that inexorably follow.
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II. Harris County’s bail system imposes human costs. In Harris County, approximately 65 percent of the jail population is awaiting trial. See Texas Commission on Jail Standards, Abbreviated Population Report for 7/1/2017, at 4, http://www.tcjs.state.tx.us/docs/AbbreRptCurrent.pdf. Pretrial detention isolates detainees from family, interrupts their employment or education, and has a coarsening effect with deleterious consequences for detainees, including increased rates of recidivism, following their release. See, e.g., Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017). This isolation is especially troubling given that, ultimately, approximately 20 percent of pretrial detainees in the United States will have their case dismissed or will be acquitted. See Thomas H. Cohen & Brian A. Reaves, “Pretrial Release of Felony Defendants in State Courts: State Court Processing Statistics, 1990-2004,” Special Report (NCJ 214994), Nov. 2007, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, http://bjs.ojp.usdoj.gov/content/pub/pdf/prfdsc.pdf. Many more might be innocent. Yet the perverse incentives and dire conditions that pretrial detention imposes often induce detainees to plead guilty regardless of their guilt or innocence.
(A) Detainees are cut off from family, friends, work, and education.
Pretrial detention based on an inability to pay bail isolates detainees— individuals who often pose no flight risk or threat to public safety. A defendant
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accused merely of a misdemeanor but who is unable to post bail can face pretrial detention that extends for days, weeks, or even months. In that time, children will need to be cared for, jobs will be left unattended, schoolwork will be missed. See id. For instance, one of the plaintiffs in this case, Maranda ODonnell, was held for three days for driving with an invalid license because she was unable to pay the $2,500 secured-money bail. See Order of Preliminary Injunction at 10-12, Dkt. No. 304 (April 28, 2017). Another plaintiff, Robert Ford, was held for five days for shoplifting before pleading guilty because he was unable to pay the $5,000 secured-money bail. Id. at 12-13. This unjustified detention is an all-toocommon experience in Harris County.
The overcrowded jails, like those in which plaintiffs-appellees were detained, feature violence, lack of medical treatment, and other harsh circumstances. The conditions are so brutal they can kill, even pretrial detainees, as evidenced by the aforementioned Houston Chronicle investigation. See Pinkerton & Caruba, supra. These conditions, and the harms they cause, beset detainees who cannot afford to pay a bondsman the premium for secured-money bail—regardless of their flight risk or the availability of alternative measures to ensure their presence at trial, and regardless of their guilt or innocence.
The stories of Sandra Oliver, Leonardo Onescu, and Kenneth Fomby—their minor offenses, the unaffordable secured-money bail, and their extended pretrial
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detention—are illustrative. Sandra Oliver was charged with trespassing in Harris County in October 2010 with bail set at $5,000. See id. Two days later, Oliver remained in the overcrowded Harris County jail when she suffered a pulmonary embolism and was rushed to the hospital, where she died. Id. Leonardo Onescu was held in Harris County jail for shoplifting less than $100. Jailhouse Stories: Voices of Pretrial Detention in Texas: Leonardo Onescu Harris County Jail, Houston, TX, http://www.jailhousestories.org/leonardo-onescu. Unable to pay his $15,000 bail, he remained in detention for five months. Id. During that time, Onescu witnessed physical assaults and faced delays receiving prescribed mental health medication. Id. And there is Kenneth Fomby, who was wrongly accused of several charges in Birmingham, Alabama. Oliver Lazarus, America’s System of Requiring Bail Can Keep the Innocent in Prison for Months — or Years (Jul. 24, 2015), https://www.pri.org/stories/2015-07-24/americas-system-requiring-bail-cankeep-innocent-prison-months-or-years. Because he was unable to pay bail, Fomby spent months in prison before being released and having his case dropped. Id. These few examples are representative of pretrial detainees inside Harris County Jail and other prisons who have been subjected to days, weeks, or months in pretrial detention in appalling conditions simply because they were unable to pay bail.
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The harm to detainees extends outside of prison: separation from family, the immediate loss of employment, the loss of social services benefits, the disruption of education, and the potential loss of child custody. See Lisa Foster, Director of the Office for Access to Justice, Remarks at ABA’s 11th Annual Summit on Public Defense, Feb. 6, 2016, https://www.justice.gov/opa/speech/director-lisa-fosteroffice-access-justice-delivers-remarks-aba-s-11th-annual-summit. The loss of employment is critical, given that 37 percent of those held in jail make less annually than the median bail amount of $10,000. See Bernadette Rabuy & Daniel Kopf, Detaining the Poor, Prison Policy Institute, May 10, 2016, https://www.prisonpolicy.org/reports/incomejails.html. The bail system and pretrial detention place the already vulnerable in even more desperate positions—a vicious, reinforcing cycle.
The loss of even a few days of income can be the difference between paying rent and eviction, and will affect family members that rely on the detainee’s income for support. See Texas Fair Defense Project Report, Depenalizing Poverty: A Proposal for Improving Harris County Bail Policies, 4 (2014), https://www.pretrial.org/download/research/Depenalizing%20Poverty%20A%20Pr oposal%20for%20Improving%20Harris%20County%20Bail%20Policies%20%20TFDP%202014.pdf. Detainees’ income may be the primary or sole source of income for their family, and the loss of that income for days or weeks can cause
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families to struggle further to make ends meet. Id. This county-mandated absence also can mean eviction from their home. Id. Detainees’ children may be forced to be supported by other family members or be placed in foster care, all while the detainees wait in prison for minor crimes, of which they may not be guilty. Sharon Dolovich, Incarceration American Style, 3 Harv. L. Pol’y Rev. 237, 246 (2009). And elderly family members may be left without caretakers. Texas Fair Defense Project, supra, at 4.
The current bail system damages detainees personally and professionally from the moment they enter, exposing them to potential physical and mental harm in detention, causing economic harm outside of jail, and making the most vulnerable even more desperate.
(B) The current bail system induces plea bargains and affects case outcomes.
The current bail system skews pretrial detainees’ decision-making and adversely affects the outcomes of their cases. Most problematic, it induces detainees unable to afford bail to plead guilty, not because they are guilty but because they are poor. See Appellees’ Br. 11 (noting that Harris County leads the nation in exonerations, due in large part to guilty pleas by misdemeanor defendants seeking to end their pretrial detention); see also Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Social Sci. Res. Network (Jan. 12, 2017) (Working Paper, Univ. of Pa.),
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https://ssrn.com/abstract=2777615. Despite being “innocent until proven guilty,” detainees face prolonged detention if they contest the charges against them. As noted above, supra Part II.A, every day in detention taxes detainees’ physical health, their social and psychological well-being, and their families’ finances. For misdemeanor defendants, whose pretrial detention can exceed a potential, actual sentence, pleading guilty to charges can open the door to relieving those hardships. See Subramanian et al., Vera Institute of Justice, Incarceration’s Front Door: The Misuse of Jails in America, 40 (Feb. 2015) (updated July 19, 2015). As a result, studies have shown that pretrial detainees charged with misdemeanors and unable to afford bail are 25 percent more likely to plead guilty than misdemeanor defendants able to pay bail. See Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, supra, at 747.
Furthermore, those detainees who choose not to plead guilty face worse outcomes than defendants who can pay for their release. It is axiomatic that the prosecution bears the burden of proving a defendant’s guilt, but the reality for pretrial detainees unable to pay bail is that they are required to prove their innocence to secure their release. The task of proving one’s innocence is made all the more difficult by the detention itself. Cf. Stack v. Boyle, 342 U.S. 1, 5 (1951) (“[The] traditional right to freedom before conviction permits the unhampered preparation of a defense….”). Detention can hamper a defendant’s “ability to
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gather evidence, contact witnesses, or otherwise prepare his defense.” Barker v. Wingo, 407 U.S. 514, 533 (1972). Unable to afford bail, pretrial detainees are forced to prepare their defense while in prison, away from family, friends, and legal counsel. Unsurprisingly, these detainees are 43 percent more likely to be sentenced to jail, and on average they receive jail sentences that are twice as long as defendants who were not subject to pretrial detention. See Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, supra.
(C) Pretrial detention has long-term consequences. The damage caused by pretrial detention extends forward, limiting opportunities for gainful employment for detainees in the months and years after their detention, and contributing to higher rates of recidivism. Pretrial detainees often have trouble finding employment for years after release and, if and when they do find employment, work fewer hours and make lower wages for as many as fifteen years after their release. See Amanda Petteruti & Natassia Walsh, Jailing Communities: The Impact of Jail Expansion and Effective Public Safety Strategies, Justice Policy Institute Report, 17 (Apr. 2008), http://www.justicepolicy.org/images/upload/08-04_rep_jailingcommunities_ ac.pdf. Moreover, compared to alternatives like electronic monitoring, detention leads to a greater likelihood of recidivism. Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L. J. 1344, 1353 (2014). This
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increased recidivism is found even among low-risk defendants detained for two to three days, who are 39 percent more likely to be arrested for new criminal activity during the remaining pretrial period and 17 percent more likely in the two-year period following case conclusion. See Christopher Lowenkamp et al., The Hidden Costs of Pretrial Detention, Laura and John Arnold Foundation Report, 4, 11 (Nov. 2013), http://www.arnoldfoundation.org/wp-content/uploads/2014/02/LJAF _Report_hidden-costs_FNL.pdf. Thus, even a brief detention for an inability to pay bail can harm individuals in the months and years that follow.
III. Harris County’s bail system imposes a social cost, burdening taxpayers and the community as a whole.
In addition to the moral costs imposed on society, and the concrete costs levied on detainees and their families, the bail system results in significant social costs for taxpayers and the community. Harris County, for example, spent $248 million on detention and medical costs for prisoners in fiscal year 2016-2017. According to the Harris County Sherriff’s Department, it requires $75 per day to hold someone in jail, with the county’s taxpayers spending $513,075 in one month alone in 2016 to detain individuals not yet convicted of any crime. See Andrea Greer, Turns Out, It’s Expensive to Violate People’s Rights, Burnt Orange Report (June 7, 2016), http://www.burntorangereport.com/diary/32159/turns-expensiveviolate-peoples-rights. The imposition of high bail is the largest factor driving pretrial incarceration and these consequent costs. See Bernadette Rabuy and
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Daniel Kopf, Detaining the Poor, Prison Policy Initiative Report (May 10, 2016), https://www.prisonpolicy.org/reports/incomejails.html.
Beside the benefits that would flow from non-financial release conditions, a study found that even had Harris County just released the defendants assigned the lowest amount of bail ($500) on personal bond, the county would have saved $20 million in supervision costs alone between 2008 and 2013. See Heaton et al., supra, at 787. Of this small segment of the pretrial population, release on personal bond would have reduced incarceration in the county jail by at least 400,000 days over the time period and would have resulted in 1,600 fewer felonies and 2,400 fewer misdemeanors in the 18 months following release. Id. (estimating subsequent charges based on recidivism figures). These figures would increase further if low-risk defendants who were assigned higher amounts for bail are included.
The current bail system increases incarceration, which consumes the county’s annual budget. In 2016, Harris County spent more money on detention costs than it spent collectively on roads, public health care, libraries, community services, and care for disabled and abused children. See Memorandum from Harris Cty., Tex. Comm’rs Court, Harris County FY2017 Budget, (Feb. 10, 2017), https://www.harriscountytx.gov/agenda/2017/2017-02-14-Vol3-FY2017-18-Policy %20Issues%20and%20Budgets-FINAL.pdf. The money the county allocates for
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low-risk, misdemeanor defendants detained for failure to pay bail could be allocated to any number of programs that would support impoverished members of the community. Id. The resources could fund health services, which only received $23.6 million, or the Children’s Assessment Center, which provides a safe haven to sexually abused children and their families and received only $5.7 million in 2016. Id. Or the money could be allocated to mental health services, which received merely $19.4 million in 2016, and would help many of those at risk of committing an offense. Id.
No matter the measure, it is clear that Harris County’s incarceration of lowrisk offenders for extended periods solely because they are unable to pay bail is a highly inefficient use of taxpayer money. Moreover, the taxpayer expenditure does not end with the first incarceration, because those pretrial detainees unable to afford bail are more likely to commit future crimes than those who are not detained. As a result, beyond harming the individual detainees, the current system demands taxpayer money that could be far better spent supporting the community, particularly the most impoverished.
IV. Harris County’s bail system severely injures misdemeanor arrestees, outweighing any harm from enjoining that system during the pendency of this litigation.
The preliminary injunction prevents irreparable harm. As established above, each imposition of a secured-money condition on an indigent arrestee condemns
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that person—because of his or her poverty—to incarceration and its attendant dangers. Moreover, that individual human cost is coupled with the moral damage that the community likewise cannot afford. This daily violation of amici’s religious principles and the Constitution has been enjoined, preliminarily, in recognition of the defendants-appellants’ obligation under the Constitution to guarantee the poor the same protection of liberty as the rich.
To prevail on a motion for a preliminary injunction, movants must demonstrate, among other things, that the hardship absent the injunction would outweigh the hardship caused by the injunction. See, e.g., Daniels Health Scis. L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 582 (5th Cir. 2013). Calculating the balance of the hardships requires the district court to consider “‘the effect on each party’” that “‘granting or withholding’” the motion for preliminary injunction would have. Heil Trailer Int’l Co. v. Kula, 542 F. App’x 329, 336 & n.33 (5th Cir. 2013) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). The district court properly exercised its discretion in finding that the balance of hardships favored plaintiffs-appellees. On one hand, as established above, withholding a preliminary injunction would severely harm plaintiffsappellees. On the other, if the injunction harms Harris County and the other defendants-appellants at all, that harm is minimal, as explained below.
The purpose of bail is assuring presence at trial. The preliminary injunction
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does not threaten this interest in any way. The injunction does not preclude the imposition of secured-money bail. It allows the county to set bail, including secured-money bail, in an amount appropriate to ensure that a misdemeanor arrestee released prior to trial returns to court. The injunction also allows for nonfinancial alternatives to assure an indigent arrestee's presence at trial. By limiting the amount of secured-money bail to an amount an arrestee can afford, the injunction requires secured-money conditions of release to operate actually as conditions of release. After all, bail cannot ensure an arrestee returns to court unless the arrestee is first freed from detention prior to trial. Cf. United States v. Salerno, 481 U.S. 739, 754 (1987) (a court must set bail at no more than the “sum designed to ensure” prevention of flight, where that prevention is the government’s only goal); Stack v. Boyle, 342 U.S. 1, 5 (1951) (“Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.”).
The preliminary injunction does not endanger public safety. To begin, the injunction here accounts for arrestees who might pose particular safety risks. See, e.g., Order of Preliminary Injunction at 2-3, Dkt. No. 304 (April 28, 2017) (ordering separate procedures for misdemeanor defendants subject to formal holds, such as outstanding warrants, or subject to family-violence detention procedures). Moreover, the county does not assert that public safety is an interest it considers in
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determining whether to set secured or unsecured bail and in what amount. Under the Texas Constitution, all arrestees for non-capital offenses are eligible for release on bail, without respect to the risk the arrestees may pose to public safety. Tex. Const. art. 1 § 11; see also Judges’ Opp. to Pls’ Mot. for Prelim. Injunc. at 17-18, Dkt. No. 166 at 13-14 (observing that outright pretrial detention “is not an option in Harris County because arrestees have a right to bail” (citing Tex. Const. art. 1 § 11)). Because Texas law prohibits pretrial detention for public safety reasons (with special exceptions for which the district court accounted ), the preliminary injunction does not permit the release of misdemeanor defendants who could otherwise be detained as a threat to public safety.
In addition, pretrial bail serves as a poor tool for ensuring public safety (as opposed to appearance). Texas bondsmen forfeit their bond only if the bailee fails to appear, not if the bailee commits another crime while released before trial. Tex. Code Crim. Proc. Ann. art. 22.01-02 (West 2009). In fact, other jurisdictions have moved away from the use of money bail and have not found this to undermine public safety. See Criminal Justice Policy Program, Harvard Law School, Moving Beyond Money: A Primer on Bail Reform, (Oct. 2016) http://cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf (discussing experience of the Mesa County, Colorado Pretrial Services Agency).
In sum, the injuries that misdemeanor detainees suffer when the county
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detains them for the sole reason that they are poor are far greater than any putative harm to the county from enjoining that unconstitutional practice. The district court’s injunction could not have been more appropriate or more squarely in the public interest in promoting our collective moral obligation to those most in need and in ensuring the Constitutional guarantee of equal protection of the laws.
CONCLUSION For the foregoing reasons, this Court should affirm the district court’s preliminary injunction.
Respectfully submitted, s/ Jonathan Marcus Jonathan Marcus Paul M. Kerlin Ryan Travers Michael Leo Pomeranz SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 T: (202) 371-7000 F: (202) 661-0596 E: jonathan.marcus@skadden.com Attorneys for Amici Curiae
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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations of Federal Rule

of Appellate Procedure 32(a)(7)(B) because this brief contains 4,932 words,

excluding the portions exempted by Rule 32(f).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Office Word 2010 in 14-point

Times New Roman font.

Date: August 9, 2017

s/ Jonathan Marcus JONATHAN MARCUS

Case: 17-20333 Document: 00514109963 Page: 35 Date Filed: 08/09/2017

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

(1) all required privacy redactions have been made;

(2) the hard copies submitted to the clerk are exact copies of the ECF

submission;

(3) the digital submission has been scanned for viruses with the most

recent version of a commercial virus scanning program, Microsoft Forefront

Endpoint Protection, updated August 9, 2017, and according to the program is free

of viruses.

Date: August 9, 2017

s/ Jonathan Marcus JONATHAN MARCUS

Case: 17-20333 Document: 00514109963 Page: 36 Date Filed: 08/09/2017

CERTIFICATE OF SERVICE

I hereby certify that on August 9, 2017, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Fifth

Circuit by using the CM/ECF system. I certify that all participants in this case are

registered CM/ECF users and that service will be accomplished by the CM/ECF

system.

Date: August 9, 2017

s/ Jonathan Marcus JONATHAN MARCUS

 
 Case: 17-20333 Document: 00514109896 Page: 1 Date Filed: 08/09/2017
No. 17-20333
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
────────────────────────── MARANDA LYNN ODONNELL, Plaintiff-Appellee, v.
HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELLA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES, Defendants-Appellants ────────────────────────── LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD, Plaintiffs-Appellees, v.
HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELLA VILLAGOMEZ, Defendants-Appellants. ────────────────────────── On Appeal from the United States District Court for the Southern District of Texas No. 4:15-cv-1414 and 4:16-cv-1436 ──────────────────────────
BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION OF PRETRIAL SERVICES AGENCIES, PRETRIAL JUSTICE INSTITUTE, NATIONAL ASSOCIATION FOR PUBLIC DEFENSE, NEW YORK ASSOCIATION OF
PRETRIAL SERVICE AGENCIES, MINNESOTA ASSOCIATION OF PRETRIAL SERVICE AGENCIES, PRISON POLICY INITIATIVE, INC.
AND DRUG POLICY ALLIANCE IN SUPPORT OF PLAINTIFFSAPPELLEES
──────────────────────────
COUNSEL LISTED ON INSIDE COVER

Case: 17-20333 Document: 00514109896 Page: 2 Date Filed: 08/09/2017

Jared B. Caplan BRADLEY ARANT BOULT
CUMMINGS LLP 600 Travis St., Ste 4800 Houston, TX 77002 (346) 310-6006 jcaplan@bradley.com
Brad Robertson BRADLEY ARANT BOULT
CUMMINGS LLP 1819 Fifth Ave. N. Birmingham, AL 35203 (205) 521-8188 brobertson@bradley.com

Jessica Jernigan-Johnson Jeffrey W. Sheehan BRADLEY ARANT BOULT
CUMMINGS LLP 1600 Division St., Ste. 700 Nashville, TN 37203 (615) 252-2390 (615) 252-2392 jjohnson@bradley.com jsheehan@bradley.com
Counsel for Amici Curiae

Case: 17-20333 Document: 00514109896 Page: 3 Date Filed: 08/09/2017
SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES Maranda ODonnell, et al. v. Harris County, Texas, et al., No. 17-20333. Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Fifth Circuit Rules 26.1.1 and 29.2, the National Association of Pretrial Services Agencies (NAPSA) declares that it is a not-for-profit membership association that has no parent corporation and does not issue publicly held stock. The Pretrial Justice Institute (PJI) declares that it is a not-for-profit institute that has no parent corporation and does not issue publicly held stock. The National Association for Public Defense (NAPD) declares that it is a notfor-profit membership association that has no parent corporation and does not issue publicly held stock. New York Association of Pretrial Services Agencies (NYAPSA) declares that it is a nonprofit corporation that has no parent corporation and does not issue publically held stock. The Minnesota Association of Pretrial Services Agencies (MAPSA) declares that it is a nonprofit corporation that has no parent corporation and does not issue publicly held stock. Additionally, MAPSA declares that it is a not-for-profit membership association that has no parent corporation and does not issue publicly held stock.
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The Prison Policy Initiative, Inc. (PPI) declares that it is a nonprofit
corporation that has no parent corporation and does not issue publicly held stock.
The Drug Policy Alliance (DPA) declares that it is a nonprofit organization
that has no parent corporation and does not issue publicly held stock.
Further, pursuant to Fifth Circuit Rule 29.2, the undersigned counsel certifies
that, in addition to the list of interested person certified in the Appellants’ Brief and
supplemented by the certificates in the subsequent briefs filed with this Court, the
following entities and persons may have an interest in the outcome of this case:
Amici Association of Pretrial Professionals of Florida, Affiliate of NAPSA California Association of Pretrial Services, Affiliate of NAPSA Colorado Association of Pretrial Services, Affiliate of NAPSA Connecticut Pretrial Services, Affiliate of NAPSA Drug Policy Alliance Minnesota Association of Pretrial Services National Association for Public Defense National Association of Pretrial Services Agencies New York Association of Pretrial Services Agencies Ohio Association of Pretrial Services Agencies, Affiliate of NAPSA Pennsylvania Pretrial Services Association, Affiliate of NAPSA Pretrial Justice Institute Prison Policy Initiative, Inc. Shelby County Tennessee Pretrial Services, Affiliate of NAPSA South Carolina Association of Pretrial Intervention Programs, Affiliate of NAPSA Virginia Community Criminal Justice Association, Affiliate of NAPSA
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Counsel for Amici Bradley Arant Boult Cummings LLP Jared B. Caplan Jessica Jernigan-Johnson Brad Robertson Jeffrey W. Sheehan
s/Jared B. Caplan Jared B. Caplan Attorney of record for Amici Curiae
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TABLE OF CONTENTS SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES........................... i TABLE OF AUTHORITIES ................................................................................... vi INTEREST OF THE AMICI CURIAE ......................................................................1 ISSUE ADDRESSED BY AMICI CURIAE..............................................................5 SUMMARY OF THE ARGUMENT ........................................................................5 ARGUMENT .............................................................................................................7 I. The bail process is intended to achieve three legitimate state interests. .........7
A. Legitimate bail systems must promote return for trial, public safety, and pretrial release.....................................................................7
B. Other conflicting interests distract from the legitimate purposes of bail.....................................................................................................9
II. Secured-money bonds do not serve the three legitimate state interests. .......10 A. Secured-money bonds do not correlate with higher rates of appearance for trial..............................................................................11 1. A first-of-its-kind study in Colorado found unsecured bonds offer the same likelihood of court appearance as secured bonds............................................................................11 2. Recent data from Kentucky also demonstrates that unsecured bonds are as effective as secured bonds in ensuring court appearance.........................................................13 3. Studies that claim secured bonds are more effective do not adequately control for risk. .................................................14 B. Secured-money bonds do not correlate with lower rates of pretrial criminal conduct. ....................................................................16
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C. Secured-money bonds excessively and arbitrarily delay or prevent release for indigent defendants, increasing costs for both the State and bailable defendants. ...............................................18
1. Pretrial detention destabilizes defendants economically and socially. ..............................................................................18
2. Pretrial detention correlates with higher failure to appear rates. ..........................................................................................19
3. Pretrial detention correlates with higher rates of pretrial criminal activity. .......................................................................20
4. Pretrial detention results in higher costs to the State................21
III. The experience of professionals who do not have a vested financial interest in secured-money bonds confirms the conclusions of these empirical studies. ...........................................................................................22
IV. Legitimate state interests are better served by approaches proven successful elsewhere......................................................................................24
A. Pretrial supervision has been shown to be effective with bailable individuals in all risk levels...................................................25
B. Risk assessment tools are available and effective...............................26
1. National data sets allow reliable, nondiscriminatory risk assessment with minimal expense. ...........................................27
2. Individual states have been able to tailor risk assessment to statutory requirements...........................................................28
3. Pretrial risk assessments are more effective than bail schedules. ..................................................................................29
CONCLUSION ........................................................................................................30
CERTIFICATE OF COMPLIANCE.......................................................................32
CERTIFICATE OF SERVICE ................................................................................33
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TABLE OF AUTHORITIES
Cases Leary v. United States,
224 U.S. 567 (1912).........................................................................................8 Stack v. Boyle,
342 U.S. 1 (1951) (Jackson, J., concurring) ....................................................7 United States v. Salerno,
481 U.S. 739 (1987).................................................................................. 7, 25
Rules Fed. R. App. P. 29......................................................................................................1
Other Authorities ABA Standards for Criminal Justice, Pretrial Release (3rd ed. 2007) ............ 16, 29 Administrative Office of the Courts, Kentucky Court of Justice, Pretrial
Reform in Kentucky (2013)..................................................................... 13, 17 American Judges Association, Resolution 2 (2017)................................................23 Kristin Bechtel, et al., Pretrial Justice Institute, Dispelling the Myths: What
Policy Makers Need to Know about Pretrial Research (2012).......... 9, 10, 14 Conference of State Court Administrators, 2012-2013 Policy Paper
Evidence-Based Pretrial Release (2013).......................................................23 Criminal Justice Section, State Policy Implementation Project, ABA,
http://www.americanbar.org/content/dam/aba/administrative/ criminal_justice/spip_pretrialrelease.authcheckdam.pdf (last accessed Aug. 8, 2017) .................................................................................................21 Department of Justice, Bureau of Justice Statistics, Data Advisory (March 2010) ................................................................................................................9
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Eric Helland & Alexander Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J.L. & Econ. 93 (2004)........................................................................................................10
Michael R. Jones, Pretrial Justice Institute, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (2013)................ passim
Kentucky Justice & Public Safety Cabinet, Sourcebook of Criminal Justice Statistics (2012) .............................................................................................17
Edward Latsessa, et al., Creation and Validation of the Ohio Risk Assessment System Final Report (2009)........................................................28
Laura & John Arnold Found., Developing a National Model for Pretrial Risk Assessment (2013) .................................................................................27
Laura & John Arnold Found., PSA, www.arnoldfoundation.org/initiative/criminal-justice/crimeprevention/public-safety-assessment/ (last accessed Aug. 8, 2017) ...... 27, 28
Laura and John Arnold Foundation, Results from the First Six Months of the Public Safety Assessment-Court in Kentucky (2014) ....................................17
Christopher T. Lowenkamp, et al., Laura & John Arnold Found., The Hidden Costs of Pretrial Detention (2013) ................................................................20
Christopher T. Lowenkamp & Mary VanNostrand, Laura & John Arnold Found., Exploring the Impact of Supervision on Pretrial Outcomes ( 2013) ..............................................................................................................26
National Association of Counties, Resolution on Improving Pretrial Justice Process (2017) ...............................................................................................23
National Sheriffs’ Association, Resolution 2012-6 (June 18, 2012).......................24
Pretrial Justice Inst., Pretrial Risk Assessment: Science Provides Guidance on Assessing Defendants (2015)...................................................................26
Pretrial Justice Inst., Summary Report of Proceedings of the National Symposium on Pretrial Justice (May 31, 2011) ..............................................2
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Pretrial Justice Inst., The Colorado Pretrial Assessment Tool (CPAT) Revised Report (2012) ...................................................................................27
Timothy R. Schnacke, U.S. Dep’t of Justice, Nat’l Inst. of Corr., Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (2014) ............................8, 9
Marie VanNostrand & Kenneth J. Rose, Pretrial Risk Assessment in Virginia (May 1, 2009) ................................................................................................28
Marie VanNostrand, U.S. Dep’t of Justice, Office of the Fed. Detention Trustee, Pretrial Risk Assessment in Federal Court (2009) .........................22
Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1334 (2014) ............................................................................. 19, 20
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INTEREST OF THE AMICI CURIAE* Founded in 1973, NAPSA is a membership association that maintains the Standards of Practice for the pretrial services profession. NAPSA’s membership consists of national and international pretrial practitioners, judges, attorneys, prosecutors, and criminal justice researchers. Its board contains elected representatives from federal, state and local pretrial services agencies. NAPSA’s mission is to promote pretrial justice and public safety through rational pretrial decision-making and practices informed by evidence. NAPSA aims to promote the establishment of pretrial agencies nationwide, further research and development on pretrial issues, establish mechanisms for exchange of information, and increase the pretrial field’s professional competence through professional standards and education. NAPSA has exclusively hosted the premier annual pretrial services training conference for the last 44 years. In 1978, NAPSA published its first set of Standards on Pretrial Release. NAPSA revised these standards in 1995, 2004, and 2008 in light of emerging issues facing pretrial decision-makers and changes in practices, technology, case law, and program capabilities. The revised standards to be released in 2017 call for the elimination of secured financial conditions of release.
* Pursuant to Federal Rule of Appellate Procedure 29, all parties, through their respective counsel, have consented to the filing of this brief. Amici certify that no counsel for any party authored this brief in whole or in part and that no counsel or party made any monetary contribution toward the brief’s preparation and submission.
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PJI’s mission is to advance safe, fair and effective pretrial justice. Its staff are among the nation’s foremost pretrial justice experts. PJI’s Board includes representatives from the judiciary, law enforcement, prosecutors, victim advocates, pretrial services, county commissioners, and academia. Founded in 1977, PJI is supported by grants from the U.S. Department of Justice (DOJ) and private foundations. PJI is at the forefront of building stakeholder support for legal and evidence-based pretrial justice practices. For example, PJI staff served on the taskforce that drafted the most recent American Bar Association (ABA) Criminal Justice Standards on Pretrial Release. In 2011, PJI partnered with the DOJ to hold a National Symposium on Pretrial Justice. That symposium issued dozens of recommendations for concrete reforms addressing serious deficiencies in the moneybased bail system. See PJI, Summary Report of Proceedings of the National Symposium on Pretrial Justice (May 31, 2011), available at http://www.pretrial.org/download/infostop/NSPJ%20Report%202011.pdf. Since then, DOJ’s Bureau of Justice Assistance assigned PJI to lead a Pretrial Justice Working Group, comprised of over 90 justice-system-related organizations and associations, which is responsible for overseeing the implementation of the Symposium’s recommendations.
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Over the past four decades, PJI and NAPSA have released dozens of publications, conducted hundreds of training sessions and provided technical assistance to thousands of jurisdictions on enhancing pretrial justice.
NAPD is an association of more than 14,000 professionals who deliver the right to counsel throughout all states and territories in the United States. NAPD’s members include attorneys, investigators, social workers, administrators, and other support staff responsible for executing the constitutional right to effective assistance of counsel. NAPD’s members are the defense advocates in jails, courtrooms, and communities. They are experts in both theoretical best practices and practical, dayto-day delivery of indigent defense services. With respect to the constitutional right to bail, NAPD’s members constitute the front-line defenders of the right to be released from custody pending trial, and they observe the collateral damage that occurs in the lives of indigent defendants who remain incarcerated while they are presumed to be innocent. NAPD has an interest in preserving its clients’ constitutional right to release pending trial and reforming the bail system in the United States.
NYAPSA—a state and national leader in the pretrial field—is an organization of professionals who are dedicated to the advancement of pretrial-release services and community-based, non-incarcerative alternatives for the disposition of criminal cases. NYAPSA's Board of Directors is comprised of individuals from each of the
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four major geographic regions of New York State, representing a diverse group of active members.
Founded in 1996, MAPSA is devoted to promoting pretrial justice reform through evidence-based practices. MAPSA’s mission is to create a safer and just criminal justice system by providing quality training to its members, promoting information to improve pretrial programs and emphasizing the importance of pretrial services in Minnesota.
PPI challenges over-criminalization and mass incarceration through research, advocacy, and organizing. PPI’s work includes research and analysis of the impact of bail on individuals, communities, and the nation’s mass incarceration problem.
DPA is a national nonprofit advocacy organization that works to advance policies that are grounded in science, compassion, health and human rights. DPA has a strong interest in protecting the rights of all accused individuals and maintaining a fair and safe criminal justice system. DPA also has a significant interest in pretrial justice reform and led a coalition of civil rights and faith-based advocates to pass pretrial justice reform in New Jersey in 2014. The organization is currently working to safeguard the reform in New Jersey and ensure its fair implementation. DPA has an interest in supporting other jurisdictions’ efforts to eliminate wealth-based and discriminatory systems of pretrial justice.
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ISSUE ADDRESSED BY AMICI CURIAE The amici offer this brief to provide further explanation and context to the Court regarding the empirical evidence demonstrating how money bail and nonmoney alternatives impact legitimate state interests like appearance rates and public safety and to support the District Court’s findings following its careful engagement with this empirical evidence.
SUMMARY OF THE ARGUMENT Independent, appropriately controlled scholarship reinforces each of the District Court’s core conclusions. Effective, constitutionally sound alternatives to the money-based bail system successfully achieve the three goals of constitutional bail: maximizing appearance at trial, minimizing harm to the community from the small percentage of high-risk defendants who cannot be safely released, and maximizing pretrial release of those not proven guilty. Pretrial release systems based on secured bonds perform no better than other systems with regard to appearance at trial and community safety. But critically, secured bonds delay or completely prevent the release of individuals who are bailable under the law, increasing pretrial costs and consequences for the innocent, the guilty, and the State. Other states have been able to effectively manage pretrial release and meet the three goals of constitutional bail by utilizing pretrial supervision programs and evidence-based risk screening tools.
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The secured bond system, monopolized by the profit-driven commercial surety industry, runs counter to evidence from credible studies and core constitutional values. This industry props up a flawed system so that it can profit by selling a “service”—guaranteeing, for a non-refundable fee, the appearance of defendants who are statistically as likely (or more likely) to return on their own. This practice enriches the industry without doing anything to advance the legitimate goals related to bail. Only this rent-seeking industry’s advocacy and flawed studies find any virtue in requiring low- and moderate-risk bailable defendants to pay for release from pretrial detention. The benefits flow entirely to the bail-bond industry, making the costs of this system—whether measured in dollars or days in pretrial custody— excessive and unconstitutional.
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ARGUMENT I. The bail process is intended to achieve three legitimate state interests.
Our system has long recognized legitimate state interests that impose pretrial burdens on people who have been accused—but not convicted—of a crime. These legitimate state interests resulted in the traditional concept of bail. Because our constitution specifically forbids excessive bail, however, “liberty is the norm[] and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Under the constitutional view, “[t]he practice of admission to bail . . . is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” Stack v. Boyle, 342 U.S. 1, 8 (1951) (Jackson, J., concurring). The District Court correctly found that Harris County’s bail procedures do not serve these interests and correctly granted Appellees’ request for injunctive relief.
A. Legitimate bail systems must promote return for trial, public safety, and pretrial release.
Our judicial system recognizes that the bail process is meant to effectuate pretrial release while ensuring later appearance and preserving public safety; a constitutional bail system does not necessarily ensure the collection of fines or generate profits for governments or the bail-bond industry. See id. These three legitimate objectives also establish the relevant factors courts weigh when
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considering bail: the risk that (1) a defendant will fail to return or (2) will endanger the public before returning for trial, balanced against (3) the right to pretrial release. While these three state interests—return, safety and release—were historically the focus of the bail process, the shift away to a profit-focused commercial bail system resulted in higher detention rates for pretrial defendants.
Money bail has its root in the Anglo-Saxon criminal justice system which was comprised mainly of monetary penalties for criminal acts. Timothy R. Schnacke, DOJ, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform 23 (2014). England and America eventually adopted a personal surety system in which a reputable person would take responsibility for the accused and promise to pay the required financial condition if the defendant failed to return. Id. at 25.
A key component of the personal surety system was that the surety took on this responsibility without any initial remuneration or promise of any future payment. Id. But as America grew and communities became larger, the personal surety system gave way to one that allowed “impersonal” sureties to demand repayment upon a defendant’s default. Id. at 26. An “impersonal and wholly pecuniary,” for-profit industry emerged, Leary v. United States, 224 U.S. 567, 575 (1912), which requires bailable defendants to pay before being released. This shift resulted in an increase in detention of defendants who were traditionally eligible for
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bail. Schnacke, supra, at 26. This phenomenon is clearly demonstrated here. Statistics presented in the District Court showed that over 40 percent of those arrested for misdemeanor offenses in Harris County were detained from the time of their arrest until case disposition. ROA.5651.
B. Other conflicting interests distract from the legitimate purposes of bail.
The secured bail industry has stymied the return to a more rational, constitutional system—even with respect to low-risk, misdemeanor defendants. This industry actively opposes evidence-based reforms, such as the use of unsecured or personal recognizance bonds that permit bailable defendants to post bond without a pre-release payment and only require forfeiture if the defendant fails to appear. These proven systems produce better, more constitutional results but fail to offer the same commercial opportunities.
The industry’s opposition to reform is fierce and well-funded, and its use of flawed, misleading studies to advance its interests is well-documented. See, e.g., DOJ, Bureau of Justice Statistics, Data Advisory (March 2010) (cautioning against misuse of certain statistics collected by the Bureau), available at www.bjs.gov/content/pub/pdf/scpsdl_da.pdf; Kristin Bechtel, et al., PJI, Dispelling the Myths: What Policy Makers Need to Know about Pretrial Research 1, 3–10 (2012) (analyzing secured-bail industry studies that misuse Bureau statistics). Consider, for example, a logically flawed 2004 article popular with the industry. See
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Eric Helland & Alexander Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J.L. & Econ. 93 (2004). Helland and Tabarrok’s article has been discredited for misusing data from the Bureau of Justice Statistics by alleging causation in ways that the bureau itself has rejected. See Bechtel, supra, at 7–8. Industry advocates and others continue to cite this discredited article for its conclusions—including to this Court—without acknowledging that they cannot be inferred from the underlying data. See, e.g., Br. American Bail Coalition vii, 12, 13, 15, 16 (citing Helland & Tabarrok “passim”); Br. Appellants Fourteen Judges 41, 42, 44, 54 (same).
The money-based bail system at issue in this case does not reasonably advance any discernable state interest. Instead, it solely advances the interests of the rentseeking bail-bond industry. II. Secured-money bonds do not serve the three legitimate state interests.
As the District Court found, secured-money bonds prejudicially prevent or delay release without reliably advancing the legitimate state interests that bail is intended to address:
 Secured money bonds do not correlate with higher rates of appearance; and  They do not improve public safety; but  Secured financial bonds hinder pretrial release.
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Case: 17-20333 Document: 00514109896 Page: 21 Date Filed: 08/09/2017

Secured bonds thus fail to meaningfully achieve any of the legitimate goals related to bail and succeed only in supporting the bail industry.

A. Secured-money bonds do not correlate with higher rates of appearance for trial.
The District Court properly concluded that “[s]ecured money bail in Harris County does not meaningfully add to misdemeanor defendants’ appearance at hearings.” ROA.5661–62. Rigorous studies from Colorado, Kentucky, and elsewhere support this conclusion and stand in stark contrast to the flawed studies promoted by the bail-bond industry.

1. A first-of-its-kind study in Colorado found unsecured bonds offer the same likelihood of court appearance as secured bonds.
In a first-of-its-kind study, researchers collected hundreds of case-processing
and outcome variables on 1,970 defendants booked into ten Colorado county jails
over a 16-month period and analyzed whether secured bonds were associated with
better pretrial outcomes than unsecured bonds. Michael R. Jones, PJI, Unsecured
Bonds: The As Effective and Most Efficient Pretrial Release Option 6 (2013),

available

at:

http://www.pretrial.org/download/research/Unsecured+Bonds,+The+As+Effective

+and+Most+Efficient+Pretrial+Release+Option+-+Jones+2013.pdf. Over 80

percent of the state’s population resides in the ten participating counties. Id. Each

local jurisdiction collected data on a pre-determined, systematic random sampling to

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Case: 17-20333 Document: 00514109896 Page: 22 Date Filed: 08/09/2017
minimize bias in selecting defendants. Id. Defendants’ pretrial risks were assessed and assigned to one of four risk categories. Nearly 70 percent scored in the lower two risk categories. Id. This study—unlike the industry’s—analyzes pretrial outcomes by risk level to ensure valid comparisons.
The study tracked defendants who received unsecured or secured bonds. Id. at 7. Unsecured bonds in Colorado are authorized by statute as “personal recognizance bonds” and do not require defendants to post any money with the court prior to pretrial release. If defendants fail to appear, the court can hold those defendants liable for the full amount of the bond. The Court can also require cosignors on unsecured bonds (like the personal sureties of yesteryear). In contrast, secured bonds require money to be posted with the court on a defendant’s behalf prior to pretrial release. Id.
The study showed that unsecured bonds offer the same likelihood of court appearance as secured bonds. Fully 97 percent of defendants who were assigned to the lowest risk level and given a personal recognizance bond attended all future court appearances. Id. at 11. Only 93 percent of defendants in the same risk level with a secured bond attended all future court appearances. Id. Similarly, in the second risk category, 87 percent of defendants with unsecured bonds attended all future court appearances. Id. Only 85 percent of defendants in the same risk category with a secured bond attended all future court appearances. Id. Thus, defendants released on
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Case: 17-20333 Document: 00514109896 Page: 23 Date Filed: 08/09/2017
unsecured bonds returned for trial more consistently than similar defendants with secured bonds.
2. Recent data from Kentucky also demonstrates that unsecured bonds are as effective as secured bonds in ensuring court appearance.
Research beyond Colorado also shows that secured bonds are not necessary to ensure future court appearances. Court appearance rates in Kentucky recently increased when Kentucky reformed its bail process. In 2011, Kentucky passed HB 463, which required the state pretrial services division to use an empirically valid risk assessment instrument to assess defendants’ likelihood of returning for trial without threatening public safety. Low-risk defendants were released on their own recognizance unless the court made a finding that such a release was not appropriate. In the first two years after the law passed, the number of defendants released on unsecured bonds increased from 50 percent to 66 percent while the court appearance rate rose from 89 percent to 91 percent. Administrative Office of the Courts, Kentucky Court of Justice, Pretrial Reform in Kentucky 16–17 (2013), available at www.pretrial.org/download/infostop/Pretrial%20Reform%20in%20Kentucky%20I mplementation%20Guide%202013.pdf. Both the Kentucky and Colorado data sets demonstrate that secured bonds are statistically no better than unsecured bonds (and may actually be worse) at ensuring that defendants return to court as promised. The foundation of the money-bail system is statistically invalid.
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Case: 17-20333 Document: 00514109896 Page: 24 Date Filed: 08/09/2017
3. Studies that claim secured bonds are more effective do not adequately control for risk.
Supporters of secured bail often tout studies—usually funded by the for-profit bail industry—that claim secured bonds are more effective than other types of bonds. See Bechtel, supra, at 6–15 (critiquing flawed studies commonly cited by the forprofit bonding industry). Here, Appellants cite to an unpublished 2013 study conducted by Professor Robert Morris comparing failure to appear and recidivism outcomes of pretrial defendants who were released pending trial by various mechanisms in Dallas County, Texas. Appellants’ Br. 56. Morris concluded that defendants released on commercial bonds were less likely to fail to appear than those released on all other bond types, and that commercial bonds were the most costeffective release type in Dallas County. As explained in the Declaration of John Clark, that study was limited to one county with idiosyncratic pretrial release practices and, by its own terms, is “not necessarily generalizable” to counties with different practices, making it irrelevant to other jurisdictions, including Harris County. ROA.15745–47. Further, as explained by the District Court, Dallas County policies permitting release of defendants posting commercial surety bonds within the first 24 hours after arrest created “significant dissimilarities between the two populations” studied. ROA.5664. Morris withheld data needed to determine how well (or if) Morris adequately addressed those “significant dissimilarities.”
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Case: 17-20333 Document: 00514109896 Page: 25 Date Filed: 08/09/2017
In contrast, the Colorado study sorted each defendant using a pretrial risk assessment. This made it possible to accurately compare the failure-to-appear rate of low-risk defendants with that of other low-risk defendants and make a valid comparison between two similarly situated populations. Ignoring the differences between high-risk, moderate-risk, and low-risk defendants makes it impossible to credibly evaluate the effectiveness of secured bond. High-risk defendants—those who are least likely to return for trial and most likely to threaten public safety if released—are a small percentage of bailable defendants. Generally, statistics on bail outcomes for these defendants “should be interpreted with caution” because highrisk defendants are often only a small and statistically challenging portion of any study. See, e.g., Jones, supra, at 10, tbl.3, n.*.
Both the bail industry’s preferred studies and the Dallas County study fail to adequately account for risk. The federal agency responsible for collecting the data the bail industry uses in its studies has specifically warned that this data cannot be used to advocate for one type of pretrial release over another. That agency warned in a March 2010 that “the data are insufficient to explain causal associations between the patterns reported, such as the efficacy of one form of pretrial release over another.” DOJ, Bureau of Justice Statistics, Data Advisory, supra. The agency explained that in order to determine the most effective type of pretrial release, “it would be necessary to collect information relevant to the pretrial decision and factors
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Case: 17-20333 Document: 00514109896 Page: 26 Date Filed: 08/09/2017
associated with individual misconduct.” Id. Unlike the typical study supporting the money-bail system, both the Colorado and Kentucky studies collected and analyzed such information, validating their conclusions.
B. Secured-money bonds do not correlate with lower rates of pretrial criminal conduct.
The District Court also correctly found that secured-money bonds do not meaningfully affect the rate of new criminal activity committed by misdemeanor defendants. ROA5661–62. Secured-money bonds are not intended to and cannot deter criminal activity during the defendant’s pretrial release because bond forfeiture is predicated on failing to appear in court, not on arrests. Defendants do not lose their money bond if they are arrested again. Indeed, the ABA recognizes that financial conditions on release are not appropriate tools for preventing pretrial criminal conduct. ABA Standards for Criminal Justice, Pretrial Release § 10-5.3 (3rd ed. 2007). Logic suggests that secured bonds, therefore, are not more effective than other types of release conditions at preventing new pretrial criminal activity, except perhaps as a blunt tool for detaining indigent defendants without regard to actual risk.
The Colorado study confirms this point. It shows no statistical difference between unsecured and secured bonds in preventing criminal activity during the pretrial period. Jones, supra, at 10. Only seven percent of defendants in that study’s lowest risk group who received an unsecured bond were rearrested for new pretrial
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Case: 17-20333 Document: 00514109896 Page: 27 Date Filed: 08/09/2017
crimes compared with ten percent of defendants with a secured bond—a consistent finding across all risk groups. Id.
The Kentucky case study likewise shows no positive correlation between secured bonds and public safety. After HB 463 passed, the public safety rate—a rate measuring how often defendants complete pretrial release without being charged with a new crime—actually improved slightly. Pretrial Reform in Kentucky, supra, at 17; see Kentucky Justice & Public Safety Cabinet, Sourcebook of Criminal Justice Statistics, tbl.5.9 (2012) (defining public safety rate), available at https://justice.ky.gov/Documents/Sourcebook/Sourcebook2012ChapterFive.pdf. In 2013, as part of the reform started by HB 463, the pretrial services program began using an improved pretrial risk assessment tool. Laura & John Arnold Found., Results from the First Six Months of the Public Safety Assessment-Court in Kentucky 3–5 (2014). A study conducted six months after the improved tool was introduced showed the pretrial release rate rose to 70 percent of all defendants and the rate of new criminal activity for defendants on pretrial release declined by 15 percent. Id. Thus, secured bonds are neither a necessary means of promoting public safety nor more effective at reducing incidents of new criminal activity.
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Case: 17-20333 Document: 00514109896 Page: 28 Date Filed: 08/09/2017
C. Secured-money bonds excessively and arbitrarily delay or prevent release for indigent defendants, increasing costs for both the State and bailable defendants.
Beyond simply failing to promote court appearance or protect public safety, secured-money bonds and fixed bail schedules directly undermine the primary purpose of bail by delaying or preventing the release of defendants—particularly the indigent. Resource-blind bail schedules, like those used in Harris County, inevitably lead to the detention of people who would be low risk for release but are simply too poor to post the amount required by the schedule. Failing to release bailable defendants not only harms them, it also increases the financial cost to the State through higher pretrial detention rates. Unsecured bonds produce significantly higher release rates, do less harm to bailable defendants and impose fewer costs on the State.
1. Pretrial detention destabilizes defendants economically and socially.
As the District Court found, “[b]ail exacerbates and perpetuates poverty.” ROA.5666. The costs of secured bonds go beyond direct financial payments. Predictably, the Colorado study found defendants with secured bonds were detained significantly longer than those with unsecured bonds. Five days of pretrial incarceration passed before defendants with secured bonds achieved the same threshold of 80-percent release that defendants with unsecured bonds achieved on
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the first day. Jones, supra, at 15. This imposes a pre-trial punishment on defendants who—though presumed innocent—are too poor to secure their freedom.
Multi-day pretrial detention poses obvious threats to employment and family stability. See Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1334, 1356–57 (2014) (“Many detainees lose their jobs even if jailed for a short time, and this deprivation can continue after the detainee’s release. Without income, the defendant and his family may fall behind on payments and lose housing, transportation, and other basic necessities.”) (internal footnotes omitted). This is particularly true for indigent defendants, who frequently live paycheck to paycheck, and for parents, who risk losing contact with and custody of their children when they are incarcerated awaiting trial. ROA.5666. The impact on defendants of these unnecessary destabilizing events greatly exceeds the value to the County of the fines and bonds collected from misdemeanor defendants. Secured bonds add cost without benefit. The personal costs to defendants may persist past the conclusion of the case, even if the charges are dismissed.
2. Pretrial detention correlates with higher failure to appear rates.
Even brief periods of pretrial incarceration associated with secured bonds negatively impact rates of appearance and re-offense. Another study using Kentucky’s historical data determined that even a short delay in release of bailable individuals correlated with a significant increase in failure to appear. See Christopher
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Case: 17-20333 Document: 00514109896 Page: 30 Date Filed: 08/09/2017
T. Lowenkamp, et al., Laura & John Arnold Found., The Hidden Costs of Pretrial Detention 17–18 (2013), available at http://www.arnoldfoundation.org/ wp-content/uploads/2014/02/LJAF_Report_hidden-costs_FNL.pdf.
After controlling for relevant factors including risk level, the researchers found statistically significant decreases in appearance rate for low-risk defendants and moderate-risk defendants related to delayed pretrial release. Id. at 4, 13. When compared with those released within a day, bailable low-risk defendants detained for as few as two to three days were 22 percent more likely to miss future proceedings. Id. at 15.
3. Pretrial detention correlates with higher rates of pretrial criminal activity.
The same study found that “the longer low-risk defendants were detained, the more likely they were to have new criminal activity pretrial.” Id. at 17. When compared with those released within a day, bailable low-risk defendants detained for as few as two to three days were 39 percent more likely to engage in criminal activity while awaiting trial. Id. Moderate-risk bailable defendants showed a smaller, but still significant, increase in reported pretrial criminal activity. Id. These results may follow from the loss of jobs, transportation, and even housing that can occur when pretrial detention prevents a defendant from showing up for work or meeting other commitments. See Wiseman, supra, at 1356–57. In sum, evidence correlates
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Case: 17-20333 Document: 00514109896 Page: 31 Date Filed: 08/09/2017
secured bail with measurably poorer outcomes in the metrics that should be driving bail decisions.
4. Pretrial detention results in higher costs to the State. The extended pretrial detention associated with secured bonds also increases financial costs to the State. See generally Criminal Justice Section, State Policy Implementation Project, ABA 2, http://www.americanbar.org/content /dam/aba/administrative/criminal_justice/spip_pretrialrelease.authcheckdam.pdf (last accessed Aug. 8, 2017) (comparing costs of pretrial detention with noncustodial supervision). While bail is designed to move bailable defendants out of expensive pretrial detention, defendants who cannot afford secured bail remain in custody, increasing costs to the State. A recent study by the DOJ’s Office of the Federal Detention Trustee quantified the State costs associated with pretrial detention. Like the Colorado study, this study sorted defendants into risk levels, utilizing five risk levels rather than four. It then analyzed the costs associated with pretrial detention and the Alternatives to Detention Program (ATD). ATD includes options such as computer monitoring, third-party custody, and mental health treatment.1 The study found the average cost
1 NAPD does not take a position as to whether these or other pretrial detention alternatives are constitutional or valid in any particular case. Its members reserve the right to challenge the appropriateness of specific detention alternatives in individual cases. Nonetheless, NAPD does agree that, on a systemic level, there are less
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Case: 17-20333 Document: 00514109896 Page: 32 Date Filed: 08/09/2017
of pretrial detention for all five risk levels was between $18,768 and $19,912 per defendant based on an average daily cost of $67.27 and average pretrial detentions ranging from 279 to 296 days. In contrast, the average cost of the ATD program was $3,860 per defendant including the costs of supervising the pretrial defendant, the alternatives to detention, and fugitive recovery. Marie VanNostrand, DOJ, Office of the Fed. Detention Trustee, Pretrial Risk Assessment in Federal Court 34–36 (2009). On average, detention is between four and six times more expensive than the alternatives, even after factoring in costs related to recovering defendants who do not return on their own. See id. Reducing pretrial detention rates therefore significantly decreases the cost to the State by decreasing the number of expensive pretrial detainees. III. The experience of professionals who do not have a vested financial
interest in secured-money bonds confirms the conclusions of these empirical studies. Judges, other neutrals, and advocates on both sides of the criminal justice system who engage the empirical data presented in this brief consistently find that it conforms to their experience with the pretrial system. The American Judges Association agrees that pretrial detention decisions “have a significant, and sometimes determinative, impact on thousands of defendants and communities
invasive, less burdensome, and more efficacious alternatives to imposing money bail on pretrial defendants.
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Case: 17-20333 Document: 00514109896 Page: 33 Date Filed: 08/09/2017
every day” and that defendants who are detained “solely because they cannot afford to pay for their release” bear an increased risk of adverse outcomes. American Judges Association, Resolution 2 (2017), available at http://www.amjudges.org/pdfs/AJA-Pretrial-Resolution.pdf. Accordingly, the American Judges Association calls for “the adoption of evidence-based risk assessment and management,” the elimination of “practices that cause defendants to remain incarcerated solely because they cannot afford to pay for their release,” and “the elimination of commercially secured bonds at any time during the pretrial phase.” Id.
The Judges are not alone in recognizing the results of this empirical data in their professional practice; instead they are in “some very good and credible company.” Conference of State Court Administrators, 2012-2013 Policy Paper Evidence-Based Pretrial Release 10 (2013), available at: http://www.pretrial.org/download/policy-statements/Evidence%20Based%20PreTrial%20Release%20-%20COSCA%202012.pdf (listing major adopters of empirically supported pretrial practices). The National Association of Counties also recognizes the utility of evidence-based risk assessment and the need to “eliminate practices that cause defendants to remain incarcerated even for a few days solely because they cannot afford to pay for their release.” National Association of Counties, Resolution on Improving Pretrial Justice Process (2017), available at:
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Case: 17-20333 Document: 00514109896 Page: 34 Date Filed: 08/09/2017
http://www.naco.org/sites/default/files/attachments/Final%20Adopted%20Interim %20Resolutions%20-%202017%20Legislative%20Conference.pdf.
Law enforcement organizations also recognize that this empirical data quantifies and offers solutions to problems that are borne out in their members’ experiences. Sheriffs are troubled by a system in which most pretrial inmates are detained “not because of their risk to public safety or of not appearing in court, but because of their inability to afford the amount of their bail bond.” National Sheriffs’ Association, Resolution 2012-6 (June 18, 2012), available at: http://www.pretrial.org/download/policy-statements/NSA%20Pretrial %20Resolution.pdf. Chiefs of Police agree that “length of time until pretrial release has a direct impact on public safety” and advocate basing release decisions on empirically validated measures, not on bail schedules and wealth. International Association of Chiefs of Police, Resolution on Pretrial Release and Detention Process 16 (2014), available at: http://www.pretrial.org/download/policystatements/Pretrial%20Release%20and%20Detention%20Process%20IACP%202014.pdf. IV. Legitimate state interests are better served by approaches proven
successful elsewhere. Other successful approaches to pretrial release without financial conditions put the secured-money-bond system into context, revealing it as a failed deviation from traditional bail systems. Those approaches eliminate the damage done by
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secured-money-bond systems and restore constitutional values in which “liberty is the norm[] and detention prior to trial or without trial is the carefully limited exception.” Salerno, 481 U.S. at 755. Evidence shows that personal recognizance bonds are an effective tool for most bailable defendants, and objective risk assessment tests provide a clear guide for reliably limiting pretrial detention to the few defendants whose release poses a serious risk.
A. Pretrial supervision has been shown to be effective with bailable individuals in all risk levels.
Community-based support is effective for managing low-risk and moderaterisk defendants without imposing financial conditions of release. While secured bonds delay or prevent release, they do not fundamentally alter the consequences of violating the conditions of release. New charges under either type of bond will result in revocation and detention. Whether bonds are secured or unsecured, defendants who fail to appear may be required to forfeit money. Jones, supra, at 10–11. The relevant question for a judge, therefore, is what conditions on bail might improve the outcomes for defendants at what risk profiles?
A 2013 study drawing from historical data in two states identified statistically significant correlations between pretrial supervision—a common condition of release in which defendants meet and communicate regularly with a supervising officer—and improvements in court appearance rates of defendants released on bail. Christopher T. Lowenkamp & Mary VanNostrand, Laura & John Arnold Found.,
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Case: 17-20333 Document: 00514109896 Page: 36 Date Filed: 08/09/2017
Exploring the Impact of Supervision on Pretrial Outcomes 10, 14–17 (2013). The study indicates that “the effect of pretrial supervision [on appearance rates] appears to matter even more as risk level increases,” especially for moderate- and higherrisk defendants who were 38 percent and 33 percent less likely to fail to appear when supervised during their release. Id. at 15.
B. Risk assessment tools are available and effective. Risk assessment tools are valuable for distinguishing low-risk defendants from higher-risk defendants so that a judge may determine appropriate, individually tailored release conditions for each defendant.2 Evidenced-based risk assessment has recently advanced dramatically such that courts may now reliably assess risk and minimize conflict with the constitutional rights related to pretrial release. PJI, Pretrial Risk Assessment: Science Provides Guidance on Assessing Defendants 4–5 (2015), available at http://www.pretrial.org/solutions/risk-assessment/. Screening tools developed in multiple jurisdictions—including Virginia, Ohio, Kentucky, and Colorado—and validated through rigorous study have discredited prior assumptions about the factors that predict a defendant’s risk to the community and risk of non-
2 While NAPD agrees that risk assessment tools can be effective, depending on how they are designed and applied to an individual defendant, it does not endorse any particular risk assessment tool and has not taken a position on whether such tools are a constitutionally adequate remedy for flawed state court bail systems. Accordingly, NAPD does not join this section of the brief.
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appearance in court. Id.; see, e.g., PJI, The Colorado Pretrial Assessment Tool (CPAT) Revised Report 19–20 (2012).
1. National data sets allow reliable, nondiscriminatory risk assessment with minimal expense.
The data in this area is vast, and it provides state and local governments of any size with reliable tools for determining a defendant’s risk level. One such tool, the forthcoming Public Safety Assessment (PSA), provides a validated risk assessment based on “a database of over 1.5 million cases drawn from more than 300 U.S. jurisdictions.” Laura & John Arnold Found., PSA, www.arnoldfoundation.org/initiative/criminal-justice/crime-prevention/publicsafety-assessment/ (last accessed Aug. 8, 2017). The data-driven process used to create the PSA identified nine administrative factors based on current charges and criminal history that reliably predict risk of new crime, new violence, and failure to appear. After accounting for those administrative factors, the authors determined that none of the interview-dependent factors—including “employment, drug use, and residence”—improved predictions. Laura & John Arnold Found., Developing a National Model for Pretrial Risk Assessment 4 (2013), available at http://www.arnoldfoundation.org/wp-content/uploads/2014/02/LJAF-researchsummary_PSA-Court_4_1.pdf.
As compared with unsubstantiated or discriminatory heuristics for estimating risk associated with pretrial release, the PSA is “more objective, far less expensive,
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Case: 17-20333 Document: 00514109896 Page: 38 Date Filed: 08/09/2017
and requires fewer resources to administer.” PSA, supra. Courts using the PSA can make reliable predictions by focusing on criteria already available from charging documents and prior criminal records. Eliminating extraneous information— including race, gender, level of education, and socioeconomic status—the tool both reduces the need for intensive and expensive pre-bail interviews and presents courts with a cleaner distillation of the factors relevant to legitimate state interests. Id.
2. Individual states have been able to tailor risk assessment to statutory requirements.
Several states, including Virginia and Ohio, employ objective tools tailored to statutory criteria governing pretrial release. Virginia developed and validated a pretrial risk assessment instrument tailored to its statutory requirements. Marie VanNostrand & Kenneth J. Rose, Pretrial Risk Assessment in Virginia 1 (May 1, 2009). The Virginia validation study analyzed a year’s worth of records from five representative counties and identified a set of statistically significant predictors of negative outcomes including failure to appear, new arrests, and criminal allegations prior to trial. Id. at 2.
Ohio followed a similar process in developing several tools for pretrial assessment and other risk inquiries related to recidivism. See Edward Latsessa, et al., Creation and Validation of the Ohio Risk Assessment System Final Report ii, 13 (2009). The Ohio initiative demonstrated the value of these assessment tools not only for managing pretrial release, but also for addressing community supervision,
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institutional intake for convicted defendants, and community re-entry following incarceration.
State and local governments thus have abundant options for effectively and efficiently managing pretrial release without imposing a burden that adds cost to the accused and the State itself.
3. Pretrial risk assessments are more effective than bail schedules.
The rise of objective, evidence-based assessment tools is precisely why bail schedules should be rejected. Recognizing the importance of individual risk assessment, the ABA “flatly rejects the practice of setting amounts according to a fix bail schedule based on charge.” Commentary to ABA Pretrial Release Standard 10-5.3(e), p. 113. Such schedules exclude consideration of factors that may be far more relevant than the charge. Id.
In addition, the use of such schedules inevitably leads to the detention of persons who pose little threat to public safety but are too poor to afford release while releasing others that pose a higher safety risk but can afford to post bond. For this reason and others, the International Association of Chiefs of Police adopted a resolution criticizing the use of bail schedules and calling for the use of pretrial risk assessments to increase public safety and reduce release of individuals that may pose a threat. International Association of Chiefs of Police, supra. In sum, evidence-
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based, objective pretrial risk assessments are more effective than bail schedules at serving legitimate state interests.
CONCLUSION Any disinterested review of the relevant data—like the one conducted by the District Court in this case—shows secured-money bail to be ineffective and counterproductive at achieving the legitimate goals of maximizing release, maximizing court appearance, and minimizing public risk. The practice hinders release of bailable defendants and shows no statistically significant positive impact on any other valid metric. Its only reliable function is to provide the bail-bond industry with a literally captive market. The Court should affirm the District Court’s well-reasoned findings and refuse to allow Harris County to impose bail requirements that keep bailable indigent defendants in custody while providing security only for a rentseeking industry.
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Respectfully submitted,
s/ Jared B. Caplan Jared B. Caplan BRADLEY ARANT BOULT
CUMMINGS LLP 600 Travis St., Ste 4800 Houston, TX 77002 (346) 310-6006 jcaplan@bradley.com
Brad Robertson BRADLEY ARANT BOULT
CUMMINGS LLP 1819 Fifth Ave N Birmingham, AL 35209 (205) 521-8188 brobertson@bradley.com
Jessica Jernigan-Johnson Jeffrey W. Sheehan BRADLEY ARANT BOULT
CUMMINGS LLP 1600 Division St., Ste. 700 Nashville, TN 37203 (615) 252-2390 (615) 252-2392 jjohnson@bradley.com jsheehan@bradley.com
Counsel for Amici Curiae
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Case: 17-20333 Document: 00514109896 Page: 42 Date Filed: 08/09/2017

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it contains 6282 words, excluding the parts of the brief exempted by Rule 32(f) of the Federal Rules of Appellate Procedure. I further certify that this brief complies with the typeface and style requirements of Rules 32(a)(5) and 32(a)(6) because it has been prepared in a proportionally spaced typeface using Times New Roman, 14-point font.

Dated: August 9, 2017

s/Jared B. Caplan Jared B. Caplan Counsel for Amici Curiae

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Case: 17-20333 Document: 00514109896 Page: 43 Date Filed: 08/09/2017
CERTIFICATE OF SERVICE I hereby certify that on August 9, 2017, I filed the foregoing brief with this Court, by causing a copy to be electronically uploaded and by causing the original and six paper copies to be delivered by FedEx next business day delivery. I further certify that I caused this brief to be served on all participants through the CM/ECF system.
s/Jared B. Caplan Jared B. Caplan Counsel for Amici Curiae BRADLEY ARANT BOULT CUMMINGS LLP 600 Travis St., Ste 4800 Houston, TX 77002
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 Case: 17-20333 Document: 00514108750 Page: 1 Date Filed: 08/09/2017

No. 17-20333

In the United States Court of Appeals for the Fifth Circuit

MARANDA LYNN ODONNELL,

v. HARRIS COUNTY, TEXAS, et al.,

Plaintiff-Appellee,

Defendants-Appellants,

LOETHA SHANTA MCGRUDER, et al.,

v. HARRIS COUNTY, TEXAS, et al.,

Plaintiffs-Appellees,

Defendants-Appellants.

On Appeal from the United States District Court For the Southern District of Texas, Houston Division
No. 16-Cv-1414

AMICUS CURIAE BRIEF OF HON. DARRELL W. JORDAN, HARRIS COUNTY CRIMINAL COURT AT LAW NO. 16, IN SUPPORT OF APPELLEES AND AFFIRMANCE
G. Allan Van Fleet, P.C. Counsel of Record
6218 Elm Heights LN, Suite 201 Houston, TX 77081-2409 (713) 826-1954 allanvanfleet@gmail.com

Case: 17-20333 Document: 00514108750 Page: 2 Date Filed: 08/09/2017
INTEREST OF AMICUS CURIAE Judge Darrell W. Jordan is no ordinary friend of the court. He is the judge of the Harris County Criminal Court at Law No. 16, one of the judges sued in the ODonnell case. He testified at the preliminary injunction hearing, called by the plaintiffs. As documented in the record and in the opinion below, Judge Jordan’s bail practices were already like those the District Court ordered all the defendant judges to follow. He believes those practices are practical and necessary to protect the constitutional rights of the misdemeanor defendants who appear before him – and his judicial colleagues. Judge Jordan knows that, in practice, misdemeanor bonds in Harris County are set according to a strict schedule, without taking into account the ability of the accused to pay. He knows that the hearing officers believe they have no real discretion to deviate from the schedule. Rather, they have told him they must stick to the schedule lest they risk the ire of the other judges – and their jobs. He knows that bond amounts are often set at a level intended to keep misdemeanor defendants incarcerated, in violation of current Texas law and without constitutional due process. Although Judge Jordan favors current legislative proposals that would allow pretrial detention of certain misdemeanor defendants, after a full hearing and
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statement of reasons, he does not support the current practice of ordering de facto detention by setting bond amounts that defendants cannot afford to pay.
Judge Jordan therefore supports Appellees with this amicus curiae brief and urges this Court to affirm.1
1 Pursuant to Fed. R. App. P. 29, Judge Jordan and his counsel state: All other parties have consented to the filing of this brief. No party’s counsel authored his brief, in whole or in part. No party’s counsel contributed money that was intended to fund preparing or
submitting this brief. No person, other than the amicus curiae and his counsel, contributed money
that was intended to fund preparing or submitting this brief. ii

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CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that, in addition to those listed in the briefs of Appellants and Appellees, the following persons have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.
Hon. Darrell William Jordan Judge of the Harris County Criminal Court at Law No. 16 G. Allan Van Fleet, P.C. Van Fleet LP

Dated: August 9, 2017

/s/ Allan Van Fleet
G. Allan Van Fleet, P.C. Counsel for Defendant-Amicus Curiae Judge Darrell William Jordan

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TABLE OF CONTENTS INTEREST OF AMICUS CURIAE .......................................................................... i TABLE OF CONTENTS......................................................................................... iv INTRODUCTION AND SUMMARY OF ARGUMENT ........................................1 ARGUMENT .............................................................................................................3
I. Judge Jordan’s Background ..................................................................3 II. Judge Jordan’s Experience with the Harris County Misdemeanor
Bond System in Practice .......................................................................5 A. Bond amounts are set according to a rigid schedule...................5 B. Hearing officers have no real discretion to deviate from the
schedule. ...................................................................................... 6 C. Judges do not deviate from the schedule. ...................................8 D. Judges set bond amounts with the intent to keep some
defendants in jail. ........................................................................8 E. Not being able to afford a bond has severe consequences........10
1. Time in jail......................................................................10 2. Pressure to plead guilty...................................................10 3. Denial of diversionary opportunities ..............................12 III. Judge Jordan’s Bonding Practices.......................................................13 A. No one is kept in jail because they can’t afford a bond............14 B. Low-risk defendants automatically get PR bonds. ...................15 C. Other bonds are based on statutory factors, including ability to pay. ............................................................................................16 D. Some bonds come with conditions. ..........................................17
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E. Bonds are generally set within 24 hours of arrest.....................18 F. Judge Jordan’s practices are feasible. .......................................19 CONCLUSION ........................................................................................................19 CERTIFICATE OF SERVICE ................................................................................21 CERTIFICATE OF COMPLIANCE.......................................................................22
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INTRODUCTION AND SUMMARY OF ARGUMENT Darrell William Jordan knows well the issues and what is at stake in this case. He is the Judge of the Harris County Criminal Court at Law No. 16, one of the judges sued in this case. He testified at the preliminary injunction hearing, called by the plaintiffs. ROA.7489-7610. As a friend of this Court, he supports PlaintiffsAppellees and the bonding reforms ordered by the District Court. Judge Jordan knows – from his time on the bench and as a defense attorney who practiced before each of the other County Criminal Court at Law judges – that, in practice, bonds for misdemeanor defendants in Harris County are set according to a strict schedule that gives no consideration to the accused’s ability to pay. Hearing officers have told him they believe they have no real discretion to deviate from the schedule, because they fear angering the judges who hire them and who decide whether to rehire them. The judges themselves don’t deviate from the schedule – except to raise bonds to punish those who fail to appear, or who commit other crimes while bonded out, or whom for whatever reason the judges want to keep in jail. Indeed, this was Judge Jordan’s practice when he first took the bench, because he thought it was what he was supposed to do. From both sides of the bench, and as both defense counsel and Army prosecutor, Judge Jordan has seen the effects of a system that keeps people in jail
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because they are too poor to pay for a bond. He has seen clients, incarcerated for weeks before trial because they couldn’t afford to bond out, lose their jobs, autos, and homes. He has heard defendants protest their innocence, but plead guilty to get out on time served, rather than stay in jail. He knows that if you can’t get out on bond, you can’t take advantage of diversionary programs that require you to be in school or have a job or have access to drug testing facilities.
Judge Jordan’s views on bail policy evolved during his first 45 days in office, including at a pivotal judicial conference in San Marcos. Under his revised approach, defendants are no longer kept in jail because they can’t afford the bond dictated by schedule. Those who pretrial services determine are minimal risk – with bonds set at $500 – automatically receive personal recognizance (PR) bonds requiring no advance cash payment. With others, he has an in-court “conversation” about the amount of bond they can afford. He requires reasonable surety bonds for many, but allows the poorest to be released on PR bonds. In some cases, he protects defendants from hurting themselves or others by imposing bond conditions, such as taking breath-alcohol tests or wearing GPS monitors to assure compliance with orders to stay away from family members.
Judge Jordan generally can bond out defendants within 24 hours of their arrest.
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Judge Jordan’s bond practices, as noted in the opinion below, are substantially similar to those the District Court ordered all Harris County Criminal Court at Law judges to follow. In Judge Jordan’s experience, these practices are workable and protect the constitutional rights of the poorest who come before his court.
Judge Jordan urges this Court to affirm the District Court’s order. He supports bonding reforms proposed by Harris County and the Texas Legislature. He particularly supports changing state law to allow pretrial detention of certain misdemeanor defendants, but only after conducting a full due-process hearing, not the ruse of setting bond at an amount the court knows a defendant cannot pay.
Despite proposed and promised reforms, Judge Jordan sees a system that is broken now – a bathtub that is leaking badly and ruining the foundation. It must be plugged now. He therefore urges this Court to affirm the District Court’s injunction.
ARGUMENT I. Judge Jordan’s Background When Judge Jordan looks into the eyes of a misdemeanor defendant seeking bail in his court, he sees his own past and what his present might have been. The child of a broken home, he grew up shuttling between his father in Albany, Georgia and his mother in Columbia, Missouri. He earned admission to the University of Missouri – Columbia and graduated with a BA in History.
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In 2001, he enlisted as a private first class in the United States Army. While in the Army, he was accepted to the Thurgood Marshall School of Law in Houston. He joined the Reserve Officers Training Corps at nearby University of Houston and was branched as an Adjutant General officer. While still in law school, he passed the bar exam to be able to join the Judge Advocate General Corps as a reservist. At the 75th Division Headquarters, he advised five generals and served as a prosecutor. Leaving the 75th for the 22d Division at Fort Hood, he became a defense attorney in the Army Trial Defense Services (TDS). He then transferred to the Texas Army National Guard, remaining in TDS and rising to the rank of Major. During the preliminary injunction proceedings in this case, Major Jordan was reassigned as Command Judge Advocate of a sustainment brigade, advising the commanding officer. ROA.7494-96.
Still in law school in 2003, Judge Jordan decided he wanted to be part of the criminal justice system. He started by interning with a defense attorney. He spent a summer with the Fort Bend County District Attorney’s Office. After graduating, he served as a Policy Analyst in the Texas House of Representatives and as Legal Counsel/Policy Advisor in the Texas Senate during 2005-07. ROA.7494.
In 2008, Judge Jordan opened his own law practice, focusing on criminal defense. In the eight years before being elected to the bench, he represented over
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1,000 clients. 60-70% were in misdemeanor cases, most of them in Harris County. ROA.7494-96.
In 2016, he was elected Judge of the Harris County Criminal Court at Law No. 16. He took office January 3, 2017. ROA.7493.
II. Judge Jordan’s Experience with the Harris County Misdemeanor Bond System in Practice
Judge Jordan has seen how the Harris County misdemeanor bond system really works, both as a judge and as a defense attorney who appeared before each of the other County Criminal Court at Law judges. ROA.7529. From both sides, he sees a broken system in desperate need of reform. ROA.7504.
A. Bond amounts are set according to a rigid schedule. Whatever statutes may provide, bond amounts for misdemeanor defendants in Harris County are set by a schedule promulgated by the County Criminal Court at Law judges acting collectively. The schedule determines the amount of your bond according to a risk assessment matrix that adds up “points” based on the nature of the offense, criminal history, and various socioeconomic factors. Under the system in effect at the time of the injunction, a prior felony earns you a point. But so does not having a job. So does not having a home of your own. So does not having a car. So does not having a land-line telephone. ROA.7505. If you are poor, you can rack
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up a lot of points and a bond amount you simply cannot afford – not even the 10% premium (plus minimum fees) charged by bonding companies.
B. Hearing officers have no real discretion to deviate from the schedule.
Hearing officers are typically the first magistrates to set the amount of bonds. They receive a defendant’s point total and a recommendation from pretrial services. On the books, hearing officers have discretion to set the bond amount or allow a PR bond. On the ground, they believe they have no real discretion, but must stick to the schedule or risk the ire of the judges.
Judge Jordan testified about his meeting with the Harris County hearing officers to discuss allowing more PR bonds. “When I went and met with them, they explained to me all the judges are their bosses and they have to do what it takes to keep the judges happy.” ROA.7513. The judges appoint hearing officers and reappoint them. Judge Jordan felt the hearing officers treated him “as if the CEO was going to visit the local store.”
At the preliminary injunction hearing, Judge Jordan was asked about a proposal to allow defendants to have counsel at bond hearings. He did not believe it would make a difference, if the hearing officers are in fear of losing their jobs for deviating from the schedule. The hearing officer says to herself, “I don’t care about
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a defense attorney I’m worried about feeding my family and paying my bills.” ROA.7515.
One of the hearing officers described how he tried to “drive all over the city” to talk to as many judges as he could, “[s]o when his name comes up for review, he can hopefully be retained with his job.” ROA.7516. Judge Jordan testified, “it was a big shocker to me when I read that they were supposed to be independent because they are not.” ROA.7516.
Another hearing officer told Judge Jordan that the other judges would not even let them correct clerical errors, if it meant reducing a bond: “[S]ay you are supposed to have a $2,000 bond but there is a typo and they enter $10,000 bond. He said, ‘We aren’t allowed to change it. But if your bond is too low, if we accidentally put a $5,000 bond and your bond should have been 10,000, we can correct that.’ ” ROA.7515.
Hearing officer Villagomez told Judge Jordan how she felt when the other judges told her (and the other hearing officers) that “if a person was undocumented, we had to give them a $35,000 bond.” She said, “That used to just hurt me inside.” ROA.7515, 7584-85. But she believed she had no choice but to follow the judges’ directive.
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While the hearing officers understood that Judge Jordan wanted them to set more PR bonds for defendants in his court, he didn’t want to jeopardize their jobs:
I said, “Look, make sure you guys only do this for Court 16 because I don’t want to get you in trouble with all the other judges because they don’t operate like I do, so be careful.” ROA.7515. Before leaving the hearing officers, Judge Jordan said: Look, I apologize. I thought you guys were bad people, but you are just following what the judges told you to do. They said, “Exactly.” ROA.7516. C. Judges do not deviate from the schedule. Judge Jordan testified that in his experience as a criminal defense lawyer appearing in hundreds of cases before all of the other County Criminal Court at Law judges, the first hearing before a judge was hardly a “genuine” opportunity to get a defendant’s bond reduced. “I don’t know how you define ‘genuine’. Could you go ask the judge to lower the bond? Yes. Was the bond going to be lowered? No.” ROA.7498. The reason was always the same: “Because they stick to the bond schedule. That would be the answer. What does the bond schedule say?” Id.
D. Judges set bond amounts with the intent to keep some defendants in jail.
Texas law today does not permit pretrial detention of misdemeanor defendants, with the lone exception of those accused of domestic violence who
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violate the terms of a protective order. At times, however, Harris County Criminal Court at Law judges will set bonds at amounts intended to keep defendants in jail.
Requiring a $35,000 bond for undocumented misdemeanants is one example. Routinely, judges will double or triple or even quadruple an initial bond amount if the defendant fails to show or is arrested while out on bond. Even Judge Jordan did that in his early days on the bench. ROA.7539.
Judge Jordan – who supports proposed changes in Texas law that would allow pretrial detention of some misdemeanor defendants, after a full due-process hearing – admits that he has set a bond amount intending to keep someone in jail. A DWI defendant skipped 91 required breath-alcohol tests. His blood test came back .37 or, as the District Court observed, “Ten times drunk.” ROA.7564. Judge Jordan told the Afghanistan war veteran, “Look buddy, I have got to lock you up to save your life. ... [W]e had a talk and he told me it would take a lifetime to quit drinking. And I told him, I said: I’m not locking you up to be mean, I’m locking you up to save your life.” The District Court pressed Judge Jordan:
THE COURT: What mechanism did you use? Set a bond that he couldn’t afford?
THE WITNESS: Yeah. Yes, ma’am. ROA.7565
Judge Jordan confirmed to the District Court that he prefers a more straightforward method of denying bond, after due process, to someone who is a
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danger to himself, or in need of psychiatric evaluation, or “in a case where either the community or the victim was as risk,” rather than having to order a bond he knows could not be paid and would effectively be an order of detention. ROA.7565-66.
E. Not being able to afford a bond has severe consequences.
Judge Jordan has seen the harm that results from not having the money to pay for a bond.
1. Time in jail Of course, an accused misdemeanant unable to pay a bond will spend significant time in jail before her case is ever heard. Two to three weeks may pass before she even gets another hearing before a judge. ROA.7498-99. She cannot be with her family. She cannot return to her job, which she will probably lose. She cannot pay her bills. She cannot help her lawyer prepare her defense.
2. Pressure to plead guilty Jail puts pressure on defendants to plead guilty – typically to be released immediately with probation or a sentence of time served. 85 to 90 percent of the time, prosecutors will offer a plea bargain at a misdemeanor defendant’s first hearing before a judge. ROA.7502.
Judge Jordan recounted the time a client was arrested as he walked out of Walmart with a friend who had shoplifted automotive goods. Then-attorney Jordan
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met him at the initial hearing and learned that his client was not even in the automotive department. “Great,” Jordan said, “Let’s reset your case. Let’s get a copy of the video. We’ll show it to the DA and we can get your case dismissed.” ROA.7500. But that could take 45 days or so. Because the client could not afford the bond, that would be 45 days or so he would spend in jail. He said, “I have to get back home. I’m going to lose my job. What other options do we have?” Jordan told him that “they will give you time served today. You can take your conviction and leave. You can take probation and leave.” Although Jordan counseled him not to plead guilty and have a theft conviction on his record, the client insisted on taking the probation offer so he could get out of jail and back to his life. ROA.7501.
This was a common occurrence in Judge Jordan’s prior defense practice. “When people are in jail, they want to go home. ... Regardless of the evidence or what they are facing, they want to go home and will do anything to go home.” ROA.7501.
Even as a judge, he has had to stop pleas. The week before he testified in this case, he gave a PR bond to an indigent defendant who didn’t understand what it meant.
He said, “I’m innocent. I didn’t do it, but I want to go home so I’m pleading guilty.”
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I said, “Sir, you don’t understand. I just gave you a PR bond.” He says, “I don’t know what that means.” I said, “It means you are going home today.” He kept crying. I said, “Sir, relax. You are going home. You don’t have to plead guilty to go home. Take this PR bond, go home, get some food and let your lawyer fight your case. He said, “Thank you,” and left. ROA.7501.
3. Denial of diversionary opportunities In Harris County, misdemeanor defendants may be eligible for a diversionary
program that will allow them to avoid conviction if they comply with conditions.
Their cases are reset for, say, a year. In the marijuana program, PR bonds are
automatic. But for other programs, “you have to be out on bond to get something
like that because you have to show that you are enrolled in school, have a job,
character letters, drug tests.” ROA. 7591.
The District Court asked if you must be low risk to qualify for these programs.
Judge Jordan testified:
Right. But the problem is, you can only even apply to one of those programs if you are out on bond. So here, that’s another way that if you have funds, you can get in the special program and have your case dismissed, where if you have no funds, you are left in jail and your options are probation or conviction.
THE COURT: Even if you would otherwise qualify for the diversionary program?
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THE WITNESS: Absolutely. THE COURT: And even if you are low risk in every category but you are indigent, you just don’t have any money, you are still going to get a bond, a bail amount? THE WITNESS: You are still going to have a bail and you are not going to be able to get in that program to have your case dismissed. ROA.7501. III. Judge Jordan’s Bonding Practices When Judge Jordan first took the bench, he followed the standard bonding practices he had witnessed as a lawyer practicing before the Harris County Criminal Courts at Law. He worked from pretrial services’ point-driven risk assessments and the schedule. If defendants failed to show or were rearrested while out on bond, he doubled and tripled the initial amount. “[T]hat’s what I had seen other judges do, so I thought that was the right thing.” ROA.7510. He did take seriously his responsibility to review all defendants and bond amounts individually and approve PR bonds when appropriate. ROA.7504-05.
Over the next 45 days, his views on bonding practices evolved, as he went to judicial conferences and read research about bail policy. They reinforced his view that the Harris County system was broken and in need of reform. “I said, Wait a minute, this isn’t right. So I changed.” ROA.7510.
At a February 14, 2017 judicial training conference in San Marcos, Texas, Judge Jordan was especially moved by a discussion of bail practices and the October
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2016 Report and Recommendations of the Texas Judicial Council’s Criminal Justice Committee. Research showed that each day a person stayed in jail, he was more likely to commit a crime. Recommendations stressed that defendants should be given PR bonds. “Basically everything that I had thought that I was doing that was right, it was backed up by everything that they presented at this conference.” ROA.7506.
Returning from San Marcos, Judge Jordan began to make systemic changes in the bonding practices in his court. ROA.7512.
A. No one is kept in jail because they can’t afford a bond.
Under his reformed practices, no defendant assigned to Judge Jordan’s court stays in jail because he can’t afford a cash or surety bond. Many are given PR bonds; others have bonds set at what they can afford. This includes defendants who have prior offences or who fail to appear or are rearrested while out on bond or who violate bond conditions.
It’s a matter of fairness. If you have money, you can continually violate the
conditions of bond, continually pick up new criminal offenses and you can get out and keep doing it.
If you are indigent and you don’t have any money, you can violate the conditions of your bond or pick up a new crime and you can have a bond set so high that then you are stuck in jail.
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And so when I make decisions in my court and the DAs respond about priors or this or that, I ask them, So if they had $250 [i.e., the premium for a $2500 bond], does that make them safe? I mean, why does that make them a better candidate to be free because they have a little money?
* * * Because logically it doesn’t make sense. $250 does not make you safe or $500 does not make you safe. ROA.7503-04.
Nor, in his experience, does having the money to pay for a cash or
surety bond make a defendant more likely to show up for court.
I don’t think bond has anything to do with people showing up for court. I have had clients with all types of charges and they come to court knowing they are going to prison for a long time. ... I think they come to court because they don’t want to live their life on the run, you know, with a case hanging over their head and having to watch over their shoulder. ROA.7552. B. Low-risk defendants automatically get PR bonds. Judge Jordan first decided that defendants who were determined by pretrial
services to be minimal risk, and therefore given $500 bonds by hearing officers,
should all be released on PR bonds. This was communicated at his meeting with the
hearing officers. Occasionally, $500 bonds show up on his morning docket, but the
prosecutors know not even to discuss them with Judge Jordan. “That’s automatic
PR, because they have already gone through the evaluation system. And through
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the broken evaluation system that they have, if they determine they were low risk, then certainly through my evaluation they would get a PR bond.” ROA.7518.
C. Other bonds are based on statutory factors, including ability to pay.
Defendants not qualifying for automatic PR bonds are reviewed individually by Judge Jordan. He has made it known that everyone denied a PR bond should be brought before him. ROA.7527. For each defendant on his morning docket, he has a paper with the offense and bond amount. He and the assistant district attorney first go through the list and Judge Jordan decides “who is getting PR bonds without me talking to them.” ROA.7518-19.
The remaining defendants are brought in individually and have a “conversation” with Judge Jordan that includes what they can afford to pay. “When you set a person’s bond and you don’t consider what they can afford to pay, in essence,” amounts are set “at levels for the purpose of preventing their actual pretrial release.” ROA.7509. Judge Jordan asks upfront what can they afford to pay. “If they tell me they don’t have any money, I give them a PR bond. If they do have money I give them a bond, whatever they have so they can get out and go home.” Id.
Apart from low-risk arrestees, Judge Jordan does not give PR bonds to persons who have the means to pay for a cash or surety bond. ROA.7531-32.
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Judge Jordan described one hearing when he brought a defendant’s father into the conversation by telephone. The father confirmed that his son worked for him and that he could advance $200 of his son’s salary. Judge Jordan reduced the defendant’s two $4000 bonds to two $1000 bonds – as $200 would cover the bondsman’s 10% premium. ROA.7519-20, 7522. Judge Jordan estimates that he lowers bond amounts in 25-30% of his cases. ROA.7533.
D. Some bonds come with conditions. Judge Jordan sometimes attaches conditions to the bonds – including PR bonds – that he orders. Having money to afford a cash or surety bond may not make you “safe,” but conditions may make you safer for the community or even for yourself. A DWI defendant may be required to have a breath-alcohol lock put on her car. Another may be required to take regular breath- and blood-alcohol tests. ROA.7564. In “real bad” domestic violence cases, Judge Jordan will require defendants “to get a GPS monitor and we could set a range where if they go close to the house, then we’re going to be notified and the victim can receive a text message stating that the person is close.” ROA.7558-59. But in no part of Judge Jordan’s analysis does he think setting a high money bond is going to make the victim safer. The assistant district attorney may say that
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because of the risk of further violence, the bond needs to be $5000. Judge Jordan’s reply:
I say, "So if they have a friend that is going to loan them $500, is the victim safe now?" And they don’t have a response. Money does not make somebody safe. ROA.7559 Violating the conditions of a bond may result in stricter conditions, but Judge Jordan will not raise a bond amount or deny a PR bond in order to keep the defendant in jail. Again, it’s a matter of not treating defendants unequally because they are poor:
[I]f you’re rich, then, yeah, you can keep messing up how many – whatever that math is. And you just pay money and get back out.
And so I’m not going to treat poor people any differently. If you are rich and you can get back out, then because you are poor, should you have to sit and suffer in jail? So I do the same thing [release them on PR bonds]. ROA.7562-63 E. Bonds are generally set within 24 hours of arrest. Judge Jordan’s reformed practices have not only resulted in more PR bonds, they have reduced the time it takes to get a bond. First, his instructions to the hearing officers result in PR bonds being set without the need to appear before him. Second, pretrial services personnel know Judge Jordan’s approach and will bring PR bonds directly for his signature, especially when persons are arrested in a remote part of
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Harris County and it will take time to transport them to downtown Houston for processing. They will have a bond before they reach the jail. ROA.7527,7547.
Third, Judge Jordan’s standing order that defendants not receiving PR bonds be brought before him promptly reduces the time it takes to have the “conversation” and receive an affordable bond. ROA.7527. He is diligent with his docket, including on the morning of his testimony in this case. ROA.7497.
F. Judge Jordan’s practices are feasible. Judge Jordan’s actual bonding practices closely resemble those the District Court ordered. He has shown that they are feasible. He has shown they are practical. He has shown they are efficient. He has shown they are fair to rich and poor alike. There has been no crime wave of persons released from Judge Jordan’s court on PR bonds or bonds they can otherwise afford. As Judge Jordan testified, he would not be impeded in any way from carrying out his duties as a judge if the County and the Sheriff were enjoined from continuing to detain misdemeanor arrestees in jail on bond amounts they know are not financially affordable. ROA.7549.
CONCLUSION Judge Jordan supports bond reforms being implemented in Harris County and being proposed in the Texas Legislature. He particularly believes that Texas law
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should be changed to allow him and other misdemeanor judges to deny bond when it is necessary to protect victims, the community at large, or even the defendants themselves. But pretrial detention must be ordered only after a full due-process hearing including a record of the reasons. It must not be done by the ruse of setting bond in an amount the defendant cannot afford to pay. ROA.7571-72
Judge Jordan believes the District Court’s injunction is necessary to fix Harris County’s broken, unconstitutional bonding practices now. “It’s almost like recognizing your tub is leaking and saying, Let’s wait six months. We are going to have a new fix for it. If you truly care, then you fix it that day.” ROA.7540. Without the injunction, “[e]verything will remain the same.” ROA.7549.
He prays this Court to affirm.
Respectfully submitted, /s/ Allan Van Fleet
G. Allan Van Fleet, P.C. Counsel of Record
6218 Elm Heights LN, Suite 201 Houston, TX 77081-2409 (713) 826-1954 allanvanfleet@gmail.com
Counsel for Defendant-Amicus Curiae Judge Darrell William Jordan
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit on June 19, 2017 by using the appellate CM/ECF system and that service was accomplished on all counsel of record by the appellate CM/ECF system.

Dated: August 9, 2017

/s/ Allan Van Fleet G. Allan Van Fleet, P.C. Counsel for Defendant-Amicus Curiae Judge Darrell William Jordan

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CERTIFICATE OF COMPLIANCE
Pursuant to FED. R. APP. P. 32(g), I certify the following: This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because this brief contains 4659 words, excluding the parts of the brief exempted by FED. R. APP. P. 32(f). This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because this brief has been prepared in a proportionately spaced typeface using the 2016 version of Microsoft Word in 14-point Times New Roman font.

Dated: August 9, 2017

/s/ Allan Van Fleet G. Allan Van Fleet , P.C. Counsel for Defendant-Amicus Curiae Judge Darrell William Jordan

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 Case: 17-20333 Document: 00514109995 Page: 1 Date Filed: 08/09/2017
No. 17-20333
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________ MARANDA LYNN ODONNELL, Plaintiff-Appellee, v.
HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE;
PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN
BROWN; DONALD SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES,
Defendants-Appellants. __________________________ LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,
Plaintiffs-Appellees, v. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ,
Defendants-Appellants. __________________________ On Appeal from the United States District Court for the Southern
District of Texas, No. 4:16-cv-01414 __________________________ MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMATION __________________________
KATHERINE R. GOLDSTEIN
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Counsel of Record MICHAEL E. KAUFMANN JOSEPH J. KAMMERMAN Milbank, Tweed, Hadley & McCloy LLP 28 Liberty St. New York, NY 10005 (212) 530-5000 kgoldstein@milbank.com Counsel for Amici Curiae August 9, 2017
MICHELLE TUEGEL 5th Circuit Vice Chair Hunt & Tuegel, PLLC 425 Austin Avenue P.O. Box 726 Waco, TX 76701 (254) 304-6354 michellecriminaldefense@gmail.com
NICOLE DEBORDE 5th Circuit Vice Chair Bires Schaffer & DeBorde 712 Main Street, Suite 2400 Houston, TX 77002 (713) 526-6300 nicole@debordelawfirm.com

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MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, the National Association of Criminal Defense Attorneys (NACDL) hereby moves this Court for an order allowing it to file the attached amicus curaie brief in support of Plaintiffs-Appellees Maranda ODonnell, Loetha McGruder and Robert Ford. In support of this motion, NACDL states:
Movant’s Interest The National Association of Criminal Defense Lawyers (NACDL) is a non-profit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice and due process for those accused of crime or misconduct. NACDL was founded in 1958. It has a nationwide membership of many thousands of direct members, and up to 40,000 including affiliates. NACDL’s members include private criminal defense lawyers, court-appointed attorneys, military defense counsel, law professors, and judges. NACDL is the only nationwide professional bar association for court-appointed attorneys and private criminal defense lawyers. NACDL is dedicated to advancing the proper, efficient, and just administration of justice. NACDL files numerous amicus briefs each year in the U.S. Supreme Court and other federal and state courts,
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seeking to provide amicus assistance in cases that present issues of broad importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a whole.
NACDL has a particular interest in this case, ODonnell v. Harris County, No. 17-20333, because of the impact that detention has on outcomes for criminal defendants subject to Harris County’s policies and other jurisdictions’ similar policies. NACDL files here out of concern that Harris County’s pretrial detention system hinders criminal defendants’ abilities to mount effective defenses and leads to guilty pleas and verdicts for reasons apart from actual guilt.
Desirability and Relevance of NACDL’s Amicus Curiae Brief NACDL submits that its amicus curiae brief will aid the Court’s understanding of important considerations in this case that the District Court in its opinion and the parties in their briefs did not have an opportunity to address in great length. Harris County’s pretrial bail policies have undermined and, without further judicial intervention, will continue to undermine the ability of indigent criminal defendants charged with misdemeanors to mount an effective defense, regardless of whether or not they have a meritorious defense, by imposing
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unaffordable bail. Detained defendants charged with misdemeanors are more likely to plead guilty, be convicted at trial, receive longer sentences, and commit future crimes. While this phenomenon is mentioned by the District Court and borne out in the data, NACDL’s amicus brief provides further evaluation, from the perspective of criminal defense lawyers, of how and why Harris County’s policies result in poor outcomes for indigent defendants charged with misdemeanors. At bottom, Harris County’s policies harm the attorney-client relationship and detainees’ abilities to mount effective defenses. Given its mission and the expertise of its members, NACDL is particularly well-suited to provide insights into these issues. NACDL’s perspective should be especially helpful considering the role that criminal defense attorneys, their clients, and the attorney-client relationship plays in the criminal misdemeanor system and how those roles are affected by pretrial detention of indigents. NACDL’s insights will provide this Court with relevant information when performing its analysis of the constitutionality of Harris County’s policies under equal protection and procedural due process doctrine.
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No. 17-20333
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________ MARANDA LYNN ODONNELL, Plaintiff-Appellee, v.
HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE;
PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN
BROWN; DONALD SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES,
Defendants-Appellants. __________________________ LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,
Plaintiffs-Appellees, v. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ,
Defendants-Appellants. __________________________ On Appeal from the United States District Court for the Southern
District of Texas, No. 4:16-cv-01414 __________________________ BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF PLAINTIFFSAPPELLEES AND AFFIRMATION __________________________
KATHERINE R. GOLDSTEIN Counsel of Record
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August 9, 2017

MICHAEL E. KAUFMANN JOSEPH J. KAMMERMAN Milbank, Tweed, Hadley & McCloy LLP 28 Liberty St. New York, NY 10005 (212) 530-5000 kgoldstein@milbank.com
MICHELLE TUEGEL 5th Circuit Vice Chair Hunt & Tuegel, PLLC 425 Austin Avenue P.O. Box 726 Waco, TX 76701 (254) 304-6354 michellecriminaldefense@gmail.com
NICOLE DEBORDE 5th Circuit Vice Chair Bires Schaffer & DeBorde 712 Main Street, Suite 2400 Houston, TX 77002 (713) 526-6300 nicole@debordelawfirm.com
Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1(a), the National Association of Criminal Defense Lawyers certifies that it does not have a parent corporation and that no publicly held corporation owns more than ten percent of its stock. No party’s counsel authored this brief in whole or part. No party or party’s counsel contributed money that was intended to fund preparing or submitting this brief, and no person other than amicus curiae and its counsel contributed money that was intended to fund preparing or submitting this brief.
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CERTIFICATE OF INTERESTED PERSONS Maranda ODonnell et al. v. Harris County, Texas et al., No. 17-20333
The undersigned counsel of record certifies that the following

listed persons and entities as described in the fourth sentence of

Rule 28.2.1 have an interest in the outcome of this case. These

representations are made in order that the judges of this Court may

evaluate potential disqualification or recusal.

Plaintiffs – Appellees
Maranda Lynn ODonnell Robert Ryan Ford Loetha Shanta McGruder

Counsel
Alec Karakatsanis Elizabeth Rossi CIVIL RIGHTS CORPS

Seth P. Waxman
Daniel S. Volchok Arpit K. Garg
WILMER CUTLER PICKERING HALE AND DORR LLP

Neal S. Manne
Lexie Giselle White Michael Gervais
SUSMAN GODFREY LLP

Defendants – Appellants
Paula Goodhart Bill Hannon Natalie C. Fleming

Rebecca Bernhardt Susanne Ashley Pringle TEXAS FAIR DEFENSE PROJECT
Counsel
Charles J. Cooper Michael W. Kirk Harold S. Reeves

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John Clinton Margaret Harris Larry Standley Pam Derbyshire Jay Karahan Judge Analia Wilkerson Dan Spjut Judge Diane Bull Judge Robin Brown Donald Smyth Jean Hughes (Fourteen Judges for Harris County Criminal Courts of Law)
Judge Mike Fields (Judge for Harris County Criminal Court of Law)
Harris County, Texas Eric Stewart Hagstette Joseph Licata, III Ronald Nicholas Blanca Estella Villagomez Jill Wallace (County and Hearing Officers)
Defendants Sheriff Ed Gonzalez
Judge Darrell William Jordan

William C. Marra John D. Ohlendorf COOPER & KIRK, PLLC
John Ellis O’Neill John R. Keville Sheryl Anne Falk Robert Lawrence Green, III Corinne Stone WINSTON AND STRAWN LLP
Bruce Powers HARRIS COUNTY ATTORNEY’S OFFICE
John Odam Melissa Spinks HARRIS COUNTY ATTORNEY’S OFFICE
Michael Anthony Stafford Katherine D. David James G. Munisteri Stacy R. Obenhaus Philip J. Morgan Benjamin R. Stephens GARDERE WYNN SEWELL LLP
Counsel
Murray Jules Fogler FOGLER, BRAR, FORD, O’NEILL & GRAY, L.L.P.
Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S OFFICE

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Other Interested Parties
American Bail Coalition Professional Bail Bondsmen of Texas Professional Bondsmen of Harris County
State of Texas State of Arizona State of Hawai’i State of Kansas State of Louisiana State of Nebraska

Counsel Paul D. Clement Christopher G. Michel Andrew C. Lawrence KIRKLAND & ELLIS LLP
Ken Paxton Jeffrey C. Mateer Scott A. Keller Joseph D. Hughes TEXAS ATTORNEY GENERAL
Mark Brnovich ARIZONA ATTORNEY GENERAL

Douglas S. Chin HAWAI’I ATTORNEY GENERAL

Derek Schmidt KANSAS ATTORNEY GENERAL

Jeff Landry LOUISIANA ATTORNEY GENERAL

Conference of the Chief Justices Texas Public Policy Foundation

Douglas J. Peterson NEBRASKA ATTORNEY GENERAL
Thomas Phillips Evan A. Young BAKER BOTTS, L.L.P.
Carter G. Phillips Jeffrey T. Green Tobias S. Loss-Eaton David W. McAloon SIDLEY AUSTIN LLP

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National Association of Criminal Defense Lawyers

Robert Henneke CENTER FOR THE AMERICAN FUTURE TEXAS PUBLIC POLICY FOUNDATION
Katherine R. Goldstein Michael E. Kaufmann Joseph J. Kammerman MILBANK, TWEED, HADLEY & MCCLOY

Michelle Tuegel NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS

/s/ Katherine R. Goldstein Katherine R. Goldstein Counsel for Amici Curiae National Association of Criminal Defense Lawyers

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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ................................................. i CERTIFICATE OF INTERESTED PERSONS ............................................. ii TABLE OF AUTHORITIES ..............................................................................vii INTEREST OF AMICUS CURIAE....................................................................1 INTRODUCTION AND SUMMARY OF ARGUMENT................................2 ARGUMENT ...........................................................................................................6
I. Detention Negatively Impacts the Attorney-Client Relationship and Results in Less Effective Representation of Indigent Defendants.......................................6
II. Harris County Pressures Indigent Detainees to Plead Guilty Rather Than Raise a Defense..........................................16
III. Indigent Defendants Suffer Lasting Effects from the Poverty-Imposed, Disadvantaged Path Through The Harris County System. ..................................................................20
CONCLUSION .....................................................................................................23 CERTIFICATE OF COMPLIANCE ................................................................24 CERTIFICATE OF DIGITAL SUBMISSION...............................................25 CERTIFICATE OF SERVICE ..........................................................................26
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TABLE OF AUTHORITIES Page(s)
Cases Argersinger v. Hamlin,
407 U.S. 25 (1972) ........................................................................ 7, 8, 16 Herrera v. Collins,
506 U.S. 390 (1993) ................................................................................ 6 ODonnell v. Harris Cty.,
2017 WL 1735456 (S.D. Tex. Apr. 28, 2017) ............................... passim Powell v. Alabama,
287 U.S. 45 (1932) .................................................................................. 8 Statutes 8 U.S.C. § 1227(a)(2)(B)............................................................................ 20 1966 U.S.C.C.A.N. 2293 ........................................................................... 11 F.R.A.P. Rule 32(a)(7)(B).......................................................................... 24 Tex. Health & Safety Code Ann. § 481.121(b)(2) .................................... 20 Other Authorities Beck, Allen J., et al., Sexual Victimization in Prisons and
Jails Reported by Inmates, 2011-12 U.S. Department of Justice (May 2013).............................................. 19 Bibas, Stephanos, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463 (2004) ............................................................. 11 Boccaccini, Marcus T., Characteristics of the Ideal Criminal Defense Attorney From the Client’s Perspective: Empirical Findings and Implications for Legal Practice, Law & Psychol. Rev. 81, 102 (2001) ..................................................... 8
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Chideya, Farai, et al., Public Defenders Have Their Say, National Public Radio (May 8, 2008) .................................................... 8
Dobbie, Will, et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, American Economic Review (July 2016) ............................................................................... 21
Harris, Kamala D., and Paul, Rand, To Shrink Jails, Let’s Reform Bail, N.Y. Times (July 20, 2017) .................................................................... 4
Heaton, Paul et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stanford L. Rev. 711, 736-39 (2017)................................................. 3
Levin, Marc, Working with Conviction: Criminal Offenses as Barriers to Entering Licensed Occupations in Texas, Texas Public Policy Foundation (Nov. 2007) ...................................... 20
Martyn, Susan R., In Defense of Client-Lawyer Confidentiality and Its Exceptions, 81 Neb. L. Rev. 1320, 1324 (2003)......................................................... 8
Rapping, Jonathan, Building a Relationship With Your Client, 27 J. of Crim. Justice Education & Research 6 (Nov. 2005) ........................................................................................................... 9,11
Reilly, Ryan J. & Liebelson, Dana, Texas’ Largest Jail Hasn’t Learned Much From Sandra Bland’s Death, Huffington Post (Sept. 1, 2016, last updated Sept. 2, 2016) .............................................................................................................. 19
Roberts, Jenny, Crashing the Misdemeanor System, 70 Washington & Lee L. Rev. 1089, 1090 (2013) ............................... 20
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Scott, Robert E. & Stuntz, William J., Plea Bargaing as Contract, 101 Yale L.J. 1909, 1914 (1992) .......................................................... 17
Zaveri, Mihir, Harris County to Add Public Defenders to Bail Hearings, Houston Chronicle (May 23, 2017)...................................................... 10
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INTEREST OF AMICUS CURIAE The National Association of Criminal Defense Lawyers (NACDL) is a non-profit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice and due process for those accused of crime or misconduct. NACDL was founded in 1958. It has a nationwide membership of many thousands of direct members, and up to 40,000 including affiliates. NACDL’s members include private criminal defense lawyers, court-appointed attorneys, military defense counsel, law professors, and judges. NACDL is the only nationwide professional bar association for court-appointed attorneys and private criminal defense lawyers. NACDL is dedicated to advancing the proper, efficient, and just administration of justice. NACDL files numerous amicus briefs each year in the U.S. Supreme Court and other federal and state courts, seeking to provide amicus assistance in cases that present issues of broad importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a whole. NACDL has a particular interest in this case, ODonnell v. Harris County, No. 17-20333, because of the impact that detention has on subsequent trial preparation and mounting an effective defense.
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INTRODUCTION AND SUMMARY OF ARGUMENT Harris County’s bail system is not the first to receive criticism for its disparate treatment of indigent defendants, but it may be the most deserving. As courts, legislatures, advocates, and academics across the country turn their attention toward bail reform, Harris County’s policies stand out as particularly troubling. Harris County imposes bail upon an alarmingly high number of poor defendants who cannot afford to post it, resulting in these indigent defendants being detained until disposition. The effect of such policies is to create a two-tiered system that systematically impels poorer people towards conviction at a much higher rate than that of misdemeanor defendants who can afford to post bail. While the record in this case is lengthy and the facts are complex, several telling details emerge as starkly compelling. In Harris County, 40 percent of defendants charged with misdemeanors remain detained at the time of disposition,1 and indigent arrestees are more likely to be
1 This rate is far lower in other jurisdictions that, like Harris County, allow pretrial detention following a failure to afford secured money bail. ODonnell v. Harris Cty., 2017 WL 1735456, at *54 (S.D. Tex. Apr. 28, 2017). 1.5 percent and 3 percent of misdemeanor arrestees are detained until disposition in Washington D.C. and New York City, respectively. Id. 8.4 percent and 25 percent of both
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detained. ODonnell, 2017 WL 1735456, at *54-55, *60; Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 736-41 (2017) (“Heaton Study”). In Harris County’s criminal justice system, two misdemeanor defendants who have committed the same offense and have the same personal characteristics, save for their level of wealth, can expect two vastly different experiences and outcomes. The defendant with sufficient means can expect to post the required bond and be released. Conversely, the indigent defendant can expect to be detained. Now a detainee, the indigent defendant faces significantly higher obstacles in mounting an effective defense, ultimately leading to harsher outcomes than the wealthier misdemeanor defendant who can afford bond and gain release. The indigent detainee is more likely to plead guilty and more likely be convicted at trial than the released defendant. This detainee can also expect to receive a longer sentence when convicted and has a higher likelihood of recidivism than the released defendant. Their fate is overwhelmingly determined solely by their economic status.
felony and misdemeanor arrestees are detained until disposition in New Jersey and Kentucky, respectively. Id.
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Harris County’s de facto policy of detaining indigent misdemeanor defendants places the poor at a materially unfair disadvantage. The court below makes mention of this inequality, but only briefly. ODonnell, 2017 WL 1735456, at *40 (“The case law and commentary recognizes that those released from pretrial detention are better able to consult with counsel and prepare a defense . . . .”). Detention’s impact on a defendant’s ability to raise a defense warrants closer consideration. As courts, lawmakers and scholars have found, particularly as of late, pretrial policies that increase detention have a broad and deep impact on the outcomes of criminal defendants. See id.; Heaton, supra, at 718 (“Interest in pretrial policy is now surging.”); Kamala D. Harris and Rand Paul, To Shrink Jails, Let’s Reform Bail, N.Y. Times, July 20, 2017, available at https://www.nytimes.com/2017/07/20/opinion/kamalaharris-and-rand-paul-lets-reform-bail.html. At its core, being detained hinders a client’s ability to effectively interact with his or her attorney and mount a defense, and drives a defendant to enter a guilty plea— often for reasons entirely divorced from whether the defendant is, in fact, guilty.
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In contrast to defendants with sufficient financial resources to afford secured bail, indigent misdemeanor detainees are immediately and substantially disadvantaged. The attorney-client relationship is stunted because detention imposes limitations on communication with counsel, and detained defendants are less likely to place their trust in court-appointed attorneys, which leads to less candid communication between attorneys and clients. To further complicate matters, detainees in Harris County have a shorter time frame from arrest to case resolution than their peers who have been released on bail, providing attorneys and clients a shortened window to build rapport and develop a defense. Detained clients are also less able to assist their attorneys in understanding the facts of the case and gathering evidence, which is of particular importance for court-appointed attorneys who face large caseloads and significant resource constraints.
Detention undercuts most aspects of preparing a criminal defense, and, unsurprisingly, its consequences are readily observable. Judge Rosenthal’s thorough opinion noted the differences in outcomes based on pretrial detention, and Paul Heaton’s detailed Stanford Law Review article took an in-depth look at the downstream effects of pretrial
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detention in Harris County. Detained defendants are more likely to plead guilty, more likely to be convicted, more likely to be sentenced to jail, and more likely to receive longer sentences than those who are released. ODonnell, 2017 WL 1735456, at *61.
In short, by impeding an indigent defendant’s ability to raise a defense, Harris County’s policy jeopardizes a “central purpose” of the criminal justice system, which “is to convict the guilty and free the innocent.” See Herrera v. Collins, 506 U.S. 390, 398 (1993). By jailing vast numbers of indigent defendants before disposition of their cases, Harris County wrongly subjects these defendants to a two-tiered criminal justice system in which they experience far worse outcomes solely as a result of their indigency.
ARGUMENT I. Detention Negatively Impacts the Attorney-Client
Relationship and Results in Less Effective Representation of Indigent Defendants. Defendants who choose to remain detained, rather than plead guilty, face severe limitations on their ability to raise an effective defense at trial. Detainees are 25 percent more likely to be convicted and 43 percent more likely to be sentenced to jail than those defendants who were released. ODonnell, at *40 (summarizing the Heaton Study,
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which found “that the fact of detention itself, rather than the defendant's charge, criminal history, or other variables, causally affects” those outcomes).
1. Detention impedes the development of a healthy attorney-client relationship. Harris County’s criminal justice system disposes detainees to be wary of the court system and, in turn, their courtappointed counsel, whom they view as part of the system that has detained them. This dynamic hinders the client-attorney relationship from the outset, thereby significantly disadvantaging the client and leading to materially worse outcomes for defendants.
A healthy attorney-client relationship is key to mounting an effective defense, particularly for indigent criminal defendants. See Argersinger v. Hamlin, 407 U.S. 25, 34-37 (1972) (holding that criminal defendants charged with misdemeanors have a right to counsel at trial). Court-appointed attorneys navigate the complex criminal justice system for their clients, and clients provide necessary information to their attorneys. As the Supreme Court has recognized, “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He requires the guiding hand of counsel at every step in the
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proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69 (1932); see also Argersinger, 407 U.S. at 34-37 (“[T]he problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial.”). Clients rely heavily on their counsel to evaluate the strength of their case, to negotiate for the most favorable plea agreement, and to explain the ramifications of various strategic approaches.
To effectively perform these functions, criminal defense attorneys rely on a defendant’s transparency, honesty, and cooperation in building a case. Susan R. Martyn, In Defense of Client-Lawyer Confidentiality . . . and Its Exceptions . . ., 81 Neb. L. Rev. 1320, 1324 (2002). Trusting clients are more willing to work with attorneys, and engaged clients can significantly assist in their own defense. See Farai Chideya, et al., Public Defenders Have Their Say, National Public Radio (May 8, 2008), available at https://goo.gl/MRve6P; Marcus T. Boccaccini, Characteristics of the Ideal Criminal Defense Attorney From the Client’s Perspective: Empirical Findings and Implications for Legal Practice, Law & Psychol. Rev. 81, 102 (2001) (showing that clients are more willing to engage with their defense if working with their “ideal”
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attorney). Trusting clients are also more willing to defer to their attorneys’ legal expertise and legal judgment.
Clients often believe that an attorney’s level of effort is based on the attorney’s belief in the client’s guilt or innocence; thus vulnerable, indigent detainees have an incentive to paint themselves in the most favorable light. Jonathan Rapping, Building a Relationship With Your Client, 27 J. of Crim. Justice Education & Research 6, at p. 4 (Nov. 2005). Regardless of the client’s innocence or guilt, a client “will lean towards ‘fudging’ the facts . . .” in an attempt to secure a zealous advocate. Id. Attorneys are most effective and able to avoid risk when they receive full and accurate disclosure of all facts. Any dynamic that discourages full transparency will negatively impact the defense.
From the time of arrest to first meeting their court-appointed attorney, detained defendants undergo a series of negative, dehumanizing experiences that engender hostility and wariness towards their counsel, permanently damaging the attorney-client relationship. These experiences begin shortly after arrest, when they are separated from their personal belongings and assigned to a cell. The bail hearing occurs shortly thereafter. At the bail hearing, most
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misdemeanor defendants, who were uncounseled, were given no opportunity to explain their financial constraints to the people controlling their immediate fate.2 ODonnell, 2017 WL 1735456, at *5-6 (detailing the named plaintiffs’ experiences at bail hearings). None of the three named plaintiffs in this case spoke on their own behalf. Id. Ms. ODonnell’s Pretrial Services Report recommended release on personal bond, but the Hearing Officer “told her that she did not ‘qualify’ for release on personal bond.” Id. at *5. Ms. ODonnell was affirmatively ordered not to speak. Id. Mr. Ford’s bail hearing lasted less than fifty seconds. Id. at *6. At their abbreviated bail hearings, neither Ms. ODonnell, Mr. Ford, nor Ms. McGruder were allowed to engage with the Hearing Officer or explain their financial constraints or how unaffordable secured bail would affect their lives. Id. at *5-6.
The detainees—cut off from their lives and facing an indefinite stay in Harris County Jail—unsurprisingly view their lawyers as a part
2 Harris County has begun providing members of the class certified in this suit attorneys at their bail hearings as of July 1, 2017. ODonnell, 2017 WL 1735456, at *58; see also Mihir Zaveri, Harris County to Add Public Defenders to Bail Hearings, Houston Chronicle, May 23, 2017, available at https://goo.gl/P7HDZZ. Due to the recency of this change, it is unclear whether this will provide a defendant, through his or her attorney, any ability to explain financial constraints at the bail hearing or the disastrous impact that detention can have on the defendant’s personal life.
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of the system that has just charged them with a crime and ordered them incarcerated. As a result, defendants commonly are unsure whether court-appointed attorneys are trustworthy and have their best interests at heart. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2478 (2004) (citing Daniel W. Stiller, Guideline Sentencing: Deepening the Distrust Between Federal Defendant and Federal Defender, 11 Fed. Sentencing Rep. 304 (1999); Tamara Rice Lave, Equal Before the Law, Newsweek, July 13, 1998 at 14) (“Defendants trust appointed counsel less and so are less likely to heed their advice.”); see also Rapping, supra, at 4 (“The energy required to build an advantageous attorney/client relationship is even greater for the public defender than it is for retained counsel.”). Harris County’s policy of incarcerating indigent misdemeanor criminal defendants places an unwarranted barrier between defendants and their counsel.
2. Detention severely impairs defendants’ ability to communicate with counsel, assist in gathering evidence, and perform independent research. While detained, a defendant’s ability to assist counsel in mounting a defense is severely limited. See, e.g., 1966 U.S.C.C.A.N.
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2293, 2299 (House of Representatives’ Committee on the Judiciary observing that “[s]tudies have shown that failure to release has other adverse effects upon the accused’s preparation for trial . . .” and that “the defendant who remains in jail does not have the same access to his counsel as the man free on bail”); see also ODonnell, 2017 WL 1735456, at *40. By contrast, court-appointed attorneys whose clients have been released rely heavily on support from their clients to prepare a defense.
Detained clients confined to Harris County Jail cannot easily or spontaneously communicate with their attorneys, making it more difficult to review discovery, discuss the facts of the case, assess strategic decisions, and prepare for hearings or trial. Significantly, Harris County Jail does not allow incoming telephone calls to inmates; inmates can speak to their attorneys over the phone only if they place outbound calls to their attorneys. Inmate Phone Calls, Harris County Jail (last visited 3:10 PM Aug. 7, 2017), available at https://goo.gl/d7HVbM. Although attorneys are allowed to visit their clients, they must communicate in the presence of guards and through a phone separated by a clear divider. Video conferencing with inmates is available, but limited, and allowed for only forty minutes at a time.
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Video Visitation Rules for Off-Site Visitation, Harris County Jail (last visited 3:17 PM Aug. 7, 2017), available at https://goo.gl/UCCgeW. Video visits must be scheduled six hours in advance, but visits cannot be scheduled more than seven days in advance. Id. Released clients, on the other hand, suffer from none of these restrictions.
Detained defendants also cannot assist their attorneys in gathering information or evidence. Attorneys often bring their released clients to the location of the alleged offense or other relevant locations. While there, attorneys and clients can collaborate and discuss the events that led to the charges. Recalling past events while in the physical location where they occurred is markedly more effective in gathering relevant information than relying on a client’s unrefreshed recollection. Released clients may also assist counsel by locating witnesses, documents, and other evidence. For example, clients may remember a potential witness only by first name or perhaps might only be able to recognize a witness upon seeing him or her in person. Detained defendants can offer no such assistance and their defense suffers as a result.
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Furthermore, Harris County provides limited tools for detainees who wish to be closely involved with the development of the legal theory of their defense or for those who wish to represent themselves pro se. Nearly 29 percent of misdemeanor detainees in Harris County do not request appointed counsel. See Heaton, supra, at 736. Detainees who wish to use Harris County Jail’s law library must make an appointment. Inmate Handbook, Harris County Sheriff’s Office, at 9 (revised March 2012), available at https://goo.gl/tWFQiX. Detainees can only use the library one day a week, and the library does not allow anyone to check out materials. Id. Harris County Jail policy requires a court order before additional access is granted. In practice, this severely limits detainees’ ability to participate in their defense or defend themselves. See, e.g., Petitioner’s Second Motion for Extension of Time in Which to File His Petition for Review, Leachman v. Stephens, No. 17-0229, From an Appeal in the Second Court of Appeals Number 02-13-00357-CV (June 16, 2017) (requesting a filing deadline extension due to limited ability to use Harris County Jail law library resources).
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3. Attorneys have less time to prepare a defense for detained clients. Harris County’s practice of detaining indigent misdemeanor defendants leaves defense attorneys with less time to conduct investigations and prepare a defense for their clients. Harris County courts schedule hearings further apart for defendants who have been released on bail than for those who remain detained. ODonnell, 2017 WL 1735456, at *39; Heaton, supra, at 760 & n.136. Thus, the median time to disposition for released misdemeanor arrestees is months longer than for detained misdemeanor arrestees. ODonnell, 2017 WL 1735456, at *39; Heaton, supra, at 760 & n.136. That time can be profitably used to locate evidence, identify witnesses or engage in any of the myriad tasks necessary to dispose of the case on as favorable terms as possible for the defendant.
Of course, the gap between the median dates to disposition between the two populations is driven not only by differences in courts’ scheduling, but also by the higher percentage of detained defendants who choose to plead guilty (84 percent), as compared to released defendants who plead guilty (49 percent). ODonnell, 2017 WL 1735456, at *39. As noted below, arrestees facing continued detention are
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pressured to, and do, plead guilty shortly after being arrested, thereby reducing the time to disposition. Id. Thus, the difference in the time to disposition is partially driven by an urgency to resolve the matters of detained defendants. Whatever the contributing factors to tighten deadlines are, the result is to add to the plight of detained defendants by pressuring their counsel and impeding counsel’s ability to mount an effective defense.
II. Harris County Pressures Indigent Detainees to Plead Guilty Rather Than Raise a Defense
Harris County systematically pushes indigent misdemeanor detainees towards pleading guilty. In a typical year, the courts process over 50,000 individuals arrested on misdemeanor charges, ODonnell, 2017 WL 1735456, at *2, and are motivated to dispose of these cases quickly. See Argersinger, 407 U.S. at 34 (“[T]he volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.”). By setting unaffordable bail, Harris County gives detainees two choices: defend yourself and remain detained, and incur the consequences of detention, or plead guilty and secure an earlier release (often immediate). In recent years, more than 80 percent
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of defendants facing this decision chose to plead guilty, nearly twice the rate of released defendants. ODonnell, 2017 WL 1735456, at *61. Indeed, Harris County courts have gained a reputation as a “plea mill.” See Cory Roth Law Office, End the Plea Mill A Response of Michelle Alexander’s Opinion Piece in the New York Times (last visited 3:31 PM Aug. 7, 2017), available at https://goo.gl/TmjTzV; Robert J. Fickman, Harris County Texas: Where the Innocent Must Plead Guilty to Regain Their Liberty, A Letter to 15 Harris County Criminal Court Judges (last visited 3:33 PM Aug. 7, 2017), available at https://goo.gl/6VaqkP.
In Harris County, the decision to plead guilty is often driven not by the merits of the defense, but by the consequences of detention. When defendants and their counsel engage in the critical decision of whether to waive the right to trial and instead enter a guilty plea, they consider the likelihood of success at trial, as well as the costs and benefits of a plea. See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1914 (1992) (analyzing plea bargaining and criticisms of it as questions of contract law). Counsel may anticipate that mounting a defense while detained is markedly more difficult than doing so while released, see, infra, Section I, and
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they may advise their clients accordingly. This assessment lowers both counsel’s and defendant’s subjective assessment of the likelihood of acquittal, which incentivizes the defendant to accept a plea deal. Moreover, guilty pleas for misdemeanor offenses do not typically carry harsh sentences, often resulting in immediate release based on time served. ODonnell, 2017 WL 1735456, at *61.
In addition, detention, even for a short period of time, can threaten to destabilize a defendant’s life, but even more so when the person is impoverished. While detained, indigent defendants risk job loss and face income loss. ODonnell, 2017 WL 1735456, at *72. These are defendants for whom income loss, much less job loss, can be catastrophic in the absence of savings or a community safety net. Bills may go unpaid, services may be cut off, rent may be late or may not be paid at all, leading to risk of eviction. For those who live in public housing, detention may also cause indigent defendants to violate public housing requirements and risk loss of a subsidized apartment. Heaton, supra, at 715 & n.15. A job lost by a detained defendant is made all the more difficult to replace by a criminal conviction. Moreover, while detained, these indigent defendants will be absent from their children
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and other dependents, which invites encounters with child protective services.3 Id.
In addition to the material impact on their lives, defendants simply may not want to endure the discomforts, dangers and dehumanization inherent in being jailed. Harris County Jail is particularly dangerous, posing higher risks of sexual assault and death than other such institutions. See Allen J. Beck, et al., Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12, U.S. Department of Justice, at 13 (May 2013), available at https://goo.gl/rG9xyD (U.S. Department of Justice study finding that Harris County Jail had the third highest “inmate-on-inmate sexual victimization rate” in the country); Ryan J. Reilly & Dana Liebelson, Texas’ Largest Jail Hasn’t Learned Much From Sandra Bland’s Death, Huffington Post (Sept. 1, 2016, last updated Sept. 2, 2016), available at https://goo.gl/Spz55R (journalist study finding Harris County had a higher per capita death rate than average).
3 Other amici expand upon detention’s consequences on the personal and professional lives of indigent detainees.
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III. Indigent Defendants Suffer Lasting Effects from the Poverty-Imposed, Disadvantaged Path Through The Harris County System.
Significant collateral consequences attach as a result of Harris County’s two-tiered system of justice. Individuals with misdemeanor convictions “exit with a permanent, easily accessible electronic record of that contact [with the criminal justice system] that can affect future employment, housing, and many other basic facets of daily life.” Jenny Roberts, Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089, 1090 (2013). For example, should a detainee plead guilty to a possession of marijuana offense, Tex. Health & Safety Code Ann. § 481.121(b)(2) (West) (Class A marijuana possession misdemeanor of approximately 60 to 120 grams), the detainee is exposed to collateral immigration consequences. 8 U.S.C. § 1227(a)(2)(B) (marijuana possession of greater than 30 grams is a removable offense). Also, convicted offenders face a significant barrier to entry in many of Texas’s licensed professions. See Marc Levin, Working with Conviction: Criminal Offenses as Barriers to Entering Licensed Occupations in Texas, Texas Public Policy Foundation (Nov. 2007), available at https://goo.gl/Tbf9md.
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In addition, pretrial detention, itself, causes deleterious collateral consequences, regardless of the whether a detainee is convicted. A 2016 study of pretrial detention’s long-term effects found empirical evidence confirming that pretrial detention affects long-term outcomes. The study found “released defendants have significantly higher formal sector earnings and employment following the bail hearing.” Will Dobbie, et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, American Economic Review, at 22 (July 2016), available at https://goo.gl/5R6Reu. The study’s results suggest that “pre-trial release increases formal sector attachment both through an increase in formal sector employment and the receipt of tax- and employmentrelated government benefits.” Id. at 26. Also, detainees have a higher rate of recidivism. Heaton, supra, at 768. These are just a few of the numerous collateral consequences of Harris County’s policy.
Harris County’s two-tiered system for misdemeanor defendants carries with it plain short-term and long-term consequences that flow from the initial decision to detain misdemeanor defendants based upon their financial status. Detainees may accept an unwarranted plea
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bargain for the sake of receiving their immediate freedom or they may defend themselves at a significant disadvantage. Neither option is just.
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CONCLUSION For the reasons set forth above, this Court should uphold the District Court’s injunction.

Respectfully submitted,

August 9, 2017

s/ Katherine R. Goldstein KATHERINE R. GOLDSTEIN Counsel of Record MICHAEL E. KAUFMANN JOSEPH J. KAMMERMAN Milbank, Tweed, Hadley & McCloy LLP 28 Liberty St. New York, NY 10005 (212) 530-5000 kgoldstein@milbank.com
s/ Michelle Tuegel Michelle Tuegel 5th Circuit Vice Chair Hunt & Tuegel, PLLC 425 Austin Avenue P.O. Box 726 Waco, TX 76701 (254) 304-6354 michellecriminaldefense@gmail.com
s/ Nicole DeBorde 5th Circuit Vice Chair Bires Schaffer & DeBorde 712 Main Street, Suite 2400 Houston, TX 77002 (713) 526-6300 nicole@debordelawfirm.com
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure, I hereby certify that the textual portion of the foregoing brief (exclusive of the disclosure statement, tables of contents and authorities, certificates of service and compliance, but including footnotes) contains 4,091 words as determined by the word counting feature of Microsoft Word 2013. I also hereby certify that electronic files of this Brief and accompanying Addendum have been submitted to the Clerk via the Court’s CM/ECF system. The files have been scanned for viruses and are virus-free.
/s/ Katherine R. Goldstein Katherine R. Goldstein

Case: 17-20333 Document: 00514109995 Page: 41 Date Filed: 08/09/2017
CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1) all required privacy redactions have been made; (2) the hard copies submitted to the clerk are exact copies of the ECF submission; (3) the digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, Sophos Anti-Virus, updated August 9, 2017, and according to the program is free of viruses. Dated: August 9, 2017
/s/ Katherine R. Goldstein Katherine R. Goldstein

Case: 17-20333 Document: 00514109995 Page: 42 Date Filed: 08/09/2017
CERTIFICATE OF SERVICE I hereby certify that on August 9, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Katherine R. Goldstein Katherine R. Goldstein

 
 Case: 17-20333 Document: 00514109492 Page: 1 Date Filed: 08/09/2017

Nos. 17-20333
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MARANDA LYNN ODONNELL, Plaintiff-Appellee,
v. HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA
GOODHART; BILL HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN;
JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES,
Defendants-Appellants.
LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD, Plaintiffs-Appellees,
v. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ,
Defendants-Appellants.
On Appeal from the United States District Court for the Southern District of Texas, Case Nos. 4:16-CV-1414, -1436
BRIEF OF AMICI CURIAE TEXAS PUBLIC POLICY FOUNDATION AND R STREET INSTITUTE

ROBERT HENNEKE CENTER FOR THE AMERICAN FUTURE TEXAS PUBLIC POLICY FOUNDATION 901 Congress Avenue Austin, Texas 78701 (512) 472-2700

CARTER G. PHILLIPS Counsel of Record
JEFFREY T. GREEN TOBIAS S. LOSS-EATON DAVID W. MCALOON SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 (202) 736-8000 cphillips@sidley.com

Case: 17-20333 Document: 00514109492 Page: 2 Date Filed: 08/09/2017

CORPORATE DISCLOSURE STATEMENT AND CERTIFICATE OF INTERESTED PERSONS
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure

and Rule 28.2.1 of this Court’s Rules, undersigned counsel of record cer-

tifies that the Texas Public Policy Foundation (“TPPF”) is a not-for-profit

institution that has no parent corporation and does not issue publicly

held stock, and that Right on Crime is a not-for-profit project of the TPPF

in cooperation with the American Conservative Union Foundation and

the Prison Fellowship. Counsel further certifies that the R Street Insti-

tute is a Section 501(c)(3) nonprofit, nonpartisan, public-policy research

organization.

Further, undersigned counsel of record certifies that the following

listed persons and entities as described in the fourth sentence of Rule

28.2.1 have an interest in the outcome of this case. These representations

are made in order that the judges of this Court may evaluate possible

disqualification or recusal:

Plaintiffs – Appellees
Maranda Lynn ODonnell Robert Ryan Ford Loetha Shanta McGruder

Counsel
Alec Karakatsanis Elizabeth Rossi CIVIL RIGHTS CORPS

Seth P. Waxman Daniel S. Volchok

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Case: 17-20333 Document: 00514109492 Page: 3 Date Filed: 08/09/2017

Defendants – Appellants
Paula Goodhart Bill Hannon Natalie C. Fleming John Clinton Margaret Harris Larry Standley Pam Derbyshire Jay Karahan Judge Analia Wilkerson Dan Spjut Judge Diane Bull Judge Robin Brown Donald Smyth Jean Hughes (Fourteen Judges for Harris County Criminal Courts of Law)
Judge Mike Fields (Judge for Harris County Criminal Court of Law)
Harris County, Texas Eric Stewart Hagstette Joseph Licata, III Ronald Nicholas

Arpit K. Garg WILMER CUTLER PICKERING
HALE AND DORR LLP
Neal S. Manne Lexie Giselle White Michael Gervais SUSMAN GODFREY LLP
Rebecca Bernhardt Susanne Ashley Pringle TEXAS FAIR DEFENSE PROJECT Counsel Charles J. Cooper Michael W. Kirk Harold S. Reeves William C. Marra John D. Ohlendorf COOPER & KIRK, PLLC
John Ellis O’Neill John R. Keville Sheryl Anne Falk Robert Lawrence Green, III Corinne Stone WINSTON AND STRAWN LLP
Bruce Powers HARRIS COUNTY ATTORNEY’S
OFFICE
John Odam Melissa Spinks HARRIS COUNTY ATTORNEY’S
OFFICE

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Case: 17-20333 Document: 00514109492 Page: 4 Date Filed: 08/09/2017

Blanca Estella Villagomez Jill Wallace (County and Hearing Officers)
Defendants Sheriff Ed Gonzalez

Michael Anthony Stafford Katherine D. David James G. Munisteri Stacy R. Obenhaus Philip J. Morgan Benjamin R. Stephens GARDERE WYNN SEWELL LLP
Counsel
Murray Jules Fogler FOGLER, BRAR, FORD, O’NEILL &
GRAY, L.L.P.

Judge Darrell William Jordan
Other Interested Parties American Bail Coalition Professional Bail Bondsmen of
Texas Professional Bondsmen of Harris
County

Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S
OFFICE
Counsel
Paul D. Clement Christopher G. Michel Andrew C. Lawrence KIRKLAND & ELLIS LLP

State of Texas State of Arizona State of Hawai’i State of Kansas State of Louisiana State of Nebraska

Ken Paxton Jeffrey C. Mateer Scott A. Keller Joseph D. Hughes TEXAS ATTORNEY GENERAL
Mark Brnovich ARIZONA ATTORNEY GENERAL

Douglas S. Chin HAWAI’I ATTORNEY GENERAL

Derek Schmidt KANSAS ATTORNEY GENERAL

iii

Case: 17-20333 Document: 00514109492 Page: 5 Date Filed: 08/09/2017

Conference of the Chief Justices
Kim K. Ogg Roy L. Austin Thomas Berg A. Bates Butler Robert Butterworth Bonnie Campbell Kimberly Cheney John T. Chisholm Steve Clark Tim Cole Scott Colom Thomas Corbett J. Joseph Curran Frankie Sue Del Pappa Thomas J. Donovan, Jr. Richard Doran Mark A. Dupree, Sr. Mark Earley John Farmer Brian E. Frosh Douglas Gansler Gil Garcetti George Gascón Terry Goddard Mark Gonzalez Christian A. Gossett Scott Harshbarger

Jeff Landry LOUISIANA ATTORNEY GENERAL
Douglas J. Peterson NEBRASKA ATTORNEY GENERAL
Thomas Phillips Evan A. Young BAKER BOTTS, L.L.P.
Mary B. McCord Joshua A. Geltzer Robert Friedman INSTITUTE FOR CONSTITUTIONAL
ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW
CENTER

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Case: 17-20333 Document: 00514109492 Page: 6 Date Filed: 08/09/2017
Peter Harvey David J. Hickton Peter Holmes Robert Johnson Peter Keisler Miriam Aroni Krinsky Scott Lassar Peg Lautenschlager Rory K. Little Pamela Marsh Mary B. McCord Barbara McQuade Kenneth Mighell Jeff Modisett Marilyn J. Mosby, Esq. Carlos R. Moreno J. Tom Morgan Charles Oberly Jerome O’Neill James Petro Richard Pocker Earnest Preate Karl A. Racine Ira Reiner James H. Reynolds Stephen Rosenthal Donald Santarelli Carol A. Siemon Robert Spagnoletti Carter Stewart Robert Stephan James Tierney Mary Sue Terry Raúl Torrez Anthony M. Troy Cyrus R. Vance Jr. Lynneice O. Washington Francis Wikstrom
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Case: 17-20333 Document: 00514109492 Page: 7 Date Filed: 08/09/2017

William Wilmoth Grant Woods

Texas Public Policy Foundation R Street Institute

Carter G. Phillips Jeffrey T. Green Tobias S. Loss-Eaton David W. McAloon SIDLEY AUSTIN LLP
Robert Henneke CENTER FOR THE AMERICAN
FUTURE TEXAS PUBLIC POLICY FOUNDATION

/s/ Carter G. Phillips Carter G. Phillips
Counsel for Amici Curiae Texas Public Policy Project & R Street Institute

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Case: 17-20333 Document: 00514109492 Page: 8 Date Filed: 08/09/2017
TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT AND CERTIFICATE
OF INTERESTED PERSONS ............................................................... i TABLE OF AUTHORITIES...................................................................viii STATEMENT OF INTEREST .................................................................. 1 SUMMARY OF ARGUMENT ................................................................... 3 ARGUMENT ............................................................................................. 8 I. Harris County’s Bail System Violates Basic Constitutional
Principles. ......................................................................................... 8 A. Drawing On Ancient Principles Of Individual Liberty,
The Constitution Fundamentally Protects The Right To Pretrial Freedom. .................................................................... 8 B. Harris County’s Bail System Violates These Principles By Depriving People Of Liberty Without A Meaningful Hearing And Without Any Regard To Individual Circumstance......................................................................... 13 II. Setting Bail Without Regard To Indigency Imposes Significant Costs On Taxpayers Without Offering Any Societal Benefits. ............................................................................ 19 III. Harris County’s Bail Scheme Strips People Of Jobs And Connections To Family And Community, Making Them More Likely To Commit Crimes In The Future...................................... 24 CONCLUSION ........................................................................................ 29
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Case: 17-20333 Document: 00514109492 Page: 9 Date Filed: 08/09/2017
TABLE OF AUTHORITIES Page(s)
Cases Bearden v. Georgia,
461 U.S. 660 (1983)............................................................................. 10 Bell v. Wolfish,
441 U.S. 520 (1979)............................................................................. 17 Coffin v. United States,
156 U.S. 432 (1895)............................................................................... 8 Matthews v. Eldridge,
424 U.S. 319 (1976)............................................................................. 16 Nelson v. Colorado,
137 S. Ct. 1249 (2017)......................................................................... 16 ODonnell v. Harris Cty.,
No. 16-1414, 2017 WL 1735456 (S.D. Tex. Apr. 28, 2017)......... passim Pugh v. Rainwater,
572 F.2d 1053 (5th Cir. 1978) (en banc) ................................. 11, 18, 19 Sandin v. Conner,
515 U.S. 472 (1995)............................................................................. 17 Stack v. Boyle,
342 U.S. 1 (1951)................................................................................. 11 Tate v. Short,
401 U.S. 395 (1971)....................................................................... 10, 11 United States v. Salerno,
481 U.S. 739 (1987)........................................................... 10, 11, 16, 20 Williams v. Illinois,
399 U.S. 235 (1970)............................................................................. 11
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Case: 17-20333 Document: 00514109492 Page: 10 Date Filed: 08/09/2017
In re Winship, 397 U.S. 358 (1970)............................................................................... 8
Zadvydas v. Davis, 533 U.S. 678 (2001)............................................................................. 10
Constitutions and Statutes TEX. CONST. art. I, § 11.................................................................... 8, 9, 11
§ 13...................................................................... 11, 12 U.S. CONST. amend. V ............................................................................. 10
amend. VIII ......................................................................... 11 amend. XIV ......................................................................... 10 TEX. CODE CRIM. PROC. ANN. art. 17.15 ............................................ 21, 22 Foreign Authorities R. v. Bowes (1787) 99 Eng. Rep. 1327 (K.B.) ............................................ 9 Bill of Rights 1689, 1 W. & M. .................................................................. 9 Habeas Corpus Act of 1679, 31 Car. 2 ...................................................... 9 Magna Carta (1215) .................................................................................. 9 Petition of Right 1628, 3 Car. I ................................................................. 9 Statute of Westminster I 1275, 3 Edw. 3.................................................. 9 Other Authorities Brian Rogers, Shake-Up at the Courthouse: Incoming DA Ogg Hands Pink Slips to 37 Top Prosecutors, HOUS. CHRON. (Dec. 16, 2016), https://goo.gl/hzsfcQ .............................. 20, 21 James Pinkerton & Lauren Caruba, Tough Bail Policies Punish the Poor and the Sick, Critics Say, HOUS. CHRON. (Dec. 26, 2015), https://goo.gl/hzsfcQ ........................................... 26, 27
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Juan A. Lozano, Bail Practices in Texas’ Biggest County Under Scrutiny, SEATTLE TIMES (Oct. 9, 2016), https://goo.gl/Pcuu8T .................................................................... 25, 26
Laura & John Arnold Foundation, Pretrial Criminal Justice Research Brief (2013), https://goo.gl/YXjhNj ................................ 27, 28
Lydia DePillis, Harris County’s System for Defending the Poor is Still Woefully Inadequate, State Audit Finds, HOUS. CHRON. (Oct. 16, 2016), https://goo.gl/aVLgPD ....................... 21
Lydia D. Johnson, The Politics of the Bail System: What’s the Price of Freedom?, 17 ST. MARY’S L. REV. & SOC. JUST. 171 (2015)................................................................................................... 12
Michael R. Jones, Pretrial Just. Inst., Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (2013), https://goo.gl/JTYU5m ...................................................... 22, 23
Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711 (2017)................................................................................................... 20
U.S. Senators Kamala Harris and Rand Paul, To Shrink Jails, Let’s Reform Bail, N.Y. TIMES (July 20, 2017), https://goo.gl/AXUncy ......................................................................... 20
Vera Inst. of Just., The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration (2015), https://goo.gl/1JApvj ........................................................................... 20
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STATEMENT OF INTEREST The Texas Public Policy Foundation (“TPPF”) is a 501(c)(3) nonprofit, non-partisan research institute. The Foundation’s mission is to promote and defend liberty, personal responsibility, and free enterprise in Texas and the nation by educating policymakers and shaping the Texas public policy debate with sound research and outreach. Right on Crime is the trademarked name of TPPF’s national criminal justice reform project. Right on Crime believes a well-functioning criminal justice system enforces order and respect for every person’s right to property and ensures that liberty does not lead to license, and also that criminal justice spending should be tied to performance metrics that hold it accountable for results in protecting the public. This case concerns TPPF because Harris County’s indiscriminate reliance on secured-money bail violates core constitutional values of individual liberty and imposes massive and unnecessary costs on taxpayers without providing any countervailing benefit to public safety. It also imposes serious human costs on individuals and communities that run counter to basic principles of personal responsibility while increasing crime.

Case: 17-20333 Document: 00514109492 Page: 13 Date Filed: 08/09/2017
The R Street Institute is a Section 501(c)(3) nonprofit, nonpartisan, public-policy research organization (“think tank”). R Street’s mission is to engage in policy research and outreach to promote free markets and limited, effective government. Recognizing that solutions to current public-policy challenges require practical responses, R Street takes a pragmatic approach to issues, offering research, analysis and expert recommendations that advance the goals of a more market-oriented society and more effective, efficient governments.
The R Street Institute believes firmly that evidence-based methods to reform current problems within the criminal justice system are essential to achieve a just and impactful system. More than 60 percent of those detained in jail have not been convicted of a crime. The combination of lost economic opportunities and negative influences prevalent in a jail environment often can serve to drive poor and deprived individuals back to crime once they re-enter society. In order to avoid time in jail and mitigate losses, many individuals forfeit any valid defense and instead plead guilty to their charges. This system undermines the American understanding of law and justice. R Street advocates for individualized risk-based pretrial assessments that make use of objective and locally
2

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validated assessment tools as a way to replace pre-determined bail schedules. Hearing officers and judges should have all the necessary options available to ensure an individual’s right to due process and, ultimately, to reduce crime.
No party’s counsel authored this brief in whole or part. No party or party’s counsel contributed money that was intended to fund preparing or submitting this brief, and no person other than amici curiae and their counsel contributed money that was intended to fund preparing or submitting this brief.
All parties have consented to the filing of this brief. SUMMARY OF ARGUMENT
“Innocent until proven guilty” is the foundation of the American criminal justice system. This principle has existed for millennia and is woven into the fabric of our Constitution. An essential corollary to this principle is the rule that an individual has a fundamental right to liberty before trial. A pending criminal charge does not give the State a license to deprive a person of freedom. This right to pretrial liberty has long been protected through bail, which historically would be determined
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based on an individualized assessment of the person’s ability to pay, potential flight risk, and threat to public safety.
Having learned from the long English experience with bail and its abuses, the Founders sought to secure these rights through several provisions of the Constitution. The Fifth Amendment provides that no person shall be deprived of liberty without due process, while the Fourteenth Amendment imposes the same requirement on the States and provides that everyone, be they rich or poor, shall receive the equal protection of the laws. Further underscoring the importance of pretrial liberty—and the risk that a bail requirement can be abused—the Eighth Amendment expressly prohibits excessive bail. Article 1 the Texas Constitution offers the same protection.
Importantly, when these fundamental constitutional protections were adopted, commercial surety bail did not exist. Thus, reasonable, non-excessive bail necessarily meant bail that an individual defendant could plausibly afford with his or her own resources—not an amount of which the average person could, at best, pay a fraction.
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Harris County’s bail system defies these core principles. At cattlecall hearings lasting little more than a minute, during which they typically are prevented from speaking in their own defense, individuals arrested on nonviolent misdemeanor charges almost invariably find themselves detained until trial because they cannot pay a predetermined bail amount that has been set without regard to their individual circumstances, risk to public safety, or ability to pay. And those predetermined bail amounts are set on the assumption that a commercial bail bondsman will guarantee the full amount, placing them well beyond the typical defendant’s means.
A system that deprives individuals of liberty without a meaningful hearing and without regard to their personal circumstances is the very definition of a due process violation. A system that predicates a person’s continued liberty on the ability to pay a fixed amount of money, regardless of ability to pay, contravenes the requirements of equal protection and non-excessive bail. The State may not jail a person solely because he has been arrested, and it may not jail him solely because he is poor. That he is both poor and arrested does not enhance the State’s claim on his liberty. Worse, the upshot of this regime is that punishment—indeed,
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often the only jail time that will be inflicted—occurs before trial and conviction, perverting the principle of presumed innocence that is the bedrock of our justice system.
Further, pretrial detention has distorting, coercive effects on the ultimate resolution of criminal charges. Many detainees will waive valid defenses and plead guilty because doing so is the only way to get out of jail. Even those pretrial detainees who make it to trial are more likely to be convicted and to receive longer sentences.
This system is not merely unconstitutional, but also hugely expensive. The taxpayers of Harris County are forced to spend $472,663.48 to house pretrial detainees every single day. Nationwide, the cost is staggering—$38 million per day. Studies suggest that even a modest change in the bail system, by which the people with the lowest bonds were released without bail instead of detained, would have saved Harris County $20 million over a five-year period. Reinvesting just some of these savings elsewhere in the criminal justice system—in indigent defense, in prosecutor’s resources, in the courts themselves—would make it fairer and faster.
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These deprivations of liberty, and the accompanying vast expenditures, have not made Harris County any safer. Studies show no correlation between releasing someone on a money bond and better pretrial performance. In fact, individuals released on personal bond were more likely to appear at subsequent court dates and less likely to commit additional crimes pending trial.
In addition to the monetary costs to taxpayers, the Harris County bail system imposes great human costs on the people in the Harris County community. Pretrial detention destabilizes and upends lives, stripping many otherwise-productive citizens of their jobs and connections to family and community. This effect is all the more insidious given that the vast majority of misdemeanor defendants will not be sentenced to imprisonment even after they are convicted. By that time, the damage has been done, with long-lasting effects. Studies show that the amount of time an individual is held pretrial correlates to a higher likelihood of committing crimes even years later.
There is a better way. Modest changes to Harris County’s system, relying on risk-assessment tools already in place and based on evidence-
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based and validated metrics—rather than rote application of a predetermined bail amount—would provide a constitutional and reliable way to guide who should be released and who should be detained.
ARGUMENT I. Harris County’s Bail System Violates Basic Constitutional
Principles. A. Drawing On Ancient Principles Of Individual Liberty,
The Constitution Fundamentally Protects The Right To Pretrial Freedom. The “presumption of innocence” is a “bedrock … principle whose enforcement lies at the foundation of” our American criminal justice system. In re Winship, 397 U.S. 358, 363 (1970) (citation omitted). The presumption stretches at least as far back as Ancient Roman times, and “is to be found in every code of law which has reason and religion and humanity for a foundation.” Coffin v. United States, 156 U.S. 432, 465 (1895) (quoting McKinley’s Case (1817) 33 State Tr. 275, 506). This presumption dovetails with the principle that an individual has the right to pretrial liberty through a bail system governed by due process and administered evenhandedly. See TEX. CONST. art. I, § 11, Interpretive Commentary (2007) (“Bail functions as a complement to the Anglo-American presumption of innocence by permitting a person
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charged with a criminal offense to regain his liberty with some assurance of his presence at the trial ….”). This idea likewise has deep roots in the common law. The Magna Carta provided for the fundamental right to pretrial liberty: “No free man shall be seized or imprisoned … except by the lawful judgment of his equals or by the law of the land.” Magna Carta c. 39 (1215). Thereafter, the 1275 Statute of Westminster listed the crimes for which bail must be made available. Statute of Westminster I 1275, 3 Edw. 3, c. 3, 15.
Following a period of abuses and controversial court decisions, the English strengthened the right to bail. See Petition of Right 1628, 3 Car. I, c. 1; Habeas Corpus Act of 1679, 31 Car. 2., c. 2. In particular, Parliament’s 1689 Declaration of Rights prohibited excessive bail. Bill of Rights 1689, 1 W. & M., c. 2. Whether bail was excessive turned on an individualized assessment of the defendant’s circumstances: “[I]t depends upon the nature of the charge for which bail is required, upon the situation in life of the parties, and on various other circumstances.” R. v. Bowes (1787) 99 Eng. Rep. 1327, 1329 (K.B.).
These concepts—and the evils they were intended to thwart—were at the forefront of the Founders’ minds when drafting the Constitution
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and the Bill of Rights soon after. Protections for pre-trial liberty therefore exist throughout our Nation’s charter. The Fifth Amendment provides that no person shall be deprived of liberty “without due process of law.” U.S. CONST. amend. V. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). That is no less true after a person has been arrested: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 750, 755 (1987) (holding that the Due Process Clause provides a fundamental right to pretrial liberty).
The Fourteenth Amendment applies these same protections against the States, and mandates the “equal protection of the laws” for rich and poor alike. U.S. CONST. amend. XIV, § 1. “[T]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Bearden v. Georgia, 461 U.S. 660, 664 (1983) (citation omitted). So too when a person’s liberty depends on his ability to pay a state-mandated exaction. E.g., Tate v. Short, 401 U.S. 395, 398 (1971) (State cannot convert a fine imposed under a fine-only statute into a jail
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term solely because the defendant cannot immediately pay the fine in full); Williams v. Illinois, 399 U.S. 235, 240–41 (1970) (State cannot subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely because they are too poor to pay a fine). Thus, “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc).
Further, just as Parliament prohibited “excessive” bail in 1689, the Founders prohibited it a century later via the Eighth Amendment, see U.S. CONST. amend. VIII (“Excessive bail shall not be required.”), and mandated in the Judiciary Act of 1789 that a person arrested for a noncapital offense shall be admitted to bail. Stack v. Boyle, 342 U.S. 1, 4–5 (1951). “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” Id.; see Salerno, 481 U.S. at 752– 55. And the Texas Constitution similarly guarantees a right to bail and prohibits “[e]xcessive bail.” TEX. CONST. art. 1, §§ 11, 13. The goal of
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these overlapping guarantees is to ensure that “the power to require bail is not to be so used as to make it an instrument of oppression.” Id. § 13 Interpretive Commentary (2007).
Importantly, when the People ratified these constitutional protections in 1791, 1868, and (in Texas) 1876, “bail” did not mean what it means today. Although the bail bondsman is an ever-present feature of the current criminal justice system—and was when Harris County drafted its bail schedules—he was utterly unknown to the Founding and Civil War generations. It was not until 1898 that the commercial bail bond business first took root in this country. See Lydia D. Johnson, The Politics of the Bail System: What’s the Price of Freedom?, 17 ST. MARY’S L. REV. & SOC. JUST. 171, 178–79 (2015). Thus, for the first century of the Nation’s existence, the constitutional right to non-“excessive” bail necessarily referred to a form of release that a defendant could obtain using his or her own resources. The idea of a predetermined bail schedule that demands sums of money be posted, of which a typical defendant could realistically pay no more than a small fraction, would be anathema to those who demanded and ratified these constitutional guarantees.
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B. Harris County’s Bail System Violates These Principles By Depriving People Of Liberty Without A Meaningful Hearing And Without Any Regard To Individual Circumstance.
Harris County’s misdemeanor bail regime, as it has been administered and applied to the plaintiffs in this case and many others, violates these bedrock constitutional principles. That system is typified by a lack of process and driven almost solely by an individual’s ability to buy his freedom.
1. The district court’s extensive findings put on full display Harris County’s desultory process at the probable cause/bail-setting hearing. An arrestee does not appear in person, instead viewing the hearing officer and the assistant district attorney via videolink. Up to 45 arrestees may be processed in a single, cattle-call “hearing.” The hearings typically last just one to two minutes per person, during which time the assistant district attorney reads the charge and the hearing officer determines probable cause and sets bail. ODonnell v. Harris Cty., No. 16-1414, 2017 WL 1735456, at *30 (S.D. Tex. Apr. 28, 2017). Arrestees almost never have counsel. Id. Should arrestees try to make cases for release on personal bond in that brief time, the hearing officer typically prevents them from doing so: “You’re not going to be able to talk to me because I’m not letting
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you talk, because I’m going by what I feel is best for the community.” Id. at *34–35.
Videos show hearing officers stating summarily that they will deny personal bond “based on your priors,” while infrequently making notes on the pretrial service form stating things such as “Criminal History,” “Safety of Community,” or just “Safety.” Id. at *30. There is no real evidence that these processes—which cannot fairly be called hearings—involve any substantive determination of an individual’s flight risk, risk to public safety, or ability to pay any particular bail amount. See id. at *30– 44. That is hardly surprising, given the extraordinary brevity of the interactions. In short, “Hearing Officers and County Judges do not make individualized determinations of bail based on each defendant’s circumstances, but instead consistently adhere to the predetermined bail schedule,” based on a cursory look at an individual’s criminal history. See Id. at *41.
Indeed, the district court’s findings show that the hearing officers typically disregard risk assessments in favor of the predetermined schedules. Id. at *31–32. When pretrial services recommended a personal
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bond based on an individualized risk assessment, hearing officers rejected those recommendations 66.3% of the time. Id. at *31. When pretrial services made no recommendation, hearing officers rejected personal bond 96.9% of the time. Id.
The upshot is that, in just a minute or two, a hearing officer will determine whether an arrestee will remain in jail for weeks or months pending trial—which may well cause a loss of employment and other personally catastrophic consequences, see infra Part III—without hearing from the arrestee and without considering his individual circumstances, including his ability to pay the predetermined bail amount.
2. As currently operated, this system violates individuals’ pretrial right to liberty secured by due process. There is no substantive, individualized assessment of an arrestee’s flight risk, potential danger to the community, or ability to pay. Instead, there is only a cursory hearing and the near-automatic application of predetermined schedules.
Under any due process rubric, either procedural or substantive, what Harris County does is not sufficient. There can be no doubt that the individual interest at stake—personal liberty—is paramount; that the risk of an erroneous deprivation under these cursory procedures is
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extremely high; and that the governmental interests (costs and ease of administration) in the vast majority of cases pale in comparison. See ODonnell, 2017 WL 1735456, at *71; see also Matthews v. Eldridge, 424 U.S. 319, 334–35 (1976); cf. Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017) (invalidating state law requiring proof of innocence to obtain refund of fines and costs paid pursuant to vacated conviction “because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds … is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question”). Likewise, for all the reasons explained above, the right to a reasonable bail amount, based on the arrestee’s individual circumstances and ability to pay, is as fundamental as any other right in our constitutional system. See Salerno, 481 U.S. at 751 (citation omitted) (the Due Process Clause bars states from adopting criminal-justice rules that offend a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”); supra pp. 8–13.
More basic still, by depriving people of liberty for reasons unrelated to flight risk or dangerousness, the Harris County system effectively imposes punishment before trial or conviction, turning the presumption of
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innocence into a farce. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (citation omitted) (“a [pretrial] detainee ‘may not be punished prior to an adjudication of guilt in accordance with due process of law’”); Bell v. Wolfish, 441 U.S. 520, 539 (1979) (“arbitrary” restrictions on liberty constitute “punishment that may not constitutionally be inflicted upon [pretrial] detainees qua detainees”). This effect is all the more pernicious given that many defendants will ultimately be sentenced to time served or probation, meaning that the time they spend in jail before trial may well be the only imprisonment they experience—all because they cannot afford a predetermined bail charge. This “‘sentence first, conviction after’ system,” ODonnell, 2017 WL 1735456, at *39, represents a complete abandonment of the constitutional principles discussed above, which are the cornerstone of our Democracy.
Further, pretrial detention distorts case outcomes by coercing defendants to plead guilty and impeding the preparation of a defense. As the district court explained, the “evidence shows that many [people] abandon valid defenses and plead guilty in order to be released from detention by accepting a sentence of time served before trial.” Id. at *61. Even those arrestees who make it to trial fare worse: “Those detained
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seven days following a bail-setting hearing are 25 percent more likely to be convicted, 43 percent more likely to be sentenced to jail, and, on average, have sentences twice as long as those released before trial.” Id. Thus, the imposition of detention based solely on a defendant’s financial situation—which has nothing to do with his guilt or innocence—can actually influence whether he will be convicted and what sentence he will serve.
By the same token, Harris County’s misdemeanor bail system violates the Equal Protection Clause’s mandate that criminal punishment not be inflicted based solely on wealth or indigency. See supra p. 10. Given the unattainable amounts in the predetermined bail schedules, only those with money can afford to secure their freedom—even if they pose a higher risk to the community. Yet those who pose little-to-no risk remain in prison simply because they cannot afford the predetermined bail amount. See ODonnell, 2017 WL 1735456, at *41–44 (hearing officers use “secured bail” to “effectively order[ ] pretrial preventive detention … when, and because, the defendant is too poor to pay the amount of bail imposed”). That is precisely the sort of “imprisonment solely because of
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indigent status” that this Court, sitting en banc, has condemned as “not constitutionally permissible.” Pugh, 572 F.2d at 1056.
Finally, and for much the same reasons, the Harris County regime violates the right to a bail amount that is proportionate to the individual’s circumstances and ability to pay. As explained above, that right predates and cannot be altered by the current system of secured bail. See supra p. 12. Yet “Harris County has a consistent and systematic policy and practice of imposing secured money bail as de facto orders of pretrial detention in misdemeanor cases.” ODonnell, 2017 WL 1735456, at *3. That practice cannot be squared with the historical understanding of non-excessive bail as reflecting an amount the arrestee can realistically pay himself. II. Setting Bail Without Regard To Indigency Imposes Signifi-
cant Costs On Taxpayers Without Offering Any Societal Benefits. Harris County’s inflexible reliance on fixed bail amounts is not merely unconstitutional, but hugely expensive, and without offering any countervailing benefit to the taxpayers.
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In a 2015 study, Harris County jails had an average daily population of 9,041. Vera Inst. of Just., The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration 28 (2015), https://goo.gl/1JApvj. The cost to house that population was $472,663.48 per day, or $52.28 per day for every single inmate. Id. at 29. A separate study estimated that, if Harris County had released just those held on the lowest bond, $500, from 2008 to 2013, it would have saved the county $20 million dollars. See Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 787 (2017).
The numbers nationwide are even more staggering. Arrestees held while awaiting trial amounted to 95% of the growth of the jail population from 2000 to 2014. See U.S. Senators Kamala Harris and Rand Paul, To Shrink Jails, Let’s Reform Bail, N.Y. TIMES (July 20, 2017), https://goo.gl/AXUncy. It now costs Americans approximately $38 million every day to jail defendants awaiting trial, totaling $14 billion per year. Id.
These significant taxpayer-funded outlays carry real opportunity costs. Even as Harris County has poured money into housing pretrial detainees, the District Attorney’s office laid off 37 prosecutors at the end
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of 2016. Brian Rogers, Shake-Up at the Courthouse: Incoming DA Ogg Hands Pink Slips to 37 Top Prosecutors, HOUS. CHRON. (Dec. 16, 2016), https://goo.gl/hzsfcQ. Meanwhile, a recent state audit found that Harris County’s system for providing indigent defense continues to be “creaky and overburdened,” in which “private attorneys have little incentive to provide a vigorous defense, since accepting a plea deal is the fastest way to clear a case and collect a fee.” Lydia DePillis, Harris County’s System for Defending the Poor is Still Woefully Inadequate, State Audit Finds, HOUS. CHRON. (Oct. 16, 2016), https://goo.gl/XosQBv. Diverting just some of the potential savings from pretrial detention to other areas of the criminal justice system would make the entire system work more quickly and more fairly, including by eliminating the backlogs in processing cases, which would shorten the period necessary to monitor an arrestee prior to trial (further reducing costs).
Even as it imposes these costs on the taxpayers, however, Harris County’s devotion to predetermined secured-money bail offers scant benefits to the public. Under Texas law (which echoes federal law in this respect), bail should be set at a sufficient level to, inter alia, “give reason-
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able assurance that the undertaking will be complied with” and considering “[t]he future safety of a victim of the alleged offense and the community.” TEX. CODE CRIM. PROC. ANN. art. 17.15; see also Salerno, 481 U.S. at 742 (under the Bail Reform Act of 1984, bail should be denied only when no “combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community”). Harris County’s system, by setting bail only by reference to criminal history and a predetermined amount on a bail schedule, serves neither of these ends.
On its face, a fixed, predetermined dollar amount is untethered from either individual flight risk or dangerousness to the community. Nor is there any empirical basis to believe that secured money bail, for those on misdemeanor offenses, has any positive effect on pretrial behavior. Instead, empirical evidence has suggested quite the opposite. The Pretrial Justice Institute conducted a study of 1,970 defendants in Colorado to determine the extent to which secured bonds correlate with better pretrial outcomes than unsecured bonds. Michael R. Jones, Pretrial Just. Inst., Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option 6 (2013), https://goo.gl/JTYU5m. When adjusted for risk
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level (as determined by a risk-assessment tool), the study showed no higher likelihood of court appearance from those on secured bonds versus those on unsecured bonds. Id. at 11. Indeed, those on unsecured bonds returned to court at a slightly higher rate.
Likewise, the Colorado study showed no difference in future criminal activity between those released on unsecured bonds versus those released on secured bonds. Id. at 10. Again, the criminal activity rate of those on unsecured bond was slightly lower.
A better system, one that would actually keep the community safe, would rely on risk assessment tools rather than bank accounts and arbitrary schedules to determine who secures pretrial release. Harris County already has proposed such reforms. The Arnold Tool is a nationally validated risk assessment methodology that relies on nine risk indicators. See ODonnell, 2017 WL 1735456, at *55–56. Nearly all concern past failure to return, past criminal history, and the severity of the current charge. The Arnold Tool does not rely on poverty indicators in making risk assessments, because those variables do not significantly correlate with failure to appear rates or new criminal activity. Id.
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These tools are meaningless, however, if hearing officers continue to disregard pretrial service recommendations in favor of the predetermined bail schedules. The existing system favors those least deserving of release but who are able to pay, while forcing those who pose virtually no risk to the community to languish in jail simply because they lack the resources to pay the bondsman. III. Harris County’s Bail Scheme Strips People Of Jobs And Con-
nections To Family And Community, Making Them More Likely To Commit Crimes In The Future. Finally, Harris County’s bail system creates dire consequences for individuals caught in its grasp and for the employers, families, and communities that depend on those people. These costs are harder to quantify than the costs to taxpayers, but they are in many ways more detrimental to the community. Plaintiff Maranda Lynn ODonnell is a case in point. A 22-year-old single mother, she had just started a new job seven days before being arrested for driving with an invalid license. Id. at *5. Any unexpected time away from a job, particularly a new job, puts her employment in jeopardy. Yet she could not afford the $2500 bond to secure her release, and was therefore detained. A loss of gainful employment would deprive
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her of the ability to support herself and her child—all because she could not afford the bail amount in the first place.
Likewise, D.M. was the sole earner in a household in which his fiancée was pregnant. Id. at *33–34. D.M. was arrested for marijuana possession and, after the hearing officer wrongly calculated his prior felonies, set D.M.’s bond at $5000. The hearing officer was unmoved by D.M.’s explanation of his personal situation, or the fact that D.M. had never missed a court date. Again, pretrial detention prevents D.M. from working productively to support himself and his family.
A.G. was due to finish his exams to become a medical professional when he was arrested for improperly wielding a knife. Id. at *34. Although the hearing officer repeatedly refused to let A.G. speak, A.G. finally was able to explain his situation and that his only prior offense was a 25-year-old matter in Florida. The hearing officer nonetheless set A.G.’s bond at $2500 and told the assistant district attorney that it “makes me feel better” that A.G. would remain in detention.
Likewise, Bryan Sweeney was an accounting major at Texas Southern University when he was arrested on two misdemeanor charges, including driving with a suspended license. Juan A. Lozano, Bail Practices
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in Texas’ Biggest County Under Scrutiny, SEATTLE TIMES (Oct. 9, 2016), https://goo.gl/Pcuu8T. He served several days in Harris County jail because he could not afford the $10,000 bail. As a result, he missed his class registration and could not graduate that summer. Thus, for both A.G. and Mr. Sweeney, pretrial detention derailed their educations. As the district court pointed out, these are not exceptions to the rule, but rather examples of how the rule operates to destroy lives with no corresponding benefits to the County and in complete derogation of fundamental Constitutional principles.
All of these people were, despite challenging personal circumstances and in some cases prior run-ins with the law, pursuing gainful employment or attempting to better themselves through education. A sensible criminal justice system should encourage people to take personal responsibility, as these individuals were trying to do. It should not upend their lives because they cannot afford to pay the bail bondsman.
Sometimes, the consequences of time unnecessarily spent in jail are even more serious. Fifty-five people died while awaiting trial in Harris County between 2009 and 2015. James Pinkerton & Lauren Caruba, Tough Bail Policies Punish the Poor and the Sick, Critics Say, HOUS.
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CHRON. (Dec. 26, 2015) https://goo.gl/nyiJWw. Sandra Oliver, a 39-yearold who died from a pulmonary embolism, had been arrested for trespassing but could not afford the $5000 bond.
These are not just statistics. They are parents, siblings, children, friends. Their families and livelihoods were upset because of an unconstitutional system that favored money over even-handed justice. And these consequences affect the larger community as well. Harris County’s bail scheme deprives the local economy of many individuals who would otherwise be productive members of society. Detaining even nonviolent misdemeanor arrestees simply because they cannot afford bail deprives small business owners of their Sunday delivery driver, their openingshift manager, or their mechanic.
There are longer-term consequences for the community as well. Holding low-risk people in jail for more than 24 hours before trial makes them more likely to commit crimes in the future, even years later. A 2013 study of 66,014 cases showed that even small increases in the amount of detention time correlated significantly to worse pretrial outcomes. Laura & John Arnold Foundation, Pretrial Criminal Justice Research Brief 4 (2013), https://goo.gl/YXjhNj. Low-risk defendants held for two to three
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days were 40 percent more likely to commit new crimes before trial than those with no more than 24 hours. Id. For low-risk defendants detained for 31 days or more, they were 74 percent more likely to commit new crimes before trial. Id.
The detentions had effects years later. Low-risk defendants held for two to three days were 17 percent more likely to commit a crime within two years than those released within 24 hours. Id. at 5. If held for four to seven days, the number jumps to 35 percent. Id. And for defendants held eight to 14 days, they are 51 percent more likely to commit crimes within two years than those released within 24 hours. Id.
Harris County’s bail system makes the community weaker by depriving its individual citizens of community ties and the means to support themselves and by increasing the likelihood of future criminal activity. Targeted modifications to the existing system, by properly accounting for individual circumstances, would offer dramatic improvements without increasing either cost or risk. Without such changes, a profoundly unconstitutional and inefficient system will continue to violate core principles of liberty, at great cost to Harris County’s residents. This should not be tolerated.
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CONCLUSION For the foregoing reasons, the decision of the district court should be affirmed.

Dated: August 9, 2017

Respectfully submitted,
/s/ Carter G. Phillips CARTER G. PHILLIPS
Counsel of Record JEFFREY T. GREEN TOBIAS LOSS-EATON DAVID W. MCALOON SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005
Counsel for Amici Curiae Texas Public Policy Foundation and R Street Institute
ROBERT HENNEKE CENTER FOR THE AMERICAN
FUTURE TEXAS PUBLIC POLICY
FOUNDATION 901 Congress Avenue Austin, Texas 78701
Counsel for Amicus Curiae Texas Public Policy Foundation

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Case: 17-20333 Document: 00514109492 Page: 41 Date Filed: 08/09/2017

CERTIFICATE OF COMPLIANCE

1.

This brief complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B) and Fed. R. App. P. 29(a)(5) because it contains 5,505

words, excluding the material exempted by Fed. R. App. P. 32(a)(f).

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This brief complies with the typeface requirements of Fed. R.

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32(a)(6) because it has been prepared in a proportionally spaced typeface

using Microsoft Word 2016 in 14-point Century Schoolbook font.

Dated: August 9, 2017

Respectfully submitted,
/s/ Carter G. Phillips Carter G. Phillips
Counsel for Amici Curiae Texas Public Policy Foundation and R Street Institute

Case: 17-20333 Document: 00514109492 Page: 42 Date Filed: 08/09/2017

CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of August, 2017, I caused the

foregoing brief to be electronically filed with the Clerk of the Court using

the CM/ECF System, which will send notice of such filing to all registered

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Elizabeth Anne Rossi Civil Rights Corps Suite 500 910 17th Street, N.W. Washington, DC 20006

Dated: August 9, 2017

Respectfully submitted,

/s/ Carter G. Phillips Carter G. Phillips
Counsel for Amici Curiae Texas Public Policy Foundation and R Street Institute

 
 Case: 17-20333 Document: 00514108295 Page: 1 Date Filed: 08/09/2017
No. 17-20333
In the United States Court of Appeals for the Fifth Circuit
MARANDA LYNN ODONNELL, Plaintiff-Appellee,
v. HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE
DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES, Defendants-Appellants.
________________________________
LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD, Plaintiffs-Appellees,
v. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH
LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ, Defendants-Appellants.
On Appeal from the United States District Court for the Southern District of Texas, Case No. 4:16-cv-001414
BRIEF AMICUS CURIAE OF THE CONSTITUTIONAL ACCOUNTABILITY CENTER IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE
Elizabeth B. Wydra Brianne J. Gorod David H. Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th St., NW, Ste. 501 Washington, DC 20036 (202) 296-6889 elizabeth@theusconstitution.org
Counsel for Amicus Curiae

Case: 17-20333 Document: 00514108295 Page: 2 Date Filed: 08/09/2017

SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS Pursuant to Fifth Circuit Rule 29.2, I hereby certify that I am
aware of no persons or entities, in addition to those listed in the party briefs, that have a financial interest in the outcome of this litigation. In addition, I hereby certify that I am aware of no persons with any interest in the outcome of this litigation other than the signatories to this brief and their counsel, and those identified in the party and amicus briefs filed in this case.

Dated: August 9, 2017

/s/ Elizabeth B. Wydra Elizabeth B. Wydra

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TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................ iii INTEREST OF AMICUS CURIAE..................................................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ..................... 1 ARGUMENT ....................................................................................... 7
I. THE TEXT AND HISTORY OF THE FOURTEENTH AMENDMENT GUARANTEE EQUAL JUSTICE UNDER THE LAW FOR ALL PERSONS ........................................... 7
II. SUPREME COURT PRECEDENT PROHIBITS CRIMINAL DEFENDANTS FROM BEING IMPRISONED SOLELY AS A RESULT OF INDIGENCY .......................................................................... 15
III. EXPERIENCE SHOWS THAT GOVERNMENTS HAVE AMPLE MEANS TO ENSURE PRETRIAL LIBERTY FOR ALL PERSONS WHILE SECURING A DEFENDANT’S ATTENDANCE AT TRIAL AND PROTECTING PUBLIC SAFETY ................................................................................. 22
CONCLUSION .................................................................................... 33
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TABLE OF AUTHORITIES
Page(s)
CASES
Barker v. Wingo, 407 U.S. 514 (1972) ....................................................................... 19, 22
Bearden v. Georgia, 461 U.S. 660 (1983) ................................................................. passim
Buck v. Davis, 137 S. Ct. 759 (2017) ........................................................................ 4
Foucha v. Louisiana, 504 U.S. 71 (1992) .................................................................. 11, 21, 22
Griffin v. Illinois, 351 U.S. 12 (1956) ................................................................... passim
Herrera v. Collins, 506 U.S. 390 (1993) .......................................................................... 19
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) .......................................................................... 13
Lafler v. Cooper, 132 S. Ct. 1376 (2012) ...................................................................... 20
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)............................................................ 14
McDonald v. City of Chicago, 561 U.S. 742 (2010) .......................................................................... 7
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ................................................................... 4, 8, 16
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ............................................................... 3, 8, 13
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) ................................................... 5, 8, 15
Stack v. Boyle, 342 U.S. 1 (1951)................................................................ 5, 18, 19, 32
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TABLE OF AUTHORITIES – cont’d

Page(s)

Tate v. Short, 401 U.S. 395 (1971) ....................................................................... 4, 17

The Civil Rights Cases, 109 U.S. 3 (1883)........................................................................... 13

Turner v. Rogers, 131 S. Ct. 2507 (2011) ................................................................... 11, 21

United States v. McConnell, 842 F.2d 105 (5th Cir. 1988) ......................................................... 24

United States v. Salerno, 481 U.S. 739 (1987) ............................................................

5, 11, 21

Williams v. Illinois, 399 U.S. 235 (1970) ............................................................. 4, 16, 17, 32

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ......................................................................... 13

Zadvydas v. Davis, 533 U.S. 678 (2001) ......................................................................... 21

CONSTITUTIONAL PROVISIONS AND LEGISLATIVE MATERIALS

18 U.S.C. § 3142(c)(2) .....................................................................

23

18 U.S.C. § 3142(c)(1) .....................................................................

24

18 U.S.C. § 3142(g) .........................................................................

24

80 Stat. 214, § 2 ..............................................................................

24

725 Ill. Comp. Stat. § 5/110-5(a)(5) ................................................

25

Ariz. R. Crim. Pro. 7.3(b)(2) ........................................................... 26, 27

Ark. R. Crim. Pro. 9.2(a) ................................................................

27

Bail Reform Act of 1984,

18 U.S.C. §§ 3141-50 ...................................................................

24

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TABLE OF AUTHORITIES – cont’d

Page(s)

Colo. Rev. Stat. Ann. § 16-4-103 (West 2014) ................................

26

Colo. Rev. Stat. Ann. § 16-4-113(1) (West 2013)............................

28

Cong. Globe, 36th Cong., 2nd Sess. (1861) ....................................

13

Cong. Globe, 39th Cong., 1st Sess. (1866) ................................... passim

Cong. Globe, 39th Cong., 2nd Sess. (1866) ..................................

9

Cong. Globe, 42nd Cong., 1st Sess. (1871)...................................

10

Conn. Gen. Stat. Ann. § 54-64a(a)(2) (West 2017).......................

28

D.C. Code § 23-1321(c)(3) .............................................................

27

Joint Comm. on Reconstruction, Report of the Joint Committee on

Reconstruction, No. 39-30 (1st Sess. 1866)...............................

2

Ky. Rev. Stat. Ann. § 431.066 (West 2012) ..................................

26

Ky. Rev. Stat. Ann. § 431.525(4) (West 2011)..............................

28

Ky. Sup. Ct. Am. Order 2016-10 ..................................................

27

Md. R. 4-216.1(c)(1) ......................................................................

25

Md. R. 4-216.1 (e)(1)(A) ................................................................

27

N.J. Stat. Ann. § 2A:162-15 (West 2017) .....................................

25

N.M. Const. art. II, § 13 (amended 2016) ....................................

27

U.S. Const. amend. XIV, § 1.........................................................

7

OTHER AUTHORITIES

Akhil Reed Amar,

America’s Constitution: A Biography (2005) ............................

10

Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial,

117 Harv. L. Rev. 2463 (2004) ..................................................

20

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TABLE OF AUTHORITIES – cont’d

Page(s)

Governor’s Commission to Reform Maryland’s Pretrial System

(2014) .........................................................................................

31

President Lyndon B. Johnson, Remarks on the Signing of the Bail

Reform Act of 1966 (June 22, 1966)..........................................

23

Laura and John Arnold Found., Results from the First Six Months

of the Public Safety Assessment—Court in Kentucky (2014)....

31

Letter from Attorney Gen. Brian Frosh to Hon. Alan M. Wilner

(Oct. 25, 2016) ...........................................................................

29

John Locke, Second Treatise of Government § 142

(C.B. Macpherson ed., 1980) (1690)..........................................

14

Magna Carta, chs. 39-40 (1215) ...................................................

14

Pretrial Justice Inst., Rational and Transparent Bail Decision

Making: Moving from a Cash-Based to a Risk-Based Process

(2012) .........................................................................................

20

Pretrial Servs., Pretrial Reform in Kentucky (2013) ...................

30

Report of the Joint Committee on Criminal Justice (2014) ......... 29, 30

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INTEREST OF THE AMICUS CURIAE1 Amicus Constitutional Accountability Center (CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. CAC works in our courts, through our government, and with legal scholars to improve understanding of the Constitution and preserve the rights, freedoms, and structural safeguards that our nation’s charter guarantees. CAC accordingly has a strong interest in this case and in the scope of the Fourteenth Amendment’s protections for equality and liberty.
INTRODUCTION AND SUMMARY OF ARGUMENT Harris County, Texas has a policy and practice of using secured money bail to impose pretrial detention on misdemeanor defendants too poor to pay. This practice cannot be squared with the text and history of the Fourteenth Amendment, which guarantees equal justice under the law to rich and poor alike. Indeed, the County’s policy denies the most
1 Amicus states that no counsel for a party authored this brief in whole or in part, and no person other than amicus or its counsel made a monetary contribution to the brief’s preparation or submission. Counsel for all parties have consented to the filing of this brief.
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basic form of liberty to those unable to pay, exerts coercive pressure on defendants charged with misdemeanors to plead guilty in order to be released, and makes it harder for others to prepare a defense. Using the bail system in this way perverts the historic use of bail as a mechanism for ensuring pretrial liberty for persons charged with a crime. Moreover, this policy is completely unnecessary in light of numerous alternative approaches that serve the governmental interests in a defendant’s appearance at trial and in community safety while respecting the constitutional guarantees of equal protection and due process enshrined in the Fourteenth Amendment.
Nearly 150 years ago, in the wake of a bloody Civil War fought over the issue of slavery, the Fourteenth Amendment fundamentally altered our Constitution’s protection of individual, personal rights, adding to our nation’s charter sweeping guarantees of liberty and equality in order to secure “the civil rights and privileges of all citizens in all parts of the republic,” see Joint Comm. on Reconstruction, Report of the Joint Committee on Reconstruction, No. 39-30, at xxi (1st Sess. 1866), and to keep “whatever sovereignty [a State] may have in harmony with a republican form of government and the Constitution of the country.”
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Cong. Globe, 39th Cong., 1st Sess. 1088 (1866). Crafted against the backdrop of the suppression of rights in the South, the Fourteenth Amendment was designed to protect the full scope of liberty and to “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” Id. at 2766. Together with its guarantee of equal protection, which “secur[ed] an equality of rights to all citizens of the United States, and of all persons within their jurisdiction,” id. at 2502, the Fourteenth Amendment gives to “the humblest, the poorest, the most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” Id. at 2766.
The Fourteenth Amendment’s guarantees of liberty and equality, which “are connected in a profound way,” Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015), together ensure equal justice under the law for all persons, rich and poor. As the Supreme Court has explained, the “constitutional guarantees of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—
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all people charged with crime must, as far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’” Griffin v. Illinois, 351 U.S. 12, 17 (1956) (quoting Chambers v. Florida, 309 U.S. 227, 241 (1940)). It is “a basic premise of our criminal justice system” that “[o]ur law punishes people for what they do, not who they are.” Buck v. Davis, 137 S. Ct. 759, 778 (2017).
In a long line of cases rooted both in equal protection and due process principles, the Supreme Court has faithfully applied this constitutional commitment to equal justice for rich and poor alike, striking down deprivations of liberty that affect people based on how much money they possess. See Griffin, 351 U.S. at 17; Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971); Bearden v. Georgia, 461 U.S. 660 (1983); M.L.B. v. S.L.J., 519 U.S. 102 (1996). Indeed, the Supreme Court has recognized that even when fair on their face, state rules that “grossly discriminat[e] in [their] operation,” Griffin, 351 U.S. at 17 n.11, cannot be squared with the constitutional command of due process and equal protection for all persons. Under these cases, “imprisonment solely because of indigent status is invidious
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discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc).
Harris County’s bail system, which detains before trial 40% of all persons arrested only on misdemeanor charges, runs afoul of these principles. Quite simply, pricing those too poor to pay out of the “traditional right to freedom before conviction,” Stack v. Boyle, 342 U.S. 1, 4 (1951), cannot be squared with the Fourteenth Amendment’s mandate that all persons enjoy equal justice under the law. Nor can it be squared with the historic use of bail as a due process mechanism for preserving pretrial liberty, which ensures “the unhampered preparation of a defense,” and “prevent[s] the infliction of punishment prior to conviction.” Id. “The practice of admission to bail . . . is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, . . . [it] enables[s] them to stay out of jail until a trial has found them guilty.” Id. at 7-8 (Jackson, J., concurring); see United States v. Salerno, 481 U.S. 739, 755 (1987) (fundamental constitutional principles make “liberty . . . the norm” and “detention prior to trial or without trial . . . the carefully limited exception”). The County’s use of bail as a mechanism for imposing
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pretrial detention on those too poor to pay turns bail, a fundamental aspect of our heritage of liberty, into an engine of oppression.
Harris County and its amici insist that the County’s discriminatory bail policy is necessary to ensure the attendance of misdemeanor defendants at trial and protect the public, but there is no conflict between ensuring pretrial liberty for all persons regardless of income and the plainly important interests in ensuring the presence of defendants at trial and in community safety. As the experiences of states across the country demonstrate, states have many alternative means available to them—alternatives that not only ensure the appearance of defendants at trial and preserve public safety, but also comport with the fundamental fairness that the Fourteenth Amendment guarantees to all persons. As these examples demonstrate, Harris County’s bail system unnecessarily denies pretrial liberty to indigent defendants and prevents the equal administration of justice. Such practices are not only unconstitutional, they also conflict with sound public policy. The judgment of the district court should be affirmed.
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ARGUMENT I. THE TEXT AND HISTORY OF THE FOURTEENTH
AMENDMENT GUARANTEE EQUAL JUSTICE UNDER THE LAW FOR ALL PERSONS. The Fourteenth Amendment commands that “[n]o State” “shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. These overlapping guarantees— which “fundamentally altered our country’s federal system,” McDonald v. City of Chicago, 561 U.S. 742, 754 (2010), in order to “repair the Nation from the damage slavery had caused,” id. at 807 (Thomas, J., concurring)—“call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons.” Griffin, 351 U.S. at 17. The Fourteenth Amendment enshrined in the Constitution the idea that “[e]very human being in the country, black or white, man or woman . . . has a right to be protected in life, in property, and in liberty.” Cong. Globe, 39th Cong., 1st Sess. 1255 (1866). The Amendment gives to “the humblest, the poorest, the most despised . . . the same rights and the same protection of the law as it gives to the most powerful, the most wealthy, or the most haughty.” Id. at 2766.
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As the Supreme Court has recognized, “[t]he Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection . . . may be instructive as to the meaning and reach of the other.” Obergefell, 135 S. Ct. at 2603. “Each concept—liberty and equal protection—leads to a stronger understanding of the other.” Id.
This principle is particularly true in the context of discrimination in the court system. “Due process and equal protection principles converge,” Bearden, 466 U.S. at 665, to ensure that the state may not “bolt the door to equal justice.” Griffin, 351 U.S. at 24 (Frankfurter, J., concurring); see M.L.B., 519 U.S. at 120 (“The equal protection concern relates to the legitimacy of fencing out [litigants] based solely on their inability to pay . . . . The due process concern homes in on the essential fairness of the state-ordered proceedings anterior to adverse state action.”); cf. Pugh, 572 F.2d at 1057 (“Rules under which personal liberty is to be deprived are limited by the constitutional guarantees of all, be they moneyed or indigent . . . .”).
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Ensuring equal justice in the courts for all persons was of particular concern to the drafters of the Fourteenth Amendment. In the wake of the Civil War, widespread maladministration of justice in the South meant that neither freed slaves nor Unionists could feel confident that they would be treated fairly in the courts. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 602, 783, 1065, 1090-91, 1093-94, 1263 (1866). The Framers understood that the lack of basic free trial rights was instrumental in the subordination of African-Americans and their Unionist allies. Sadly, it was all too “easy to show how impossible it is for the freedmen . . . to receive anything like justice, protection, equity . . . . Judges, juries, lawyers, officers . . . carry with them such a hatred and contempt for the freedmen as to utterly preclude the idea that they can do him full justice.” Id. at 1838; id. at 653 (“Where is your court of justice in any southern State where the black man can secure protection? Again there is no response.”); Cong. Globe, 39th Cong., 2nd Sess. 160 (1866) (noting that Union delegations in the South have reported “that they can get no justice in the courts, and that they have no protection for life, liberty, or property”).
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These abuses—together with the injustices wrought in the North by the federal Fugitive Slave Act of 1850, see Akhil Reed Amar, America’s Constitution: A Biography 388 (2005) (noting the “due-process claims of free blacks threatened by the rigged procedures of the Fugitive Slave Act of 1850”)—convinced the Framers that it was necessary to add to the Constitution new limits on state governments in order to secure liberty and equality for all persons.
The Fourteenth Amendment guarantees to all persons—“no matter how poor, no matter how friendless, no matter how ignorant”—“due process of law . . . which is impartial, equal, exact justice,” Cong. Globe, 39th Cong., 1st Sess. 1094 (1866), establishing “a wholesome and needed check upon the great abuse of liberty which several of the States have practiced, and which they manifest too much purpose to continue.” Id. at app. 256; Cong. Globe, 42nd Cong., 1st Sess. app. 153 (1871) (arguing that the due process guarantee “realizes the full force and effect of the clause in Magna Carta, from which it was borrowed” and provides that “there is no power . . . to deprive any person of those great fundamental rights on which all true freedom rests, the rights of life, liberty, and
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property, except by due process of law; that is by an impartial trial according to the laws of the land” (emphasis added)).
Under these principles, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Salerno, 481 U.S. at 755; see Foucha v. Louisiana, 504 U.S. 71, 83 (1992). An “indigent defendant’s loss of personal liberty . . . lies ‘at the core of the liberty protected by the Due Process Clause’” and its “threatened loss through legal proceedings demands ‘due process protection.’” Turner v. Rogers, 131 S. Ct. 2507, 2518 (2011) (citations omitted); Foucha, 504 U.S. at 90 (Kennedy, J., dissenting) (“As incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference, . . . freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the Constitution.”). Detaining an individual prior to trial requires careful factual findings supporting the denial of this most basic form of liberty; it cannot be imposed on the basis of indigency alone.
The Fourteenth Amendment not only guarantees due process of law—forbidding deprivations of liberty not accompanied by fair procedures—but also guarantees equal protection of the law to all
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persons, establishing “a shield and protection over the head of the lowliest and poorest citizen in the remotest region of the nation[.]” Cong. Globe, 39th Cong., 1st Sess. 586 (1866). The constitutional guarantee of equal protection “establishes equality before the law,” id. at 2766, ensuring that, in the administration of justice, all persons—regardless of their race, their gender, or the amount of money they possess—are entitled to equal rights under the law. The constitutional guarantee of equal protection also “abolishes all class legislation in the states and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Id. at 2766; see id. at 2459 (“Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford ‘equal’ protection to the black man.”); id. at 2766 (“It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.”). This serves to ensure that that “the Constitution, in the administration of justice, in the organization of tribunals for the
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administration of justice, is no respecter of persons.” Cong. Globe, 36th Cong., 2nd Sess. app. 83 (1861).
While the Fourteenth Amendment’s guarantee of equality was written in the aftermath of the Civil War and the end of slavery, it protects all persons. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality . . . .”); The Civil Rights Cases, 109 U.S. 3, 24 (1883) (“The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.”). The Fourteenth Amendment’s “neutral phrasing,” “extending its guarantee to ‘any person,’’’ J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 152 (1994) (Kennedy, J., concurring), secures equal rights and “equal dignity in the eyes of the law,” Obergefell, 135 S. Ct. at 2608, for all men and women of any race, whether young or old, citizen or alien, rich or poor. See Cong. Globe, 39th Cong., 1st Sess. 343 (1866) (“[T]he poorest man, be he black or white, that treads the soil of this continent, is as much entitled to the protection of the law as the richest and proudest
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man in the land[.]”); id. at 1159 (“A true republic rests upon the absolute equality of rights of the whole people, high and low, rich and poor, white and black.”).
Together, the Fourteenth Amendment’s overlapping guarantees of due process and equal protection prevent the states from “bolt[ing] the door to equal justice,” for rich and poor alike, Griffin, 351 U.S. at 24 (Frankfurter, J., concurring), a principle with deep roots in our constitutional heritage. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (quoting oath requiring Article III judges to swear to “administer justice without respect to persons, and do equal right to the poor and to the rich”); Magna Carta, chs. 39-40 (1215), http://avalon.law.yale.edu/medieval/magframe.asp (“No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we refuse or delay, right or justice.”); John Locke, Second Treatise of Government § 142, at 75 (C.B. Macpherson ed., 1980) (1690) (“They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court,
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and the country man at plough.”). Under these principles, imprisonment before trial may not be based on indigency alone.
II. SUPREME COURT PRECEDENT PROHIBITS CRIMINAL DEFENDANTS FROM BEING IMPRISONED SOLELY AS A RESULT OF INDIGENCY.
Consistent with the Fourteenth Amendment’s text and history, the Supreme Court has long held that, under both due process and equal protection principles, “[i]n criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color.” Griffin, 351 U.S. at 17. As that Court has explained, “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Id. at 19. Applying Griffin’s teachings, the Supreme Court has repeatedly held that “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh, 572 F.3d at 1056. As the Court has recognized, use of a blanket policy of incarcerating indigent defendants based on their inability to pay—particularly when there are alternative means of achieving the government’s interests—cannot be squared with the Fourteenth Amendment’s overlapping guarantees of liberty and equality for all persons. These protections apply both before and after trial.
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In Williams v. Illinois, the Supreme Court held that “a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. A statute permitting a sentence of both imprisonment and fine cannot be parlayed into a longer term of imprisonment . . . since to do so would be to accomplish indirectly as to an indigent that which cannot be done directly.” Williams, 399 U.S. at 243; id. at 264-65 (Harlan, J., concurring) (concurring on due process grounds). It did not matter that “the Illinois statutory scheme [did] not distinguish between defendants on the basis of ability to pay fines,” because, as in Griffin, “‘a law nondiscriminatory on its face may be grossly discriminatory in its operation.’ Here the Illinois statute as applied to Williams works an invidious discrimination solely because he is unable to pay the fine.” Id. at 242 (quoting Griffin, 351 U.S. at 17 n.11). As the Supreme Court has since explained, “[s]anctions of the Williams genre . . . are not merely disproportionate in impact. Rather, they are wholly contingent on one’s ability to pay, and thus ‘visi[t] different consequences on two categories of persons,’; they apply to all indigents and do not reach anyone outside that class.” M.L.B., 519 U.S. at 127 (quoting Williams, 399 U.S. at 242) (emphasis in
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original) (internal citation omitted); see Tate, 401 U.S. at 397-98 (holding that “petitioner’s imprisonment for nonpayment constitutes precisely the same unconstitutional discrimination since, like Williams, petitioner was subjected to imprisonment solely because of his indigency”).
The Williams Court recognized that its holding “may place a further burden on States in administering criminal justice,” but held that “the constitutional imperatives of the Equal Protection Clause must have priority over the comfortable convenience of the status quo.” Williams, 399 U.S. at 245. The Fourteenth Amendment requires states to “canvass the numerous alternatives” rather than simply apply a blanket policy of imprisoning indigent defendants for “involuntary nonpayment of a fine or court costs.” Id. at 244; Tate, 401 U.S. at 399 (requiring states to use nondiscriminatory “alternatives . . . to serve its concededly valid interest in enforcing payment of fines”).
In Bearden v. Georgia, the Supreme Court held that “Griffin’s principle of equal justice,” Bearden, 461 U.S. at 664, did not permit a state court to revoke automatically an indigent’s probation for failure to pay a fine. Under due process and equal protection principles, “the State cannot justify incarcerating a probationer who has demonstrated
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sufficient bona fide efforts to repay his debt to society, solely by lumping him together with other poor persons and thereby classifying him as dangerous. This would be little more than punishing a person for his poverty.” Id. at 671. “Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. at 672-73.
The principles laid out in Williams, Tate, and Bearden—all cases involving defendants convicted after a fair trial—apply with even greater force to imprisonment before trial, when the presumption of innocence still attaches and the individual accused of a crime is entitled to the full scope of the Constitution’s protections. “Th[e] traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” Stack, 342 U.S. at 4. Without this basic right, “the presumption of innocence, secured only after centuries of struggle, would
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lose its meaning.” Id. Virtually all of the Constitution’s safeguards that “ensur[e] against the risk of convicting an innocent person” and “make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant,” Herrera v. Collins, 506 U.S. 390, 398-99 (1993), are harder to exercise and meaningfully enjoy when the defendant is denied his liberty and incarcerated before trial. “If a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.” Barker v. Wingo, 407 U.S. 514, 533 (1972); Stack, 342 U.S. at 8 (Jackson, J., concurring) (recognizing that defendants denied their pretrial liberty “are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense”).
Even more troubling, in misdemeanor cases of the sort at issue here—crimes that generally carry short sentences or only fines—“the pretrial detention can approach and even exceed the punishment that a court would impose after trial. So even an acquittal at trial can be a hollow victory, as there is no way to restore the days already spent in jail. The defendant’s best-case scenario becomes not zero days in jail, but the
19

Case: 17-20333 Document: 00514108295 Page: 27 Date Filed: 08/09/2017
length of time already served.” Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2492-93 (2004). Our system of “criminal justice . . . is for the most part a system of pleas, not a system of trials,” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012), and “pretrial detention places a high premium on quick plea bargains in small cases, even if the defendant would probably win acquittal at an eventual trial.” Bibas, supra, at 2493. Indeed, “research shows that defendants detained in jail while awaiting trial plead guilty more often, are convicted more often, are sentenced to prison more often, and receive harsher prison sentences than those who are released during the pretrial period.” Pretrial Justice Inst., Rational and Transparent Bail Decision Making: Moving from a Cash-Based to a Risk-Based Process 2 (2012), http://www.pretrial.org/download/pjireports/Rational%20and%20Transparent%20Bail%20Decision%20Maki ng.pdf.
The Supreme Court has upheld the constitutionality of federal statutes providing for pretrial detention only in sharply circumscribed instances, holding that “[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identified and
20

Case: 17-20333 Document: 00514108295 Page: 28 Date Filed: 08/09/2017
articulable threat to an individual or the community, . . . a court may disable the arrestee from executing that threat.” Salerno, 481 U.S. at 751. Despite “the individual’s strong interest in liberty” and the “fundamental nature of this right,” id. at 750, the Court approved the use of pretrial detention because of “Congress’ careful delineation of the circumstances under which detention will be permitted.” Id. at 751; Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001) (“[W]e have upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections.”); Foucha, 504 U.S. at 81-82 (holding that “Salerno does not save” a system of detention where the “scheme of confinement is not carefully limited” and the “State need prove nothing to justify continued detention”).
Harris County’s bail policy imposes pretrial detention on indigent misdemeanor defendants too poor to pay and thereby denies the “‘core of the liberty protected by the Due Process Clause,’” Turner, 131 S. Ct. at 2518 (quoting Foucha, 504 U.S. at 80), without any “careful delineation of the circumstances,” Salerno, 481 U.S. at 751, and without any findings at all. This subjects indigent defendants—simply because they are
21

Case: 17-20333 Document: 00514108295 Page: 29 Date Filed: 08/09/2017
poor—to “one of the most feared instruments of state oppression and state indifference,” Foucha, 504 U.S. at 90 (Kennedy, J., dissenting), makes it more difficult for them to “gather evidence, contact witnesses, or otherwise prepare [a] defense,” Barker, 407 U.S. at 533, and pressures them to plead guilty simply to get out of jail. ROA.5637 (district court opinion) (“[F]or misdemeanor defendants unable to pay secured money bail, Harris County maintains a ‘sentence first, conviction after’ system that pressures misdemeanor defendants to plead guilty at or near their first appearances because that is the only way to secure timely release from detention.”). This “lump[s] [plaintiffs] together with other poor persons,” effectively “punishing [them] for [their] poverty.” Bearden, 461 U.S. at 671. That practice cannot be squared with the Fourteenth Amendment’s guarantee of liberty and equality for all persons.
III. EXPERIENCE SHOWS THAT GOVERNMENTS HAVE AMPLE MEANS TO ENSURE PRETRIAL LIBERTY FOR ALL PERSONS WHILE SECURING A DEFENDANT’S ATTENDANCE AT TRIAL AND PROTECTING PUBLIC SAFETY.
The use of secured money bail to impose pretrial detention on indigent defendants is not necessary to serve the fair administration of justice. In fact, governments have a host of alternative means at their
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Case: 17-20333 Document: 00514108295 Page: 30 Date Filed: 08/09/2017
disposal to ensure pretrial liberty for all persons—regardless of the amount of money in their bank account—while also ensuring the presence of defendants at trial and protecting public safety. The experiences of state governments, as well as the federal government, refute any suggestion that Harris County’s discriminatory bail system is necessary to further important state interests. The goals Harris County purports to advance can be “served fully by alternative means,” Bearden, 461 U.S. at 672, consistent with our nation’s constitutional commitment to equal justice for rich and poor alike.
Half a century ago, Congress recognized that it was unjust to maintain a bail system in which the “defendant with means can afford to pay bail,” while the “poorer defendant . . . languishes in jail weeks, months, and perhaps even years before trial.” See President Lyndon B. Johnson, Remarks on the Signing of the Bail Reform Act of 1966 (June 22, 1966), http://www.presidency.ucsb.edu/ws/?pid=27666. To effectuate this promise of equal justice for rich and poor alike, federal law currently provides that “[a] judicial officer may not impose a financial condition that results in the pretrial detention of [a] person,” 18 U.S.C. § 3142(c)(2), and requires courts to consider non-financial conditions on pretrial
23

Case: 17-20333 Document: 00514108295 Page: 31 Date Filed: 08/09/2017
liberty in order to ensure that defendants appear for trial and do not pose a threat to public safety. Id. § 3142(c)(1), (g); United States v. McConnell, 842 F.2d 105, 109 (5th Cir. 1988) (noting the congressional decision “proscribing the setting of a high bail as a de facto automatic detention practice”). The Bail Reform Act of 1966, which sought to ensure pretrial liberty for “all persons, regardless of their financial status,” 80 Stat. 214, § 2, together with the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-50, which gave courts the power to detain defendants shown to pose a danger to public safety, create a bail system based on the risk of flight or danger a defendant poses, not on the amount of money he or she possesses.
In recent years, many states, too, have reexamined their bail systems, concluding that persons charged with a crime should be treated according to the risks they pose, not according to the amount of money they can pay. Bail systems that rely on secured money bail, these jurisdictions have concluded, do not serve the fair administration of justice or public security. They result in indigent defendants—even those who pose a low risk of fleeing or endangering public safety—being deprived of their pretrial liberty, while wealthier defendants who may, in fact, pose a risk to public safety are released. As these jurisdictions
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have concluded, ensuring that bail determinations respect the principle of equal justice for rich and poor alike enhances, rather than detracts from, public safety.
States across the country have reached the conclusion that the use of individualized pretrial risk assessment and non-monetary conditions of release—rather than secured money bail—can ensure pretrial liberty for rich and poor alike while ensuring attendance at trial and promoting public safety. See Md. R. 4-216.1(c)(1) (requiring “release on personal recognizance or unsecured bond” absent finding “that no permissible nonfinancial condition” will “reasonably ensure (A) the appearance of the defendant, and (B) the safety of each alleged victim, other persons, or the community”); N.J. Stat. Ann. § 2A:162-15 (West 2017) (“primarily relying upon pretrial release by non-monetary means to reasonably assure an eligible defendant’s appearance in court when required” and “the protection of the safety of any other person or the community” and providing that “[m]onetary bail may be set for an eligible defendant only when it is determined that no other conditions of release will reasonably assure the eligible defendant’s appearance in court when required”); 725 Ill. Comp. Stat. § 5/110-5(a)(5) (establishing “presumption that any
25

Case: 17-20333 Document: 00514108295 Page: 33 Date Filed: 08/09/2017
conditions of release imposed shall be non-monetary in nature” and requiring use of “the least restrictive conditions or combination of conditions necessary to reasonably assure the appearance of the defendant” and “protect the integrity of the judicial proceedings from a specific threat to a witness or participant”); Ariz. R. Crim. Pro. 7.3(b)(2) (requiring court, in deciding whether to impose a monetary condition to “make an individualized determination of the person’s risk of nonappearance, risk to the community, and financial circumstances rather than rely on a schedule of charge-based bond amounts”); Colo. Rev. Stat. Ann. § 16-4-103 (West 2014) (requiring courts, where “practicable and available” to use “an empirically developed risk assessment instrument designed to improve pretrial release decisions” and to “[c]onsider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration”); Ky. Rev. Stat. Ann. § 431.066 (West 2012) (providing for use of a “pretrial risk assessment” and requiring release “on unsecured bond or on the defendant’s own recognizance” of “low risk” defendants and release with non-financial conditions, including “ordering the defendant to participate in global positioning system monitoring, controlled substance testing, increased supervision,
26

Case: 17-20333 Document: 00514108295 Page: 34 Date Filed: 08/09/2017
or other such conditions,” for “moderate risk” defendants); Ky. Sup. Ct. Am. Order 2016-10 (court rule designed to “expedite pretrial release of low to moderate risk defendants charged with non-violent, non-sexual misdemeanors”); Ark. R. Crim. Pro. 9.2(a) (permitting setting of “money bail only” if “no other conditions will reasonably ensure the appearance of the defendant in court”).
A number of jurisdictions have made explicit that bail cannot be used to impose preventive detention on those too poor to pay. See Md. R. 4-216.1(e)(1)(A) (prohibiting the imposition of a “special condition of release with financial terms in form or amount that results in the pretrial detention of the defendant solely because the defendant is financially incapable of meeting that condition”); Ariz. R. Crim. Pro. 7.3(b)(2) (“The court must not impose a monetary condition that results in unnecessary pretrial incarceration solely because the person is unable to pay the bond.”); N.M. Const. art. II, § 13 (amended 2016) (“A person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond.”); D.C. Code § 23-1321(c)(3) (authorizing use of a “financial condition to
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Case: 17-20333 Document: 00514108295 Page: 35 Date Filed: 08/09/2017
reasonably assure the defendant’s presence at all court proceedings that does not result in the preventive detention of the person, except as provided in” preventive detention statute).
States, too, have enacted measures specifically designed to ensure pretrial liberty for persons charged with misdemeanors, crimes that do not usually justify imposing pretrial detention. See Conn. Gen. Stat. Ann. § 54-64a(a)(2) (West 2017) (establishing presumption that, for misdemeanors not involving family violence, “the court shall not impose financial conditions of release”); Ky. Rev. Stat. Ann. § 431.525(4) (West 2011) (in misdemeanor cases, limiting amount of bail to the “amount of the fine and court costs”); Colo. Rev. Stat. Ann. § 16-4-113(1) (West 2013) (requiring, subject to narrow exceptions, “release . . . upon personal recognizance if the charge is a class 3 misdemeanor or a petty offense”).
The new rules reflect concerns that using secured money bail to detain those too poor to pay neither promotes the fair administration of justice nor advances public safety. In Maryland, Attorney General Brian Frosh found that “bail was set higher for low risk defendants than for their moderate and high risk counterparts. Lower risk defendants are detained because they cannot afford the bail, while higher risk
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Case: 17-20333 Document: 00514108295 Page: 36 Date Filed: 08/09/2017

defendants who have access to financial resources are able to make bail

. . . .” Letter from Attorney Gen. Brian Frosh to Hon. Alan M. Wilner at

3

(Oct.

25,

2016),

http://www.marylandattorneygeneral.gov/News%20Documents/Rules_C

ommittee_Letter_on_Pretrial_Release.pdf. The change from a resource-

based to a risk-based system reflected that “evidence-based pretrial risk

assessments experience a reduction in their pretrial detention

populations and an increase in defendants’ appearance at trial without

incurring a greater risk to public safety.” Id. at 4.

In New Jersey, a 2014 report authored by the Joint Committee on

Criminal Justice, which was chaired by the Chief Justice of the New

Jersey Supreme Court and included the Acting Attorney General,

prosecutors, defense attorneys, judges, and others, spurred bipartisan

state efforts to limit the use of money bail. A “resource-based system”

dependent on the use of secured money bail, the Committee found,

resulted in a “dual system error”: “the detention of poor defendants who

present manageable risks of pretrial misconduct and the release of more

affluent defendants who present more severe and frequently less

manageable risks of pretrial misconduct.” Report of the Joint Committee

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Case: 17-20333 Document: 00514108295 Page: 37 Date Filed: 08/09/2017

on

Criminal

Justice

67

(2014),

https://www.judiciary.state.nj.us/courts/assets/criminal/finalreport3202

014.pdf. The report unanimously recommended a shift to a risk-based

system, explaining that such a system “promotes both defendant’s liberty

interests and community safety,” as well as “public confidence in the

integrity of the judicial process.” Id. “In a risk-based system, those

defendants who present an unmanageable risk of pretrial misconduct

may be detained. Every other defendant is conditionally released, subject

to the least restrictive conditions crafted to address their individualized

risks of flight and danger.” Id. at 65. This avoids the “incentive, inherent

in any resource-based system, to address the unmanageable risks of such

pretrial misconduct through the sub rosa consideration of danger in

setting an unaffordably high money bail.” Id. at 62.

Evidence from the states shows that these alternatives to secured

money bail can help secure pretrial liberty, attendance at trial, and

community safety. For example, in Kentucky, after converting to a risk-

based system, the state increased the percentage of defendants who are

released before trial and who appear for their court dates, while

significantly reducing the numbers arrested for other crimes. See

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Case: 17-20333 Document: 00514108295 Page: 38 Date Filed: 08/09/2017

Pretrial Servs., Pretrial Reform in Kentucky 16-17 (2013),

https://www.pretrial.org/download/infostop/Pretrial%20Reform%20in%2

0Kentucky%20Implementation%20Guide%202013.pdf; Laura and John

Arnold Found., Results from the First Six Months of the Public Safety

Assessment—Court

in

Kentucky

1

(2014),

http://www.arnoldfoundation.org/wp-content/uploads/2014/02/PSA-

Court-Kentucky-6-Month-Report.pdf (“Kentucky’s courts have achieved

a truly remarkable result: They have been able to reduce crime by close

to 15% among defendants on pretrial release, while at the same time

increasing the percentage of defendants who are released before trial.”).

Likewise, “[i]n D.C. approximately 85% of pretrial defendants are

released with conditions that correlate to risk level. About 90% of the

released defendants appear in court as required and remain crime-free

during the pretrial period.” Governor’s Commission to Reform

Maryland’s

Pretrial

System

24

(2014)

http://goccp.maryland.gov/pretrial/documents/2014-pretrial-commission-

final-report.pdf.

This spate of state legislation demonstrates that there are

“numerous alternatives” that both ensure pretrial liberty for rich and

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Case: 17-20333 Document: 00514108295 Page: 39 Date Filed: 08/09/2017
poor alike—as the Fourteenth Amendment requires—and serve the governmental interests in ensuring a defendant’s appearance at trial and public safety. Williams, 399 U.S. at 244. Harris County “is free to choose from among the variety of solutions already proposed and, of course, it may devise new ones.” Id. at 244-45. But given the host of nondiscriminatory alternatives available to satisfy all the governmental interests related to the fair functioning of its bail system, Harris County may not deny the “traditional right to freedom before conviction,” Stack, 342 U.S at 4, to indigent defendants simply because they are poor. In doing so, Harris County does “little more than punish[] [them] for [their] poverty.” Bearden, 461 U.S. at 671. The “comfortable convenience of the status quo,” Williams, 399 U.S. at 245, must give way to our Constitution’s commitment to equal justice for rich and poor alike.
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Case: 17-20333 Document: 00514108295 Page: 40 Date Filed: 08/09/2017
CONCLUSION For all the foregoing reasons, the judgment of the district court should be affirmed.
Respectfully submitted, Elizabeth B. Wydra Brianne J. Gorod David H. Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th St., NW, Ste. 501 Washington, DC 20036 (202) 296-6889 elizabeth@theusconstitution.org Dated: August 9, 2017
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Case: 17-20333 Document: 00514108295 Page: 41 Date Filed: 08/09/2017
CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(d) because it contains 6,425 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I further certify that the attached brief amicus curiae complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6), because it has been prepared in a proportionally spaced typeface using Microsoft Word 14-point Century Schoolbook font. Executed this 9th day of August, 2017.
/s/ Elizabeth B. Wydra___ Elizabeth B. Wydra Counsel for Amicus Curiae
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Case: 17-20333 Document: 00514108295 Page: 42 Date Filed: 08/09/2017
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system on August 9, 2017. I certify that all parties in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Executed this 9th day of August, 2017.
/s/ Elizabeth B. Wydra___ Elizabeth B. Wydra Counsel for Amicus Curiae
35

 
 Case: 17-20333 Document: 00514110671 Page: 1 Date Filed: 08/10/2017
No. 17-20333
In the United States Court of Appeals for the Fifth Circuit
MARANDA LYNN ODONNELL, Plaintiff – Appellee, v.
HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III, RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL
HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JUDGE MIKE
FIELDS; JEAN HUGHES, Defendants – Appellants. -------------------------------------------------LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,
Plaintiffs – Appellees, v.
HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ, Defendants – Appellants. _______________________________________________
Appeal from the U.S. District Court, S.D. Texas Nos. 4:16-cv-1414; 4:16-cv-1436
_______________________________________________
Brief for the American Civil Liberties Union Foundation, American Civil Liberties Union of Texas, Lawyers’ Committee for Civil Rights Under Law, and the Southern Poverty Law Center as Amici Curiae in support of Appellees
[caption continued on next page]

Case: 17-20333 Document: 00514110671 Page: 2 Date Filed: 08/10/2017

Brandon Buskey Andrea Woods AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 284-7366 bbuskey@aclu.org awoods@aclu.org
Andre Segura Trisha Trigilio Edgar Saldivar ACLU FOUNDATION OF TEXAS, INC. 1500 McGowen Street, Suite 250 Houston, TX 77004 (713) 942-8146 asegura@aclutx.org ttrigilio@aclutx.org esaldivar@aclutx.org

Myesha Braden Jon M. Greenbaum LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue N.W. Suite 400 Washington, D.C. 20005 (202) 662-8600 mbraden@lawyerscommittee.org jgreenbaum@lawyerscommittee.org
Samuel Brooke Micah West SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 (334) 956-8200 samuel.brooke@splcenter.org micah.west@splcenter.org

Case: 17-20333 Document: 00514110671 Page: 3 Date Filed: 08/10/2017

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges of

this Court may evaluate possible disqualification or recusal.

Parties Plaintiffs-Appellees Maranda Lynn ODonnell Loetha Shantae McGruder Robert Ryan Ford

Counsel Alec Karakatsanis Elizabeth Anne Rossi CIVIL RIGHTS CORPS
Michael Gervais Neal S. Manne Alexandra Giselle White Alejandra C. Salinas Krisina Janaye Zuniga SUSMAN GODFREY LLP

Rebecca Bernhardt Susanne Ashley Pringle TEXAS FAIR DEFENSE PROJECT

Defendants-Appellants Harris County and Hearing Officers Harris County, Texas Eric Stewart Hagstette Joseph Licata, III Ronald Nicholas Blanca Estela Villagomez Jill Wallace

Arpit Kumar Garg Daniel Volchok Seth Paul Waxman WILMER HALE James G. Munisteri Katharine Davenport David Michael A. Stafford Stacy R. Obenhaus Philip J. Morgan Benjamin R. Stephens GARDERE WYNNE SEWELL, LLP

iii

Case: 17-20333 Document: 00514110671 Page: 4 Date Filed: 08/10/2017

(cont.)

John Odom Melissa Lynn Spinks HARRIS COUNTY ATTORNEY’S OFFICE

Defendants-Appellants Fourteen Judges for Harris County Criminal Courts of Law Paula Goodhart Bill Harmon Natalie C. Fleming John Clinton Margaret Harris Larry Standley Pam Derbyshire Jay Karahan Judge Analia Wilkerson Dan Spjut Judge Diane Bull Judge Robin Brown Donald Smyth Jean Hughes Defendants Sheriff Ed Gonzalez Judge Darrell William Jordan Carolyn Campbell
Defendant-Appellant Judge Mike Fields Other Interested Parties John McClusky Kim Ogg American Bail Coalition Professional Bondsmen of Texas Professional Bondsmen of Harris County Devin Paul Cole

Michael Paul Fleming MICHAEL P. FLEMING & ASSOCIATES, P.C. Charles J. Cooper Michael W. Kirk Harold S. Reeves William C. Marra John D. Ohlendorf COOPER & KIRK, PLLC
John Ellis O’Neill John R. Keville Sheryl Anne Falk Robert Lawrence Green, III Corinne Stone WINSTON AND STRAWN, LLP
Victoria Lynn Jimenez Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S OFFICE
Kenneth Wayne Good LAW OFFICE OF KEN W. GOOD, PLLC
Kenneth Wayne Good LAW OFFICE OF KEN W. GOOD, PLLC
Kimbra Kathryn Ogg HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE

iv

Case: 17-20333 Document: 00514110671 Page: 5 Date Filed: 08/10/2017

Rodney Ellis NAACP Legal Defense and Educational Fund, Inc. State of Texas State of Arizona State of Hawaii State of Kansas State of Louisiana State of Nebraska American Civil Liberties Union Foundation American Civil Liberties Union of Texas Lawyers’ Committee for Civil Rights Under Law Southern Poverty Law Center

Paul D. Clement Christopher G. Michel Andrew C. Lawrence KIRKLAND & ELLIS, LLP
Kathryn M. Kase TEXAS DEFENDER SERVICE Sherrilyn Ifill Janai Nelson Christina Swarns NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.
James H. Hulme Douglas E. Hawlett, Jr. ARENT FOX, LLP

Kathryn M. Kase TEXAS DEFENDER SERVICE

Ken Paxton, Attorney General Jeffrey C. Mateer, First Assistant Attorney Scott A. Keller, Solicitor General Joseph D. Hughes, Assistant Solicitor General STATE OF TEXAS

Mark Brnovich, Attorney General STATE OF ARIZONA

Douglas S. Chin, Attorney General STATE OF HAWAII

Derek Schmidt, Attorney General STATE OF KANSAS

Jeff Landry, Attorney General STATE OF LOUISIANA

v

Case: 17-20333 Document: 00514110671 Page: 6 Date Filed: 08/10/2017
Douglas J. Peterson, Attorney General STATE OF NEBRASKA Brandon Buskey Andrea Woods AMERICAN CIVIL LIBERTIES UNION FOUNDATION Andre Segura Trisha Trigilio Edgar Saldivar ACLU FOUNDATION OF TEXAS, INC. Myesha Braden Jon M. Greenbaum LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW Samuel Brooke Micah West SOUTHERN POVERTY LAW CENTER
Pursuant to Rule 29(a)(4)(E) of the Federal Rules of Appellate Procedure, I hereby certify that the enclosed brief is the work of undersigned counsel and not authored by counsel for either party. No party or party’s counsel contributed money intended to fund the preparation of this brief, and no person contributed money to fund the preparation or submission of this brief.
/s/ Samuel Brooke Samuel Brooke Counsel for Amici Curiae
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Case: 17-20333 Document: 00514110671 Page: 7 Date Filed: 08/10/2017
TABLE OF CONTENTS
Certificate of Interested Persons .............................................................................. iii Table of Contents .................................................................................................... vii Table of Authorities ................................................................................................. ix Interests of Amici Curiae ...........................................................................................1 Introduction and Summary of Argument...................................................................5 Argument.................................................................................................................... 5
I. The District Court Correctly Concluded that Younger Abstention Did Not Preclude Federal Court Jurisdiction. ........................................................5
A. Plaintiffs Do Not Have an Adequate Opportunity to Raise Their Fourteenth Amendment Claim in the State Proceedings. .....................5 B. The Supreme Court’s Younger Analysis in O’Shea Does Not Require Abstention in This Case...........................................................9 II. Defendants’ Bail Policy Infringes Upon the Constitutional Rights of Minorities and the Poor. ................................................................................12 A. Defendants’ Pretrial Policies Frustrate the Presumption of Innocence. ............................................................................................12 B. Defendants’ Pretrial Policies Particularly Harm Minorities and the Poor......................................................................................................14 C. Secured Money Bail Does Not Assure the Presence of Defendants at Trial, Nor Does It Promote Public Safety. ......................................15 III. The Fourteenth Amendment and Eighth Amendment Provide Different, Fundamental Protections in the Pretrial Context...........................................17 A. Graham v. Connor does not foreclose Plaintiffs’ Fourteenth Amendment claims..............................................................................17 IV. Unaffordable Money Bail is Illogical and Unconstitutional. ................21 A. Pretrial Release Decisions Must be Individualized. ......................22 B. Unaffordable Bail Is Objectively Unreasonable. ...........................23
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Case: 17-20333 Document: 00514110671 Page: 8 Date Filed: 08/10/2017
C. Unaffordable Bail Can Never Be Truly Tailored to the Individual.......................................................................................24 Conclusion ...............................................................................................................27 Certificate of Compliance ..........................................................................................a Certificate of Service .................................................................................................b
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TABLE OF AUTHORITIES Cases
Barnett v. Hopper, 548 F.2d 550 (5th Cir. 1977) ....................................................19 Bearden v. Georgia, 461 U.S. 660 (1983) ...............................................................19 Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378 (5th Cir. 1998).........9 Coffin v. United States, 156 U.S. 432 (1895) ..........................................................12 Collins v. Harker Heights, Tex., 503 U.S. 115 (1992) ............................................18 Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1972) ...........................................11 Cty. of Sacramento v. Lewis, 523 U.S. 833 (1998)..................................................18 Estelle v. Williams, 425 U.S. 501 (1976).................................................................12 Ex parte Ramzy, 424 S.W.2d 220 (Tex. 1968) ..........................................................8 Fernandez v. Trias Monge, 586 F.2d 848 (1st Cir. 1978) .....................................6, 9 Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972) .....................................................18 Fuentes v. Shevin, 407 U.S. 67 (1971).......................................................................6 Gerstein v. Pugh, 420 U.S. 103 (1975)................................................................6, 10 Graham v. Connor 490 U.S. 386 (1989) .................................................................17 Hernandez v. United States, 757 F.3d 249 (5th Cir. 2014) .....................................18 Monroe v. Pape, 365 U.S. 167 (1961) .......................................................................9 O’Shea v. Littleton, 414 U.S. 488 (1974) ............................................................9, 10 ODonnell v. Harris Cty., 227 F. Supp. 3d 706 (S.D. Tex. 2016) ..........................5, 7 ODonnell v. Harris Cty., No. CV H-16-1414, 2017 WL 1735456
(S.D. Tex. Apr. 28, 2017) .......................................................................... 7, 21, 24 Preiser v. Rodriguez, 411 U.S. 475 (1973)................................................................8 Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973) ................................ 5, 7, 8, 10, 18 Reynolds v. New Orleans City, 272 F. App’x 331 (5th Cir. 2008) ..........................19 Stack v. Boyle, 342 U.S. 1 (1951) ............................................................................12 State v. Brown, 338 P.3d 1276, 1292 (N.M. 2014)..................................................26
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Tarter v. Hury, 646 F.2d 1010 (5th Cir. 1981) ........................................................10 United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993) ....................19 United States v. Lanier, 520 U.S. 259 (1997)..........................................................18 United States v. Madoff, 586 F.Supp.2d 240 (S.D.N.Y. 2009) ...............................25 United States v. McConnell, 842 F.2d 105 (5th Cir. 1988) ........................ 21, 22, 24 United States v. Salerno, 481 U.S. 739 (1987) ................................................. 12, 17 Walker v. City of Calhoun, No. 4:15-CV-0170-HLM, 2017 WL 2794064
(N.D. Ga. June 16, 2017) ........................................................................................8 Welchen v. Cty. of Sacramento, No. 2:16-cv-00185-TLN-KJN, 2016 WL 5930563
(E.D. Cal. Oct. 11, 2016) ........................................................................................8 Wilkinson v. Dotson, 544 U.S. 74 (2005) ..................................................................8 Younger v. Harris, 401 U.S. 37 (1971)......................................................................5 Zadvydas v. Davis, 533 U.S. 678 (2001) .................................................................20
Statutes 42 U.S.C. § 1983........................................................................................................8 Fla. Stat. Ann. § 79.01 ...............................................................................................8
Other Authorities Attorney General Robert F. Kennedy, Address before ABA House of Delegates
(August 6, 1962) ...................................................................................................13 Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, JUSTICE
POLICY INST. 15 (2012) .................................................................................. 14, 15 Kenneth Frederick Berg, The Bail Reform Act of 1984, 34 EMORY L.J. 685, 693
(1985) ....................................................................................................................22 Klara Calhouse and John Meringolo, Bail Pending Trial: Changing Interpretations
of the Bail Reform Act and the Importance of Bail from Defense Attorneys’ Perspectives, 32 PACE L. REV. 800, 846–47 (2012) .............................................13 Laurence H. Tribe, An Ounce of Prevention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 404 (1970) ....................................................12
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Marie VanNostrand and Gena Keebler, Pretrial Risk Assessment in Federal Court, 73 FED. PROBATION 3 (Sept. 2009) .......................................................................23
Pretrial Services Agency for the District of Columbia, Research and Data: FY 2015 Performance Measures, https://www.psa.gov/sites/default/files/CSOSA%20FY2015%20AFR%20Final% 2011-15-2015.pdf .................................................................................................15
Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black and White Felony Arrestees, 41 CRIMINOLOGY 873, 899 n. 89 (2003)....................................................................14
Timothy P. Cadigan and James L. Johnson, The Re-validation of the Federal Pretrial Services Risk Assessment, 76 FED. PROBATION at 3 (Sept. 2012)...........24
Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform, NAT. INST. OF CORRECTIONS, 13 (Aug. 2014) .............................................................................16
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INTERESTS OF AMICI CURIAE The American Civil Liberties Union Foundation (“ACLU”) is a nationwide nonpartisan organization of over 1.6 million members dedicated to protecting constitutional rights, including the rights of all persons who face a criminal charge. The ACLU files amicus curiae briefs in state and federal courts across the country, and seeks to educate the public and contribute to the developing jurisprudence about the important subject addressed in this case. Recently, the ACLU litigated against Scott County, Mississippi for, inter alia, denying criminal defendants the right to an individualized bail hearing. Burks, et al. v. Scott County, Mississippi, et al., Case No. 14-cv-0745 (S.D. Miss.). The ACLU is currently engaged in litigation challenging similar unconstitutional wealth-based bail practices with the Southern Poverty Law Center (“SPLC”) and Civil Rights Corps (“CRC”) against Randolph County, Alabama. Edwards v.Cofield, et al., Case No. 17-cv-0321 (M.D. Ala.). The ACLU, SPLC, and CRC have moved to intervene in litigation on the same grounds in Cullman County, Alabama. Hester v. Gentry, et al., Case No. 17cv-0270 (N.D. Ala.). The American Civil Liberties Union of Texas (“ACLU of Texas”) is a state affiliate of the national ACLU. The ACLU of Texas is committed to helping Texas re-envision a criminal justice system that is fair and free of racial bias, keeps our communities safe, and respects the rights of all who come into contact with it. Its
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commitment to fair justice is evidenced by litigation challenging the criminalization of poverty, such as with recent cases in Texas federal courts targeting modern-day debtors’ prisons in Santa Fe, Texas, and unconstitutional homelessness ordinances in Houston, Texas.
The Lawyers’ Committee for Civil Rights Under Law is a nonpartisan, nonprofit organization, formed in 1963 by leaders of the American bar, at the request of President John F. Kennedy, in order to mobilize the private bar in vindicating the civil rights of African-Americans and other racial minorities. The Lawyers’ Committee is dedicated, among other goals, to preventing the criminalization of poverty, ending mass incarceration, and securing criminal justice reform through impact litigation and other means. To that end, the Lawyers’ Committee is currently litigating a challenge to the State of Louisiana’s failure to provide indigent defendants with effective assistance of counsel in criminal cases. Allen, et al. v. Edwards, et al., Case No. 655079 (La. 19th Jud. Dis. Ct). The Lawyers’ Committee is also litigating an action challenging a scheme in Pulaski County, Arkansas that results in the incarceration of indigent defendants because they are unable to pay outstanding criminal justice debt. Dade v. Sherwood, Case No. 4:16-cv-0602-JM (E.D. Ark). Additionally, the Lawyers’ Committee is challenging a scheme operating in the Orleans Parish District Court that results in
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the incarceration of indigent defendants who are unable to pay court fines, fees and assessments. Cain v. City of New Orleans, Case No. 2:15-cv-4479 (E.D. La.).
The Southern Poverty Law Center (“SPLC”) is a non-profit organization dedicated to seeking justice on behalf of the most vulnerable members of society. Over the last several years, SPLC has commenced litigation to end municipalities’ overreliance on fines, fees, and money bail to generate revenue, which has led to the unconstitutional treatment of indigent defendants. Additionally, SPLC has worked with cities across the State of Alabama to reform policies related to fine and fee collection, the use of for-profit probation, and money bail. Over 75 municipalities have since ended their use of money bail for most offenses. SPLC is counsel in the Edwards and Hester cases pending in Alabama discussed above.
This case presents another example of an increasingly disturbing problem: the rich and the poor do not receive equal justice in our courts, particularly concerning the matter of secured money bail. Under Defendant-Appellant Harris County’s bail schedule, a defendant of means could pay for her immediate release while a poorer defendant is required to languish in jail.
Amici submit this brief to support the district court’s decision that the County was responsible for this practice and to emphasize (1) that Younger abstention does not preclude jurisdiction in this case, (2) that Plaintiffs’ Fourteenth
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Amendment claims are properly brought, and (3) that wealth-based detention is not only illogical, but unconstitutional.
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INTRODUCTION AND SUMMARY OF ARGUMENT ARGUMENT
I. The District Court Correctly Concluded that Younger Abstention Did Not Preclude Federal Court Jurisdiction. Judicial Defendants argue that the district court should have abstained under
the doctrine of Younger v. Harris, 401 U.S. 37 (1971). But Younger is entirely inapplicable because Plaintiffs have no adequate opportunity to raise their claims in their pending proceedings, and relief in this case would not interfere with those proceedings. See ODonnell v. Harris Cty., 227 F. Supp. 3d 706, 734 (S.D. Tex. 2016).
A. Plaintiffs Do Not Have an Adequate Opportunity to Raise Their Fourteenth Amendment Claim in the State Proceedings.
This Court’s en banc decision in Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973), disposes of Defendants’ abstention arguments. Pugh held that Younger abstention does not bar federal court adjudication of “procedural rights” if the plaintiff “seeks to challenge an aspect of the criminal justice system which adversely affects him but which cannot be vindicated in the state court trial.” Id. at 782 (emphasis original). The Fifth Circuit has never “declined to adjudicate federal questions,” the panel explained, “merely because resolution of these questions would affect state procedures for handling criminal cases.” Id. at 781. Instead, “[w]here . . . the relief sought is not ‘against any pending or future court
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proceedings as such,’ Younger is inapplicable.” Id. at 781–82 (quoting Fuentes v. Shevin, 407 U.S. 67, 71 n.3 (1971)). This Court distinguished between a state court defendant challenging the merits of his criminal prosecution in federal court—by, for example, attempting to suppress the evidence presented in state court based on an unconstitutional search and seizure—and a federal court challenge to “an aspect of the criminal justice system which adversely affects” him but which is unrelated to the merits of the prosecution itself. Id. at 782.
The Supreme Court endorsed the Rainwater holding in Gerstein v. Pugh, 420 U.S. 103 (1975), when it unequivocally concluded that the “District Court correctly held” that a federal court could impose an injunction against a state court if the injunction is “not directed at the state prosecutions” and instead enjoins a practice “that could not be raised in defense of the criminal prosecution” such as “the legality of pretrial detention without a judicial hearing.” 420 U.S. at 108 n.9.
Courts have since relied on Gerstein to hold that Younger is inapplicable to injunctions that do not imperil the merits of a criminal prosecution or the admission of evidence at trial. In Fernandez v. Trias Monge, 586 F.2d 848 (1st Cir. 1978), for instance, the First Circuit relied on Gerstein to hold that Younger abstention did not bar a federal court injunction requiring an adversary probable cause hearing before a juvenile is placed in pretrial detention. 586 F.2d at 851–52. The court distinguished the plaintiff’s challenge to his pretrial detention without a
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hearing—which could not be raised as a defense to the prosecution—from the “paradigm situation calling for Younger restraint,” namely a challenge to the statute in which the defendant is simultaneously being prosecuted or the procedures for the admission of evidence at trial. Id. at 851.
The district court here found that that “at least half” of misdemeanor arrestees were detained for more than 48 hours without a bail hearing because they could not afford to pay a predetermined amount of money bail, and thousands more were held even longer. ODonnell v. Harris Cty., No. CV H-16-1414, 2017 WL 1735456, at *46 (S.D. Tex. Apr. 28, 2017). The district court correctly held that Younger abstention was inapplicable because Plaintiffs could not litigate their claim that these practices violated the Fourteenth Amendment in their state court trials and that, even if they could, injunctive relief would not imperil their underlying criminal prosecutions. ODonnell, 227 F. Supp. 3d at 734–37; see also ODonnell, 2017 WL 1735456, at *81 n.119. To paraphrase Pugh, “[i]f these plaintiffs were barred by Younger from this forum, what relief might they obtain in their state court trials? Since their pre-trial incarceration would have ended as of the time of trial, no remedy would exist. Their claims to pre-trial preliminary hearings would be mooted by conviction or exoneration.” Pugh, 483 F.2d at 782.1
1 Over the last two years, federal district courts across the country have also found that Younger abstention is unwarranted in nearly identical cases because plaintiffs were not challenging the merits of their prosecution and could not raise their constitutional claims as a
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Defendants attempt to answer this question by asserting that Plaintiffs
should have filed a petition for a writ of habeas corpus in Texas state court. But
habeas proceedings are separate civil actions that an arrestee must initiate, and this
Court has never applied Younger “to force a federal court to relinquish jurisdiction
over a federal claim which could not be adjudicated in a single pending or future
state proceeding . . .” Pugh, 483 F.2d at 782. Indeed, the Court in Gerstein
affirmed a district court injunction even though the petitioner could have filed a
habeas petition in the Florida state court. See Fla. Stat. Ann. § 79.01 (authorizing a
writ of habeas corpus to any applicant who can demonstrate “probable cause to believe that he or she is detained without lawful authority.”).2
defense at trial or on appeal. See, e.g., Walker v. City of Calhoun, No. 4:15-CV-0170-HLM, 2017 WL 2794064, at *3 (N.D. Ga. June 16, 2017) (abstention inappropriate because plaintiffs “would not have an adequate opportunity to raise their constitutional challenges” in the criminal proceedings); Welchen v. Cty. of Sacramento, No. 2:16-cv-00185-TLN-KJN, 2016 WL 5930563, at *8 (E.D. Cal. Oct. 11, 2016) (abstention inappropriate because Plaintiff’s claims are “not a defense to the crimes which Plaintiff is charged with,” and do not “have any connection to those criminal charges”).
2 Regardless, Plaintiffs are not seeking release from custody, but additional procedural protections before being detained on a money bail amount that they cannot afford. The writ of habeas corpus is designed for the purpose of giving a speedy remedy to one who is unlawfully detained, Ex parte Ramzy, 424 S.W.2d 220, 223 (Tex. 1968), and traditionally “has been accepted as the specific instrument to obtain release from [unlawful] confinement.” Preiser v. Rodriguez, 411 U.S. 475, 486 (1973). Although a writ of habeas corpus is the “sole federal remedy,” available to a person seeking release or a reduction in the length of confinement, Preiser, 411 U.S. at 486, “§ 1983 remains available for procedural challenges where,” as here, “success in the action would not necessarily spell immediate or speedier release for the prisoner.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
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A contrary holding would undermine the longstanding rule that civil rights lawsuits under 42 U.S.C. § 1983 do not require litigants to exhaust their state court remedies. See Monroe v. Pape, 365 U.S. 167, 183 (1961). Younger should not be extended to graft an exhaustion requirement onto § 1983 actions, and must be limited to the remedies available in the pending state proceedings. Fernandez, 586 F.2d at 852.
B. The Supreme Court’s Younger Analysis in O’Shea Does Not Require Abstention in This Case.
Defendants argue that O’Shea v. Littleton, 414 U.S. 488 (1974), bars all federal court challenges to state court pretrial practices because any federal court relief would impermissibly interfere with state criminal prosecutions. Defendants read O’Shea too broadly, as their position would foreclose the relief that the Court provided in Gerstein—a case decided one year after O’Shea.3
In O’Shea, the Court held that Younger abstention was warranted because plaintiffs sought oversight over nearly every aspect of the local criminal justice system, including law enforcement, bail, trial, and sentencing practices. Plaintiffs alleged that law enforcement and judicial officers in Cairo, Illinois made enforcement decisions based on racial animus and to discourage black residents
3 The Court’s Younger analysis in O’Shea is arguably obiter dictum and thus not binding—as the Court decided the case on standing grounds. See Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 385–86 (5th Cir. 1998) (“That which is ‘obiter dictum’ is stated only ‘by the way’ to the holding of a case and does not constitute an essential or integral part of the legal reasoning behind a decision.”) (internal quotations omitted).
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from agitating for economic and political change. The Court correctly reasoned that federal court intervention against officials would be “unworkable” because it would require an “ongoing federal audit” of the entire criminal justice system, including by requiring state court judges to defend “their motivations” in adjudicating individual cases. O’Shea, 414 U.S. at 493 n.1 & 500, 510.
In Gerstein, however, the district court’s injunction did not require ongoing review of state court judges’ factual or legal decisions. Instead, the injunction simply added an additional procedural safeguard to protect criminal defendants’ constitutional rights. The Court therefore reinforced this Court’s analysis in Pugh that Younger abstention is not required even if the injunction would “affect state procedures for handling criminal cases,” see Pugh, 483 F.2d at 779, so long as the injunctive relief would not “prejudice” the state court’s “trial on the merits.” Gerstein, 420 U.S. at 108 n.9.
This Court’s decision in Tarter v. Hury, 646 F.2d 1010 (5th Cir. 1981), does not support abstention, either. The decision instead reflects that Gerstein and O’Shea can be reconciled. In Tarter, the plaintiff sought in federal court to enjoin state court judges from, inter alia, imposing excessive bail and from refusing to docket and hear pro se motions. 646 F.2d at 1011. This Court held that Younger abstention did not prevent a federal court from requiring all pro se motions to be docketed and heard because such an injunction would not require “case-by-case
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evaluations of discretionary decisions” and would instead “add a simple, nondiscretionary procedural safeguard to the criminal justice system.” Id. at 1013. An injunction against “excessive bail,” however, would violate principles of comity because it would require “a federal court to reevaluate de novo each challenged bail decision.” Id.
Here, Plaintiffs do not seek an injunction requiring a federal court to review individual money bail decisions, and they have not raised an Eighth Amendment claim based on excessive bail. Instead, Plaintiffs challenge the legality of their detention without an individualized inquiry into their ability to pay. As in Tarter, Younger abstention is unnecessary because an injunction would not endanger individual bail decisions, but would instead “add a simple, nondiscretionary” requirement that courts assess an arrestee’s ability to pay before imposing secured money bail. Id.
Nor would the relief that Plaintiffs request interfere with any state court criminal prosecution or interpose the federal court’s judgment for the state court’s evaluation of the merits of the criminal trial. See Conover v. Montemuro, 477 F.2d 1073, 1082 (3d Cir. 1972) (challenge to intake proceedings did not warrant Younger abstention when relief requested would not substitute federal for state court fact-finding or hinder the state court’s adjudicatory process).
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Accordingly, this Court should affirm the district court’s conclusion that Younger abstention did not preclude federal court jurisdiction over Plaintiffs’ Fourteenth Amendment claim. II. Defendants’ Bail Policy Infringes Upon the Constitutional Rights of
Minorities and the Poor. The record establishes that Harris County’s pretrial practices have sacrificed the principle of equality before the law in favor of efficiency, with devastating harms to minority communities and the poor. A. Defendants’ Pretrial Policies Frustrate the Presumption of
Innocence. The American criminal justice system operates from the central presumption that individuals are innocent until proven guilty beyond a reasonable doubt. See Coffin v. United States, 156 U.S. 432, 453 (1895); see also Estelle v. Williams, 425 U.S. 501, 503 (1976). This presumption of innocence “represents a commitment to the proposition that a man who stands accused of a crime is no less entitled than his accuser to freedom and respect as an innocent member of the community.” Laurence H. Tribe, An Ounce of Prevention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 404 (1970) (summarizing argument of Attorney General John N. Mitchell). Accordingly, the presumption of innocence is bound up with an individual’s fundamental right to liberty. See generally, United States v.
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Salerno, 481 U.S. 739, 750 (1987) (an individual’s “strong interest in liberty” is a fundamental right).
The right to an individualized bail determination is central to the presumption of innocence. Stack v. Boyle, 342 U.S. 1, 4 (1951) (“Unless th[e] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”) Defendants’ widespread practice of detaining individuals on generic predetermined bail amounts undermines the presumption of innocence and several critical pretrial rights. “Bail protects the interests of society in assuring a defendant’s appearance at trial and it also protects the interest of the individual in allowing him to be free to establish his innocence.” Attorney General Robert F. Kennedy, Address before ABA House of Delegates (August 6, 1962). By extension, while not a subject of this litigation, Harris County’s pretrial practices threaten the Sixth Amendment’s guarantee to a fair trial by restricting the ability of detained defendants to review documents and evidence, making them less able to help locate and contact potential witnesses, and otherwise disadvantaging their ability to avail themselves of the effective assistance of counsel by conferring with their lawyers and assisting in their own defense. See Klara Calhouse and John Meringolo, Bail Pending Trial: Changing Interpretations of the Bail Reform Act and the Importance of Bail from Defense Attorneys’ Perspectives, 32 PACE L. REV. 800, 846–47 (2012). Unsurprisingly, misdemeanor
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defendants regularly abandon valid defenses and plead guilty a median of 3.2 days after arrest. See, e.g. ROA. 5636–39.
B. Defendants’ Pretrial Policies Particularly Harm Minorities and the Poor.
In Harris County, the Judicial Defendants’ preventive detention policy does not protect the right to freedom of poor and minority misdemeanor defendants, but rather forces them to make the obscene choice between pleading guilty and being released with “time served” or fighting their charges and remaining in custody for weeks. As discussed above, these wealth-based practices also specifically harm persons with limited financial means. For example, as discussed in Plaintiffs’ brief, the Judicial Defendants routinely refuse to order unsecured bail or personal recognizance release to the homeless. ROA. 4714–16. Minorities also suffer particular harms within such a wealth-based scheme because they are less likely to post bail. See Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black and White Felony Arrestees, 41 CRIMINOLOGY 873, 899 n. 89 (2003) (African-Americans and Latinos are more likely than whites to be detained on bail they cannot afford.). Race also strongly impacts whether a person will be released on his own personal recognizance, with African-Americans five times more likely to be detained than their white counterparts, and three times more likely to be detained than their
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Latino counterparts. See, e.g., Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, JUSTICE POLICY INST. 15 (2012).
C. Secured Money Bail Does Not Assure the Presence of Defendants at Trial, Nor Does It Promote Public Safety.
Harris County’s system of wealth-based preventive detention, with its significant intrusion on the Constitutional rights of arrestees, particularly minorities and the poor, is especially indefensible because the system’s dependence on secured money bail does not assure appearance at trial or promote public safety for those who can afford to purchase their release.
The Judicial Defendants argue that the district court’s injunction “threatens public safety and the orderly administration of justice because failure-to-appear rates will increase.” Br. at 51. This contention is not supported by any empirical evidence. See, e.g., Bail Fail, supra, at 21. Jurisdictions that have severely deprioritized money bail and maintained high court appearance rates illustrate that the argument is shortsighted. See, e.g., Pretrial Services Agency for the District of Columbia, Research and Data: FY 2015 Performance Measures, https://www.psa.gov/sites/default/files/CSOSA%20FY2015%20AFR%20Final%2 011-15-2015.pdf. Moreover, while no empirical evidence supports that money bail positively affects failure-to-appear rates, multiple studies demonstrate that simple court notification systems—not money bail—significantly increase appearance rates. See Bail Fail, supra at 33–35.
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Nor does the use of secured money bail serve public safety goals. “[N]o study has ever shown that money [bail] can protect the public.” Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform, NAT. INST. OF CORRECTIONS, 13 (Aug. 2014). For poor and minority defendants in particular, it merely serves to detain otherwise bailable individuals “by delaying or preventing pretrial release.” Id. at 12. Such a policy cannot be presumed to promote public safety.
In fact, Harris County’s policy so significantly burdens poor and minority defendants, in terms of accrued debt, lost wages, damage to reputation and other losses, that it likely decreases public safety by making these individuals more likely to commit crimes. Id. at 16 (“[E]ven small amounts of pretrial detention— perhaps even [a] few days . . . —have negative effects on defendants and actually makes them more at risk for pretrial misbehavior.”). Controlling for all other factors, defendants detained pretrial are four times more likely to be sentenced to jail and three times more likely to be sentenced to prison than those who are not detained. Id. There is also indication that even short-term pretrial detention is correlated with a higher long-term likelihood of recidivism. Id. at 17. In this way, public safety is undermined when the fundamental fairness of the justice system is called into question “due to its complacency with a wealth-based system of pretrial freedom.” Id. at 15.
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Harris County’s policy of preventive detention needlessly infringes upon significant Constitutional rights of minorities and the poor without assuring defendants’ appearance at trial or promoting public safety. Accordingly, this Court should affirm the preliminary injunction order below. III. The Fourteenth Amendment and Eighth Amendment Provide Different,
Fundamental Protections in the Pretrial Context.
A. Graham v. Connor does not foreclose Plaintiffs’ Fourteenth Amendment claims.
The Judicial Defendants refer to this matter as “an Eighth Amendment case wearing a Fourteenth Amendment costume,” and rely on discussion in Graham v. Connor for the proposition that courts must first “identif[y] the specific constitutional right allegedly infringed,” and then judge “the validity of the claim … by reference to the specific constitutional standard that governs th[e] right.” Br. 27; Graham v. Connor 490 U.S. 386, 394 (1989). Judicial Defendants’ reliance on Graham and its progeny is misplaced. Graham does not foreclose to Plaintiffs the opportunity to defend against infringements of their “fundamental” right to pretrial liberty, a right long protected by the Fourteenth Amendment. See Salerno, 481 U.S. at 750–51; Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”).
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The U.S. Supreme Court has made clear that Graham v. Connor does not preclude Plaintiffs from raising substantive due process arguments, but rather reflects a “reluctan[ce] to expand the concept of substantive due process.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (citing Collins v. Harker Heights, Tex., 503 U.S. 115, 125 (1992)). Graham “does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments.” United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997). Rather, as recognized by this Court, the “more specific provision” rule announced in Graham is implicated where the Fourth Amendment squarely “covers” a plaintiff’s constitutional claims, particularly but not always in the context of excessive use of force. Hernandez v. United States, 757 F.3d 249, 278 (5th Cir. 2014), adhered to in part on reh’g en banc, 785 F.3d 117 (5th Cir. 2015), vacated and remanded sub nom. Hernandez v. Mesa, 137 S. Ct. 2003 (2017).
Plaintiffs here do not allege that they were unreasonably searched or seized, a claim that would be covered by the Fourth Amendment, or that bail is excessive in any individual case, a claim that would be covered by the Eighth Amendment. Instead, Plaintiffs allege that Defendants operate a wealth-based detention system in which immediate access to money determines who is released and who is detained pretrial. This Circuit has long analyzed systems in which, as here, “[t]hose
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with means avoid imprisonment [while] the indigent cannot escape imprisonment,” under the Fourteenth Amendment. Frazier v. Jordan, 457 F.2d 726, 728–29 (5th Cir. 1972); Pugh, 572 F.2d 1053, 1056–57 (5th Cir. 1978) (en banc) (“The incarceration of those who cannot [pay money bail required by a master bond schedule], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”); Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir. 1977), vacated as moot, 439 U.S. 1041 (1977) (“To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes an equal protection of the laws.”); see also Bearden v. Georgia, 461 U.S. 660, 665 (1983) (“Due Process and equal protection principles converge” in challenges to wealth-based detention). Accordingly, Plaintiffs’ claims arising out of their pretrial incarceration are not “covered” by the Fourth Amendment, and thus are not governed by Graham.
The Judicial Defendants further claim that Gerstein v. Pugh forecloses procedural due process claims by pretrial arrestees. Br. 30. However, the Supreme Court has flatly rejected the proposition that pretrial seizures may only be analyzed under the Fourth Amendment. United States v. James Daniel Good Real Prop., 510 U.S. 43, 51 (1993). In support of their claim, the judges cite Reynolds v. New
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Orleans City, an unpublished opinion from this Court 4 that found plaintiffs’ procedural claims properly brought under the Fourth Amendment rather than general due process principles. 272 F. App’x 331, 338 (5th Cir. 2008). Reynolds is easily distinguishable from the present case: there, the plaintiff was never arrested, incarcerated, or required to pay money bail, but challenged the order of evacuation that forced him to leave his home after Hurricane Katrina. Id.
In an effort to circumvent the natural reading of Graham and this Court’s precedent, the Judicial Defendants argue that the injunction entered by the district court established a “substantive right to release,” rather than simply requiring additional procedural protections before a defendant may be detained pretrial. Br. 30 (emphasis in original). This echoes a misstatement throughout their brief: Plaintiffs do not claim—and the district court did not grant—an injunction to protect a “right to release” or a “right to affordable bail.” Br. 22–25, 30. Instead, Plaintiffs contend that heightened scrutiny must be satisfied before a defendant’s liberty may be deprived, a right that has long sounded in the Fourteenth Amendment. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”). A requirement that Harris County only impose pretrial incarceration where “no less
4 See Fifth Circuit Rule 47.5.4: “Unpublished opinions issued on or after January 1, 1996 are not precedent.”
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restrictive alternative could assure the arrestee’s appearance,” does not guarantee any arrestee’s release. Likewise, an injunction against wealth-based discrimination is agnostic as to whether compliance occurs through release or pretrial detention.
For these reasons, this Court should affirm the district court in finding Plaintiff’s Fourteenth Amendment claims properly brought, and not foreclosed by Graham. IV. Unaffordable Money Bail is Illogical and Unconstitutional.
The constitutional violations in this case resulted from Defendants’ attempts to avoid individualized hearings and to allow access to money to dictate release. Defendants’ insistence that Plaintiffs’ claims can only be examined under the Eighth Amendment is an attempt to invoke this Court’s decision in United States v. McConnell, 842 F.2d 105 (5th Cir. 1988), which held that an unaffordable bail amount is not necessarily excessive. The district court properly concluded that this is not an Eighth Amendment case. ODonnell, 2017 WL 1735456, at *73–74. However, even if this Court applied the Eighth Amendment, Plaintiffs would still be entitled to relief. As the district court concluded, Defendants could set bail beyond an individual’s financial means if they satisfied the heightened requirements of a detention order, which would obligate judges to enter written findings that the bail amount was necessary after considering less restrictive
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alternatives. Id.; see also McConnell, 842 F.2d at 108–09 (explaining requirements for de facto detention orders under federal Bail Reform Act).
There is a second reason. Undergirding McConnell’s conclusion that the Eighth Amendment permits unaffordable bail is the assumption that a judge can properly determine that unaffordable bail is reasonable to secure a defendant’s presence at trial. See McConnell, 842 F.2d at 109–10. However, no court has fully examined this assumption, and the Supreme Court has not addressed the question. As explained below, the Eighth Amendment requires an individualized bail determination, but a court cannot logically tailor an unaffordable money bail amount to the individual. If the Court reaches this issue, it should overrule this aspect of McConnell and hold that an unaffordable bail amount violates the Eighth Amendment’s guarantee against excessive bail.
A. Pretrial Release Decisions Must be Individualized. As an initial matter, it is immaterial whether unaffordable bail is examined under the Fourteenth or Eighth Amendments. Though these provisions provide unique protections of the right to pretrial liberty, both secure the right to an individualized release determination. Stack v. Boyle established the basic principle that bail is excessive when set beyond what is necessary to achieve the state’s pretrial interests. 342 U.S. 1, 5 (1951). While based on the Eighth Amendment, Stack necessarily protects the right to an individualized bail determination, much
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like the Bearden line of cases forbidding wealth-based detention. See Kenneth Frederick Berg, The Bail Reform Act of 1984, 34 EMORY L.J. 685, 693 (1985). Under either the Fourteenth or Eighth Amendments, a court cannot competently determine what is necessary to prevent flight and protect public safety without assessing an individual’s likelihood of pretrial success if released.
B. Unaffordable Bail Is Objectively Unreasonable. Any system of individualized assessment, whether performed by a judge or machine, must receive feedback to ensure reliable forecasting. This task in the pretrial context requires data on how well the judge’s or the machine’s assessments square with the actual successes and failures of released arrestees. One may then evaluate if the process is reliably distinguishing the “risky” from the “not risky.” See generally Marie VanNostrand and Gena Keebler, Pretrial Risk Assessment in Federal Court, 73 FED. PROBATION 3 (Sept. 2009). Under this framework, it is readily apparent that the practice of setting unaffordable bail has, and can have, no factual basis. Unaffordable bail is inherently counterfactual. It requires a court to speculate on the regulatory effect of a particular bail amount if the defendant could afford it. Arrestees who cannot afford bail go to jail for the duration of their case; thus, a judge never knows if the arrestee could have been safely released with an affordable bail. Judges consequently cannot develop credible expertise on setting unaffordable bail since it
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is impossible to ascertain whether unaffordable bail was truly required in any given case. Timothy P. Cadigan and James L. Johnson, The Re-validation of the Federal Pretrial Services Risk Assessment, 76 FED. PROBATION at 3 (Sept. 2012). Such decisions are therefore not properly left to a judge’s discretion, at least not if that discretion is meant to be sound. As the district court correctly noted, unaffordable bail only works in the sense that the detained reliably attend their court dates. ODonnell, 2017 WL 1735456, at *43. Put differently, unaffordable bail is unfalsifiable, and thus cannot be objective.
C. Unaffordable Bail Can Never Be Truly Tailored to the Individual. Because unaffordable bail can never be objectively evaluated, it also can never be an appropriate release condition. In fact, if for some reason the defendant could later afford the bail amount, this would warrant a court determining whether this changed circumstance demands re-evaluating the bail. Consider this Court’s decision in McConnell, a case about unaffordable bail that does not involve indigency. McConnell and several codefendants were charged in a bank fraud scheme involving over $4 million. 842 F.2d at 106. The court initially denied bail on the grounds that McConnell was a flight risk, and then later set a $750,000 surety bond with several release conditions. Id. Because the government froze his assets, McConnell requested a $250,000 bail, which the judge denied. Id. at 106– 07. A panel of this Court found that the magistrate’s refusal to reduce bail
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complied with both the Eighth Amendment and the Bail Reform Act of 1984 because the magistrate adequately explained why unattainable bail was a necessary condition of release. Id. at 109–10.
McConnell of course dooms the Harris County bail system, where judges routinely detain arrestees on unaffordable bail without a thought to whether lower bail or non-financial conditions of release might suffice.5 However, the panel’s conclusion that unaffordable bond is not necessarily excessive—a conclusion incanted by the Defendant judges—is flawed. See id. at 107. The defect lies in the fact that it is difficult to discern the grounds on which the magistrate could reasonably conclude that $750,000, and not a penny less, was required for McConnell.
Imagine if the court learned a week later that McConnell now could afford the $750,000 surety bond. Given that McConnell was alleged to have defrauded banks for millions of dollars, it seems reasonable—indeed, likely—that either the government or the court would want to know the origins of this newfound wealth. Cf. United States v. Madoff, 586 F.Supp.2d 240, 254 n.15 (S.D.N.Y. 2009) (noting Second Circuit rule allowing trial court to “hold a hearing to ensure that whatever assets are offered to support a bail package are derived from legitimate sources”) (quotations omitted). Thus, McConnell’s ability to afford the previously
5 McConnell examines the statutory and constitutional requirements of McConnell’s bail coextensively.
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prohibitive bail would invariably require reexamining his individual circumstances to decide whether that bail amount was still appropriate. But only then, once McConnell could afford the bond, would the court truly be making an individualized determination.
As this hypothetical demonstrates, individuals detained on what a court originally believed was unaffordable bail can unilaterally convert a de facto detention order into a temporary one, forcing the question of whether release remains consistent with the state’s pretrial interests. In these situations, it is more accurate—and more honest, State v. Brown, 338 P.3d 1276, 1292 (N.M. 2014)—to say that the defendant cannot provide the level of security required to authorize release. Yet that is the language of an actual detention order, not a de facto detention order based on unaffordable money bail. Unaffordable bail therefore has no comfortable place in our constitutional system. Release conditions must be attainable, or they cannot truly be individualized.6
6 In this sense, money bail is much different from a penal fine. A fine is punishment, and must be based on penological goals such as a defendant’s culpability. While finances might permissibly be considered in setting the fine, under Bearden, the state need only consider ability to pay when it collects the fine, and this to determine if jail is a necessary alternative for those truly unable to pay. Consequently, an individual’s means will rarely factor in deciding the propriety of a fine under the Eighth Amendment. This is not so with bail, where the propriety of the amount—under either the Eighth or Fourteenth Amendments—is inextricably bound up with the individual’s capacity to satisfy it.
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CONCLUSION

For the reasons set forth above, this Court should affirm the district court’s

decision.

Dated this August 9, 2017.

Respectfully submitted,

/s/ Samuel Brooke Samuel Brooke Counsel of Record

Brandon Buskey Andrea Woods American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 P: (212) 284-7366 E: bbuskey@aclu.org E: awoods@aclu.org

Andre Segura Trisha Trigilio Edgar Saldivar ACLU FOUNDATION OF TEXAS, INC. 1500 McGowen Street, Suite 250 Houston, TX 77004 P: (713) 942-8146 E: asegura@aclutx.org E: ttrigilio@aclutx.org E: esaldivar@aclutx.org

Myesha Braden Jon M. Greenbaum LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue N.W., Suite 400 Washington, D.C. 20005 P: (202) 662-8600 E: mbraden@lawyerscommittee.org

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E: jgreenbaum@lawyerscommittee.org Samuel Brooke Micah West SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 P: (334) 956-8200 E: samuel.brooke@splcenter.org E: micah.west@splcenter.org Counsel for Amici Curiae
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CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure, I hereby certify that the textual portion of the foregoing brief (exclusive of the cover page, disclosure statement, tables of contents and authorities, certificates of counsel, but including footnotes) contains 5,965 words as determined by the word counting feature of Microsoft Word 2010. This brief thus complies with the typevolume limitation contained in Fed. R. App. P. 29(a)(5) and 32(a)(7)(B). I further certify that this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font, in compliance with Fed. R. App. P. 32(a)(5)–(6). Pursuant to Circuit Rule 28A(h), I also hereby certify that electronic files of this Brief have been submitted to the Clerk via the Court’s CM/ECF system. The files have been scanned for viruses and are virus-free.
/s/ Samuel Brooke Samuel Brooke
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CERTIFICATE OF SERVICE I hereby certify that on August 9, 2017, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit by using the CM/ECF system. Through the Court’s CM/ECF system, this brief has been served on counsel for all parties.
/s/ Samuel Brooke Samuel Brooke
b

 
 Case: 17-20333 Document: 00514347556 Page: 1 Date Filed: 02/14/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17-20333
MARANDA LYNN ODONNELL, Plaintiff - Appellee

United States Court of Appeals Fifth Circuit
FILED
February 14, 2018
Lyle W. Cayce Clerk

v.

HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C. FLEMNG; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JEAN HUGHES,

Defendants - Appellants -----------------------------------------------------

LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,

Plaintiffs - Appellees

v.

HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ,

Defendants - Appellants

Appeals from the United States District Court for the Southern District of Texas

Before CLEMENT, PRADO, and HAYNES, Circuit Judges.

Case: 17-20333 Document: 00514347556 Page: 2 Date Filed: 02/14/2018
No. 17-20333 EDITH BROWN CLEMENT, Circuit Judge:
Maranda ODonnell and other plaintiffs (collectively, “ODonnell”) brought a class action suit against Harris County, Texas, and a number of its officials—including County Judges,1 Hearing Officers, and the Sheriff (collectively, the “County”)—under 42 U.S.C. § 1983. ODonnell alleged the County’s system of setting bail for indigent misdemeanor arrestees violated Texas statutory and constitutional law, as well as the equal protection and due process clauses of the Fourteenth Amendment. ODonnell moved for a preliminary injunction, and the County moved for summary judgment. After eight days of hearings, at which the parties presented numerous fact and expert witnesses and voluminous written evidence, the district court denied the County’s summary judgment motion and granted ODonnell’s motion for a preliminary injunction. The County then applied to this court for a stay of the injunction pending appeal, but the motion was denied, and the injunction went into effect. Before this court now is the County’s appeal, seeking vacatur of the injunction and raising numerous legal challenges.
For the reasons set forth, we affirm most of the district court’s rulings, including its conclusion that ODonnell established a likelihood of success on the merits of its claims that the County’s policies violate procedural due process and equal protection. We disagree, however, with the district court’s analysis in three respects: First, its definition of ODonnell’s liberty interest under due process was too broad, and the procedures it required to protect that interest were too onerous. Second, it erred by concluding that the County Sheriff can be sued under § 1983. Finally, the district court’s injunction was overbroad. As a result, we will dismiss the Sheriff from the suit, vacate the
1 The parties use the term “County Judges” to refer to the judges of the County Criminal Courts of Harris County, and we will use that same term. This term does not refer to the County Judge who is the head of the County Commissioners’ Court of Harris County.
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No. 17-20333 injunction, and order the district court to modify its terms in a manner consistent with this opinion.
I. We need not conduct an exhaustive review of the facts. The district court’s account is expansive: It comprised over 120 pages of factual findings, including not only the specific details of the County’s bail-setting procedures, but also the history of bail and recent reform attempts nationwide. Bail in Texas is either secured or unsecured. Secured bail requires the arrestee to post bond either out of the arrestee’s pocket or from a third-party surety (often bail bondsmen, who generally require a 10% non-refundable premium in exchange for posting bond). Unsecured bail, by contrast, allows the arrestee to be released without posting bond, but if he fails to attend his court date and/or comply with any nonfinancial bail conditions, he becomes liable to the County for the bail amount. Both secured and unsecured bail may also include nonfinancial conditions to assure the detainee’s attendance at future hearings. The basic procedural framework governing the administration of bail in Harris County is set by the Texas Code of Criminal Procedure and local rules promulgated by County Judges. See Tex. Gov’t Code § 75.403(f). When a misdemeanor defendant is arrested, the prosecutor submits a secured bail amount according to a bond schedule established by County Judges. See Harris County Criminal Courts at Law Rule 9 (hereinafter, “Local Rule”). Bonds are then formally set by Hearing Officers and County Judges. Tex. Code. Crim. Pro. art. 2.09, 17.15. Hearing Officers are generally responsible for setting bail amounts in the first instance. This often occurs during the arrestee’s initial probable cause hearing, which must be held within 24 hours of arrest. Tex. Code Crim. Pro. art. 17.033; Local Rule 4.2.1.1. County Judges review the
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No. 17-20333 Hearing Officers’ determinations and can adjust bail amounts at a “Next Business Day” hearing. Local Rule 4.3.1.
The Hearing Officers and County Judges are legally proscribed from mechanically applying the bail schedule to a given arrestee. Instead, the Texas Code requires officials to conduct an individualized review based on five enumerated factors, which include the defendant’s ability to pay, the charge, and community safety. Tex. Code of Crim. Pro. art. 17.15. The Local Rules explicitly state the schedule is not mandatory. They also authorize a similar, individualized assessment using factors which partially overlap with those listed in the Code. Local Rule 4.2.4. Hearing Officers and County Judges sometimes receive assessments by Pretrial Services, which interviews the detainees prior to hearings, calculates the detainees flight and safety risk based on a point system, and then makes specific recommendations regarding bail.2
Despite these formal requirements, the district court found that, in practice, County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so. The district court noted that the statutorily-mandated probable cause hearing (where bail is usually set) frequently does not occur within 24 hours of arrest. The hearings often last seconds, and rarely more than a few minutes. Arrestees are instructed not to speak, and are not offered any opportunity to submit evidence of relative ability to post bond at the scheduled amount.
2 Individualized assessment is also assured by a preexisting federal consent decree, which requires County officials to make individualized assessments of each misdemeanor defendant’s case and adjust the scheduled bail amount accordingly, or else release the defendant on unsecured or nonfinancial conditions.
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No. 17-20333 The court found that the results of this flawed procedural framework demonstrate the lack of individualized assessments when officials set bail. County officials “impose the scheduled bail amounts on a secured basis about 90 percent of the time. When [they] do change the bail amount, it is often to conform the amount to what is in the bail schedule.” The court further found that, when Pretrial Services recommends release on personal bond, Hearing Officers reject the suggestion 66% of the time. Because less than 10% of misdemeanor arrestees are assigned an unsecured personal bond, some amount of upfront payment is required for release in the vast majority of cases. The court also found that the “Next Business Day” hearing before a County Judge fails to provide a meaningful review of the Hearing Officer’s bail determinations. Arrestees routinely must wait days for their hearings. County Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases. Furthermore, prosecutors routinely offer time-served plea bargains at the hearing, and arrestees are under immense pressure to accept the plea deals or else remain incarcerated for days or weeks until they are appointed a lawyer. The district court further noted the various ways in which the imposition of secured bail specifically targets poor arrestees. For example, under the County’s risk-assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released. The court also observed that Hearing Officers imposed secured bails upon arrestees after having been made aware of an arrestee’s indigence by the risk-assessment reports or by the arrestee’s own statements. And further, after extensive review of numerous bail hearings, the court concluded Hearing
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No. 17-20333 Officers were aware that, by imposing a secured bail on indigent arrestees, they were ensuring that those arrestees would remain detained.
The court rejected the argument that imposing secured bonds served the County’s interest in ensuring the arrestee appeared at the future court date and committed no further crime. The court’s review of reams of empirical data suggested the opposite: that “release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision.” Instead, the County’s true purpose was “to achieve pretrial detention of misdemeanor defendants who are too poor to pay, when those defendants would promptly be released if they could pay.” In short, “secured money bail function[ed] as a pretrial detention order” against the indigent misdemeanor arrestees.
The district court also reviewed voluminous empirical data and academic literature to evaluate the impact of pretrial detention on an arrestee. The court found that the expected outcomes for an arrestee who cannot afford to post bond are significantly worse than for those arrestees who can. In general, indigent arrestees who remain incarcerated because they cannot make bail are significantly more likely to plead guilty and to be sentenced to imprisonment. They also receive sentences that are on average twice as long as their bonded counterparts. Furthermore, the district court found that pretrial detention can lead to loss of job, family stress, and even an increase in likeliness to commit crime.
The court concluded that ODonnell had established a likelihood of success on the merits of their claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor detainees. It granted the motion for a preliminary injunction,
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No. 17-20333 requiring the implementation of new safeguards and the release of numerous detainees subjected to the insufficient procedures.
II. This court reviews a “district court’s grant of a preliminary injunction . . . for abuse of discretion.” Women’s Med. Cty. of Nw. Hous. v. Bell, 248 F.3d 411, 418–19 (5th Cir. 2001). “Findings of fact are reviewed only for clear error; legal conclusions are subject to de novo review.” Id. at 419. “Issuance of an injunction rests primarily in the informed discretion of the district court. Yet injunctive relief is a drastic remedy, not to be applied as a matter of course.” Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 733 (5th Cir. 1977) (internal citations omitted). A district court abuses its discretion if it issues an injunction that “is not narrowly tailored to remedy the specific action which gives rise to the order as determined by the substantive law at issue.” Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016) (internal quotation marks and alterations omitted).
III. The County raises a number of arguments that do not implicate the merits of ODonnell’s constitutional claims. We address these first. A. Liability of County Judges and Sheriff under § 1983 The County appeals the district court’s ruling that the County Judges and Sheriff could be sued under 42 U.S.C. § 1983. Liability under § 1983 attaches to local government officers “whose [unlawful] decisions represent the official policy of the local governmental unit.” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Whether an officer has been given this authority is “a question of state law.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). “Official policy” includes unwritten widespread practices that are “so common and well settled as to constitute a custom that fairly represents municipal policy.” Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting
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No. 17-20333 Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc)). And unlawful decisions include “acquiescence in a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity.” Jett, 491 U.S. at 737 (internal quotation marks omitted).
Though a judge is not liable when “acting in his or her judicial capacity to enforce state law,” Moore, 958 F.2d at 94, we agree with the district court that the County Judges are appropriate parties in this suit. Texas law explicitly establishes that the Judges are “county officers,” TEX. CONST. art. V § 24, imbued with broad authority to promulgate rules that will dictate postarrest policies consistent with the provisions of state law, Tex. Gov’t Code § 75.403(f). Here, ODonnell alleged that, despite having this authority, County Judges acquiesced in an unwritten, countywide process for setting bail that violated both state law and the Constitution. In other words, they sue the County Judges as municipal officers in their capacity as policymakers. Section 1983 affords them an appropriate basis to do so.
We agree with the County that its Sheriff is not an appropriate party, however. The Sheriff does not have the same policymaking authority as the County Judges. To the contrary, the Sheriff is legally obliged to execute all lawful process and cannot release prisoners committed to jail by a magistrate’s warrant—even if prisoners are committed “for want of bail.” See Tex. Code Crim. Pro. arts. 2.13, 2.16, 2.18; Tex. Loc. Gov’t Code § 351.041(a) (noting the Sheriff’s authority is “subject to an order of the proper court”). State statutes, in other words, do not authorize the County Sheriff to avoid executing judicial orders imposing secured bail by unilaterally declaring them unconstitutional. Accordingly, the County Sheriff cannot be sued under § 1983.
B. Younger Abstention The County next argues that Younger abstention precludes our review of ODonnell’s claims. We are not persuaded.
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No. 17-20333 The Supreme Court held in Younger v. Harris that, when a party in federal court is simultaneously defending a state criminal prosecution, federal courts “should not act to restrain [the state] criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” 401 U.S. 37, 43–44 (1971). Its conclusion was motivated by the “basic doctrine of equity jurisprudence,” “notion[s] of ‘comity,’” and “Our Federalism.” Id. Courts apply a three-part test when deciding whether to abstain under Younger. There must be (1) “an ongoing state judicial proceeding” (2) that “implicate[s] important state interests” and (3) offers “adequate opportunity” to “raise constitutional challenges.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). The third prong of this test is not met. As the Supreme Court has already concluded, the relief sought by ODonnell—i.e., improvement of pretrial procedures and practice—is not properly reviewed by criminal proceedings in state court. See Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975) (noting that abstention did not apply because “[t]he injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution”); see also Pugh v. Rainwater, 483 F.2d 778, 781–82 (5th Cir. 1973) (noting that a federal question whose “resolution . . . would [only] affect state procedures for handling criminal cases . . . . is not ‘against any pending or future court proceedings as such’” (quoting Fuentes v. Shevin, 407 U.S. 67, 71 n.3 (1971))), rev’d on other grounds by Gerstein, 420 U.S. 103. As the district court noted, the adequacy of the state court review of bail-setting procedures is essential to ODonnell’s federal cause of action. In short, “[t]o find that the plaintiffs have an adequate hearing on their constitutional claim in state court would decide [its] merits.”
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No. 17-20333 We also note that the policy concerns underlying this doctrine are not applicable here. The injunction sought by ODonnell seeks to impose “nondiscretionary procedural safeguard[s],” which will not require federal intrusion into pre-trial decisions on a case-by-case basis. Tarter v. Hurry, 646 F.2d 1010, 1013–14 (5th Cir. Unit A June 1981); compare O’Shea v. Littleton, 414 U.S. 488, 499–502 (1974) (noting that the enforcement of the improper injunction in question required “continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondents’ broadly defined class”). Such relief does not implicate our concerns for comity and federalism.3 C. The County’s Eighth Amendment Argument The County contends that ODonnell’s complaint “is an Eighth Amendment case wearing a Fourteenth Amendment costume.” The Eighth Amendment states in relevant part that “[e]xcessive bail shall not be required.” U.S. CONST. amend. VIII. It is certainly true that, when a constitutional provision specifically addresses a given claim for relief under 42 U.S.C. § 1983, a party should seek to apply that provision directly. See Graham v. Connor, 490 U.S. 386, 394 (1989); cf. Manuel v. City of Joliet, 137 S. Ct. 911, 917 (2017). But we have already concluded that “[t]he incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”
3 The County also argues that we are precluded from reviewing ODonnell’s claims because they should have been raised as a petition for habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475 (1973). We agree with the district court that this argument has been waived. The County neither mentioned Preiser nor pressed the habeas argument until its motion for a stay of the injunction. The closest the County came to preserving this argument was one sentence in its response to ODonnell’s motion for preliminary injunction. This passing reference is insufficient to preserve the argument, especially given that it is dispositive of the case at the threshold stage.
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No. 17-20333 Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc). ODonnell’s present claims do not run afoul of Graham.
IV. We now address the merits of ODonnell’s constitutional claims. For the reasons set forth below, we affirm the court’s rulings that the County’s bail system violates both due process and equal protection, though we modify the basis for its conclusion as to due process. A. Due Process Claim Procedural due process claims are subject to a two-step inquiry: “The first question asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010) (internal quotation marks omitted). Applying this framework, we disagree with the district court’s formulation of the liberty interest created by state law, but agree that the procedural protections of bail-setting procedures are nevertheless constitutionally deficient. Liberty interests protected by the due process clause can arise from two sources, “the Due Process Clause itself and the laws of the States.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal citation omitted). Here, our focus is the law of Texas, which has acknowledged the two-fold, conflicting purpose of bail. This tension defines the protected liberty interest at issue here. On the one hand, bail is meant “to secure the presence of the defendant in court at his trial.” Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980). Accordingly, “ability to make bail is a factor to be considered, [but] ability alone, even indigency, does not control the amount of bail.” Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980). On the other hand, Texas courts have repeatedly emphasized the importance of bail as a means of
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No. 17-20333 protecting an accused detainee’s constitutional right “in remaining free before trial,” which allows for the “unhampered preparation of a defense, and . . . prevent[s] the infliction of punishment prior to conviction.” Ex parte Anderer, 61 S.W.3d 398, 404–05 (Tex. Crim. App. 2001) (en banc). Accordingly, the courts have sought to limit the imposition of “preventive [pretrial] detention” as “abhorrent to the American system of justice.” Ex parte Davis, 574 S.W.2d 166, 169 (Tex. Crim. App. 1978). Notably, state courts have recognized that “the power to . . . require bail,” not simply the denial of bail, can be an “instrument of [such] oppression.” Taylor v. State, 667 S.W.2d 149, 151 (Tex. Crim. App. 1984) (en banc) (emphasis added).
These protections are also ensconced in the Texas Constitution. Specifically, Article 1 § 11 reads in relevant part, “[a]ll prisoners shall be bailable by sufficient sureties.” TEX. CONST. art. 1, § 11. The provision is followed by a list of exceptions—i.e., circumstances in which an arrestee may be “denied release on bail.” Id. §§ 11b, 11c. The only exception tied to misdemeanor charges pertains to family violence offenses. See id. § 11c. The scope of these exceptions has been carefully limited by state courts, which observe that they “include the seeds of preventive detention.” Davis, 574 S.W.2d at 169.
The district court held that § 11 creates a state-made “liberty interest in misdemeanor defendants’ release from custody before trial. Under Texas law, judicial officers . . . have no authority or discretion to order pretrial preventive detention in misdemeanor cases.” This is too broad a reading of the law. The Constitution creates a right to bail on “sufficient sureties,” which includes both a concern for the arrestee’s interest in pretrial freedom and the court’s interest in assurance. Since bail is not purely defined by what the detainee can afford, see Charlesworth, 600 S.W.2d at 317, the constitutional provision forbidding
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No. 17-20333 denial of release on bail for misdemeanor arrestees does not create an automatic right to pretrial release.4
Instead, Texas state law creates a right to bail that appropriately weighs the detainees’ interest in pretrial release and the court’s interest in securing the detainee’s attendance. Yet, as noted, state law forbids the setting of bail as an “instrument of oppression.” Thus, magistrates may not impose a secured bail solely for the purpose of detaining the accused. And, when the accused is indigent, setting a secured bail will, in most cases, have the same effect as a detention order. Accordingly, such decisions must reflect a careful weighing of the individualized factors set forth by both the state Code of Criminal Procedure and Local Rules.
Having found a state-created interest, we turn now to whether the procedures in place adequately protect that interest. As always, we are guided by a three-part balancing test that looks to “the private interest . . . affected by the official action”; “the risk of an erroneous deprivation of such interest through the procedure used, and the probable value, if any, of additional or substitute procedural safeguards”; and “the Government’s interest, including the function involved and the fiscal and administrative burdens” that new procedures would impose. Meza, 607 F.3d at 402 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
As the district court found, the current procedures are inadequate—even when applied to our narrower understanding of the liberty interest at stake. The court’s factual findings (which are not clearly erroneous) demonstrate that secured bail orders are imposed almost automatically on indigent arrestees.
4 We also note that Texas courts have never sought to eliminate the use of bail bonds. To the contrary, the use of secured bail was affirmed by the Texas Court of Criminal Appeals in Anderer, despite the opinion’s strong language in support of an accused’s pretrial freedom. Anderer, 61 S.W.3d at 403.
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No. 17-20333 Far from demonstrating sensitivity to the indigent misdemeanor defendants’ ability to pay, Hearing Officers and County Judges almost always set a bail amount that detains the indigent. In other words, the current procedure does not sufficiently protect detainees from magistrates imposing bail as an “instrument of oppression.”
The district court laid out specific procedures necessary to satisfy constitutional due process when setting bail. Specifically, it found that,
Due process requires: (1) notice that the financial and other resource information Pretrial Services officers collect is for the purpose of determining a misdemeanor arrestee’s eligibility for release or detention; (2) a hearing at which the arrestee has an opportunity to be heard and to present evidence; (3) an impartial decisionmaker; (4) a written statement by the factfinder as to the evidence relied on to find that a secured financial condition is the only reasonable way to assure the arrestee’s appearance at hearings and law-abiding behavior before trial; and (5) timely proceedings within 24 hours of arrest.5 The County challenges these requirements on appeal. We find some of their objections persuasive. As this court has noted, the quality of procedural protections owed a defendant is evaluated on a “spectrum” based on a case-by-case evaluation of the liberty interests and governmental burdens at issue. Meza, 607 F.3d at 408–09. We note that the liberty interest of the arrestees here are particularly important: the right to pretrial liberty of those accused (that is, presumed innocent) of misdemeanor crimes upon the court’s receipt of reasonable assurance of their return. See id. So too, however, is the government’s interest
5 The district court analyzed new efforts by both the County and State to improve their bail-setting procedures. We need not review its discussion here. We note, however, that we agree with its conclusions that the County’s proposed remedies, which are beginning to be implemented, fail to address the constitutional violations at issue. We also agree that the changes proposed by the State would provide a more adequate remedy. Should these provisions become law, the need for the court’s intervention must be revisited.
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No. 17-20333 in efficiency. After all, the accused also stands to benefit from efficient processing because it “allow[s] [for his or her] expeditious release.” United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983); cf. Cty. of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991) (noting that defendants might be disserved by adding procedural complexity into an already complicated system). The sheer number of bail hearings in Harris County each year—according to the court, over 50,000 people were arrested on misdemeanor charges in 2015—is a significant factor militating against overcorrection.
With this in mind, we make two modifications to the district court’s conclusions regarding the procedural floor. First, we do not require factfinders to issue a written statement of their reasons. While we acknowledge “the provision for a written record helps to insure that [such officials], faced with possible scrutiny by state officials . . . [and] the courts . . . will act fairly,” Wolff v. McDonnell, 418 U.S. 539, 565 (1974), such a drastic increase in the burden imposed upon Hearing Officers will do more harm than good. We decline to hold that the Constitution requires the County to produce 50,000 written opinions per year to satisfy due process. Cf. United States v. McConnell, 842 F.2d 105, 110 (5th Cir. 1988) (concluding that, under the Bail Reform Act of 1984, the “court must [merely] explain its reasons for concluding that the particular financial requirement is a necessary part of the conditions for release” when setting a bond that a detainee cannot pay). Moreover, since the constitutional defect in the process afforded was the automatic imposition of pretrial detention on indigent misdemeanor arrestees, requiring magistrates to specifically enunciate their individualized, case-specific reasons for so doing is a sufficient remedy.
Second, we find that the district court’s 24-hour requirement is too strict under federal constitutional standards. The court’s decision to impose a 24hour limit relied not on an analysis of present Harris County procedures and
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No. 17-20333 their current capacity; rather, it relied on the fact that a district court imposed this requirement thirty years ago (that is, prior to modern advancements in computer and communications technology). See Sanders v. City of Hous., 543 F. Supp. 694 (S.D. Tex. 1982). But Sanders’s holding, which was not grounded in procedural due process but in the Fourth Amendment, relied on the Supreme Court opinion, Gerstein, 420 U.S. 103. Id. at 699. And Gerstein was later interpreted as establishing a right to a probable cause hearing within 48 hours. McLaughlin, 500 U.S. at 56–57. Further, McLaughlin explicitly included bail hearings within this deadline. Id. at 58.
We conclude that the federal due process right entitles detainees to a hearing within 48 hours. Our review of the due process right at issue here counsels against an expansion of the right already afforded detainees under the Fourth Amendment by McLaughlin. We note in particular that the heavy administrative burden of a 24-hour requirement on the County is evidenced by the district court’s own finding: the fact that 20% of detainees do not receive a probable cause hearing within 24 hours despite the statutory requirement. Imposing the same requirement for bail would only exacerbate such issues.
The court’s conclusion was also based on its interpretation of state law. But while state law may define liberty interests protected under the procedural due process clause, it does not define the procedure constitutionally required to protect that interest. See Wansley v. Miss. Dep’t of Corr., 769 F.3d 309, 313 (5th Cir. 2014) (noting that state law cannot serve as “the source of . . . process due”); Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (“[W]here a liberty . . . interest is infringed, the process which is due under the United States Constitution is that measured by the due process clause, not that called for by state regulations. Mere failure to accord the procedural protections called for by state law or regulation does not of itself amount to a denial of due process.” (internal citation omitted)). Accordingly, although the parties contest whether
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No. 17-20333 state law imposes a 24- or 48-hour requirement, we need not resolve this issue because state law procedural requirements do not impact our federal due process analysis.
The district court’s definition of ODonnell’s liberty interests is too broad, and the procedural protections it required are too strict. Nevertheless, even under our more forgiving framework, we agree that the County procedures violate ODonnell’s due process rights.
B. Equal Protection The district court held that the County’s bail-setting procedures violated the equal protection clause of the Fourteenth Amendment because they treat otherwise similarly-situated misdemeanor arrestees differently based solely on their relative wealth. The County makes three separate arguments against this holding. It argues: (1) ODonnell’s disparate impact theory is not cognizable under the equal protection clause, see Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997); (2) rational basis review applies and is satisfied; (3) even if heightened scrutiny applies, it is satisfied. We disagree. First, the district court did not conclude that the County policies and procedures violated the equal protection clause solely on the basis of their disparate impact. Instead, it found the County’s custom and practice purposefully “detain[ed] misdemeanor defendants before trial who are otherwise eligible for release, but whose indigence makes them unable to pay secured financial conditions of release.” The conclusion of a discriminatory purpose was evidenced by numerous, sufficiently supported factual findings, including direct evidence from bail hearings. This custom and practice resulted in detainment solely due to a person’s indigency because the financial conditions for release are based on predetermined amounts beyond a person's ability to pay and without any “meaningful consideration of other possible alternatives.” Rainwater, 572 F.2d at 1057. Under this circuit’s binding
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No. 17-20333 precedent, the district court was therefore correct to conclude that this discriminatory action was unconstitutional. Id. at 1056–57 (noting that pretrial “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible” under both “due process and equal protection requirements”); see also Griffin v. Illinois, 351 U.S. 12, 18 (1956) (noting that the indigent are protected by equal protection “at all stages of [criminal] proceedings”). Because this conclusion is sufficient to decide this case, we need not determine whether the equal protection clause requires a categorical bar on secured money bail for indigent misdemeanor arrestees who cannot pay it.
Second, the district court’s application of intermediate scrutiny was not in error. It is true that, ordinarily, “[n]either prisoners nor indigents constitute a suspect class.” Carson v. Johnson, 112 F.3d 818, 821–22 (5th Cir. 1997). But the Supreme Court has found that heightened scrutiny is required when criminal laws detain poor defendants because of their indigence. See, e.g., Tate v. Short, 401 U.S. 395, 397–99 (1971) (invalidating a facially neutral statute that authorized imprisonment for failure to pay fines because it violated the equal protection rights of indigents); Williams v. Illinois, 399 U.S. 235, 241–42 (1970) (invalidating a facially neutral statute that required convicted defendants to remain in jail beyond the maximum sentence if they could not pay other fines associated with their sentences because it violated the equal protection rights of indigents). Reviewing this case law, the Supreme Court later noted that indigents receive a heightened scrutiny where two conditions are met: (1) “because of their impecunity they were completely unable to pay for some desired benefit,” and (2) “as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973).
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No. 17-20333 We conclude that this case falls into the exception created by the Court. Both aspects of the Rodriguez analysis apply here: indigent misdemeanor arrestees are unable to pay secured bail, and, as a result, sustain an absolute deprivation of their most basic liberty interests—freedom from incarceration. Moreover, this case presents the same basic injustice: poor arrestees in Harris County are incarcerated where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to pay a secured bond. Heightened scrutiny of the County’s policy is appropriate.6 Third, we discern no error in the court’s conclusion that the County’s policy failed to meet the tailoring requirements of intermediate scrutiny. In other words, we will not disturb the court’s finding that, although the County had a compelling interest in the assurance of a misdemeanor detainee’s future appearance and lawful behavior, its policy was not narrowly tailored to meet that interest. The court’s thorough review of empirical data and studies found that the County had failed to establish any “link between financial conditions of release and appearance at trial or law-abiding behavior before trial.” For example, both parties’ experts agreed that the County lacked adequate data to demonstrate whether secured bail was more effective than personal bonds in securing a detainee’s future appearance. Notably, even after analyzing the
6 We acknowledge that the cited Supreme Court cases applied to indigents who were already found guilty. But this court in Rainwater concluded that the distinction between postconviction detention targeting indigents and pretrial detention targeting indigents is one without a difference. We found that, regardless of its timing, “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Rainwater, 572 F.2d at 1056 (citing Williams and Tate). Our conclusion was based on the “punitive and heavily burdensome nature of pretrial confinement” and the fact that it deprives someone who has only been “accused but not convicted of crime” of their basic liberty. Id.; see also Anderson v. Nosser, 438 F.2d 183, 190 (5th Cir. 1971) (noting that the pre-trial detainment of “unconvicted misdemeanants” was a “[p]unitive measure[ ] . . . out of harmony with the presumption of innocence”). We are bound by this analysis.
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No. 17-20333 incomplete data that were available, neither expert discerned more than a negligible comparative impact on detainees’ attendance. Additionally, the court considered a comprehensive study of the impact of Harris County’s bail system on the behavior of misdemeanor detainees between 2008 and 2013. The study found that the imposition of secured bail might increase the likelihood of unlawful behavior. See Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 786–87 (2017) (estimating that the release on personal bond of the lowest-risk detainees would have resulted in 1,600 fewer felonies and 2,400 fewer misdemeanors within the following eighteen months). These findings mirrored those of various empirical studies from other jurisdictions.
The County, of course, challenges these assertions with empirical studies of its own. But its studies at best cast some doubt on the court’s conclusions. They do not establish clear error. We are satisfied that the court had sufficient evidence to conclude that Harris County’s use of secured bail violated equal protection.
In sum, the essence of the district court’s equal protection analysis can be boiled down to the following: take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent. Applying the County’s current custom and practice, with their lack of individualized assessment and mechanical application of the secured bail schedule, both arrestees would almost certainly receive identical secured bail amounts. One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The poor arrestee, by contrast, must bear the brunt of all of these, simply because
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No. 17-20333 he has less money than his wealthy counterpart. The district court held that this state of affairs violates the equal protection clause, and we agree.
V. Having largely affirmed the district court’s determinations that constitutional violations occurred, we turn to the court’s remedy. When crafting an injunction, district courts are guided by the Supreme Court’s instruction that “the scope of injunctive relief is dictated by the extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). A district court abuses its discretion if it does not “narrowly tailor an injunction to remedy the specific action which gives rise to the order.” John Doe # 1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004). Thus, an injunction must be vacated if it “fails to meet these standards” and “is overbroad.” Id. “The broadness of an injunction refers to the range of proscribed activity . . . . [and] is a matter of substantive law.” U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236, 1246 n.19 (5th Cir. 1975). The County argues that, even if the panel credits every one of the district court’s factual findings and conclusions of law, the injunction it ultimately crafted is still overbroad. We agree. There is a significant mismatch between the district court’s procedure-focused legal analysis and the sweeping injunction it implemented. The fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical application of the secured bail schedule without regard for the individual arrestee’s personal circumstances. Thus, the equitable remedy necessary to cure the constitutional infirmities arising under both clauses is the same: the County must implement the constitutionally-necessary procedures to engage in a caseby-case evaluation of a given arrestee’s circumstances, taking into account the various factors required by Texas state law (only one of which is ability to pay).
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No. 17-20333 These procedures are: notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.
That is not what the preliminary injunction does, however. Rather, it amounts to the outright elimination of secured bail for indigent misdemeanor arrestees. That remedy makes some sense if one assumes a fundamental substantive due process right to be free from any form of wealth-based detention. But, as the foregoing analysis establishes, no such right is in view. The sweeping injunction is overbroad.
We therefore conclude that the district court abused its discretion in crafting an injunction that was not “narrowly tailor[ed] . . . to remedy the specific action which gives rise to the order.” Veneman, 380 F.3d at 818. We will vacate the injunction and remand to allow the court to craft a remedy more finely tuned to address the harm.
The following represents the sort of modification that would be appropriate here, although we leave the details to the district court’s discretion:
With these principles in mind, the court will order the following relief, to take effect within 30 days, unless those enjoined move for and show good cause for a reasonable, brief extension. Any motions for extension will be set for prompt hearing and resolution.
• Harris County is enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring that there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties.
• Pretrial Services officers, as County employees and subject to its policies, must verify an arrestee’s ability to pay a prescheduled financial condition of release by an affidavit, and must explain to arrestees the nature and significance of the verification process.
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No. 17-20333
• The purpose of the explanation is to provide the notice due process requires that a misdemeanor defendant’s state constitutional right to be bailable by sufficient sureties is at stake in the proceedings. Pretrial Services may administer either the form of the affidavit currently used to determine eligibility for appointed counsel or the adapted form that Dr. VanNostrand testified was prepared for Pretrial Services to be administered by July 1, 2017, if they comply with the below guidelines. Pretrial Services must deliver completed affidavits to the Harris County Sheriff’s Office before a declarant’s probable cause hearing.
• The affidavit must give the misdemeanor arrestee sufficient opportunity to declare under penalty of perjury, after the significance of the information has been explained, the maximum amount of financial security the arrestee would be able to post or pay up front within 24 hours of arrest. The affidavit should ask the arrestee to provide details about their financial situation sufficient to help the County make reliable determinations regarding the amount of bail that would provide sufficient sureties, including: 1) arrestee and spouse’s income from employment, real property, interest and dividends, gifts, alimony, child support, retirement, disability, unemployment payments, public-assistance, and other sources; 2) arrestee and spouse’s employment history for the prior two years and gross monthly pay; 3) arrestee and spouse’s present cash available and any financial institutions where cash is held; 4) assets owned, e.g., real estate and motor vehicles; 5) money owed to arrestee and spouse; 6) dependents of arrestee and spouse, and their ages; 7) estimation of itemized monthly expenses; 8) taxes and legal costs; 9) expected major changes in income or expenses; 10) additional information the arrestee wishes to provide to help explain the inability to pay. The question is neither the arrestee’s immediate ability to pay with cash on hand, nor what assets the arrestee could eventually produce after a period of pretrial detention. The question is what amount the arrestee could reasonably pay within 24 hours of his or her arrest, from any source, including the contributions of family and friends.
• The purpose of this requirement is to provide a better, easier, and faster way to get the information needed to determine a misdemeanor defendant’s ability to pay. The Hearing Officers and County Judges testified that they presently do not know who has the ability to pay.
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No. 17-20333
The affidavit can be completed within 24 hours after arrest; the current process of verifying references by phone extends for days after arrest.
• The court does not order relief against the Hearing Officers or against the County Judges in their judicial or legislative capacities.
• Misdemeanor defendants who are not subject to: (1) formal holds preventing their release from detention; (2) pending mental-health evaluations to determine competency; or (3) pretrial preventive detention orders for violating a condition of release for a crime of family violence, have a constitutionally protected state-created liberty interest in being bailable by sufficient sureties before trial. If a misdemeanor defendant has executed an affidavit showing an inability to pay prescheduled money bail and has not been released either: (1) on an unsecured personal bond with nonfinancial conditions of release; or (2) on a secured money bond for which the defendant could pay a commercial surety’s premium, as indicated on the affidavit, then the defendant is entitled to a hearing within 48 hours of arrest in which an impartial decision-maker conducts an individual assessment of whether another amount of bail or other condition provides sufficient sureties. At the hearing, the arrestee must have an opportunity to describe evidence in his or her favor, and to respond to evidence described or presented by law enforcement. If the decision-maker declines to lower bail from the prescheduled amount to an amount the arrestee is able to pay, then the decisionmaker must provide written factual findings or factual findings on the record explaining the reason for the decision, and the County must provide the arrestee with a formal adversarial bail review hearing before a County Judge. The Harris County Sheriff is therefore authorized to decline to enforce orders requiring payment of prescheduled bail amounts as a condition of release for said defendants if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided. All nonfinancial conditions of release ordered by the Hearing Officers, including protective orders, drug testing, alcohol intake ignition locks, or GPS monitoring, will remain in effect.
• The purpose of this requirement is to provide timely protection for the state-created liberty interest in being bailable by sufficient sureties
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No. 17-20333
and to prevent the automatic imposition of prescheduled bail amounts without an adequate process for ensuring that there is individualized consideration of whether another amount or condition provides sufficient sureties.
• To enforce the 48-hour timeline, the County must make a weekly report to the district court of misdemeanor defendants identified above for whom a timely individual assessment has not been held. The County must also notify the defendant’s counsel and/or next of kin of the delay. A pattern of delays might warrant further relief from the district court. Because the court recognizes that the County might need additional time to comply with this requirement, the County may propose a reasonable timeline for doing so.
• The purpose of this requirement is to give timely protection to the state-created liberty interest in being bailable by sufficient sureties by enforcing federal standards indicating that 48 hours is a reasonable timeframe for completing the administrative incidents to arrest. The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention.
• For misdemeanor defendants who are subject to formal holds and who have executed an affidavit showing an inability to pay the prescheduled financial condition of release, the Sheriff must treat the limitations period on their holds as beginning to run the earliest of: (1) after the probable cause hearing; or (2) 24 hours after arrest. The purpose of this requirement is to ensure that misdemeanor defendants are not prevented from or delayed in addressing their holds because they are indigent and therefore cannot pay a prescheduled financial condition of release.
• Misdemeanor defendants who do not appear competent to execute an affidavit may be evaluated under the procedures set out in the Texas Code of Criminal Procedure Article 16.22. If competence is found, the misdemeanor defendant is covered by the relief the court orders, with the exception that the 48-hour period begins to run from the finding of competence rather than from the time of arrest. As under Article 16.22, nothing in this order prevents the misdemeanor arrestee from
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No. 17-20333 being released on secured bail or unsecured personal bond pending the evaluation.
VI. For the forgoing reasons, we AFFIRM the district court’s findings of fact. We AFFIRM its conclusions of law except its conclusion that the County Sheriff may be sued under § 1983 and its determination of the specific procedural protections owed under procedural due process. On those issues, we REVERSE the district court’s conclusions. Accordingly, we DISMISS the Sheriff. We VACATE the preliminary injunction as overbroad and REMAND to the district court to craft a revised injunction—one that is narrowly tailored to cure the constitutional deficiencies the district court properly identified. But we also STAY the vacatur pending implementation of the revised injunction, so as to maintain a stable status quo.
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Case: 17-20333 Document: 00514347604 Page: 1 Date Filed: 02/14/2018

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

February 14, 2018

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW

Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

No. 17-20333

Maranda ODonnell, et al v. Harris County, Texas, et al USDC No. 4:16-CV-1414 USDC No. 4:16-CV-1436

--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)

FED R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.

Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that

Case: 17-20333 Document: 00514347604 Page: 2 Date Filed: 02/14/2018
this information was given to your client, within the body of your motion to withdraw as counsel.
The judgment entered provides that each party bear its own costs on appeal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________ Erica A. Benoit, Deputy Clerk
Enclosure(s)
Ms. Rebecca Bernhardt Mr. Samuel Jacob Brooke Mr. Jared Brandon Caplan Mr. Paul D. Clement Mr. Charles Justin Cooper Ms. Katharine D. David Ms. Nicole Wignall DeBorde Ms. Sheryl Anne Falk Mr. Murray Jules Fogler Mr. Arpit Kumar Garg Mr. Michael Gervais Ms. Katherine R. Goldstein Ms. Janet Martini Himmel Mr. Joseph David Hughes Mr. Alec George Karakatsanis Mr. Scott A. Keller Mr. John R. Keville Mr. Michael Kirk Mrs. Linda A. Klein Mr. Edmund Gerard LaCour Jr. Mr. Andrew Lawrence Mr. Neal Manne Mr. Jonathan Lee Marcus Mr. William C. Marra Ms. Mary B. McCord Ms. Morgan Mallory Menchaca Mr. Philip J. Morgan Mr. John E. O'Neill Mr. Stacy R. Obenhaus Mr. John David Ohlendorf Mr. Bradley S. Phillips Mr. Carter Glasgow Phillips Mr. Thomas Royal Phillips Ms. Susanne Ashley Pringle Mr. Harold Reeves Ms. Mary Margaret Roark Mr. James Bradley Robertson Ms. Elizabeth Anne Rossi Mr. Ilya Shapiro Mr. Jeffrey William Sheehan Mr. Mike Anthony Stafford

Case: 17-20333 Document: 00514347604 Page: 3 Date Filed: 02/14/2018
Mrs. Michelle Simpson Tuegel Mr. George Allan Van Fleet Mr. Daniel Volchok Mr. Seth Paul Waxman Ms. Alexandra Giselle White Ms. Elizabeth Bonnie Wydra Mr. Evan A. Young Ms. Krisina Janaye Zuniga

 
 Case 4:16-cv-01414 Document 707 Filed on 11/21/19 in TXSD
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 55
United States District Court Southern District of Texas
ENTERED
November 21, 2019
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al.,

§

on behalf of themselves and all others

§

similarly situated,

§

§

Plaintiffs,

§

§

VS.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

§

Defendants.

§

CIVIL ACTION NO. H-16-1414

MEMORANDUM AND OPINION APPROVING THE PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT AND GRANTING THE MOTION TO AUTHORIZE COMPENSATION OF CLASS COUNSEL

I, Maranda Lynn ODonnell, am a 22-year-old woman. I was arrested yesterday . . . for a misdemeanor offense. . . . I was never asked if I could afford my bail. . . . I have one 4-year-old daughter. . . . I live paycheck to paycheck[.] I’m worried about whether my job will still be there when I get out. I cannot afford to buy my release from jail.

Maranda Lynn ODonnell, Declaration Attached to Complaint, May 19, 2016. (Docket Entry No.

3-2).

Twenty years ago, not quite one-third of [Texas’s] jail population was awaiting trial. Now the number is three-fourths. Liberty is precious to Americans, and any deprivation must be scrutinized. To protect public safety and ensure that those accused of a crime will appear at trial, persons charged with breaking the law may be detained before their guilt or innocence can be adjudicated, but that detention must not extend beyond its justifications. Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing. Though presumed innocent, they lose their jobs and families, and are more likely to re-offend. And if all this weren’t bad enough, taxpayers must shoulder the cost—a staggering $1 billion per year.

The Honorable Nathan L. Hecht, Chief Justice of the Texas Supreme Court, Remarks Delivered to

the 85th Texas Legislature, Feb. 1, 2017.

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For more than three years, the parties have litigated constitutional challenges to Harris County’s policies and practices of requiring indigent defendants accused of misdemeanors to post secured money bail pending trial. Maranda Lynn ODonnell’s account is from a handwritten statement filed at the beginning of this case. Chief Justice Hecht of the Texas Supreme Court described the state of money bail in Texas during the first year of the lawsuit. Their words have helped inspire reform, not just in Texas, but all over the country.
Chief Justice Hecht’s description does not apply to the Harris County bail system as well today as it did in 2017, thanks to Amended Local Rule 9. Going forward, his message remains vital. No bail system can avoid all the risks. No system can guarantee that all those accused of misdemeanors who are released on personal bonds—rich or poor—will appear for hearings or trial, or that they will commit no crimes on release. No system can guarantee that all those accused of misdemeanors who are detained pending trial—rich or poor—should have been detained. But Harris County—which operates the third-largest jail system in the country—can stop systematically depriving indigent misdemeanor defendants of their constitutionally-protected rights by detaining them simply because they cannot afford to post money bail. The class settlement and consent decree the parties ask this court to approve and enter continue the work toward a constitutional, effective pretrial bail system for all defendants charged with petty offenses. The court grants the parties’ motion to enter the consent decree and approve the class settlement. The court also grants the plaintiffs’ unopposed motion to authorize compensation of class counsel.
The court reached its decision based on careful consideration of the motions, the objections, amicus briefs, and responses; the terms of the proposed consent decree and settlement agreement; the voluminous record; the testimony and nonparty statements at the final fairness hearing; and the
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applicable law. The public safety and public resource concerns raised by amicus briefs, objectors, and nonparty speakers at the final fairness hearing are important and have been fully aired and addressed.
Because the court thoroughly examined the record before issuing its Opinion giving preliminary approval, and because those objecting raised few new arguments at the final fairness hearing, this Opinion includes much of the earlier Opinion. The court has, however, considered all the arguments with fresh eyes, in light of all the filings and the record.
The reasons for the rulings are explained in detail below. I. The Litigation and Proposed Class Settlement
A. Background In May 2016, Maranda Lynn ODonnell filed a class-action complaint against Harris County, the Harris County Sheriff, and five Harris County Hearing Officers. (Docket Entry No. 3). Seeking injunctive and declaratory relief under 42 U.S.C. § 1983, ODonnell alleged that Harris County’s postarrest incarceration policies and practices imposed a “wealth-based detention system” of keeping misdemeanor defendants in jail only because they could not pay secured money bail, while those who could pay were promptly released, in violation of the Fourteenth Amendment’s Equal Protection and Due Process Clauses. (Id. at ¶¶ 75, 121). In September 2016, ODonnell amended her complaint, consolidating the case with the lawsuits of Robert Ryan Ford and Loetha McGruder and adding 16 Harris County Criminal Court at Law Judges as defendants. (Docket Entry No. 54). The defendants moved to dismiss for failure to state a claim and under the Younger abstention doctrine. (Docket Entry Nos. 61, 80, 83, 84, 85). In December 2016, the court granted and denied in part the defendants’ motions to dismiss. ODonnell v. Harris Cty., 227 F. Supp. 3d 706, 715 (S.D. Tex. 2016). The court dismissed the
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personal-capacity claims against the Sheriff and County Judges and the official-capacity claim against the Hearing Officers. Id. The court denied the motions to dismiss the claim against Harris County and the official-capacity claims against the Sheriff and Judges. Id. The Hearing Officers did not move to dismiss the personal-capacity claims against them, and those claims proceeded. Id.
In January 2017, the plaintiffs filed amended motions for class certification and preliminary injunctive relief. (Docket Entry Nos. 143, 146). In March 2017, the court held an eight-day evidentiary hearing, at which many witnesses testified and the parties submitted extensive exhibits. (Docket Entry Nos. 222, 223, 228–230, 246, 247, 251). In April 2017, the court granted the plaintiffs’ motions for class certification and injunctive relief. (Docket Entry Nos. 302, 303). The court certified a class under Federal Rule of Civil Procedure 23(b)(2) of:
[a]ll Class A and Class B misdemeanor arrestees who are detained by Harris County from the date of this order through the final resolution of this case, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on the secured money bail because of indigence. ODonnell v. Harris Cty., No. H-16-1414, 2017 WL 1542457, at *1 (S.D. Tex. Apr. 28, 2017); (Docket Entry No. 303 at 1). The court’s April 28, 2017, Memorandum and Opinion made extensive findings of fact and conclusions of law, including the following:  Harris County has a consistent and systematic policy and practice of imposing
secured money bail as de facto orders of pretrial detention in misdemeanor cases.  These de facto detention orders effectively operate only against the indigent, who would be released if they could pay at least a bondsman’s premium, but who cannot. Those who can pay are released, even if they present similar risks of nonappearance or of new arrests.  Harris County has an inadequate basis to conclude that releasing misdemeanor defendants on secured financial conditions is more effective to assure a
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defendant’s appearance or law-abiding behavior before trial than release on unsecured or nonfinancial conditions, or that secured financial conditions of release are reasonably necessary to assure a defendant’s appearance or to deter new criminal activity before trial.  Harris County’s policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution. ODonnell v. Harris Cty., 251 F. Supp. 3d 1052, 1059–60 (S.D. Tex. 2017); (Docket Entry No. 302 at 7). The court found that “40 percent of all Harris County misdemeanor arrestees every year [were] detained until case disposition” because, among other reasons, Hearing Officers mechanically applied a bail schedule that failed to consider an arrestee’s ability to pay. ODonnell, 251 F. Supp. 3d at 1095, 1130–31 (from January 2015 to January 2017, Harris County Hearing Officers “adhered to the prescheduled bail amount stated on the charging documents in 88.9 percent of all misdemeanor cases”). The court entered a preliminary injunction order against the defendants and denied their motion to stay. ODonnell v. Harris Cty., No. H-16-1414, 2017 WL 1735453, at *1–3 (S.D. Tex. Apr. 28, 2017); (Docket Entry Nos. 304, 305). The defendants appealed. The Fifth Circuit affirmed in part and vacated in part. ODonnell v. Harris Cty., 882 F.3d 528, 549 (5th Cir. 2018), opinion withdrawn and superseded on reh’g sub nom. ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018). The Fifth Circuit upheld this court’s factual findings and affirmed the legal “conclusion that ODonnell established a likelihood of success on the merits of [her] claims that [Harris] County’s policies violate procedural due process and equal protection.” ODonnell, 892 F.3d at 152. The Fifth Circuit ruled that the April 2017 preliminary injunction order was overbroad as to one aspect and instructed this court to more narrowly tailor the relief. Id. at 163–64.
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On remand, after hearing oral argument and receiving proposals from the parties, this court issued a Memorandum and Opinion and an amended preliminary injunction order in June 2018. ODonnell v. Harris Cty., 321 F. Supp. 3d 763 (S.D. Tex. 2018). In July 2018, 14 of the 16 County Judges appealed the amended preliminary injunction order.
The 14 County Judges moved to stay four sections of the amended preliminary injunction order. A divided Fifth Circuit motions panel granted the motion and stayed the challenged provisions pending the appeal. ODonnell v. Goodhart, 900 F.3d 220, 223 (5th Cir. 2018).
In June and July 2018, the parties conducted extensive discovery, filed cross-motions for summary judgment, and prepared for trial on a permanent injunction, while briefing the merits of the appeal from the court’s amended preliminary injunction order. (Docket Entry Nos. 400, 429, 432).
On November 6, 2018, 15 of the 16 County Judges named as defendants lost their reelection bids. Voters also elected two new members of the Harris County Commissioners Court. Because the plaintiffs had sued the County Judges in their official capacities, the newly elected judges were substituted as parties on January 1, 2019. (Docket Entry No. 548). On January 7, all the County Judges voluntarily dismissed the appeal of the amended preliminary injunction. That same day, the Fifth Circuit Clerk “entered an order, issued as the mandate, stating that . . . the appeal is dismissed . . . pursuant to appellants’ motion.” ODonnell v. Salgado, 913 F.3d 479, 481 (5th Cir. 2019) (per curiam).
On January 25, the parties jointly submitted Amended Local Rule 9 of the Harris County Criminal Courts at Law. (Docket Entry No. 557). Amended Rule 9 rescinded Harris County’s “secured money bail schedule and instead require[s] that the initial, post-arrest release-or-detention decision be made on the basis of the charged offense.” (Docket Entry No. 557-2 at 1). The
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amended rule also requires “the prompt release of all misdemeanor arrestees on a personal bond except for five categories of arrestees.” (Id. (quotation omitted)). If a misdemeanor arrestee is not released promptly on a personal bond, then that person “must receive a bail hearing . . . [within] 48 hours after arrest.” (Docket Entry No. 701-2 at 18).
On February 1, the court reviewed and approved the implementation of the amended rule, which went into effect on February 16. (Docket Entry No. 567 at 6–7; Docket Entry No. 617 at 9). At the February 1 hearing, the parties informed the court that they were actively pursuing settlement negotiations. (Docket Entry No. 563). On April 8, the court granted the parties’ joint motion to dismiss the Hearing Officers as defendants in the case. (Docket Entry No. 587).
On July 25, the parties reported that they had reached a resolution and had submitted a proposed consent decree and settlement agreement to the Harris County Commissioners Court for approval. (Docket Entry No. 615). On July 30, a majority of the Commissioners approved the proposed consent decree and settlement agreement. The parties jointly moved for preliminary approval on August 1. (Docket Entry No. 617). The parties also moved for approval of a proposed class notice, permission to issue the notice, and attorneys’ fees. (Id.; Docket Entry No. 618).
In August, several individuals and organizations filed amicus briefs or letters opposing all or parts of the proposed consent decree. The objectors included the Harris County Deputies’ Organization (Fraternal Order of Police Lodge #39); the Professional Bondsmen of Harris County; Harris County Commissioner Steve Radack; Equal Justice Now; Crime Stoppers of Houston, Inc.; Pasadena, Texas Police Chief Josh Bruegger; Harris County Commissioner R. Jack Cagle; the Harris County Domestic Violence Coordinating Council; Harris County District Attorney Kim Ogg; the Houston Area Police Chiefs Association; and the Texas School District Police Chiefs’ Association. (Docket Entry Nos. 629, 631-2, 634-1, 635-1, 636–39, 641-1, 646-1). To allow the
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parties to respond, and to enable the court to fully consider the objections, the court extended the deadlines for class notice and objections and reset the final fairness hearing. (Docket Entry No. 644).
On August 30, the parties filed their responses to the amici and objectors. (Docket Entry Nos. 647–49). The responses were filed shortly after 11 current and former Harris County Judges were reprimanded for requiring indigent misdemeanor defendants to post money bail in disregard of the rules and law governing personal pretrial bonds in misdemeanor cases. Associated Press, Commission: 11 Texas Judges Broke Law by Denying Free Bail, Aug. 30, 2019, https://apnews.com/736b81ac8406449f8be51f71cdd5cbbb [https://perma.cc/Z7SP-XMN6].
On September 5, the court preliminarily approved the proposed settlement agreement, consent decree, and class notice. (Docket Entry No. 651). The parties moved for final approval on September 27, submitting a revised consent decree that clarified provisions identified in amicus briefs as potentially conflicting with provisions of state law. (Docket Entry No. 657). The revisions made clear that the consent decree must be applied consistent with Texas law. (Id. at 2).1
On October 28, the court held a final fairness hearing, inviting both parties and nonparties to attend and present their views on the proposed consent decree and settlement. (Docket Entry Nos. 662, 700). The parties called Harris County Sheriff Ed Gonzalez and Harris County Criminal Court at Law Judges Darrell William Jordan and Franklin Bynum to testify in favor of their joint motion for final approval. Nonparty speakers included: Mr. Andy Kahan, for Crime Stoppers of Houston; Ms. Dianna Williams, for the Texas Advocates for Justice; Kevin Pennell, Esq., for the Professional Bondsmen of Harris County; Mr. Kaleb J. Taylor, a private citizen; Mary Nan
1 On November 4, the parties submitted another revised draft of the proposed consent decree, which remedied two errors in Sections 105 and 110. (Docket Entry No. 701).
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Huffman, Esq., for the Houston Police Officers’ Union; Ms. Koretta Brown, for The Young and the Politics; Mr. Doug Smith, a private citizen; Mr. Carl Davis, for the Houston Society for Change and the Social Action Commission General Board of the African Methodist Episcopal Church; Harris County Commissioner Steve Radack; and Special Litigation Counsel Adam Biggs, for the Office of the Attorney General of Texas. District Attorney Kim Ogg, who had received approval to speak, elected to file written remarks instead, though she attended the hearing in case the court had questions for her. (Docket Entry No. 696; see also Docket Entry No. 665 (statement of intent to appear and supplemental amicus brief)). Judges Bynum and Jordan filed written responses to District Attorney Ogg’s concerns before the hearing. (Docket Entry Nos. 674–75).
The parties’ responses to the objections are amply supported by the extensive record evidence and governing law. As explained below, the amici and nonparty objectors do not identify an adequate basis to deny final approval of the proposed settlement and consent decree.
B. The Proposed Class Settlement 1. The Proposed Consent Decree
The proposed consent decree requires Harris County to carry out a broad range of bail reforms. Harris County must implement, comply with, enforce, and train2 certain officials on Amended Local Rule 9, which provides that “[a]ll misdemeanor arrestees must be released on a personal bond or on non-financial conditions as soon as practicable after arrest, except” individuals arrested:
 and charged with domestic violence, violating a protective order in a domestic violence case, or making a terroristic threat against a family or household member;
 and charged with assault;
2 Harris County must train on an ongoing basis all Criminal Court at Law Judges and the defendants’ agents responsible for implementing Amended Local Rule 9. (Docket Entry No. 701-2 at 37).
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 and charged with a second or subsequent driving-under-the-influence offense;  and charged with a new offense while on pretrial release;  on a warrant issued after a bond revocation or bond forfeiture;  or individuals arrested while on any type of community supervision for a Class A or B
misdemeanor or a felony. (Docket Entry No. 701-2 at 17–18) (citing sections of the Texas Penal Code).
A misdemeanor “arrestee who is not promptly released on a personal bond . . . must receive a bail hearing . . . [within] 48 hours after arrest.” (Id. at 18). An arrestee subject to a bail hearing must be represented by counsel—either a private attorney or a Harris County Public Defender. (Id. at 19). The Hearing Officer must give the arrestee adequate notice and “an opportunity to be heard concerning any factors relevant to release, detention, and the availability of alternative conditions.” (Id. at 20–21). The arrestee must also have “an opportunity at the hearing to present evidence and make argument[s] concerning those issues.” (Id. at 21). If secured money bail is imposed as a release condition, the Hearing Officer must find on the record, by clear and convincing evidence, that: (1) “the arrestee has the ability at the time of the hearing to pay the amount required”; or (2) “no less-restrictive condition or combination of conditions could reasonably assure” community safety or prevent flight from prosecution. (Id. at 21–22). The arrestee may seek review of a Hearing Officer’s decision in the Harris County Criminal Court at Law. (Id. at 22–23).
Hearing Officers may not require indigent misdemeanor arrestees to pay “any fee associated with a personal bond or an unsecured bond, or the cost of a non-financial condition of release, including . . . a supervision fee.” (Id. at 22). And the Harris County Sheriff “must not enforce any order requiring secured money bail that was imposed [before] an individualized hearing.” (Id. at 23).
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Consistent with Amended Local Rule 9, Harris County must “provide the funding and staffing necessary” for the Public Defender’s Office to adequately represent all misdemeanor arrestees at bail hearings. (Id. at 25). Harris County must also “provide defense counsel access to early and effective support staff” to assist “in gathering and presenting information relevant to the bail decision.” (Id.). The consent decree requires Harris County to provide access to, fund, and disclose the names of qualified support staff to assist court-appointed counsel. (Id.). In addition, the consent decree requires Harris County to retain an indigent-defense expert “to evaluate the County’s current misdemeanor indigent defense systems and determine the County’s need for essential support staff . . . to promote . . . effective indigent defense.” (Id. at 26).
To reduce failures to appear after pretrial release, the defendants must give eligible misdemeanor arrestees “written notice of the date, time, and location of their scheduled court appearance.” (Id. at 27). The defendants must “update any form [used] to provide written notice of scheduled court dates to incorporate evidence-based design practices for effectively reducing nonappearance.” (Id.). The defendants must also: (1) “develop and maintain a website where misdemeanor arrestees can access their court dates, times, location, [and] attorney information”; and (2) “adopt text-message-based and telephone-based” services to remind misdemeanor arrestees about scheduled court appearances. (Id. at 29, 33).
The proposed consent decree includes other policies and procedures designed to reduce failures to appear. The decree includes the following provisions:
 A misdemeanor arrestee is not required to appear in court within 72 hours of release for proceedings in the case for which they were arrested.
 The Harris County Criminal Court at Law Judges must hold “Open Hours Court” at least one day each week, and a misdemeanor arrestee who missed a scheduled court appearance may attend Open Hours Court to reschedule the missed appearance, “subject to the other provisions in [the] Consent Decree.”
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 A misdemeanor arrestee may waive appearance at any regular setting before or during the setting, and an arrestee who has not waived appearance may reschedule any appearance at least twice before the hearing.
 If a misdemeanor arrestee fails to appear, a warrant will not issue if the arrestee appears in the assigned Harris County Criminal Court or in Open Hours Court to reschedule the appearance before “close of business on the day of Open Hours Court of the week following the missed setting.”
 A warrant may issue only if a Harris County Criminal Court at Law Judge finds that there was no good cause for failing to appear, “consistent with Texas state law.”
 A misdemeanor arrestee subject to a warrant for failing to appear may appear in Open Hours Court to reschedule the hearing. “In the absence of other bases for the misdemeanor arrestee’s arrest,” and if the hearing was a regular or first setting, the Harris County Criminal Court at Law Judge must recall the warrant. If the hearing was a required appearance, the arrestee may not be taken into custody unless the Harris County Criminal Court at Law Judge finds that the arrestee had actual notice of the hearing and that there was no good cause for failing to appear.
 Any misdemeanor arrestee subject to a warrant for failing to appear that was issued before January 1, 2019, may appear at Open Hours Court or in the assigned Harris County Criminal Court to have the warrant recalled and to schedule a new hearing date.
(Id. at 34–36). In addition, Harris County must “study and seek to mitigate the primary wealth-
based causes of nonappearance among misdemeanor arrestees” and “allocate $250,000 annually,
beginning in Fiscal Year 2020–21, toward assisting . . . indigent misdemeanor arrestees in making
court appearances.” (Id. at 30–31).
The consent decree requires Harris County to collect, study, and make publicly available
data about:
 Harris County’s compliance with the consent decree;
 pretrial release and detention decisions relating to misdemeanor arrestees;
 Amended Local Rule 9’s effect on misdemeanor arrestees’ appearance rates;
 demographic and socioeconomic information as to each misdemeanor arrestee; and
 Harris County’s misdemeanor bail system from 2009 to the present.
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(Id. at 38–43). Harris County must generate, and publish online, a report every 60 days on the proposed consent decree’s implementation. (Id. at 41–43). Harris County must also make available online information related to this lawsuit and to the implementation of the consent decree, including the policies and procedures adopted under the consent decree. (Id. at 43–44).
An independent monitor the parties jointly select will oversee Harris County’s compliance with the consent decree for seven years. (Id. at 44, 46). The monitor will conduct audits, reviews, and assessments “to determine whether the Consent Decree has been implemented as required.” (Id. at 45). Harris County must make the monitor’s reports publicly available. (Id. at 47–48).
Finally, Harris County must hold at least two public meetings each year to “report on [the] implementation of the Consent Decree,” and to give community members an opportunity to comment and ask questions about Harris County’s criminal justice system. (Id. at 43–44). The monitor and representatives of Harris County, the Sheriff, and the Criminal Court Judges must attend the meetings. (Id. at 44).
2. The Proposed Settlement Agreement The proposed settlement agreement states that the parties “agree to file a joint motion seeking approval of the Consent Decree to resolve all of [the] Plaintiffs’ claims.” (Docket Entry No. 617-2 at 1). The terms are summarized above. The agreement also addresses fees and costs.3 Harris County agrees to pay the following attorneys’ fees and costs:  $3,725,231.00 in fees and $114,832.54 in costs to Civil Rights Corps (though Civil
Rights Corps, after exercising billing discretion after the settlement agreement was
3 The Memorandum and Opinion on preliminary approval noted “some relatively minor discrepancies in these fee amounts,” which the parties clarified in their motion for final approval. (Docket Entry No. 651 at 42; id. at 42 n.30; Docket Entry No. 657 at 3–4).
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signed, requests only $3,716,531.00 (Docket Entry No. 618 at 1; Docket Entry No. 657 at 3));  $2,161,262.00 in fees (to be forgone) and $30,214.86 in costs to Susman Godfrey L.L.P.;  $632,453.00 in fees to Wilmer Cutler Pickering Hale and Dorr LLP; and  $182,715.90 in fees and $5,378.00 in costs to the Texas Fair Defense Project. (Docket Entry No. 617-2 at 1; see also Docket Entry No. 618 at 1–2 (unopposed Rule 54(d)(2) motion to authorize compensation of class counsel)). Harris County also agrees that it will preserve “all filings and evidence submitted in” this litigation. (Docket Entry No. 617-2 at 2). Susman Godfrey agrees to forgo all of its fee “in consideration of [Harris] County’s agreement to allocate [that amount of money] to its own efforts to meet the needs of class members, as described in the Consent Decree.” (Id. at 1). The parties agree that Harris County will not pay any attorneys’ fees or costs incurred in implementing or monitoring the consent decree, but class counsel do “reserve[] the right to seek fees . . . for work performed in connection with contempt proceedings if there is a finding of contempt.” (Id.). The terms are examined under the legal standard and the record. II. The Legal Standard for Approving a Class Settlement Federal Rule of Civil Procedure 23(e) governs court review of proposed class-action settlements. To secure final approval, the proposed settlement must be “fair, reasonable, and adequate.” FED. R. CIV. P. 23(e)(2); United States v. City of New Orleans, 731 F.3d 434, 438–39 (5th Cir. 2013) (a court must find that a consent decree is fair, reasonable, and adequate before entering it as a judgment). Under the 2018 amendments to Rule 23(e)(2), courts look to whether: (A) the class representatives and class counsel have adequately represented the class;
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(B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably relative to each other. FED. R. CIV. P. 23(e)(2); see also 4 NEWBERG ON CLASS ACTIONS § 13:14 (5th ed. 2019) (in adopting the 2018 amendments to Rule 23(e), “Congress essentially codified [the] prior practice”). Common-law criteria preceded the Rule 23 factors. In Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983), the Fifth Circuit laid out six factors for courts to consider in determining the fairness, reasonableness, and adequacy of a proposed class settlement: (1) evidence that the settlement was obtained by fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the litigation and available discovery; (4) the probability of plaintiffs’ prevailing on the merits; (5) the range of possible recovery and certainty of damages; and (6) the opinions of class counsel, class representatives, and absent class members. All Plaintiffs v. All Defendants, 645 F.3d 329, 334 (5th Cir. 2011) (quoting In re Katrina Canal Breaches Litig., 628 F.3d 185, 194–95 (5th Cir. 2010)). Because the Rule 23 and case-law factors overlap, courts in this circuit often combine them in analyzing class settlements. See Hays v. Eaton Grp. Attorneys, LLC, No. 17-88-JWD-RLB, 2019 WL 427331, at *9 (M.D. La. Feb. 4, 2019); Al’s Pals Pet Care v. Woodforest Nat’l Bank, NA, No. H-17-3852, 2019 WL 387409, at *3 (S.D. Tex. Jan. 30, 2019); see also FED. R. CIV. P. 23(e)(2) Committee Notes to 2018 amendments (“The goal of this amendment [to Rule 23(e)(2)]
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is not to displace any [circuit case-law] factor, but rather to focus the court and the lawyers on the core concerns of procedure and substance that should guide the decision whether to approve the proposal.”).
“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Erica P. John Fund, Inc. v. Halliburton Co., No. 02-CV-1152-M, 2018 WL 1942227, at *4 (N.D. Tex. Apr. 25, 2018) (quoting In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1063 (S.D. Tex. 2012)). This presumption reflects the strong public interest in settling class actions. Kincade v. Gen. Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir. Jan. 1981) (“Particularly in class action suits, there is an overriding public interest in favor of settlement.” (quoting Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977))); Hays, 2019 WL 427331, at *8 (“Because the public interest strongly favors the voluntary settlement of class actions, there is a strong presumption in favor of finding the settlement fair, reasonable[,] and adequate.” (quoting In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mex., 910 F. Supp. 2d 891, 930–31 (E.D. La. 2012))). III. Analysis
A. The Rule 23(e)(2) and Reed Factors 1. Whether the Class Representatives and Counsel Have Adequately Represented the Class4
Ample record evidence shows that the class has been ably and diligently represented, in a case filled with legal and factual complexities. Class counsel enabled the plaintiffs to survive challenges to the pleadings in motions to dismiss, objections to class certification, multiple discovery objections and hearings, an eight-day bench trial, and several appeals. Class counsel
4 See FED. R. CIV. P. 23(e)(2)(A).
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obtained consequential injunctive and declaratory relief for the class. ODonnell v. Harris Cty., 892 F.3d at 166–67; ODonnell v. Harris Cty., 321 F. Supp. 3d at 778–85; ODonnell v. Harris Cty., 251 F. Supp. 3d at 1059–60; ODonnell v. Harris Cty., 227 F. Supp. 3d at 715. In January 2019, on the defendants’ motion, the Fifth Circuit dismissed the appeal of this court’s amended preliminary injunction order. (Docket Entry No. 551). The defendants concede that the plaintiffs prevailed and achieved meaningful changes and protections for class members. (Docket Entry No. 617 at 32 n.68).
This factor weighs heavily in favor of approving the consent decree and settlement agreement.
2. Whether the Proposed Class Settlement Was Negotiated at Arm’s Length or Was a Product of Fraud or Collusion5
“The Court may . . . presume that no fraud or collusion occurred between opposing counsel in the absence of any evidence to the contrary.” Welsh v. Navy Fed. Credit Union, No. 16-CV1062-DAE, 2018 WL 7283639, at *12 (W.D. Tex. Aug. 20, 2018). The proposed class settlement was the product of rigorous, hard-fought negotiations conducted at arm’s-length. (Docket Entry No. 617 at 30). The record of many, many hearings; the bench trial; the several appeals; and the lengthy, difficult negotiations, amply demonstrate the zealous advocacy that all sides deployed. (Docket Entry Nos. 563, 573, 575, 579, 580, 590, 594, 605, 606, 615).
Some amici contended that “collusion occurred after the November 2018 county-wide election when the new political establishment in Harris County sought to use this litigation to further policy goals outside traditional political avenues.” (Docket Entry No. 629 at 33; see also Docket Entry No. 634-1 at 4 (making the same argument)). Evidence of the alleged collusion included the newly elected defendants’ attempt to vacate the Fifth Circuit’s decision staying the
5 See FED. R. CIV. P. 23(e)(2)(B); Reed, 703 F.2d at 172.
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amended injunction;6 provisions of the proposed consent decree that are “beyond the scope of the original litigation,” such as the measures to reduce failures to appear;7 Susman Godfrey’s decision to waive its fee in consideration of Harris County’s promise to put that amount of money toward implementing the consent decree;8 and various statements by Harris County Commissioners supporting the proposed consent decree.9 These arguments do not show any “collusion” that would require rejecting the proposed decree.
The parties’ responses to the amicus briefs reaffirmed that the settlement talks involved “many months of give-and-take, not merely between the two sides of this case, but also among the various constituencies that make up the defendants.” (Docket Entry No. 647 at 3; see also Docket Entry No. 648 at 29 n.16 (“The Parties met dozens of time[s] over many months, with a great deal of give and take.”)). The amici overlooked those months of vigorous negotiations. Newly elected officials do not collude simply because they take different positions or favor different approaches than their predecessors. As discussed below, voluntary consent decrees may provide broader remedies than a party could have obtained after trial. These remedies may require the expenditure of public funds; the fact that Harris County agreed to allocate resources in the amount of Susman Godfrey’s waived fee does not make the allocation, or the fee waiver, illegitimate.
Nor do statements by Harris County Commissioners in support of the consent decree suggest “collusion.” Amicus Steve Radack, who is also a County Commissioner, argued that Commissioner Rodney Ellis “admitt[ed] . . . collusion with the plaintiffs” by publicly saying that he (Ellis) “encourage[d Civil Rights Corps] to sue” before he became a Commissioner. (Docket Entry No. 634-1 at 5–6). Commissioner Ellis’s statement before he assumed his current office
6 (Docket Entry No. 629 at 35); see Salgado, 913 F.3d at 482 (denying the motion to vacate). 7 (Docket Entry No. 629 at 33, 37). 8 (Id. at 38–39). 9 (Docket Entry No. 634-1 at 5–6).
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does not suggest “collusion” with class counsel. The months of hard-fought negotiations are strong evidence to the contrary.
Commissioner Radack argued that other Commissioners’ praise of the proposed settlement agreement indicates that those Commissioners did not negotiate at arm’s-length. (Id. at 4–5 (citing news coverage of Commissioners’ statements)). Commissioner Radack emphasized that Commissioner Ellis described the proposed settlement as having the significance of Brown v. Board of Education, 347 U.S. 483 (1954). (Docket Entry No. 634-1 at 5 (citing Docket Entry No. 634-2 at 1)). One might well disagree with that comparison, but Commissioner Radack did not explain why the comment indicates any collusion. Praising the outcome does not suggest impropriety in the process.
The high-quality representation on all sides, the lack of any evidence of fraud or collusion, the parties’ adverse posture, and the months of negotiation required to produce this settlement amply satisfy the Reed factor requiring the absence of collusion. This weighs heavily in favor of approving the proposed consent decree and settlement agreement.
3. Whether the Relief was Adequate in Light of the Duration, Costs, Risks, and Delay of Trial and Appeal10
“When the prospect of ongoing litigation threatens to impose high costs of time and money on the parties, the reasonableness of approving a mutually-agreeable settlement is strengthened.” Heartland, 851 F. Supp. 2d at 1064 (quoting Klein v. O’Neal, Inc., 705 F. Supp. 2d 632, 651 (N.D. Tex. 2010)); see also Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004) (“[S]ettling . . . avoids the risks and burdens of potentially protracted litigation.”). The parties have extensively litigated this case—already in its fourth year—in this court and in the Fifth Circuit, resulting in millions of dollars in fees and costs. The motions to dismiss and for summary judgment, the trial, and the
10 See FED. R. CIV. P. 23(e)(2)(C)(i); Reed, 703 F.2d at 172.
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appeals raised constitutional and jurisdictional questions that required extensive efforts by the parties and the courts. (See Docket Entry Nos. 400, 429, 430, 432). If the case proceeded, additional discovery, likely as contentious as the past discovery, would be required. The permanent injunction trial “would be lengthy, burdensome, and would consume tremendous time and resources of the [p]arties and the [c]ourt.” See Hays, 2019 WL 427331, at *10.
By reaching a favorable settlement before additional summary judgment motions and the permanent injunction trial, the plaintiffs “avoid[ed] expense and delay and ensur[ed] recovery for the [c]lass.” See id. This factor favors approving the proposed consent decree and settlement agreement.
4. The Stage of the Proceedings and the Amount of Discovery Completed11
This factor requires the court to look to whether “the parties and the district court possess ample information with which to evaluate the merits of the competing positions.” Ayers, 358 F.3d at 369. The parties conducted significant discovery. The eight-day preliminary injunction trial “featured [13] live witnesses and thousands of documents and videos.” (Docket Entry No. 617 at 31). The court entered the preliminary injunction based on extensive and detailed findings of fact and conclusions of law that were affirmed on appeal. ODonnell, 892 F.3d at 166; ODonnell, 251 F. Supp. 3d at 1059–60. The Fifth Circuit has issued three published decisions clarifying the law. Salgado, 913 F.3d at 481; Goodhart, 900 F.3d at 221; ODonnell, 892 F.3d at 152. The parties, and the court, “have ample factual and legal information with which to evaluate the merits of their competing positions and to ‘make a reasoned judgment about the desirability of settling the case on the terms proposed.’” (Docket Entry No. 617 at 32 (quoting In re Educ. Testing Serv. Praxis
11 See Reed, 703 F.2d at 172.
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Principles of Learning & Teaching, Grades 7–12 Litig., 447 F. Supp. 2d 612, 620 (E.D. La. 2006))).
This factor heavily favors approving the proposed consent decree and settlement agreement.
5. The Probability of Success on the Merits12 The probability of the plaintiffs’ success on the merits is the most important Reed factor, “absent fraud and collusion.” Santinac v. Worldwide Labor Support of Ill., Inc., No. 15-CV-25, 2017 WL 1098828, at *3 (S.D. Miss. Mar. 23, 2017) (citing Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. Unit A 1982)). This factor relates to the “risks . . . of trial and appeal,” a Rule 23(e)(2) consideration. FED. R. CIV. P. 23(e)(2)(C)(i). “In evaluating the likelihood of success, the Court must compare the terms of the settlement with the rewards the class would have been likely to receive following a successful trial.” DeHoyos v. Allstate Corp., 240 F.R.D. 269, 287 (W.D. Tex. 2007) (citing Reed, 703 F.2d at 172). This factor favors approving a settlement even when the likelihood of success on the merits is not certain. See In re Corrugated Container Antitrust Litig., 659 F.2d 1322, 1326–27 (5th Cir. Unit A Oct. 1981) (“A district court need not establish the plaintiffs’ likelihood of prevailing to a certainty.”). The plaintiffs asked for an injunction requiring Harris County to release all misdemeanor arrestees on a personal bond “as soon as practicable after arrest, except arrestees who fall within [certain] categories.” (Docket Entry No. 401-1 at 1; see Docket Entry No. 257-1 at 1 (proposing an order stating that “[n]o arrestee may be kept in custody for any period of time solely because the arrestee cannot make a monetary payment imposed as a secured financial condition of release”)). On remand, this court issued an amended preliminary injunction order that included a
12 See FED. R. CIV. P. 23(e)(2)(C)(i); Reed, 703 F.2d at 172.
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provision adopting some of the plaintiffs’ requested relief, with carefully crafted exceptions, exclusions, and limitations. See ODonnell, 321 F. Supp. 3d at 769–70, 781–82. The defendants appealed the amended preliminary injunction order and asked the Fifth Circuit to stay that provision and three other sections of the order pending the appeal. The Fifth Circuit granted the stay, holding that the defendants would likely succeed on the merits in arguing that the specific challenged provisions were overbroad. Goodhart, 900 F.3d at 224–25.
Although “a merits panel is not bound by a motions panel,” the Goodhart court’s decision demonstrates that it was uncertain that the plaintiffs would have prevailed on appeal or trial, or to what extent. Salgado, 913 F.3d at 482 (quoting Trevino v. Davis, 861 F.3d 545, 548 n.1 (5th Cir. 2017)). On the other hand, in ODonnell the Fifth Circuit affirmed this court’s findings of fact, its principal conclusions of law (including the existence of grave and widespread constitutional violations), and preliminary remedies.13 ODonnell, 892 F.3d at 163–66. The proposed consent decree provides the critical relief the plaintiffs have long sought, requiring Harris County to release many indigent misdemeanor arrestees on a personal bond as soon as practicable, again subject to carefully framed exceptions, exclusions, and limits. (See Docket Entry No. 701-2 at 17). The proposed consent decree also provides other relief, including training, data collection and analysis, and monitoring, that the amended preliminary injunction did not impose. In short, the proposed consent decree supports and implements the critical aspects of the relief the class would likely recover were this case to proceed to trial and appeal. The settlement is likely to benefit the class members and Harris County as a whole.
13 The pending cases challenging the bail systems in Dallas County, Texas and Cullman County, Alabama add to the uncertainty and support the ODonnell defendants’ decision to settle the Harris County case. See Daves v. Dallas Cty., 341 F. Supp. 3d 688 (N.D. Tex. 2018), appeal docketed, No. 18-11368 (5th Cir. Oct. 23, 2018); Schultz v. Alabama, No. 5:17-CV-00270-MHH, 2018 WL 4253645 (N.D. Ala. Sept. 5, 2018), appeal docketed sub nom. Hester v. Gentry, No. 18-13894 (11th Cir. Sept. 13, 2018).
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This factor strongly favors approving the proposed consent decree and settlement agreement.
6. The Range and Certainty of Recovery14 This factor requires the district court to “establish the range of possible damages that could be recovered at trial, and, then, by evaluating the likelihood of prevailing at trial and other relevant factors, determine whether the settlement is pegged at a point in the range that is fair to the plaintiff settlors.” Maher v. Zapata Corp., 714 F.2d 436, 460 (5th Cir. 1983) (quoting In re Corrugated Container Antitrust Litig., 643 F.2d 195, 213 (5th Cir. Apr. 1981)). The court’s consideration of this factor “can take into account the challenges to recovery at trial that could preclude the class from collecting altogether . . . .” Klein, 705 F. Supp. 2d at 656. The question is not whether the parties have reached “exactly the remedy they would have asked the Court to enter absent the settlement,” but instead “whether the settlement’s terms fall within a reasonable range of recovery, given the likelihood of the plaintiffs’ success on the merits.” Id. (quoting Frew v. Hawkins, No. 93-CA-065, 2007 WL 2667985, at *6 (E.D. Tex. Sept. 5, 2007); Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830, 849–50 (E.D. La. 2007)). Estimating the range of possible recovery is not difficult. The lowest band is no recovery, after all legal challenges. A middle band is the relief granted in the amended preliminary injunction order, without the four provisions stayed by the motions panel. See Goodhart, 900 F.3d at 228; ODonnell, 321 F. Supp. 3d at 778–85. The upper band is the relief contained in the proposed consent decree, which robustly implements the amended preliminary injunction order. (See Docket Entry No. 701-2). Based on the motions panel’s decision, the upper band of recovery after trial and appeals likely would be less, and almost certainly no more, than the relief in the
14 See FED. R. CIV. P. 23(e)(2)(C)(i); Reed, 703 F.2d at 172.
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proposed consent decree. See Heartland, 851 F. Supp. 2d at 1067–68 (“Based on the very small number of claims filed after an extensive settlement notice campaign, the upper band of recovery after trial likely would be much smaller, and almost certainly no higher, than the upper amount offered in the settlement.”).
This factor favors approving the proposed consent decree and settlement agreement. 7. The Opinions of the Participants, Including Class Counsel, Class Representatives, and the Absent Class Members15
“The endorsement of class counsel is entitled to deference, especially in light of class counsel’s significant experience in complex civil litigation and their lengthy opportunity to evaluate the merits of the claims.” DeHoyos, 240 F.R.D. at 292; see also Stott, 277 F.R.D. at 346 (“As class counsel tend[] to be the most familiar with the intricacies of a class action lawsuit and settlement, ‘the trial court is entitled to rely upon the judgment of experienced counsel for the parties.’” (quoting Cotton, 559 F.2d at 1330)). A court may not simply defer to class counsel’s opinion. “Rather, the Court must give class counsel’s recommendations appropriate weight in light of all the factors surrounding the settlement.” Turner, 472 F. Supp. 2d at 852.
Counsel for all the parties, including class counsel, and the class representatives themselves have endorsed the proposed consent decree and settlement agreement. (Docket Entry Nos. 690-1, 690-2, 690-3 (named class representatives’ declarations in support of final approval)). The parties jointly state that the proposed class settlement “is a landmark vindication of Fourteenth Amendment rights”; “honors the mandate issued by Harris County voters in electing new judges, a new Sheriff, and new County Commissioners responsible for the County’s bail system”; and “will improve the lives of tens of thousands of class members each year.” (Docket Entry No. 617 at 35–36). Class counsel’s opinions as to the benefits of the proposed consent decree are consistent
15 See Reed, 703 F.2d at 172.
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with the court’s own analysis of the proposed consent decree and settlement agreement under the Reed and Rule 23(e)(2) factors.
This factor strongly favors approving the proposed consent decree and settlement agreement.
8. Whether the Proposal Treats Class Members Equitably in Relation to Each Other16
The proposed consent decree requires Harris County to take “action that applies to all class members equally.” (Id. at 30); see Hays, 2019 WL 427331, at *13 (the court decided that the equitable-treatment factor was “easily met as each class member, save the Class representative, will receive the same amount”). All class members are entitled to the same relief. This factor supports approving the proposed consent decree and settlement agreement.
All of the Rule 23(e)(2) and Reed factors weigh in favor of approving the proposed consent decree and settlement agreement. The court holds that the proposed consent decree and settlement agreement terms are fair, reasonable, and adequate under Rule 23(e) and the governing case law.
B. The Authority to Enter the Proposed Consent Decree Because the parties ask the court to enter a consent decree—a “hybrid creature[]” that is “part contract and part judicial decree”—the court must determine that it has the authority to enter the decree. Smith v. Sch. Bd. of Concordia Par., 906 F.3d 327, 334 (5th Cir. 2018); see also League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 845 (5th Cir. 1993) (en banc) (“The entry of a consent decree is more than a matter of agreement among litigants. It is a ‘judicial act.’”). The “voluntary nature of a consent decree is its most fundamental characteristic.” Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. Cleveland, 478 U.S. 501, 521 (1986); see
16 See FED. R. CIV. P. 23(e)(2)(D).
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id. at 525 (“[I]n addition to the law which forms the basis of the claim, the parties’ consent animates the legal force of a consent decree.”). “Consequently, a consent decree can sweep more broadly than can other forms of court-ordered relief.” Smith, 906 F.3d at 335; see also Local No. 93, 478 U.S. at 525 (“[A] federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after trial.”); In re Agent Orange Prod. Liab. Litig., 818 F.2d 179, 185 (2d Cir. 1987) (“[A] district court may provide broader relief in an action that is resolved before trial than the court could have awarded after trial.” (alterations and quotation omitted)). The relief must, however, “spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based.” Smith, 906 F.3d at 335 (quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)); see Clements, 999 F.2d at 846 (“A consent decree must arise from the pleaded case and further the objectives of the law upon which the complaint is based.”).
The Fifth Circuit twice rejected the defendants’ abstention arguments, affirming this court’s power to hear the Fourteenth Amendment claims. See Goodhart, 900 F.3d at 232; ODonnell, 892 F.3d at 156–57. The Fifth Circuit also affirmed this court’s conclusion that Harris County’s misdemeanor bail system violated procedural due process and equal protection rights. ODonnell, 892 F.3d at 161–63. The proposed consent decree fully resolves the plaintiffs’ claims and addresses the “[t]he fundamental source of constitutional deficiency” the Fifth Circuit identified—Harris “County’s mechanical application of the secured bail schedule without regard for the individual arrestee’s personal circumstances.” Id. at 163.
The relief the proposed consent decree requires “spring[s] from” the plaintiffs’ claims, “come[s] within the general scope of the case made by the pleadings,” and “further[s] the
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objectives of the law upon which the complaint was based.” See Smith, 906 F.3d at 335. Amended Local Rule 9 entitles class members to protections designed to end Harris County’s past practices of mechanically applying a secured bail schedule, regardless of inability to pay or the adequacy of other conditions of pretrial release, by requiring: release on a personal bond or on nonfinancial conditions for certain categories of arrestees as soon as possible after arrest; an individualized hearing; notice; and the opportunity to be heard, present evidence, and dispute the prosecutor’s evidence supporting detention. (Docket Entry No. 701-2 at 16–25). The proposed consent decree’s appearance policies and representation requirement are designed to increase court appearances and to protect misdemeanor arrestees from arbitrary wealth-based detention. (See id. at 25–37). The data-collection, analysis, and reporting requirements are designed to increase the understanding of how Harris County’s bail system works in practice, how it can be improved, and whether it is constitutional in application. (Id. at 38–43). The training and monitoring provisions are important to ensure that the “constitutional practices will endure.” (Id. at 11, 37–38, 43–50).
Some of the proposed consent decree provisions are clearly broader than the amended preliminary injunction order, but each provision “spring[s] from,” and works to resolve, the plaintiffs’ constitutional claims. Smith, 906 F.3d at 335. This court holds that it has the authority to enter the proposed consent decree.
The nonparties who opposed the proposed consent decree at the final fairness hearing raised concerns that largely overlap with those the amici and objectors raised in the preliminary approval stage. Several nonparty speakers had filed amicus briefs or objections previously.
The court addresses these amicus briefs and objections, aside from the arguments about collusion discussed above. Nonparty objectors contended that:
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 the court lacks the power to enter the proposed consent decree because the decree is overbroad;17
 the court lacks jurisdiction because there is no longer a case or controversy;18
 the decree “remov[es] the individualized [bail] hearing process”;19
 the decree jeopardizes public safety;20
 the decree threatens the interests of crime victims generally and domestic violence victims in particular;21
 the decree creates significant burdens on law enforcement and taxpayers;22
 the decree usurps legislative authority and bypasses Harris County voters;23
 the decree “raises serious federalism concerns” by imposing obligations on local officials;24
 the decree violates Texas law;25
 the decree violates bail bondsmen’s property rights;26
 the decree imposes unlawful obligations on the Harris County Sheriff, who “is not a proper party”;27 and that
17 (Docket Entry No. 629 at 36–38; Docket Entry No. 631-2 at 15–17; Docket Entry No. 634-1 at 7; Docket Entry No. 638 at 10; Docket Entry No. 641-1 at 5).
18 (Docket Entry No. 689 at 6–7). 19 (Docket Entry No. 629 at 17; see also Docket Entry No. 631-2 at 11 (making the same argument); Docket Entry No. 646-1 at 4 (same); Docket Entry No. 689 at 2 (same)). 20 (Docket Entry No. 629 at 24–25; Docket Entry No. 634-1 at 8–11; Docket Entry No. 635-1 at 5; Docket Entry No. 636 at 1; Docket Entry No. 637 at 2–3; Docket Entry No. 641-1 at 14–15; Docket Entry No. 646-1 at 2–3; Docket Entry No. 689 at 2–6; Docket Entry No. 696 at 2–4). 21 (Docket Entry No. 637 at 2–3; Docket Entry No. 638 at 18–19; Docket Entry No. 639 at 8–12; Docket Entry No. 641-1 at 6, 15–17; Docket Entry No. 646-1 at 2–3). 22 (Docket Entry No. 637 at 3; Docket Entry No. 638 at 7–9, 19; Docket Entry No. 641-1 at 4–5; Docket Entry No. 646-1 at 3–4). 23 (Docket Entry No. 629 at 30–32, 40; Docket Entry No. 635-1 at 4; Docket Entry No. 641-1 at 7). 24 (Docket Entry No. 638 at 1, 15–18; see also Docket Entry No. 641-1 at 7 (making the same argument)). 25 (Docket Entry No. 629 at 11; Docket Entry No. 631-2 at 10–14; Docket Entry No. 641-1 at 6; Docket Entry No. 689 at 2–3, 4 n.5). 26 (Docket Entry No. 631-2 at 14). 27 (Id. at 16).
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 the decree should not be approved until third parties have “sufficient notice” and “a better opportunity to be heard.”28
These arguments do not support denying final approval. This court acts within its authority in entering the proposed consent decree. The Fifth
Circuit affirmed the court’s factual findings and central legal conclusions that the decree implements. ODonnell, 892 F.3d at 166. The Deputies’ Organization argued that “the government cannot agree to substantive remedies that go beyond what is constitutionally required,” (Docket Entry No. 629 at 36), but clear precedent establishes that consent decrees “can sweep more broadly than can other forms of court-ordered relief.” Smith, 906 F.3d at 334–35. The proposed decree “spring[s] from” the plaintiffs’ claims and falls within the scope of the pleadings and the relief sought. Id. at 335 (quoting Frew, 540 U.S. at 437).
Other broad consent decree provisions have withstood Fifth Circuit scrutiny. In 2013, the Fifth Circuit affirmed a district court’s decision to approve a consent decree with detailed requirements about New Orleans police “policies and practices related to”:
(1) the use of force; (2) investigatory stops and detentions, searches, and arrests; (3) custodial interrogations; (4) photographic lineups; (5) bias-free policing; (6) community engagement; (7) recruitment; (8) training; (9) officer assistance and support; (10) performance evaluations and promotions; (11) supervision; (12) the secondary employment system, also known as the paid detail system; (13) misconduct complaint intake, investigation, and adjudication; and (14) transparency and oversight. United States v. City of New Orleans, 35 F. Supp. 3d 788, 790 (E.D. La. 2013), aff’d, 731 F.3d 434 (5th Cir. 2013). The district court held that these provisions were “fair, adequate[,] and reasonable” solutions to alleged patterns of police conduct that allegedly violated the Fourth and Fourteenth Amendments. Id. at 790, 793. Because “almost any affirmative decree beyond a
28 (Docket Entry No. 637 at 1; see also Docket Entry No. 646-1 at 2 (making the same argument); Docket Entry No. 665 at 3–4 (same)).
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directive to obey the Constitution necessarily” requires parties to “do more than the Constitution itself requires,” the ODonnell objectors cannot defeat the parties’ joint motion by pointing out that the decree goes above the constitutionally required minimum. Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 389 (1992).
The Attorney General of Texas argues that the court lacks jurisdiction because there is no “live case or controversy” between the parties. (Docket Entry No. 689 at 7). He contends that the lawsuit challenged “past bail practices” that “no longer exist,” arguing that “the current process [under Amended Local Rule 9] far surpasses what the Constitution requires.” (Id.). This argument fails because, as explained above, the proposed consent decree is the result of months of armslength negotiations, and it is designed to implement Amended Local Rule 9 by establishing policies to ensure that constitutional practices endure in Harris County.
Several objectors and amici argue that the decree sacrifices security for increased procedural protections, but the record demonstrates that this is a false dichotomy. The court found no “reasonable basis for [the] belief that for misdemeanor defendants, release on secured money bail provides incentives for, or produces, better pretrial behavior than release on unsecured or nonfinancial conditions.” ODonnell, 251 F. Supp. 3d at 1103.29 The procedures set out in the
29 The proposed consent decree accounts for, and works toward, both public and victim safety, as well as protecting misdemeanor defendants’ constitutional rights, and it does not “remov[e] the individualized hearing process” for bail decisions. (Contra Docket Entry No. 629 at 17). The court cited volumes of recent scholarship, including a University of Pennsylvania study of the Harris County bail system concluding that “if, during the six years between 2008 to 2013, Harris County had given early release on unsecured personal bonds to the lowest-risk misdemeanor defendants . . . those released would have committed 1,600 fewer felonies and 2,400 fewer misdemeanors in the eighteen months following pretrial release.” ODonnell, 251 F. Supp. 3d at 1122. The study found that wealth-based pretrial detention increases crime by exacerbating poverty conditions that cause crime, and that indigent individuals who are detained “often lose their jobs, may lose their housing, be forced to abandon their education, and likely are unable to make their child support payments.” Id. (quoting Lisa Foster, Office for Access to Justice, Remarks at the American Bar Association’s 11th Annual Summit on Public Defense (Feb. 6, 2016)).
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proposed consent decree require individualized bail hearings that take both public safety and constitutional rights into account.
Amended Local Rule 9 provides that secured money bail may be imposed as a release condition for indigent arrestees if the Hearing Officer finds on the record, by clear and convincing evidence, that “no less-restrictive condition . . . could reasonably assure” community safety or prevent flight from prosecution. (Docket Entry No. 701-2 at 21–22). The rule “permits the use of secured money bail after the individualized hearing.” (Docket Entry No. 557-2 at 2). The decree replaces wealth-based detention with individualized proceedings. In no way does the proposed settlement agreement or consent decree create an “automatic [personal] bond system.” (Contra Docket Entry No. 629 at 17).
The proposed decree includes additional precautions to protect vulnerable groups, such as domestic violence victims. (Docket Entry No. 647 at 8–9; Docket Entry No. 648 at 20). Amended Local Rule 9 provides that people arrested for domestic violence, for violating a protective order in a domestic violence case, for making a terroristic threat against a family or household member, or for committing a crime while on pretrial release, may be detained immediately after arrest and before their individualized hearings, which must occur within 48 hours of their arrest. (Docket Entry No. 701-2 at 17–18). If a misdemeanor defendant released on a conditional bond violates the condition—such as a command to stay away from a victim—then his or her bond may be revoked after a hearing. (See id. at 17–18, 21–22, 40; Docket Entry No. 648 at 20). And, as the plaintiffs argue, “requiring fewer hearings [promotes safety by allowing] more attention to the cases that are most serious, more attention to the conditions of release in serious cases . . . more attention to cases in which a condition of release is violated, [and] less strain on the Sheriff’s Department[’s] resources.” (Docket Entry No. 648 at 6).
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Before the final fairness hearing, District Attorney Kim Ogg filed a statement informing the court that, because of “[t]he judicial trend toward [personal] bonds,” Harris County misdemeanor cases increased 59 percent from January 1, 2018 to late October 2019, and that those accused of misdemeanors “are not showing up to court.” (Docket Entry No. 696 at 2). The District Attorney argued that the proposed consent decree would “cement” or “exacerbate” this trend and make it harder to prosecute cases. (Id. at 2–3). At the final fairness hearing, the parties challenged the District Attorney’s data set and contended that the prosecution is often responsible for rescheduling hearings. Most persuasively, the parties argued that if cases do proceed more slowly, that fact would suggest that fewer indigent defendants are being coerced into pleading guilty and forfeiting legitimate defenses simply to get out of jail.
Several amici cited cases of misdemeanor defendants committing crimes while on bond as evidence that the decree endangers public safety and should be rejected. (See, e.g., Docket Entry No 641-1 at 17–20). These anecdotes do not undermine the record or the court’s findings of fact and conclusions of law. No pretrial bail system can prevent every defendant who is released on money bail or personal bond from committing an offense or failing to appear. The amici’s argument is essentially an argument for incarcerating every arrestee and defendant until trial or other disposition. That is not and has not been our law. Every American bail system must comply with the Constitution, which presumes innocence and eligibility for pretrial release. The amici’s hindsight disagreements with individual case outcomes have no bearing on whether the decree is a fair, reasonable, and adequate remedy for the constitutional violations that the record shows prevailed in Harris County.
Objections about the cost of the decree and its potential impact on law enforcement are also inadequate grounds to deny the parties’ joint motion. Injunctions and consent decrees often
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require expenditures of public funds, and the Fifth Circuit has affirmed at least one decree imposing far greater burdens on law enforcement than the proposed decree and settlement agreement in this case. See, e.g., City of New Orleans, 731 F.3d at 443 (New Orleans police consent decree); see also Missouri v. Jenkins, 495 U.S. 33, 38 (1990) (school-desegregation consent decree requiring state and local authorities to spend tens of millions of dollars). The cost arguments are especially unpersuasive given the evidence in the record suggesting that the consent decree may save Harris County money, as compared to the former bail system. ODonnell, 251 F. Supp. 3d. at 1122 (a study of the Harris County bail system found that the County would have saved tens of millions of dollars if it “had given early release on unsecured personal bonds to the lowest-risk misdemeanor defendants” between 2008 and 2013).
District Attorney Ogg asserts that the decree “unfair[ly] . . . expose[s] the District Attorney and her employees to federal sanctions for noncompliance with the proposed settlement absent appropriate clarity on her rights and responsibilities under the Proposed Settlement.” (Docket Entry No. 641-1 at 4). But the District Attorney does not identify which, if any, of the proposed decree provisions a prosecutor could be accused of violating in a way that would incur contempt sanctions. As discussed below, the District Attorney argues (unpersuasively) that the provisions addressing nonappearances wrongly increase judicial discretion at the expense of prosecutorial power, but it is not clear how those provisions put prosecutors at risk of being held in contempt. (Id. at 4 n.2, 6).
The amici’s invocations of separation of powers and popular sovereignty ring hollow. The settlement became politically feasible because of the voters’ decisions in the November 2018 election. In that sense, the proposed consent decree “honors the mandate [of] Harris County voters.” (Docket Entry No. 617 at 35). The proposed decree and settlement agreement will help
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transform a bail system that caused “tens of thousands of constitutional violations,” vindicating Fourteenth Amendment rights. ODonnell, 251 F. Supp. 3d at 1150 n.99. The fact that democratically elected officials approved the decree, while the officials defeated in the election had opposed similar relief, does not offend, but celebrates, popular sovereignty.
Nor is the federalism objection persuasive. A consent decree is a voluntary agreement; the Harris County Commissioners Court voted to approve the proposed decree after months of armslength negotiation. It is not a “judicial usurpation of local government responsibilities” for this court to approve the proposed decree after the plaintiffs and County defendants asked the court to do so. (Contra Docket Entry No. 638 at 15).
Some amici argued that enforcing the decree “for an extended period of time . . . would . . . bind future local governmental officials who were not parties to the [d]ecree.” (Id.; see also Docket Entry No. 641-1 at 7 (making the same argument)). Local officials may adopt consent decrees that bind their successors. The proposed consent decree specifically provides for modification during its implementation. (Docket Entry No. 647 at 7). Paragraph 137 states that “any” provision of the decree may be modified for good cause and paragraph 31 “expect[s]” that the Harris County Criminal Court at Law Judges “may seek to update [Local Rule 9] from time to time to reflect best practices and to maximize pretrial liberty, court appearance, and public safety.” (Docket Entry No. 701-2 at 24, 51). Current or future officeholders may move to modify or terminate the decree under Rule 60(b) if they think changes in circumstances warrant this relief. FED R. CIV. P. 60(b); see Rufo, 502 U.S. at 393 (“[A] party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance.”). Federalism provides no ground to reject the decree.
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The amici raise objections under Texas law, but none supports denying final approval. District Attorney Ogg contended that the decree “[a]ccords unfettered and unreviewable discretion to misdemeanor judges and magistrates to delay (or outright excuse) misdemeanor defendants from appearing in court, contrary to Texas law.” (Docket Entry No. 641-1 at 6). She argued that this discretion would theoretically empower judges to thwart the prosecution by allowing defendants to never appear. (Id. at 11). The District Attorney contended that the decree violates the Texas Code of Criminal Procedure’s requirement that judges “shall” compel defendants’ appearances when a court order or Code provision mandates an appearance. (Id. at 9–11 (citing TEX. CODE CRIM. PROC. arts. 22.01, 22.02, 23.05 (2007)).
The parties responded persuasively that the decree reflects Texas district and county courts’ broad power to manage their dockets and decide whether a defendant must attend a particular hearing. (Docket Entry No. 647 at 10; Docket Entry No. 648 at 16–17 (citing TEX. CODE CRIM. PROC. art. 33.08 (1966) (“The district courts and county courts shall have control of their respective dockets as to the settings of criminal cases.”))).
Nothing in the proposed decree prevents judges from requiring a defendant’s appearance at a pretrial hearing under Article 28.01 of the Code. (Docket Entry No. 647 at 11–12). Article 28.01 provides that courts “may set any criminal case for a pre-trial hearing . . . and direct the defendant and his attorney . . . to appear before the court.” TEX. CODE CRIM. PROC. art. 28.01 (1979). “[B]y its terms, Article 28.01 comes into play only when the trial court exercises its discretion to ‘set’ a criminal case for a pre-trial hearing.” State v. Velasquez, 539 S.W.3d 289, 294–95 (Tex. Crim. App. 2018). Article 33.03 requires misdemeanor defendants to appear at trials when they face imprisonment, but so does the proposed decree, which requires defendants to attend “trial settings, bond violation hearings, suppression hearings, or plea settings,” as well as “any
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pretrial hearing before a Harris County Criminal Court at Law Judge in a case where a misdemeanor arrestee has had prior sufficient notice . . . that the appearance is required.” TEX. CODE CRIM. PROC. art. 33.03 (1979); (Docket Entry No. 701-2 at 14).
District Attorney Ogg contended at the preliminary approval stage that paragraph 65(c) of the proposed decree conflicts with Article 28.01, because the decree provision gives a Harris County Criminal Court at Law Judge discretion to “waive a misdemeanor arrestee’s appearance at any court appearance at which that . . . Judge is presiding.” (Docket Entry No. 641-1 at 11 n.5 (citing Docket Entry No. 617-1 at 34)). The District Attorney observed that Article 28.01’s second sentence states that “[t]he defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding.” Id. (citing CRIM. PROC. art. 28.01). But paragraph 65(c) of the decree is consistent with Article 28.01, because a judge can waive the defendant’s appearance at a pretrial hearing by not designating the setting as required under Article 28.01. Article 28.01’s first sentence provides that courts “may” set a criminal case for a pretrial hearing. CRIM. PROC. art. 28.01 (emphasis added); Velasquez, 539 S.W.3d at 294–95. To remove any doubt, the parties amended paragraph 65(c) to clarify that “a [Harris County Criminal Court at Law] Judge may . . . waive a misdemeanor arrestee’s appearance . . ., consistent with Texas law.” (Docket Entry No. 701-2 at 34 (emphasis added)).
The parties also clarified paragraph 68(a), which stated in the preliminary-approval-stage draft that if a Harris County Criminal Court at Law Judge “finds . . . that the arrestee [who missed a required appearance] did not have actual notice of the setting, then a[n arrest] warrant may not issue.” (Docket Entry No. 617-1 at 36). The Professional Bondsmen had contended that paragraph 68(a) conflicts with the Texas Code of Criminal Procedure, which provides that a warrant must issue if a defendant forfeits his or her bond by failing to attend a required appearance without good
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cause. (Docket Entry No. 631-2 at 13–14); see CRIM. PROC. art. 22.02 (bond forfeiture for nonappearance will occur “unless good cause be shown why the defendant did not appear”); CRIM. PROC. art. 23.05(a) (“If a forfeiture of bail is declared by a court . . . a capias shall be immediately issued for the arrest of the defendant.”). The Professional Bondsmen argued that the proposed decree violates Texas law because it requires judges to not issue a warrant after a defendant misses a required hearing, even without finding good cause, if the defendant lacked actual notice of the setting. (Docket Entry No. 631-2 at 13–14). The parties resolved this concern by deleting paragraph 68(a)(ii) and revising paragraph 68(a)(i) to provide that “[i]f the [County Criminal Court at Law] Judge finds that no good cause exists for the misdemeanor arrestee’s nonappearance, then the [County Criminal Court at Law] Judge may take any action consistent with Texas state law.” (Docket Entry No. 701-2 at 36 (emphasis added)).30
The other state-law challenges are not persuasive. The District Attorney objected that “there is no requirement [in the proposed decree] that a county criminal court at law judge issue a warrant authorizing the defendant’s arrest” when necessary under Texas law. (Docket Entry No. 641-1 at 11). But the absence of an explicit requirement to follow state law does not equate to an implicit command to violate it. (Docket Entry No. 648 at 18). The issue of compliance with Texas law on issuing arrest warrants relates to paragraph 68(a), discussed above. The decree must comply with Texas law, but it does not have to repeat every state-law requirement.31
30 The analysis above rebutting District Attorney Ogg and the Professional Bondsmen’s arguments also addresses the Texas Attorney General’s contention that allowing defendants to reschedule missed appearances at weekly Open Hours Court will “tie[] judges’ hands” and enable defendants to “avoid their court settings for up to two weeks.” (Contra Docket Entry No. 689 at 4; see Docket Entry No. 701-2 at 34 (emphasis added) (“Any misdemeanor arrestee who has missed a court appearance can appear at Open Hours Court to reschedule the missed court appearance, subject to the other provisions in this Consent Decree.”)).
31 The decree also need not restate crime victims’ rights under Texas law, such as child and domestic-abuse victims’ right to have courts consider how they would be impacted by a defendant’s requested continuance. See TEX. CODE CRIM. PROC. art. 56.02(a)(13) (2015); (contra Docket Entry No.
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The Texas Attorney General and the Professional Bondsmen of Harris County questioned the legality of creating Open Hours Court to allow misdemeanor defendants to reschedule court appearances. (See Docket Entry No. 701-2 at 33). Under the proposed decree, “the [County Criminal Court at Law] Judges will designate one [County Criminal Court at Law] Judge each week, for at least one day each week, to preside over an ‘Open Hours Court’ to be located in that [County Criminal Court at Law] Judge’s own courtroom.” (Id.). “Any misdemeanor arrestee who has missed a court appearance can appear at Open Hours Court to reschedule the missed court appearance, subject to the other provisions in [the] Consent Decree.” (Id. at 34). The Attorney General stated that “[i]t is unclear whether the proposed Consent Decree requires the county to establish a new court,” arguing that such a mandate “would violate state law because . . . only the Texas Legislature can create a new court.” (Docket Entry No. 689 at 4 n.5; see also Docket Entry No. 631-2 at 15 (raising the same issue)). The proposed decree does not create a new court. It requires the existing County Criminal Court at Law Judges to designate one current Judge to hold Open Hours Court each week. (Docket Entry No. 701-2 at 33). “The purpose of Open Hours Court is to provide an opportunity for people to move forward with the business in their cases more efficiently and, to the extent permitted by other provisions of the Consent Decree, to do so without fear of going into custody for a prior nonappearance.” (Id. at 34).
639 at 9–10). The Harris County Domestic Violence Coordinating Council argued that, under the Texas Code of Criminal Procedure, in child and domestic-abuse cases, “[t]he reason for granting or denying a continuance must be stated on the record.” (Docket Entry No. 639 at 10). But Article 56.02(a)(13) requires a statement on the record only “if [it is] requested by the attorney representing the state or by counsel for the defendant.” CRIM. PROC. art. 56.02(a)(13). At the final fairness hearing, Andy Kahan of Crime Stoppers of Houston expressed concern that, under the proposed consent decree, “victims are not entitled to receive notice when a defendant reschedules court appearances.” The proposed consent decree states that it “does not prevent the County from providing text message and telephone call reminders [about court appearances] to . . . victims of crime.” (Docket Entry 701-2 at 29 n.77).
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The Texas Attorney General argued that the proposed consent decree violates state law on local cooperation with federal immigration enforcement. See TEX. CODE CRIM. PROC. art. 2.251 (2017); TEX. GOV’T CODE § 752.053(a)–(b) (2017). The Attorney General’s representative at the final fairness hearing argued that the proposed decree would obligate a local jail to immediately release a detainee even though Texas law requires the jail to honor a request from federal immigration officials to interview or hold that detainee. The representative claimed, without providing details, that “at least one Harris County official” used the court’s injunction to justify refusing to cooperate with federal immigration personnel, in violation of Texas law. But, as explained above, the proposed consent decree does not require officials to violate state statutes. Harris County Criminal Court at Law Judge Darrell Jordan, who testified in support of the proposed decree, explained that release on a General Order Bond under Amended Local Rule 9 (and the proposed consent decree) takes approximately 20 to 48 hours. This window leaves time for local officials to comply with federal immigration enforcement requests. Harris County Sheriff Ed Gonzalez, another party witness, stated that federal immigration officials operate in Harris County jails, monitor detainee populations, and place holds as they see fit, with full cooperation from local authorities.
The Professional Bondsmen and the Texas Attorney General asserted that personal bonds may be granted to misdemeanor arrestees before a bail hearing “only if a magistrate . . . concludes [based on an individualized assessment] that a personal bond is appropriate.” (Docket Entry No. 631-2 at 11; Docket Entry No. 689 at 2). The Professional Bondsmen and the Attorney General appear to suggest that all misdemeanor defendants, whether or not they can afford secured money bail, must be detained before their individualized bail hearings. But the Texas Government Code allows County Judges to “adopt rules consistent with the Code of Criminal Procedure . . . for
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practice and procedure in the courts.” ODonnell, 251 F. Supp. 3d at 1086 (quoting TEX. GOV’T CODE § 75.403(f) (1987)). The proposed consent decree’s preapproved General Order Bonds, which the County Judges endorse based on their experience as judges and former prosecutors and defense attorneys, do not conflict with the Code provisions the Texas Attorney General and the Professional Bondsmen cite. (Contra Docket Entry No. 631-2 at 11; Docket Entry No. 689 at 2 n.1). Article 17.03 of the Texas Code of Criminal Procedure grants magistrate judges the power to release arrestees on a personal bond, subject to several exceptions, but does not bar release on a personal bond before a bail hearing. TEX. CODE CRIM. PROC. art. 17.03 (2017); (Docket Entry No. 648 at 4). Article 17.04 lists the “[r]equisites of a personal bond” document, such as the defendant’s name, address, and the bond amount, but says nothing to support the objectors’ claim. TEX. CODE CRIM. PROC. art. 17.04 (1987); (Docket Entry No. 648 at 4). The fact that Article 17.04 lists the bond amount in parentheses, as the Professional Bondsmen’s counsel emphasized at the final fairness hearing, does not preclude County Judges from filling in that amount using bonds preapproved under rules consistent with the Code of Criminal Procedure. See GOV’T CODE § 75.403(f). Article 17.15 establishes five criteria for fixing bail amounts but does not require misdemeanor defendants to be detained before their individualized bail hearings. TEX. CODE CRIM. PROC. art. 17.15 (1993); (Docket Entry No. 648 at 2–3). The objectors did not cite a court decision reaching a contrary conclusion. The Professional Bondsmen’s position is striking given that their business model long depended on posting specific bail amounts for misdemeanor arrestees before those arrestees ever saw a Hearing Officer. (Docket Entry No. 648 at 2–3); see ODonnell, 251 F. Supp. 3d at 1088 (describing prehearing bail procedures in Harris County before this lawsuit).
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The Professional Bondsmen argued that the proposed decree violates Texas law by preferring personal bonds over other bonds and by using preapproved General Order Bonds. (Docket Entry No. 631-2 at 11, 13). They cited numerous Texas Code provisions (and, this time, one case), but no specific analysis to support their argument.
The Professional Bondsmen contended that the proposed consent decree violates state law by providing that the Harris County Sheriff must reject a bond that is “otherwise valid” under Texas law. (Id. at 12). But Texas law requires sheriffs to “execute all lawful process.” TEX. CODE CRIM. PROC. art. 2.13(b)(2) (2019) (emphasis added); see also TEX. CODE CRIM. PROC. art. 2.16 (1966) (“If any sheriff or other officer shall wilfully [sic] refuse or fail from neglect to execute any summons, subpoena[,] or attachment for a witness, or any other legal process which it is made his duty by law to execute, he shall be liable to a fine for contempt.”). The proposed decree establishes criteria for assessing whether a bond is lawful in Harris County and whether the Sheriff must enforce it under state law. (Docket Entry No. 701-2 at 23 (“The Sheriff must not enforce any order requiring secured money bail that is not accompanied by a record showing that the procedures and findings described in Local Rule 9 were provided.”)). The decree reflects the Fifth Circuit’s suggested language for the amended injunction. ODonnell, 892 F.3d at 165 (the Sheriff may “decline to enforce orders requiring payment of prescheduled bail amounts as a condition of release for said defendants if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided.”); (cf. Docket Entry No. 701-2 at 23). The proposed decree does not empower the Harris County Sheriff “to avoid executing judicial orders imposing secured bail by unilaterally declaring them unconstitutional.” ODonnell, 892 F.3d at 156.
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The Professional Bondsmen also objected that the proposed consent decree violates Texas law by requiring the Harris County Sheriff to reject a bond that is valid under another county’s laws but not the proposed decree. (Docket Entry No. 631-2 at 13). As the plaintiffs’ counsel observed at the final fairness hearing, the proposed consent decree has a limited scope; it applies only to “Class A and Class B misdemeanor arrestees who are detained by Harris County,” not to defendants apprehended outside of Harris County under another county’s laws. (Docket Entry No. 303 at 1). The conflict the Professional Bondsmen described would not arise.
The Professional Bondsmen argued that Texas law does not require the proposed decree’s clear-and-convincing-evidence standard in bail determinations and its least-restrictive-means analysis of conditions of release. (Docket Entry No. 631-2 at 12–13). The Professional Bondsmen cite no authority for the claim that a Texas local government cannot agree to procedural safeguards that go above a constitutional or state-law floor. The clear-and-convincing-evidence and leastrestrictive-means tests channel magistrates’ discretion, but do not eliminate it. As explained above, “[t]he Texas Government Code permits the County Judges to ‘adopt rules consistent with the Code of Criminal Procedure.’” ODonnell, 251 F. Supp. 3d at 1086. The Professional Bondsmen did not show that these proposed consent decree provisions violate the Texas Code of Criminal Procedure.
The Professional Bondsmen objected that the proposed decree “fails to consider funds available from the detainee’s family.” (Docket Entry No. 631-2 at 12). But the proposed decree does consider funds from family and other sources in the provision stating that “the arrestee must be asked, under penalty of perjury, the amount of money she can afford to pay from any lawful source at the time of the hearing.” (Docket Entry No. 701-2 at 21 (emphasis added)).
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The Professional Bondsmen objected that the “[d]ecree seeks to exclude the private surety bail bondsmen from posting any bonds for 85% of the misdemeanor arrestees,” invoking “a protected property interest under the Texas Constitution in their bail bond license[s].” (Docket Entry No. 631-2 at 14). The Professional Bondsmen also complained that the decree’s provisions about failures to appear and rescheduling hearings “increas[e] the risk” and “financial burden on bondsmen.” (Id. at 15). As explained above, the proposed consent decree does not remove the individualized hearing process, and nothing in the decree forbids bondsmen from practicing their trade. The key Texas case the Professional Bondsmen cited recognizes that the general “property right in making a living” is not unlimited but is instead “subject . . . to valid and subsisting regulatory statutes.” Smith v. Decker, 312 S.W.2d 632, 634 (Tex. 1958). Bondsmen have no legal right to bail policies that increase their wealth by violating the constitutional rights of tens of thousands of indigent arrestees.
The Professional Bondsmen claimed that the Fifth Circuit held that “[the Harris County Sheriff] is not a proper party to this litigation.” (Docket Entry No. 631-2 at 16). But the appellate court withdrew an opinion holding that the Harris County Sheriff “cannot be sued under § 1983.” ODonnell, 882 F.3d at 538, opinion withdrawn and superseded on reh’g sub nom. ODonnell, 892 F.3d at 147. On rehearing, the Fifth Circuit ruled that “[the] Sheriff is not an appropriate party for attaching municipal liability.” ODonnell, 892 F.3d at 156 (emphasis added). The Fifth Circuit suggested language for the amended preliminary injunction authorizing the Sheriff “to decline to enforce orders requiring payment of prescheduled bail amounts” that are not “accompanied by [an adequate] record.” Id. at 165. The Professional Bondsmen do not undermine the proposed consent decree by questioning the Sheriff’s party status.
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The objectors’ and amici’s briefs and letters, and the nonparties’ statements at the final fairness hearing, demonstrate that third parties have had notice and ample opportunities to be heard about the proposed settlement and consent decree. Many of the objectors and amici reprised arguments made and thoroughly argued during the litigation in this court and in the Fifth Circuit. This court reset the deadlines for class notice and objections and postponed the final fairness hearing to give the nonparties and parties time to object and to respond to the concerns raised. The final fairness hearing was open to the public, and both nonparties and parties spoke. The court grants the motion for final approval after providing ample opportunities for, and receiving, robust comment.
District Attorney Ogg argued that these efforts were inadequate because “no Harris County law enforcement officials other than defendant Harris County Sheriff Ed Gonzalez were present at any of the settlement meetings to which the District Attorney was invited.” (Docket Entry No. 665 at 2–3). “[A]lthough the District Attorney acknowledge[d] and appreciate[d]” the opportunities for comment the court provided “after the Proposed Settlement was finalized,” she contended that “these opportunities . . . are poor substitutes for the hands-on discussion with and input from law enforcement officials regarding the Proposed Settlement that should have occurred before finalization.” (Id. at 3–4). But as the plaintiffs’ counsel explained during the final fairness hearing, there were many opportunities for public comment, including feedback from law enforcement, during the months it took Harris County to negotiate the settlement and deliberate over whether to approve it.
The court does not question the amici and objectors’ good faith. The public safety and public resource concerns they raise are important. The proposed consent decree and settlement agreement are approved because these concerns are fully recognized and addressed.
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C. Attorneys’ Fees and Costs The plaintiffs have filed an unopposed motion under Rule 54(d)(2) for attorneys’ fees and costs. (Docket Entry No. 618). The “parties agree[d] that Class Counsel, based on prevailing hourly rates, [are] entitled to” the requested amounts, which Harris County agreed to pay to settle the plaintiffs’ claims for attorneys’ fees and costs. (Docket Entry No. 617-2 at 1). Class counsel have explained that they arrived at these amounts using a lodestar analysis, and the factors in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–20 (5th Cir. 1974). (Docket Entry No. 617 at 32–36). Rule 23(h) authorizes a district court to “award reasonable attorney[s’] fees and nontaxable costs that are authorized by law or by the parties’ agreement.”32 FED. R. CIV. P. 23(h). The “claim for an award must be made by motion under Rule 54(d)(2),” and a “class member, or a party from whom payment is sought, may object.” Id. 23(h)(1)–(2). The court “must find the facts and state its legal conclusions under Rule 52(a).” Id. 23(h)(3). Courts in this circuit “have encouraged litigants to resolve fee issues by agreement, if possible.” DeHoyos, 240 F.R.D. at 322 (citing cases, including Johnson, 488 F.2d at 720). A court is not bound by the parties’ agreement. Strong v. BellSouth Telecomms., Inc., 137 F.3d 844, 849 (5th Cir. 1998). Instead, the court must carefully review a proposed fee award to ensure reasonableness. Id. This scrutiny is necessary to “guard[] against the public perception that attorneys exploit the class action device to obtain large fees at the expense of the class.” In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 228 (5th Cir. 2008) (quoting Strong, 137 F.3d at 849).
32 The court may also award the prevailing party “reasonable attorney[s’] fee[s]” in a § 1983 action. See 42 U.S.C. § 1988 (2000).
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The Fifth Circuit “requires district courts to use the ‘lodestar method’ to ‘assess attorneys’ fees in class action suits.’” Sulfur, 517 F.3d at 228 (quoting Strong, 137 F.3d at 850). The court “must first determine the reasonable number of hours expended on the litigation and the reasonable hourly rate for the participating attorney.” Id. “The lodestar is then computed by multiplying the number of hours reasonably expended by the reasonable hourly rate.” Id. After calculating the lodestar, the court must evaluate the proposed fee award under the Johnson factors “and not merely ‘ratify a pre-arranged compact.’” Id. (quoting Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980)). The twelve Johnson factors are:
(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal service adequately; (4) the preclusion of other employment by the attorney because he accepted this case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 642 n.25 (5th Cir. 2012) (citing Johnson, 488 F.2d at 717–19). The court “must explain how each of the Johnson factors affects its award.” Sulfur, 517 F.3d at 228. The explanation, however, “need not be meticulously detailed to survive appellate review.” Id. (quoting Forbush v. J.C. Penney Co., 98 F.3d 817, 823 (5th Cir. 1996)). After reviewing the twelve factors, “the court may then apply a multiplier to the lodestar, adjusting the lodestar either upward or downward.” Strong, 137 F.3d at 850. There is a “strong presumption” that the lodestar number is reasonable. Ransom v. M. Patel Enters., Inc., 734 F.3d 377, 388 n.17 (5th Cir. 2013). The court’s fee award is reviewed for abuse of discretion. Strong, 137 F.3d at 850.
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1. The Lodestar Calculation Under the proposed settlement agreement, Harris County agrees to pay:  $3,725,231.00 in fees and $114,832.54 in costs to Civil Rights Corps (though Civil
Rights Corps, after exercising billing discretion after the settlement agreement was signed, requests only $3,716,531.00 (Docket Entry No. 618 at 1; Docket Entry No. 657 at 3));  $2,161,262.00 in fees (to be forgone) and $30,214.86 in costs to Susman Godfrey L.L.P.;  $632,453.00 in fees to Wilmer Cutler Pickering Hale and Dorr LLP; and  $182,715.90 in fees and $5,378.00 in costs to the Texas Fair Defense Project. (Docket Entry No. 617-2 at 1; see also Docket Entry No. 618 at 1–2 (unopposed Rule 54(d)(2) motion to authorize compensation of class counsel)). The court approves these figures, including the lower fee number that Civil Rights Corps requests. According to the fees and costs reports, class counsel billed over 9,700 hours in this case. (Docket Entry No. 617 at 33). By the time the parties moved for preliminary approval, Civil Rights Corps had worked 7,860.60 hours; Susman Godfrey had contributed 4,326.80 hours; WilmerHale had put in 1,240.80 hours; and the Texas Fair Defense Project had worked 637.35 hours. (Docket Entry No. 618-6 at 7; Docket Entry No. 657-2 at 1). Multiplied by the various hourly rates charged by class counsel, the lodestar totals $4,531,699.90, excluding Susman Godfrey’s fees. (Docket Entry No. 618-6 at 7). Costs totaled $150,425.40. (Docket Entry Nos. 618, 618-1, 618-2, 618-3, 618-4, 618-6, 657-2). Cole v. Collier, No. H-14-1698, 2018 WL 2766028, at *13 (S.D. Tex. June 8, 2018), is instructive. A class of Texas prisoners sued under § 1983 “to end [the] policy and practice of exposing them to extreme, unsafe heat.” Id. at *1. The parties reached a settlement “[a]fter nearly
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four years of contentious litigation.” Id. Class counsel billed over 9,900 hours of work for $4,428,466.25 in fees and $300,721.99 in costs. Id. at *13. The court approved these amounts “in light of the significant time required to effectively litigate this action.” Id. Prosecuting the case required “40 depositions and review of over 500,000 pages of documents.” Id. “Motion practice included class certification, summary judgment, motions to dismiss, discovery disputes, and preliminary injunctions,” and class counsel “expended additional time defending three interlocutory appeals.” Id. The court “recognize[d] that prison litigation can be particularly timeconsuming” and credited class counsel’s billing judgment because they “omitt[ed] numerous hours spent reviewing emails, writing correspondence, holding telephone calls, and traveling.” Id.
This case, which also involves important constitutional challenges to criminal justice policies and practices, has relevant similarities. Class counsel billed over 9,700 hours in litigating the plaintiffs’ claims. (Docket Entry No. 617 at 33). The case—already in its fourth year— challenged the nation’s third-largest jail system and required “intensive investigation and expert analysis of important factual matters.” ODonnell, 251 F. Supp. 3d at 1058; (Docket Entry No. 617 at 31). Discovery was extensive. The record was voluminous. The preliminary injunction trial “featured [13] live witnesses and thousands of documents and videos.” (Docket Entry No. 617 at 31). Motions included motions for class certification, motions to dismiss, many discovery disputes, motions for reconsideration, a preliminary injunction, and motions for summary judgment. Class counsel defended two interlocutory appeals. The record shows that class counsel exercised a high degree of billing judgment in not charging for all of the time they expended. For example, “[the] Plaintiffs’ expert witnesses donated hundreds of hours of expert analysis and testimony.” (Docket Entry No. 618-2 at 4).
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The court holds that the number of hours class counsel worked in prosecuting this case, while high, is reasonable. See Cole, 2018 WL 2766028, at *13 (“While the number of hours expended is high, the amount is reasonable in light of the significant time required to effectively litigate this action.”).
The plaintiffs presented strong evidence that the hourly rates used are also reasonable. “An attorney’s requested hourly rate is prima facie reasonable when he requests that the lodestar be computed at his or her customary billing rate, the rate is within the range of prevailing market rates[,] and the rate is not contested.” Altier v. Worley Catastrophe Response, LLC, Nos. 11-241, 11-242, 2012 WL 161824, at *22 (E.D. La. Jan. 18, 2012) (citing La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995)). The rates ranged from $600.00 per hour for one of the lead class counsel to as low as $180.00 for a paralegal. (Docket Entry No. 618-6 at 7). Craig Smyser, Esq., a Houston-based attorney with significant complex-litigation experience, opined that the “hourly rates charged by [the p]laintiffs for the different levels of lawyers and paralegals are within the normal range of hourly fees charged by civil trial lawyers in Harris County prosecuting similar cases to this.” (Id. at 4). The lawyers are all experienced in civil rights and complex litigation. They work in geographic areas that command high hourly rates for lawyers with comparable experience and expertise. And it appears that Civil Rights Corps, WilmerHale, and the Texas Fair Defense Project have significantly understated their usual hourly rates by instead using the rates Harris County paid to its counsel. (Docket Entry No. 617 at 33; Docket Entry No. 618-6 at 5).
The court finds and concludes that the hourly rates are within the “prevailing market rates for lawyers with comparable experience and expertise” in complex class-action litigation and are reasonable. See Heartland, 851 F. Supp. 2d at 1088 (quoting Altier, 2012 WL 161824, at *22);
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see also McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (“‘[R]easonable’ hourly rates ‘are to be calculated according to the prevailing market rates in the relevant community.’” (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984))).
2. The Johnson Factors The Johnson factors favor holding that the attorneys’ fees are reasonable. The first factor, the time and labor required, centers on billing judgment. Class counsel “calculated their respective lodestars based on agreed hourly rates” that are “lower than those charged by counsel retained by [Harris] County in this matter.” (Docket Entry No. 618 at 2). Hundreds of hours of work were not included in the lodestar number of hours charged. (Docket Entry No. 618-2 at 4; Docket Entry No. 657-2 at 1–2). Susman Godfrey has forgone over $2.1 million in fees, enabling Harris County to allocate that amount “to its own efforts to meet the needs of class members.” (Docket Entry No. 617 at 28). Class counsel have not moved for fees and costs related to monitoring or implementing the proposed consent decree. (Id. at 34). Neither of the plaintiffs’ testifying experts at the March 2017 preliminary injunction trial was compensated. (Id.). Nor did the plaintiffs bill other consulting experts for their “guidance, technical assistance, or supporting affidavits.” (Id.). This demonstrates that class counsel worked hard—and often for free—to resolve this case in a manner that benefits the class and Harris County. This factor strongly supports approving the requested award. The second factor examines the novelty and difficulty of the issues. The parties argue correctly that this case presented complex “legal issues concerning not only the nature of the constitutional rights at stake, but also federal jurisdiction, municipal liability, immunity, abstention, equitable remedies, and related state law.” (Id. at 33). This case also involved complex
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factual issues that required extensive investigation, discovery, trial, and appellate review. This factor strongly supports holding that the claimed fees are reasonable.
The third factor is the skill required to prosecute the plaintiffs’ claims. This factor is satisfied when “counsel performed diligently and skillfully, achieving a speedy and fair settlement, distinguished by the use of informal discovery and cooperative investigation to provide the information necessary to analyze the case and reach a resolution.” King v. United SA Fed. Credit Union, 744 F. Supp. 2d 607, 614 (W.D. Tex. 2010) (quoting Di Giacomo v. Plains All Am. Pipeline, Nos. H-99-4137, H-99-4212, 2001 WL 34633373, at *12 (S.D. Tex. Dec. 19, 2001)). The legal and factual complexities required class counsel to exercise a high degree of skill to, among other things, conduct extensive discovery; survive motions to dismiss; prevail in an eightday bench trial; and defend two interlocutory appeals. As the court stated in Cole:
Skilled attorneys were necessary to perform the legal services properly. This was a complex action in a specialized area of law. Defendants put forth a vigorous defense. Class Counsel are experienced, reputable, and able, and brought their expertise in complex litigation and civil rights to bear in successfully litigating this action. Cole, 2018 WL 2766028, at *14. This factor strongly supports holding that the claimed fees are reasonable. The fourth factor asks whether litigating this case precluded class counsel from other employment. Class counsel worked over 9,700 hours in this case, and thousands more if the court includes the hours donated by Susman Godfrey. The record shows that “class counsel’s representation of the class imposed a substantial opportunity cost on them, occupying large amounts of time that they could otherwise have spent on other matters.” (Docket Entry No. 617 at 33).
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The fifth factor requires the court to analyze customary fees for similar work in the community. Mr. Smyser presents uncontroverted evidence that class counsel’s claimed rates are reasonable and that the proposed award reflects a conservative market-based fee. (Docket Entry No. 618-6). It appears that Civil Rights Corps, WilmerHale, and the Texas Fair Defense Project have “based their proposed rates on those paid by [Harris] County to its counsel, choosing slightly lower rates than the County paid for lawyers with comparable experience and expertise.” (Docket Entry No. 617 at 33). As noted above, Susman Godfrey has forgone over $2.1 million in its fees; class counsel have not asked for certain expert compensation or attorneys’ fees related to implementing or monitoring the proposed consent decree; and class counsel have exercised a high degree of billing judgment. This factor strongly favors holding that the claimed fees are reasonable.
Under the sixth factor, the court evaluates class counsel’s fee arrangement. As in Cole and many civil-rights cases, class counsel agreed to pursue fees only if the plaintiffs prevailed, and then only under Rule 23(h) or 42 U.S.C. § 1988. See Cole, 2018 WL 2766028, at *14; (Docket Entry No. 617 at 34). Class counsel spent four years litigating this case, “facing the distinct possibility that they would receive nothing” and giving up other work and fees. See Cole, 2018 WL 2766028, at *14. Because the record shows that class counsel performed a public service by representing the class, this factor weighs heavily in favor of holding that the claimed fees are reasonable.
The seventh factor looks to the time limitations the circumstances imposed. As class counsel argued, “the urgency of addressing the irreparable harm that hundreds of class members suffered every day in [Harris] County’s bail system . . . imposed significant time pressure on class counsel’s prosecution of this case.” (Docket Entry No. 617 at 34). The 14 County Judges’ motion
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for an emergency stay also imposed significant time pressure on class counsel, as did the other emergency motions filed in this case. (See Docket Entry Nos. 165, 311). This factor strongly favors holding that the claimed fees are reasonable.
The eighth factor, the amount involved and the results obtained, is “the most critical factor in determining the reasonableness of a fee award.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998)); Heartland, 851 F. Supp. 2d at 1085 (citing Farrar v. Hobby, 506 U.S. 103, 114 (1992)). Class counsel have achieved extraordinary results for the plaintiffs. The proposed consent decree addresses the constitutional harms the Fifth Circuit identified. To address those harms, the decree provides for counsel for indigent misdemeanor arrestees at bail hearings; establishes an electronic notification system; imposes training and monitoring requirements; and requires oversight for seven years. (See Docket Entry No. 701-2). The court agrees that the proposed class settlement and consent decree are “landmark developments backed by intensive investigation and innovative lawyering.” (Docket Entry No. 617 at 34–35). This factor strongly supports holding that the claimed fees are reasonable.
The ninth factor, class counsel’s experience, reputation, and ability, strongly supports approving the requested award. The court commends the talented lawyering shown by all counsel, for all the parties, throughout the years of vigorous litigation.
The court also evaluates the “undesirability” of the case. This factor relates closely to the sixth factor—class counsel’s fee arrangement. This litigation was not “undesirable” to class counsel, “given . . . the opportunity [the case] presented to stop a large-scale constitutional harm.” (Docket Entry No. 617 at 35). But “the significant and uncertain upfront investment for many years would have made [litigating this matter] undesirable to the private bar.” (Id.). And this case
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did require class counsel to forgo other opportunities, cases, and clients. This factor supports holding that the claimed fees are reasonable.
The eleventh factor looks to the length and nature of class counsel’s relationship with their clients. Class counsel ably defended the named class representatives when needed and attempted to protect their interests. (Docket Entry Nos. 690-1, 690-2, 690-3 (named class representatives’ declarations to this effect)). The proposed consent decree, a result of class counsel’s skillful advocacy, will greatly benefit the class of indigent misdemeanor arrestees. This factor weighs in favor of holding that the claimed fees are reasonable.
The final factor, a review of awards in similar cases, strongly favors holding that the claimed fees are reasonable. See Perdue v. Kenny A., 559 U.S. 542, 548 (2010) ($6 million lodestar); DeHoyos, 240 F.R.D. at 333–34, 342 (fee award of over $11 million approved); Cole, 2018 WL 2766028, at *14 (fee award of $4.5 million approved).
The court holds that the Johnson factors confirm the reasonableness of the fee award. Class counsel have not asked the court to increase the lodestar. Given the analysis above and the “strong presumption” that the lodestar amount is reasonable, the court identifies no grounds to decrease or increase that amount. See Ransom, 734 F.3d at 388 n.17.
3. Costs Class counsel ask for $150,425.40 in costs. (Docket Entry No. 618 at 1–2). “The appropriate analysis to apply in determining which expenses are compensable in a class action case is whether such costs are of the variety typically billed by attorneys to clients.” DeHoyos, 240 F.R.D. at 334 (collecting cases). Class counsel’s claimed costs include expenses related to travel, depositions, transcripts, filings, photocopies, and meals. (Docket Entry No. 618-2 at 4; Docket Entry No. 618-3 at 24; Docket Entry No. 618-5 at 3; Docket Entry No. 657-2 at 2). Class
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Case 4:16-cv-01414 Document 707 Filed on 11/21/19 in TXSD Page 55 of 55 counsel have submitted documents supporting the costs, which the court has reviewed. The defendants did not object. The court holds that the costs are reasonable and that these are appropriate categories of expenses. See DeHoyos, 240 F.R.D. at 334, 342 ($582,485.40 in costs approved); Cole, 2018 WL 2766028, at *13–15 ($300,721.99 in costs approved). IV. Conclusion
The parties’ joint motion for final approval of the consent decree and settlement agreement, (Docket Entry No. 657), is granted. The court will enter the consent decree, (Docket Entry No. 701-2), and judgment. The plaintiffs’ unopposed motion to authorize compensation of class counsel, (Docket Entry No. 618), is also granted.
SIGNED on November 21, 2019, at Houston, Texas. _______________________________________ Lee H. Rosenthal Chief United States District Judge
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 Case 4:16-cv-01414 Document 708 Filed on 11/21/19 in TXSD Page 1 of 52
United States District Court Southern District of Texas
ENTERED
November 21, 2019 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION David J. Bradley, Clerk

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

CONSENT DECREE
I. INTRODUCTION
1. This Consent Decree is entered into between the Plaintiff class, represented by named Plaintiffs Maranda Lynn ODonnell, Robett Ryan Ford, and Loetha McGruder (collectively, the "Plaintiffs"), and Harris County, Texas ("County"), the Harris County Sheriff ("Sheriff'), and the Harris County Criminal Court at Law Judges ("CCCL Judges"), (collectively, the "Defendants") (with Plaintiffs and Defendants collectively referred to as the "Parties").
2. The Parties jointly enter into this Consent Decree to resolve Plaintiffs' claims and remedy the constitutional violations challenged in this litigation. 1 This Consent Decree is intended to create and enforce constitutional and transparent pretrial practices and systems that protect the due process rights and equal protection rights of misdemeanor atTestees.
3. This litigation affitmed that, without the necessary safeguards, the use of secured money bail can deprive individuals of their constitutional rights to due process and equal protection, impose high public costs, and "exacerbate the racial disparities in pretrial detention and postttial outcomes."2 This litigation also affirmed that an up-front payment ofmoney bail does not meaningfully promote public safety or appearance in court.3

1 ODonnell v. Harris Cty., 251 F. Supp. 3d 1052, 1166- 68 (S.D. Tex. 2017), affd as modified, 892 F.3d 147 (5th Cir. 2018). 2 Jd. at 1122 (pretrial detention of defendants who cannot pay secured money bail has been shown in research to correlate "at statistically significant levels with recidivism," result in "cumulative disadvantage," exacerbate poverty, and exacerbate racial disparities in detention and post-trial outcomes). 3 The Court found that "[s]ecmed money bail in Hanis County does not meaningfully add to assuring misdemeanor defendants ' appearance at hearings or absence of new criminal activity during pretrial release." Jd. at 1I 19- 20.
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4. On September 1, 2016, Plaintiffs filed an amended complaint under 42 U.S.C.§ 1983, seeking declaratory and injunctive relief to remedy Defendants' unconstitutional misdemeanor bail policies and practices, including equal protection, substantive due process, and procedural due process violations. Specifically, Plaintiffs' amended complaint challenged the County's policy and practice of detaining individuals arrested for misdemeanor offenses due solely to their inability to make a monetary payment. When Plaintiffs sued, they challenged Defendants' policies and practices of routinely detaining indigent, presumptively innocent misdemeanor arrestees for days or weeks before trial solely because they were unable to pay financial conditions of release and without an individualized finding that detention served any purpose, let alone a fmding that detention was necessary because less-restrictive alternative conditions of release were unavailable, and without providing the procedural due process protections required to ensure the accuracy of any such finding. 4See infra Section II.
5. On April 28, 2017, the Court granted class certification,5 and issued a 193-page preliminary injunction decision with extensive factual findings based on an eight-day evidentiary hearing, as well as voluminous records from years of misdemeanor cases, expert testimony, video evidence of bail proceedings, and numerous briefs. On the basis of its factual findings, the Court held that "Harris County's [bail] policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution."6
6. The Court's initial preliminary injunction order went into effect on June 6, 2017.7 Defendants appealed the Court's preliminary injunction order in the Fifth Circuit, which upheld the Court's factual findings on June 1, 2018.8
II. FACTUAL FINDINGS
7. This Court made the following fmdings offact,9 which the Fifth Circuit affirmed:
4 First Amended Complaint, ODonnell v. Harris Cty., 251 F. Supp. 3d 1052 (S.D. Tex. 2017) (No. 16-cv-01414), ECF No. 54 5 Memorandum and Order Certifying Class, ODonnell v. Han·is Cty., 25 1 F. Supp. 3d 1052 (S.D. Tex. 2017) (No. 16cv-01414), ECF No. 303 6 Id. at 1060; id. at 162 n.99 ("The evidence here shows tens of thousands of constitutional violations."). 7 Notice ofFifth Circuit Court ofAppeals' Denial of Defendants' Motion to Stay the Preliminary Injunction Pending Appeal, ODonnell v. Harris Cty., 25 1 F. Supp. 3d 1052 (S.D. Tex. 2017) (No. 16-cv-01414), ECF No. 339. 8 ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018). 9 Except where noted below in footnote 56, these fmdings were recounted in the Court's "findings of fact. " ODonnell, 251 F. Supp. 3d at 1060- 1133 (PattI of the Court's opinion). Tlu·oughout the Consent Decree, in the citations to the Cornt's opinion, the Parties omit internal citations to evidence cited in the Court's opinion. In footnote 56, the parties quote from a transcript, a brief, and an expert report that set forth arguments offered by Defendants that the Cornt rejected in its "fmdings of fact. "
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a. At the start of this litigation, Harris County had "a consistent and systematic policy and practice of imposing secured money bail as de facto orders ofpretrial detention in misdemeanor cases." 10
b. Harris County's "de facto detention orders effectively operate only against the indigent, who would be released if they could pay at least a bondsman's premium, but who cannot. Those who can pay are released, even if they present similar risks of nonappearance or of new arrests."11
c. Harris County's "de facto detention orders are not accompanied by the protections federal due process requires for pretrial detention orders." 12
d. "Harris Cmmty has an inadequate basis to conclude that releasing misdemeanor defendants on secured financial conditions is more effective to assure a defendant's appearance or law-abiding behavior before trial than release on unsecured or nonfinancial conditions, or that secured financial conditions of release are reasonably necessary to assure a defendant's appearance or to deter new criminal activity before ttial." 13
e. Harris County's bail system "detains 40 percent of all those arrested only on misdemeanor charges, many of whom are indigent and cannot pay the amount needed for release on secured money bail."14 For decades, Harris County used a secured bail schedule to determine conditions of release. 15
f. The bail schedule was promulgated by the County Criminal Court at Law Judges, sitting en bane and voting by two-thirds majority. 16 Within hours of an atTest for a misdemeanor, an Assistant District Attomey makes a charging decision and assigns a bail amount based on the CCCL Judges' bail schedule, which considers only the anestee's then-cunent charge and criminal history. 17 Once the case is paper-ready, a misdemeanor defendant with access to enough money can pay the amount required for
10 ld. at 1059. 11 ld. at 1060. 12Jd. 13 Jd. 14 Id. at I058. 15 See id. at 1072 (CCCL Judges implemented and maintained a bond schedule for all misdemeanor offenses following entry of the Roberson consent decree in 1987); see also id. at 1100-01 ("The comt finds and concludes that in the typical case, Hearing Officers set seemed money bail as a condition of detention operating only against those who are indigent and cannot pay the bail, rather than as a mechanism for pretrial release."). 16 ld. at 1086. 17 Jd. at 1088.
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release and be promptly released from custody. 18 Arrestees who are unable to make the payment remain in custody and are transferred to and booked into the Harris County Jail, if they were not taken there directly. 19
g. At the Harris County Jail, atrestees were taken to a room in the jail to appear by video at a legal proceeding during which a Harris Com1ty Criminal Law Hearing Officer determined probable cause for warrantless arrests and addressed bail. 20 "Hearings typically lasted one to two minutes per arrestee. During this brief period, the Assistant District Attorney reads the charge, and the Hearing Officer detennines probable cause and sets bai1."21 ''Defendants almost never have counsel at the probable cause and bailsetting hearing. Those who are indigent have not yet had counsel appointed. Those who can afford counsel have either paid their bonds and been released or have not been able to arrange their counsel's presence."22 "Defendants who try to speak are commanded not to, shouted down, or ignored."23 The Hearing Officers "do not make written fmdings or issue reasoned opinions explaining why they set bail on a secured or unsecured basis, or why they select the bail amount imposed."24
h. Hearing Officers adhered to the bail schedule in 88.9 percent of misdemeanor cases. 25 When Heating Officers did change the bail amotmt, "they raise it about 67 percent of the time."26
i. The Court found "little to no credibility in the Hearing Officers' claims of careful caseby-case consideration" of conditions ofrelease other than the prescheduled money bail amountsY The Court fu1ther found that the Hearing Officers set secured money bail intending to detain anestees, stating: "The Hearing Officers' testimony that they do not ' know' whether imposing secured money bail will have the effect of detention in
18 See id. at 1088 (regarding prompt release); id. at 1091 ("Anestees who do not pay for release or obtain release on personal bond by early presentment at the City Jail are taken to and booked in the Harris County Jail. "); id. at 1124 ("Those who can pay seemed bonds are released within homs of arrest."). 19 See id. at 1091 ("Arrestees who do not pay for release or obtain release on personal bond by early presentment at the City Jail are taken to and booked in the Harris County Jail"), and id. at 1124 ("Those who can pay secured bonds are released within homs of arrest"). 20 Jd. at 1092. 2 1 Jd.
22 Jd. at 1093. 23 Id. at I 099 & n.48. 24 ld at 1093. 25 Jd. at 1095 & n. 42. 26 Id. at 1096. 27 Jd. at 1097.
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any given case, [] and their testimony that they do not intend that secured money bail have that effect, is not credible." 28
J. "Hearing Officers treat the bail schedule, ifnot as binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount. Amounts that deviate from the schedule are treated as 'incorrect,' and requests for a personal bond, if not denied outright, are deferred until the County Judge holds a later hearing. Hearing Officers routinely adjust initial bail settings to conform to, not to deviate from, the bail schedule. Defendants who try to speak are commanded not to, shouted down, or ignored."29
k. "[I]n the typical case, Hearing Officers set seemed money bail as a condition of detention operating only against those who are indigent and cannot pay the bail, rather than a mechanism for pretrial release. In the vast majority of cases, the Hearing Officers use their discretion to consider the five Al"ticle 17.15 factors to almost automatically impose the prescheduled secured bail amounts, notwithstanding Pretrial Services recommendations to release defendants on unsecured personal bonds and notwithstanding clear evidence of indigence. Hearing Officers make these decisions in brief, uncounseled hearings at which the defendants are actively discouraged from speaking, and no reviewable findings are made on the record."30
1. "Before the most recent change to the County Rules of Court in Febmary 2017, any ' incarcerated person' who remained in detention after the probable cause hearing would be scheduled to appear" the next business day before a County Court at Law JudgeY However, "more than 26,000 misdemeanor arrestees--over 51 percent of those still detained- waited more than 48 hours after their atTests before their firs t appearances before a County Criminal Court at Law Judge.32 Over 6,800 people- just over 13 percent of the detained population-were confined longer than 96 hours after arrest before their first appearance."33 At this comt appearance, anestees were kept in a holding cell outside the courtroom unless they agreed to plead guilty.34 "Defendants who did not plead guilty but wanted to contest their bail settings depended on com"tappointed counsel filing a formal motion for bail review. That motion would not be
28Jd.
29 Jd. at 1099 & nn. 45-48. 30 Id. at 1100- 0 I. 31 Jd. at 111 3; id. ("The Februaty 9, 20 17 amendment took effect on March 9, 2017. The amended County Rules of Court require 'any arrestee that is booked into the Harris County Jail' to be presented at a 'Next Business Day Setting,' even if that anestee is released from custody between booking and the next business day."). 32 Jd.
33 Jd. 34 Jd. at 1101 & 1105.
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considered until a later hearing, usually held one or two weeks later. The only way to gain release earlier was to pay the bail or to plead guilty."35
m. The Court credited testimony by prosecutor JoAnne Musick, who testified based on her lengthy experience as both a prosecutor and a criminal defense attorney, that many misdemeanor defendants "don't really want to plead guilty, but sometimes they want to get out ofjail, return to family, return to work, what have you. So they will inquire about a plea so that they can get out."36 The Court cited testimony by Judge Darrell Jordan (Presiding Judge of the misdemeanor courts at the time this Consent Decree is entered) "that it was common to have misdemeanor clients who professed their innocence and had valid defenses to nevertheless plead guilty in order to be released much earlier than if they sought an unsecured bond based on indigence or challenged the prosecution's case.'m The Court concluded: "Those who can pay secured bonds are released within hours of anest. Those who cannot are detained for days or weeks and face intense pressures to accept a guilty plea to end their pretrial detentions."38
n. A further "indication that misdemeanor defendants abandon valid defenses and plead guilty to obtain faster release than if they contested their charges is a report from the National Registry ofExonerations showing that Harris County ... led the United States in the total number of criminal exonerations" in 2015 and 2016.39 Most of Ranis County's exonerations occurred in "misdemeanor drug offenses that evidence samples conclusively prove the defendant did not commit. But rather than wait for lab tests that may exonerate them, misdemeanor arrestees who cannot pay for release before their first appearances plead guilty in order to end their pretrial detention and be released."40
o. Additionally, "uncontroverted and reliable testimony" showed that "fi·om 2015 to early 2017, for misdemeanor arrestees who did not bond out--40 percent of all misdemeanor arrestees- the median time between arrest and case disposition was 3.2 days. Ofthose, 72 percent resolved their cases within 7 days; 90 percent resolved their cases within 30 days. Over the same period, for mis<;femeanor arrestees released on bond (either seemed or unsecured)- 60 percent of misdemeanor arrestees- the median time to disposition was 120 days. Of those, 5 percent resolved their cases within 7 days; 13 percent resolved their cases within 30 days."41 "Of the 84 percent of detained anestees who plead guilty at their first appearance, 67 percent are released within a day. About 83 percent are released within five days of their first
35 Id. at 1101. 36 Jd. at 1104. 37 I d. at 11 07. 38 ld. at 1124. 39 I d. at 1105. 40 Jd.
41Jd.
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appearance."42 The Court found these figures to be "consistent with, and support, the plaintiffs' theory that for misdemeanor defendants unable to pay secured money bail, Harris County maintains a 'sentence first, conviction after' system that pressures misdemeanor defendants to plead guilty at or near their first appearances because that was the only way to secure timely release from detention."43
p. Harris County's "custom and practice" of imposing money bonds on misdemeanor arrestees regardless of their ability to pay meant that "40 percent of all Harris County misdemeanor arrestees every year are detained until case disposition. Most of those detained-around 85 percent-plead guilty at their first appearance before a County Judge. Reliable and ample record evidence shows that many abandon valid defenses and plead guilty in order to be released from detention by accepting a sentence of time served before trial. Those detained seven days following a bail-setting hearing are 25 percent more likely to be convicted, 43 percent more likely to be sentenced to jail, and, on average, have sentences twice as long as those released before trial."44
q. A peer-reviewed study led by Paul Heaton ("the Heaton study") and found by the Comi to be "one of the most sophisticated and rigorous" regarding "bail and pretrial detention in misdemeanor cases to date" studied the misdemeanor bail system in Harris County and determined that still-detained defendants were 25% more likely to be convicted and 43% more likely to be sentenced to jail than defendants who were able to pay money bail and gain release. 45 Individuals detained at disposition "received sentences that were nine days longer on average, more than double the average sentence of similar, released defendants."46 The study concluded that "the fact of detention itself, rather than the defendant' s charge, criminal history or other variables, causally affects these outcomes."47
r. "Recent studies of bail systems in the United States have concluded that even brief pretrial detention because of inability to pay a financial condition of release increases the likelihood that misdemeanor defendants will commit future crimes or fail to appear at future court hearings."48 One "landmark study" of Colorado practices found that "unsecured appearance bonds are equally effective as secured money bail, at both assuring appearance at trial as well as law-abiding behavior before trial."49 The Heaton study found that, had Hanis County given early release on unsecured personal bonds
42 Jd.at1 114.
43 Jd. at 1105. 44 Jd. at 1130-31. 45 Jd. at 1105-06 (citing Paul Heaton et al., The Downstream Consequences ofMisdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2016)). 46 Id. at 1106. 47 Jd.
48 Jd. at 1121.
49 ld. at 1120.
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to the lowest-risk misdemeanor arrestees between 2008 and 2013, "40,000 more people would have been released pretrial; nearly 6,000 convictions and 400,000 days in jail at County expense would have been avoided; those released would have committed 1,600 fewer felonies and 2,400 fewer misdemeanors in the eighteen months following pretrial release; and the County would have saved $20 million in supervision costs alone"50 "Sheriff Gonzalez credibly testified [at the preliminary injunction hearing] that the research showing the 'criminogenic' effects of even a short period of pretrial detention and the high public costs of extended detention is consistent with his own experience as a Harris County law-enforcement officer."51
s. "Secured money bail in Harris County does not meaningfully add to assuring misdemeanor defendants' appearance at hearings or absence of new criminal activity during pretrial release. "52
t. "Harris County does not track the comparative failure-to-appear or new-criminalactivity rates of misdemeanor defendants released on different types of bonds. Han·is County has not coded, collected, or analyzed data on the different types of pretrial misconduct. It cannot, as other jurisdictions have, detennine whether new misconduct by those released on surety bond or on personal bond is violent or is the type of nonviolent offense for which release on unsecured personal bond is presumed. . . . [F]or now, the County is imposing secured money bail, usually at prescheduled amounts, for almost all misdemeanor defendants, with no ability to tell how effective this type of bond is to prevent failures to appear or new criminal activity compared to release on unsecured or nonfinancial conditions."53
u. "Han-is Cmmty does keep, and was able to produce, data coded as 'bond forfeiture,' 'bond revocation,' and 'bond sunender.' But this data is not consistently kept or recorded. Some County Judges 'forfeit' a bond after a single failure to appear. Others reset hearings and do not record a bond as forfeited until after multiple failures to appear. A single entry in the 'forfeiture' data may mean one failure to appear or many. A bond may be revoked because a defendant failed a dmg test, even if the defendant appeared at every court setting and is never atTested or charged with another offense, or revoked because the defendant failed to appear. Similarly, one 'revocation' entry may indicate one failure to appear, many, or none at all, and may or may not indicate new criminal activity. Commercial sureties can ask for bond surrender for a variety of reasons. Judges may rely on a variety of factors to grant or deny the request."54
50 !d. at 1122. 51 Jd. at 11 22. 52 Jd. at 11 19-20. 53 Jd. at 11 17-18. 54 Jd. at 1118.
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v. Judge Paula Goodhart, who was Presiding Judge ofthe misdemeanor courts at the time of the preliminary injunction hearing in this lawsuit, "testifying on behalf of herself and County [Criminal Court at Law] Judge Margaret Harris," another misdemeanor judge who was in office when the lawsuit was filed until January 2019, "that no Harris County policymaker, so far as she is aware, has examined Harris County data to compare pretrial failure-to-appear rates or bond forfeiture rates between those released on secured or unsecured financial conditions. Her impression was confumed by Director of Pretrial Services Kelvin Banks and the Hearing Officers."55
w. "The comt fmds and concludes that the Harris County policymakers with final authority over the County's bail system have no adequate or reasonable basis for their belief that for misdemeanor defendants, release on secured money bail provides incentives for, or produces, better pretrial behavior than release on unsecured or nonfinancial conditions. The policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonabl e way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial. In addition to the absence of any information about the relative performance of secured and unsecured conditions of release to achieve these goals [of assuring appearance at trial or law-abiding behavior before trial], the policymakers have testified under oath that their policy would not change despite evidence showing that release on unsecured personal bonds or with no financial conditions is no less effective than release on secured money bail at achieving the goals of appearance at trial or avoidance of new criminal activity during pretrial release. " 56
x. Requiring payment for release from jail after arrest "exacerbates and perpetuates poverty because of comse only people who cannot afford the bail assessed or to post a bond-people who are already poor- are detained in custody pretrial. As a consequence, they often lose their jobs, may lose their housing, be forced to abandon their education, and likely are unable to make their child support payments."57
y. The County's practices had disparate racial and ethnic effects. "Money-based pretrial systems exacerbate the racial disparities in pretrial detention and posttrial outcomes. An amicus filing by Hanis County Commissioner Rodney Ellis and the NAACP Legal Defense and Educational Fund notes that African- Americans make up 18 percent of Harris County's adult population but 48 percent of the Harris County Jail's adu lt population. A 20 11 study found that in Harris County, 70 percent of white misdemeanor defendants obtain early pretrial release from detention, but only 52
55 Jd. at 1102-03. 56 Jd. at 1103. 57 ld. at 1122.
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percent of Latino misdemeanor defendants and 45 percent of African- American misdemeanor defendants do so."58
z. The Court rejected claims by the original Defendants59 that "virtually no" arrestee is detained '"because of an inability to pay secured money bail,"60 and concluded that "[t]he record provides no support for defense counsel's argument that some defendants choose [to] remain detained.... The credible testimony ... is that no one remains in the Harris County Jail out of a desire to be there."61
8. On the basis of these and its other findings, the Court held that the County's bail practices caused "irreparable" harm to "tens of thousands" of indigent misdemeanor arrestees every year.62 "The record evidence shows that the plaintiffs' injury is ineparable. Misdemeanor
58 !d.
59 On February 8, 20 17, Han·is County argued through its privately retained lawyers that "[t]here are individuals . .. [t]hey do want to go to the jail and stay there, if it's a cold week," and "there are individuals who believe they have guilt." Transcript of 2/8/17 Hearing at 20- 22, ODonnell v. Harris Cty., 25 1 F. Supp. 3d I 052 (S.D. Tex. 20 17) (No. 16-cv-014 14) (oral argument by counsel for Ranis County and the Hearing Officers at hearing on Defendants' Motion to Stay Preliminary Injunction Hearing); id. at 20 (THE COURT: "[I]t is uncomfortably reminiscent of a historical argument that used to be made that people enjoyed slavery, because they were afraid ofthe alternative. And there may have been individual cases in which that fear was tremendously powerful and real, but you didn't sec a lot of people running toward enslavement. You don't see a lot ofpeople volunteering for jail in order to get warm."). On November 9, 2016, the orig inal Fifteen Defendant Judges asserted similarly that an arrestee might be in the jail because she or he "wishes to remain in custody (e.g., the HatTis County jail provides a shelter, multiple meals per day, and medical services; the accused is guilty and is accruing credit towards an expected early, reasonable plea bargain)." Brief in Support of the Fifteen County Criminal Court at Law Judges' Motion to Dismiss at 28, ODonnell v. Harris Cty., 251 F. Supp. 3d 1052 (S.D. Tex. 201 7) (No. 16-cv-0 141 4), ECF No. 80. At the preliminaty injunction hearing, all Defendants offered testimony from an expert witness who asserted, "In the Harris County Jail, people are rarely held if indigent." Defendants Exhibit 28 at 45 (Expert Report ofDr. Robert Morris), ODonnell v. H arris Cty., 251 F. Supp. 3d 1052 (S.D. Tex. 20 17) (No. 16-cv-01414).
The Parties stipulate that the legal positions taken by the original Defendants differ significantly from those of the current D efendants who are entering into this Consent Decree. The Court, too, recognized that the elections in 2016 and 2018 changed the political landscape in such a way as to make an agreed resolution of the lawsuit a realistic possibility. For example, following the election of Defendant Sheriff Ed Gonzalez, County Criminal Court at Law Judge Number 16 Darrell Jordan, and District Attorney Kim Ogg in November 2016, the Court noted that "there is a new sheriff in town" and a "new D[istrict] A[ttorney]" who might have "a somewhat more open mind" about the legal issues in the case and how to resolve them. Transcript of 11/28/16 Hearing at 139-141, ODonnell v. Harris Cty., 25 1 F. Supp. 3d 1052 (S.D. Tex. 2017) (No. 16-cv-01414); id. at 7-8 ("The sheriff has already made clear, sheriff elect, that he intends to negotiate.... [W]e have a number of people whose political approach to these issues, not legal, political, may influence the shape of the issues that are before me for legal analysis and decision under the applicable law. ... I need to understand the best way, from my case management view, to take advantage ofa political willingness of the policymakcrs to fashion a solution rather than have one imposed upon them."). Following the elections in November 20 18, Defendants sought, and the Comt granted, a stay oflitigation "to allow the parties to discuss resolving the case without continued litigation based on the change in the political context." Transcript of 11/13/ 18 Hearing at 5, ODonnell v. Harris Cty., 251 F. Supp. 3d 1052 (S.D. T ex. 201 7) (No. 16-cv-01414).
60 ODonnell, 251 F. Supp. 3d at 1067; id. at 1117 (finding Defendants' expert's analysis "critically flawed" and "not entitled to any weight" because he "excluded indigent defendants from his survey to conclude that, ofthe misdemeanor defendants surveyed, none was detained because of indigence.").
61 !d. at 11 09 n.57.
62 ld. at 1150 n.99 ("The evidence here shows tens of thousands of constitutional violations."); id. at 1157.
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defendants detained before trial face significant pressure to plead guilty, and in fact do so at much higher rates than those released before trial, in order to obtain release. Pretrial detention of misdemeanor defendants, for even a few days, increases the chance of conviction and of nonappearance or new criminal activity during release. Cumulative disadvantages mount for already impoverished misdemeanor defendants who cannot show up to work, maintain their housing arrangements, or help their families because they are detained. This factor weighs strongly in favor of granting the plaintiffs' request for the injunctive relief."63
9. Accordingly, the Court entered a preliminary injunction designed to remedy the constitutional violations that it found.64 The Court's preliminary injw1ction went into effect on June 6, 2017. 65
III. PARTIES' INTENT & RECITALS
10. This Consent Decree is tailored to remedy the systemic and longstanding constitutional violations found by the Court in this litigation; to safeguard arrestees' equal protection and due process rights, including the fimdamental interest in pretrial liberty and the right against wealth-based detention; to promote court appearance and public safety; to require investments necessary for new systems to fimction efficiently in a large jurisdiction; and to promote transparency, rigorous analysis, and accountability throughout the pretrial process so that constitutional practices will endure. It is crafted to protect against a reversion to the prelitigation system of mass, non-individualized pretrial detention of misdemeanor arrestees without lawful justification.66
11. To those ends, the Parties have consented to establishing mechanisms for implementation, investment, monitoring, and public understanding of the hatms imposed by the County's unconstitutional bail practices-all of which are necessary to make sure that the system does not return to widespread unlawful prettial detention based solely on access to money.
12. After careful negotiations over a period of months, the Patties have consented to specific measures Defendants will Wldertake to uphold the due process rights and equal protection tights of indigent misdemeanor anestees. The Patties agree that the tetms of this Consent Decree are intended to implement and enforce fair and transparent policies and practices that will result in meaningful, lasting reform to the Coilllty's system of pretrial detention and safeguard against future violations of the rights of indigent misdemeanor anestees.
63 ODonnell, 25 1 F. Supp. 3d at 1157- 58; see also ODonnell v. Harris County, 260 F. Supp. 3d 810, 820 (S.D. Tex. May 11, 2017) (refeiTing to these harms as "some of the injuries inflicted on over 100 misdemeanor defendants every day in Ranis County"). 64 Jd. at 1167- 68. 65 Notice ofFifth Circuit Court ofAppeals' Denial of Defendants' Motion to Stay the Preliminary Injunction Pending Appeal, ODonnell v. Harris Cty., 251 F. Supp. 3d 1052 (S.D. Tex. 2017) (No. 16-cv-01414), ECF No. 339 66 ODonnell, 251 F. Supp. 3d at 1167, 11 68.
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13. The Parties acknowledge that the CCCL Judges have already taken the important step of amending Local Rule 9, which is intended to safeguard against the unlawful pretrial detention of misdemeanor arrestees and which has resulted in the pretrial release of those arrestees who previously would have been detained pretrial solely because they could not afford to pay secured financial conditions of release and without the substantive findings and procedural safeguards the Constitution requires. Local Rule 9 is memorialized in Section 30.
14. In addition to allocating the necessary resources for full and effective implementation ofLocal Rule 9, the County is committed to establishing pretrial systems and supports that will facilitate the release of misdemeanor arrestees through the least restrictive means necessary; to collecting and publicly releasing comprehensive pretrial data that will promote meaningful evaluation of the County's pretrial practices, facilitate transparent decision-making, and protect against the development of unwritten customs that do not comply with this Consent Decree; and to rigorously studying its pretrial systems and best practices to infmm implementation of cost-effective, nonfinancial programs aimed at achieving misdemeanor arrestees ' appearance at trial and law-abiding behavior before trial through the least restrictive means necessary.
15. The Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Patties in good faith and that implementation of this Consent Decree will remedy the constitutional violations identified by the Comi and the practices and beliefs contributing to those violations; will avoid prolonged litigation between the parties; will create the support stmctmes necessary to maintain the remedial systems established under this Consent Decree; and is fair, reasonable, and in the public interest.
16. It is therefore ORDERED that the following relief is binding on Defendants, including Ranis County, the Hani.s County Sheriff, , and the CCCL Judges in their policymaking capacity. The injunction covers and is binding on those who are in active concert or participation with the Parties or the Pmiies' officers, agents, servants, employees, or attorneys.
IV. DEFINITIONS & ABBREVIATIONS
17. For purposes of this Consent Decree, the following terms will have the stipulated meanings as follows:
a. "Bail hearing" refers to any legal proceeding at which conditions of release are determined, or that might result in pretrial detention or a requirement to pay secured bail as a condition of release, in any Class A or Class B misdemeanor case to be prosecuted in the Harris County Criminal Comis at Law.
b. "County" refers to Harris County, Texas, its officers, agents, personnel, and anyone otherwise employed by Harris County.
c. "County Criminal Comis at Law," "Criminal Comis at Law," or "CCCL" refers to the Harris County Criminal Courts at Law.
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d. "County Criminal Court at Law Judges" or "CCCL Judges" refers to the judges sitting in the Harris County Criminal Courts at Law.
e. "Defendants" refers collectively to R anis County, the Harris Cmmty Sheriff, and the Ranis County Criminal Court at Law Judges.
f. "Failure to appear" refers to any instance when a misdemeanor arrestee was scheduled to appear in cowt, the arrestee's appearance was not waived, the atTestee did not physically appear in court, an arrest warrant issued because of the misdemeanor arrestee' s nonappearance, and the wmTant either (1) was executed by placing the misdemeanor mTestee in custody, or (2) remained outstanding 30 days after issuance and no indication appem·s in the court record that the misdemeanor arrestee was prevented from appearing in court due to circumstances not in the misdemeanor anestee's control, as dete1mined by a CCCL Judge.
g. "First appearance" or "first setting" refers to the first scheduled court appearance for a misdemeanor arrestee in a patticular case. (The tetm "misdemeanor anestee" is defined in Section 17(k).)
h. " Indigent" refers to any misdemeanor anestee who cannot afford to pay the cost of secured bail or a fee or cost associated with a condition of pretrial release in a case to be prosecuted in the Harris County Criminal Cowts at Law without suffering hardship meeting the basic necessities of life, such as food, shelter, clothing, communication, transpmiation, and medical care, including, but not limited to, anyone who meets one or more of the following c riteria:
1. Is found to be indigent under the indigent defense plan of the HmTis County Crimin al Comts of Law;
n. Is, or has dependents who are, eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, Social Security Disability Income, public housing, or any other federal or state public assistance program based on financial hm·dship;
iii. Has a net household income that does not exceed 200% of the Povetiy Guidelines as revised annually by the United States Department of Health and Human Setvices and published in the Federal Register;
IV. Is homeless as that term is defined by federal public health and welfare law found at 42 U.S.C. § 11302; or
v. Is currently se1ving a sentence in a correctional institution, is currently residing in a public mental health facility or comt-ordered treatment facility, or is subj ect to a proceeding in which admission or commitment to such a mental health facility is sought.
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1. "Judicial officer" refers to a Han·is County Criminal Court at Law Judge or a Ranis County Criminal Court at Law Hearing Officer.
J. "Local Rule 9" or "Rule 9" refers to Rule 9 of the Harris County Criminal Courts at Law Local Rules of Court. The text of"Local Rule 9" is provided in Section 30 of this Consent Decree.
k. "Misdemeanor anestee" or "arrestee" refers to any person who has been arrested, or against whom a charging instmment has been filed with the Harris County District Clerk, in connection with a Class A or Class B misdemeanor case to be prosecuted in the County Criminal Coutts at Law.
1. "Monitor" refers to the Consent Decree Monitor described in Sections 95- 96 of this Consent Decree.
m. "Nonappearance" refers to when a misdemeanor anestee does not appear for a scheduled comt appearance and the misdemeanor anestee's appearance is not waived. An instance of late arrival may not be deemed a "nonappearance" unless the misdemeanor anestee did not appear in comt within one hour of the time set for the misdemeanor atTestee's appearance or by the time the docket (if applicable) has concluded, whichever is later, and the misdemeanor arrestee's appearance was not waived. For pmposes of data collection, "nonappearance" is distinct from "failure to appear," which is intended to capture a willful failure to attend court when required.
n. "Private appointed counsel" refers to counsel assigned to represent an indigent misdemeanor arrestee in the Harris County Criminal Courts at Law who is not employed by the Harris County Public Defender's Office.
o. "Public defender" refers to an attomey employed by the Harris County Public Defender's Office.
p. "Public Defender's Office" or "PDO" refers to the Ranis County Public Defender's Office.
q. "Regular setting" or "regular appearance" refers to any setting that is not a required appearance for a misdemeanor arrestee. ("Required appearance" is defined in Section 17(r).)
r. "Required setting" or "required appearance" refers to hial settings, bond violation hearings, suppression hearings, or plea settings for any misdemeanor arrestee; or any pretrial hearing before a Ranis County Criminal Comt at Law Judge in a case where a misdemeanor atTestee has had prior sufficient notice, as required by Section 65(b) of the Consent Decree, that the appearance is required.
s. "Sheriff' refers to the Han·is County Sheriff, his or her officers, agents, and personnel, and anyone otherwise employed by the Harris County Sheriff.
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t. "Supp01t staff' refers to social workers, disposition specialists, caseworkers, mitigation specialists, and/or investigators.
V. GENERAL PROVISIONS
18. This Consent Decree is intended to create and enforce a constitutional and transparent pretrial release and detention system that safeguards misdemeanor arrestees' equal protection and substantive due process rights, and provides the protections that procedural due process requires; to promote the government's compelling interests in maximizing pretrial liberty, court appearance, and public safety; to ensure public access to information and the transparency necessary for monitoring, evaluation, and public accountability; and to set forth the changes and investments required to ensure that the new policies and practices implemented under this Consent Decree are effective and enduring.
19. In the interest of avoiding a costly and protracted trial, Defendants agree to entry of this Consent Decree by which they are enjoined from engaging in conduct that deprives persons of rights, privileges, or immtmities secured or protected by the laws of the United States.
20. This Consent Decree resolves all claims in Plaintiffs' amended complaint filed in this case.
21. This document will constitute the entire integrated Consent Decree agreed to by the Parties. No prior drafts of this Consent Decree or prior or contemporaneous communications, oral or written, about this Consent Decree will be relevant or admissible for purposes of determining the meaning of any provisions ofthis Consent Decree in any litigation or any other proceeding.
22. This Consent Decree is binding upon all Patties hereto, by and through their officials, officers, agents, assigns, employees, and successors. Defendants must require their officials, officers, employees, agents, assigns, and successors to comply with this Consent Decree. If any Defendants contract with a govemment agency or entity whose function includes overseeing, regulating, accrediting, investigating, or otherwise reviewing or assuming the operations of Defendants or their officials, officers, agents, assigns, employees, or successors, Defendants agree to ensure these functions are consistent with the terms of this Consent Decree and must incorporate the terms of this Consent Decree into the functions of the government agency or contracting entity as necessary to ensure consistency.
23. This Consent Decree is enforceable only by the Parties. No other person or entity is intended to be a third-party beneficiary of the provisions of this Consent Decree for purposes of any civil, criminal, or administrative action, and accordingly, no other person or entity may asseli any claim or right as a beneficiary or protected class under this Consent Decree.
24. This Consent Decree is not intended to limit or expand the right of any person or organization to seek relief against Defendants, or any of Defendants' officials, officers, agents, assigns, employees, or successors, for their conduct; accordingly, it does not alter legal standards governing any such claims by third patties, including those arising from city, state, or federal law. This Consent Decree does not expand, nor will it be construed to expand, the right to
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Defendants' information or documents such as to be in violation of any federal or state laws regarding the privacy or confidentiality of information.

25. The County is responsible for providing the support and resources necessary to fulfill Defendants' obligations under this Consent Decree, and as othetwise necessary to ensure that the requirements of this Consent Decree are fully implemented and sustained. To meet this requirement, the County may pursue and use grant funding or other non-County sources of
financial support.

26. Any requests for resources and staffing needs by County departments related to the implementation of this Consent Decree will be evaluated by the Monitor, who will provide a recommendation to assist Commissioners Court in its detetmination of the extent and type of staffing and resources needed, if any, in response to the request.

27. All time periods specified in this final Consent Decree must be computed according to Rule 6 of the Federal Rules of Civil Procedure.

28. If any tetm, condition, or provision of this Consent Decree, or the application thereof to any person or circumstance, is to any extent held by this Court to be invalid, void, or unenforceable, that tetm, condition or provision must be severed and will be inoperative, and the remainder of this Consent Decree will remain operative and binding on the Patties.

29. Except as otherwise specified below, Defendants must implement the provisions of this Consent Decree as soon as practicable, taking into account that any Sections of this Consent Decree implemented with the help of consultants, experts, or technical assistance providers may require the County to participate in a procurement process in accordance with County purchasing procedures. Where timelines are specified, Defendants will be afforded reasonable additional time as approved by Class Counsel and the Monitor, subject to Section 140. Any disputes about whether additional time should be afforded will be presented to the Court for
resolution.

VI. COMPLIANCE WITH CONSTITUTIONAL STANDARDS

30. As of the entry of this Consent Decree, the County, the Sheriff, and the CCCL Judges must comply with, implement, and enforce the post-atTest procedures set forth in Local Rule 9 and reproduced herein as follows:

RULE 9. BAIL POLICIES

9.1

Pursuant to ODonnell v. Harris County, 251 F. Supp. 3d 1052 (S.D. Tex.

2017), and the Fifth Circuit in ODonnell v. Harris County, 892 F.3d 147

(5th Cir. 2018), the Harris County Criminal Court at Law Judges ("CCCL

Judges") order these policies be applied to all persons arrested for a

misdemeanor offense. This rule is designed to vindicate the federal

constitutional rights at issue in ODonnell v. Harris County arising from the

federal Due Process and Equal Protection Clauses. To the extent other

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provisions of federal or Texas law provide greater protections, nothing in this Rule should be construed to limit those greater protections.67

9.2.

To the extent Local Rule 9 conflicts with any other localmle, Local Rule 9

controls. Except for situations described in Local Rule 9.4.1-9.4.6, all

misdemeanor arrestees will have unsecured bail amounts set initially at no more than $ 100 and be promptly released68 on a personal bond with or

without other non-financial conditions as soon as practicable after arrest.

Consistent with Texas law, a judicial officer is not required to sign a

personal bond prior to the person' s release.

9.3.

Secured money bail must not be required as a condition of pretrial release

prior to a bail hearing69 that meets the requirements of Local Rule 9.12,

including an individualized determination of ability to pay and, ifthe person

cannot pay, consideration of altematives and a finding that detention is

necessary to meet a compelling government interest in reasonably assuring

public safety or reasonably protecting against flight from prosecution.

9.4.

All misdemeanor arrestees must be released on a personal bond or on non-

financial conditions as soon as practicable after arrest, 70 except those who

fall within the following categories, who may be detained for up to 48

hours71 for an individualized hearing:

67 For example, Texas law provides greater protections tlu·ough the Texas Constitution's right to bail clause, Tex. Const. art. 1 § 11, and through statutory protections relating to the timing of post-anest proceedings, see, e.g., Tex. Crim. Proc. Code § 15. 17 (requiring arrestees be taken before a magistrate "without unnecessary delay"); Tex. Gov't Code § 54.858(d) ("The criminal law hearing officer shall be available, wi thin 24 homs of a defendant's arrest, to determine ... all matters pertaining to bail."); Tex. Crim. Proc. Code§ 17.033(a) ("[A] person who is arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $5,000, not later than the 24th hour after the person's arrest if the person was anested for a misdemeanor and a magistrate has not determined whether probable cause exists to believe that the person committed the offense. If the person is unable to obtain a surety forthe bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.").
68 The term "release" as used herein refers to release from custody in the pending case for which the new arrest occmTed. Thus, ifa person has other pending lawful holds (e.g. from another case, parole, or from anotherjmisdiction), "release" would mean release to that other hold rather than release from custody.
69 "Bail hearing" refers to any legal proceeding that occurs before any j udicial officer, including CCCL Judges and HarTis County Criminal Law Hearing Officers, at which conditions of release ar·e determined or that might result in pretrial detention or a requirement to pay secured money bail as a condition of release.
70 If necessary to assure community safety or the safety of the anestee, a person arrested for violating Penal Code § 49.04(a) (driving while intoxicated) or Tex. Alco. Bev. Code§ 106.041(c) (driving under the influence as a minor, third offense) may be detained for up to eight (8) hours after arrest, including past the time they would have otherwise been released, to allow time for the person to become sober and be safely released.
71 As noted in provision 9.1, although individuals who fall within Local Rule 9.4. 1-9.4.6. may be detained for up to 48 hours for a bail hearing consistent wi th federal law, detention is not mandatory, and Local Rule 9 does not authorize or require detention in violation of state law.
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9.4.1 Individuals anested and charged under Penal Code§ 25.07;

9.4.2 Individuals arrested and charged under Penal Code§ 22.01, against a person described in Penal Code § 22.01 (b)(2), or individuals atTested and charged under Penal Code§ 22.07(c)(l);

9.4.3 Individuals arrested and charged under Penal Code§ 49.04 and who the State gives notice may be subject to Penal Code§ 49.09(a) for a conviction that became final within the past five years;

9.4.4 Individuals arrested and charged with any new offense while on any form of pretrial release;

9.4.5 Individuals anested on a capias issued after a bond forfeiture or bond revocation; and

9.4.6 Individuals arrested while on any fo rm of community supervision for a Class A or B misdemeanor or a felony offense.

9.5

Any person arrested for the reasons desctibed in Local Rule 9.4.1-9.4.6 may

be kept in custody pending an individualized hearing before a judicial

officer.72 Any judicial officer who makes decisions about conditions of

release, including the Ranis County Criminal Law Hearing Officers, must

have complete discretion to release on a personal bond any misdemeanor

anestee prior to an individualized hearing.

9.6

Secured money bail must not be imposed as a condition of release prior to

a bail hearing that meets the requirements of Local Rule 9. I 2.

9.7

Secured money bail must not be used as a condition of pretrial release at

any time in the preh·ial period for any misdemeanor arrestee other than those

persons arrested for the reasons described in Local Rule 9.4. 1-9.4.6.

9.8

Any anestee who is not promptly released on a personal bond after arrest

must receive a bail hearing that meets the requirements of Local Rule 9.12

as soon as practicable but no later than 48 hours after atTest. Nothing in this provision is intended to conflict with any provision of Texas law or local

mles.

9.9

If a person falls within a carve-out category set forth in Local Rule 9.4.1-

9.4.6 and cannot be physically brought to an in-person hearing, a bail

hearing must be conducted within 48 hours of arrest in absentia, and an in-

person bail hearing must be conducted as soon as practicable thereafter. A

judicial officer may travel to the physical location ofthe arrestee to conduct

72 Employees of the District Attomey's Office, Pretrial Services, the Shetiffs Office, or other govemment agencies may recommend that a judicial officer release any anestee on a personal bond prior to a bail hearing. The decision to release a person who falls within these categories must be made by a judicial officer. Such recommendations do not infringe judicial officers' authority to make decisions about conditions ofrelease. They simply preserve the possibility of expeditious release on unsecmed bond prior to a bail hearing for arrestees who fall within Local Rule 9.4.1 - 9.4.6. if a judicial officer decides that release prior to a bail hearing is appropriate.
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the bail hearing in-person; a bail hearing conducted using audio-visual equipment will satisfy the requirement for an in-person bail hearing.

9.10

At the bail hearing, the judicial officer may consider the full range of

available conditions of release, including secured money bail (to the extent

consistent with Local Rule 9.7), unsecured money bail, and nonfinancial

conditions. Any judicial officer has complete discretion to release any

misdemeanor arrestee on a personal bond.

9.11

Arrestees subject to a bail hearing must be represented by the Harris County

Public Defender or other court-appointed counsel. Anestees may retain a

private attorney to represent them at the bail hearing.

9.12

Before a judicial officer may require secured money bail as a condition of

release at a bail hearing, the following procedures must be provided, and

the following findings must be made:

9.12.1 Anestees must be represented by counsel at bail hearings. Indigent arrestees are entitled to representation by the Public Defender's Office or other comt-appointed counsel. At bail hearings under Local Rule 4.2, arrestees must be represented by the Harris County Public Defender as described in Local Rule 4.2.2.2.

9. I 2.2 In every case, notice must be provided to the atTestee that financial information will be collected through an affidavit, and the County must explain to the anestee the nature and significance of the financial information to be collected. The language required is as
follows:

9.12.3 I am [First Name] from Harris County Pretrial Services. I am here to interview you and report your answers to the Court. What you tell me may be used to mal{e decisions about your release from jail and whether a lawyer will be appointed in your defense. Also, you will need to state the amount of money that you can afford to pay at the time of the bearing that will be held after we talk. This is the amount of money you could pay without suffering any hardship in your ability to meet your basic needs, like food, clothing, shelter, phone, medical care, and transportation for you and any dependents. If you cannot afford to pay any money without hardship, please let me know. I will then also ask you to sign a paper with the financial information that you provided. Your answers must be truthful under penalty of law. False answers may be used against you. The information will be shared with the Court, the District Attorney, and possibly other agencies. You may refuse to complete the interview, or you may refuse to provide me with the financial information. You will be allowed to talk to an attorney before your bail hearing. You may speak to the attorney before you decide whether to participate in this interview. Do you agree to

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go forward with the interview and to provide financial information?
9.12.4 The judicial officer must provide adequate notice to every arrestee appearing for a hearing concerning pretrial release and detention of the rights at stake in the hearing and the procedural protections and substantive fmdings required when determining conditions of pretrial release or detention. The judicial officer may satisfy this requirement by providing a general oral notice to a group of arrested individuals. The judicial officer must provide notice that includes the following in all material respects:
- The purpose of this hearing is to determine the least-restrictive pretrial conditions necessary to serve the government's interest in reasonably assuring public safety and reasonably protecting against flight from prosecution.
- Your federal constitutional rights to pretrial liberty and against wealth-based detention are at issue in this hearing because I will be considering conditions of release and whether pretrial detention is necessary.
- I am required to consider whether alternatives to pretrial detention could serve the government's interests in reasonably assuring public safety and reasonably protecting against flight from prosecution. I cannot order you detained before trial- and I cannot require you to pay an amount of money bail that you cannot afford- if there are any conditions of release that would be adequate to reasonably assure public safety and reasonably protect against flight from prosecution.
- Your lawyer will be able to present or proffer evidence and to argue on your behalf at this hearing about any factors relevant to release, detention, and the availability of alternative conditions.
- Before requiring secured money bail as a condition of release, I will review the financial information that was collected through an affidavit so that I can detetmine whether you can afford to pay money bail and if so, how much . Before I am permitted to require money bail, I must make a finding on the record as to whether you can afford to pay that amount today.
- You will have an opportunity to challenge the government's arguments and evidence relating to the bail decision. You will also have an opportunity during this hearing to make legal arguments and to present or proffer evidence about any factors relevant to release, detention, and the availability of altemative conditions. This is not an opportunity to try yom case-the issue before the comt is detennining appropriate conditions of pretrial release or whether you must be detained as a last resort pending your trial.
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- If I require conditions ofrelease or pretrial detention, I will explain my decision on the record.
- I cannot order that you be detained or require you to pay an unaffordable amount of money bail as a condition of release unless I make a finding by clear and convincing evidence that no other condition or combination of conditions is adequate to reasonably assure public safety or to reasonably protect against flight from prosecution. I must identify and explain the reasons for my decision and the evidence and information I relied on in making that decision on the record, so that you can challenge the decision at a later date. Requiring unaffordable money bail or ordering you detained must be the last resort, and I will order detention after this hearing only if I make a fmding that there are no alternatives for reasonably assuring the safety of the community and reasonably protecting against your flight from prosecution.
- After the hearing today, you will have an opportunity to have the bail decision, including any conditions of release, reviewed by another judge within one business day if you remain detained after today's hearing. If you are released, you will also be entitled to a hearing before another judge if you want to challenge conditions of release.
9.12.5 In every case in which a judicial officer is contemplating seemed money bail as a condition of release, the anestee must be asked, under penalty ofperjury, the amount of money she can afford to pay from any lawful source at the time of the hearing.
9.12.6 The arrestee must be given an opportunity to be heard conceming any factors relevant to release, detention, and the availability of alternative conditions. Additionally, the arrestee must have an opportunity at the hearing to present evidence and make argument concerning those issues, and to contest any evidence or argument offered by the government concerning those issues. The anestee must have access to all of the evidence and infmmation considered at the bail hearing, including any criminal history from the National Crime Information Center ("NCIC") and Texas Crime Information Center ("TCIC").
9.12.7 If the judicial officer requires money bail as a condition of release, the money bail order must be accompanied by substantive fmdings on the record that are reviewable by a higher court. The findings will be deemed "on the record" if they explain the reasons for the decision and the evidence relied on either (1) in writing on a fmm available to the arrestee and her lawyer upon request without a fee, or (2) orally and available to the anestee through transcript or audio recording at no cost to the indigent. The findings must be that, by clear and convincing evidence: (1) the arrestee has the ability at the
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time of the hearing to pay the amount required, or (2) that the arrestee does not have the ability to pay the amount required, but alternative conditions of release were considered, no less-restrictive condition or combination of conditions could reasonably assure the safety of the community or reasonably protect against flight from prosecution, and imposition ofunaffordable money bail is necessary to reasonably assure the safety of the community or to reasonably protect against flight from prosecution. These findings and procedures must be provided ifthe court imposes an order ofpretrial detention, either through an unattainable financial condition or directly through an order of pretrial detention.
9.12.8 An arrestee who is indigent (as defined in Section 17(h)) or who meets any of the following, may not be assessed any fee associated with a personal bond or an unsecured bond, or the cost of a nonfinancial condition of release, including but not limited to, a supervision fee, a fee for electronic monitoring, or the cost of an interlock device:

Is eligible for appointment of counsel; Has been homeless in the past six months; Has income at or below 200% of the federal poverty guidelines; Is a full-time student; Is, or within the past six months has been, homeless; Is incarcerated, or residing in a mental health or other treatment program; or Is or has dependents who are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, Social Security Disability Income, public housing, or any other federal or state public assistance program based on fmancial hardship.

9.12.9 No anestee may be incarcerated due to inability to pay a fee or cost associated with a condition of release.

9.13

At any bail hearing in the assigned County Criminal Court at Law, the

anestee must be provided with the same substantive and procedural

protections as described in Local Rule 9.12. Specifically, the comt is

required to afford the arrestee counsel under Local Rule 9.12.1 and to make

findings under Local Rule 9.12.7 if the corut imposes or continues an order

of detention or money bail set at an unaffordable amount. Any anestee who

remains in jail after a Local Rule 4.2 hearing that meets the requirements of

Local Rule 9.12 must be provided with a bail hearing the next business day

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before a CCCL Judge under Local Rule 4.3 . The bail hearing before a CCCL Judge must occur before a plea can be accepted by the court. If a person is subject to a hold or has a concurrently pending felony case, the person may waive the bail hearing before a CCCL Judge without being brought into the courtroom. For every other arrestee, waiver of the bail hearing before a CCCL Judge may not be accepted unless the person is present in court, appears before the CCCL Judge, is infmmed by the judge of her rights as set fmth in Local Rule 9.12.4, and makes a knowing, intelligent, and voluntary waiver of the bail hearing before the CCCL Judge on the record.

9.14

Upon an anestee's request at any subsequent time prior to trial, the CCCL

Judge must provide a prompt bail hearing on the record to review conditions

of bail. Prior to a hearing before a CCCL Judge, if requested by defense

counsel, the court must approve and assure timely access to supportive

defense services such as investigators, experts, or social workers and to

discovery of any information that may be considered by the comt at the

hearing. If the CCCL Judge imposes or continues conditions ofrelease after

the hearing, the CCCL Judge must provide written factua l and legal findings

that the conditions imposed are the least resh·ictive necessary to reasonably

assure public safety or to reasonably protect against fli ght from prosecution.

9.15

The Sheriff must not enforce any order requiring secured money bail that

was imposed ptior to an individualized hearing. All anestees must be

treated in accordance with Local Rule 9.2 and released on a personal bond,

or Local Rule 9.12, and afforded an individualized hearing.

9. 16

The Sheriff must not enforce any order requiring secured money bail that is

not accompanied by a record showing that the procedures and findings

described in Local Rule 9 were provided. By General Order of the CCCL

Judges, if an order to pay secured money bail is unaccompanied by the

required record, the Sheriff must deliver to the arrestee a General Order

Bond ("GOB") issued by one or more of the CCCL Judges and release the

a n estee. 73

9.17

Any directive or requirement to pay money bail must not be enforced if

issued prior to the bail hearing.

9.18

If an anestee is in the Sheriffs custody 40 hours after arrest and no

conditions of release have been determined, the Sheriff must present the

anestee to a judicial officer for a bail hearing. If the person does not appear

before a judicial officer within 48 hours of atTest, by general order of the

judges, the Sheriff must deliver to the arrestee a "General Order Bond"

issued by one or more of the CCCL Judges and release the anestee.

9.19

The District Clerk's Office will electronically provide to the Sheriff's

Office, on an hourly basis, a list of all misdemeanor arrestees who have been

73 The General Order Bond is a judicial release order, requiring the Sheriff, pursuant to j udicial order, to release the anestee fi:om Harris County custody. The bond is pre-approved by the CCCL Judges or the Presiding Judge.
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in custody 40 hours or more from the recorded arrest date and time, and have not received a bail hearing or a General Order Bond.
31. It is expected that the CCCL Judges will continue to audit the implementation of Local Rule 9 and other post-arrest policies, and may seek to update the IUle from time to time to reflect best practices and to maximize pretrial liberty, court appearance, and public safety. Any change to Local Rule 9 must ensure that no misdemeanor arrestee is detained solely due to inability to make a monetary payment; that hearings to determine conditions of release or detention comply with constitutional principles of equal protection and substantive and procedural due process; that any condition ofrelease is the least restrictive condition necessary to meet the government's interests in preventing bodily harm to another person and preventing flight from prosecution; and must be consistent with the best available evidence.
32. Any change to Local Rule 9 or any other post-arrest policies employed by the CCCL Judges that affect the pretrial detention or release of misdemeanor arrestees must be approved by the Monitor. As promptly as possible, but in any event no longer than 14 days, subject to Section 29, of receiving a request from the CCCL Judges to amend Local Rule 9 or other post-anest policies of the CCCL Judges that affect the pretrial detention or release of misdemeanor arrestees, the Monitor must respond by approving the.change, objecting to the change and stating reasons for the objection, requesting further information relating to the proposed change, and/or proposing an alternative change. The CCCL Judges and Monitor must work in good faith to reach agreement on the proposed change. Ifthe CCCL Judges and Monitor agree on the change, they must notify Class Counsel and file a motion with the Court asking the Court to issue an amended Consent Decree reflecting the change.
33. In the event the CCCL Judges, the Monitor, and Class Counsel do not all agree to the change, the CCCL Judges must seek approval from the Court by filing a Motion to Amend the Consent Decree. Class Counsel and the Monitor will have 14 days from the filing of the CCCL Judges' Motion to respond.
34. Following a change to Local Rule 9 or other post-arrest policies, Defendants may begin implementing the changes upon the Court's approval of the amendment.
35. To the extent that any of Defendants' existing policies or procedures are identified to be in conflict with Local Rule 9 as set forth in this Consent Decree at Section 30, Defendants who are responsible for promulgating and/or enforcing the policies or procedures that are identified to be in conflict with Local Rule 9 must work with the Monitor to amend those policies or procedures to achieve consistency with Local Rule 9 and this Consent Decree.
36. The County's databases and computer systems must clearly indicate that a General Order Bond is a personal bond for which the underlying amount is unsecured. The County agrees to evaluate its databases and computer systems to determine how to update those systems so that they clearly indicate that a General Order Bond is a personal bond for which the underlying amount is unsecured. The Cotmty also agrees to develop and implement a plan, based on the evaluation of its databases and computer systems, to address any lack of clarity in communicating or relaying infmmation (internally and to other jurisdictions) about
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misdemeanor anestees' conditions of release. The County's study and proposed plan are to be presented to the Monitor for approval within 120 days of the appointment ofthe Monitor.
VII. REPRESENTATION AT BAIL HEARINGS
37. The Parties agree that zealous and effective representation at bail hearings is important to protecting arrestees' right to pretrial liberty and right against wealth-based detention. The Parties further agree that the availability of adequate time and workspace for defense counsel to confidentially interview misdemeanor arrestees in preparation for bail hearings, as well as access to early and effective support staffto assist defense counsel in gathering and presenting information relevant to the bail decision and appropriate conditions of release, are important to supporting defense counsel's ability to make the best available arguments for release.
38. All misdemeanor anestees are entitled to representation of counsel at bail hearings in accordance with Local Rule 9. The County will provide the funding and staffing necessary to ensure the PDQ is both able to provide zealous and effective representation to misdemeanor arrestees at bail hearings as required by Local Rule 9 and this Consent Decree and also meet its obligations to provide zealous and effective representation to indigent defendants at all other stages of the representation process. To this end, any such funding provided must be at or above the PDQ 's Fiscal Year 2019-20 approved budget.
39. Any indigent misdemeanor anestee will be presumed eligible for appointment of counsel and may not be charged any fees for any condition of pretrial release. This provision in no way precludes a determination to appoint counsel or waive fees for a misdemeanor arrestee who does not meet the definition of"indigent" set forth in Section 17(h).
40. Any judicial officer presiding over the Local Rule 4 .2 hearing of a misdemeanor arrestee must authorize the PDQ to represent the misdemeanor anestee for purposes of determining probable cause and the terms of pretrial release.
41. To promote defense counsel's ability to make well-infmmed arguments for release, the County agrees to provide defense counsel access to early and effective suppmt staff, as defined in Section 17(t), to assist defense counsel in gathering and presenting infmmation relevant to the bail decision and appropriate conditions of release.
a. Within 180 days of the ently of this Consent Decree, the CCCL Judges will establish a process by which private appointed counsel can receive assistance from support staff in gathering and presenting information relevant to the bail decision and appropriate conditions of release; in locating and linking misdemeanor arrestees to supports and services that may provide altematives to detention; and in otherwise facilitating the provision of high-quality representation to misdemeanor anestees who face the possibility of being detained pretl·ial. The CCCL Judges will provide a list of qualified support staff that the CCCL Judges have approved to assist private appointed counsel upon proper application. The County will provide access to and funding for suppoli staff that court-appointed counsel can request to assist them at or before bail hearings, in accordance with Section 37 and Section 43(b). The County may provide such access
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through independent contractors or through a nonprofit organization in partnership with the County. Nothing in this section (Section4l(a)) is intended to limit Defendants from hiring full-time support staff if the volume of cases requires additional such services in order for defense counsel to provide zealous and effective representation in accordance with best practices.
b. Additionally, the County will develop the systems and stmctures that best meet the goals of providing effective indigent defense services during the pretrial period, including providing resources for indigent defense support services, such as investigation and mitigation. Whether the County, in its discretion, ensures effective indigent defense services through expansion of the PDO, or through funding support staff for use by private appointed counsel (or some combination), within 180 days of entry of the Consent Decree, the County will retain an expert with experience in holistic indigent defense to evaluate the County's cunent misdemeanor indigent defense systems and determine the County's need for essential support staff and holistic services to promote zealous and effective indigent defense. The evaluation must be completed within 180 days of commencement and result in a written report with recommendations that reflect national best practices and professional norms goveming the provision of indigent defense services. Based on the results of the evaluation, and in consultation with the Monitor, the County must fund the minimum number of support staff the retained expert recommends should be available for use by defense counsel representing indigent misdemeanor arrestees. This requirement in no way prevents or discourages the County from funding additional support staff in its discretion.
42. The CCCL Judges must adopt scheduling policies to ensure Local Rule 4.2 dockets allow defense counsel to provide zealous and effective representation at bail hearings consistent with prevailing professional standards.
43. Within 180 days of the ently of this Consent Decree, drawing on national standards and best practices for providing representation to indigent anestees at bail hearings, Defendants must develop a written plan with policies and procedures to ensure defense counsel:
a. Are provided sufficient time, work space, and equipment to confer meaningfully and confidentially with misdemeanor defendants before a bail hearing is held;
b. Are provided access to social workers, investigators, and essential support staff, where access can be via phone or video conference;
c. Are able to call witnesses and present and confront evidence at bail hearings; and
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d. Are promptly74 able to discover any information or reports conceming the represented misdemeanor arrestee that will be presented to the judicial officer presiding over the misdemeanor arrestee's bail hearing.
44. The plan developed pursuant to Section 43 will be submitted to the Monitor, who will review, provide feedback on, and approve the plan, which will be implemented within a reasonable timeline to be determined by the Monitor and Defendants. The Monitor will solicit Class Counsel's input during the review process.
45. The CCCL Judges, in consultation with the Monitor, will amend their indigent defense policies to reflect Local Rule 9 and this Consent Decree.
VIII. PROMOTING PRETRIAL RELEASE THROUGH PROGRAMS TO INCREASE COURT APPEARANCE
A. Uniform Notice of Scheduled Appearances
46. Defendants are required to implement Section 47 and Section 48 only as to misdemeanor arrestees in the County's custody or who have othetwise appeared in person such that they are able to receive written notice from Defendants at the time of scheduling. Defendants will nevertheless make the forms required by this Section readily accessible to third-party law enforcement agencies who atTest or detain misdemeanor arrestees in connection with a Class A or Class B misdemeanor to be prosecuted in the CCCL.
47. Subject to Section 46, Defendants will provide eligible misdemeanor an·estees/5 or the arrestee's lawyer if the anes tee is not present, written notice of the date, time, and location of their scheduled court appearance each time they receive a new court date in their case before the Criminal Courts at Law. Any form of written notice provided to misdemeanor anestees, or their attorneys, in accordance with this section (Section 47) will be considered a court form and, therefore, the County will keep a copy of any such written notices issued to misdemeanor arrestees in their related case file.
48. To facilitate court appearance and minimize confusion and misinformation about where and when misdemeanor arrestees must show up to court for a scheduled appearance, Defendants must update any form that Defendants use to provide Wtitten notice of scheduled court dates to incorporate evidence-based design practices for effectively reducing nonappearance.
a. The fotms for providing wtitten notice developed and adopted under Sections 47 and 48 must be easy to comprehend; must clearly and prominently display the date, time, and location of the misdemeanor arrestee's court appearance; must clearly and succinctly summarize the most essential components of the CCCL Judges'
74 "Promptly" means as soon as possible but in any event before a bail hearing occurs. 75 "Elig ible misdemeanor an estees" are misdemeanor arrestees who are in the County's custody or who have otherwise appeared in person such that they are able to receive written notice from Defendants at the time of scheduling.
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rescheduling policies and the consequences ofnonappearance; must notify the arrestee that a lawyer will be appointed if the misdemeanor arrestee is indigent; and must identify a telephone number and a website where misdemeanor arrestees can obtain additional information about their court appearance and the CCCL Judges' policies related to attending, missing, and rescheduling court appearances. Defendants may revise existing forms to meet the requirements of this section (Section 48(a)). Any language describing CCCL Judges' policies must be approved by the CCCL Judges.
b. Within 180 days of the effective date of this Consent Decree, Defendants must update their forms in accordance with Section 48(a). The County may engage one or more technical assistance providers to assist Defendants in updating their forms in accordance with Section 48(a) and best practices. To promote uniformity of notice and avoid confusion, the updated forms must be the exclusive forms used by Defendants to provide notification of court dates.
c. The County will provide the applicable updated fmm to any misdemeanor arrestee who is released by the County upon the misdemeanor atTestee's release. The forms may be updated at any time, as needed, with the advice of technical assistance providers and the Monitor. The updated fmms must be the exclusive forms used by Defendants to provide notification of court dates. Nothing in Sections 47 or 48 prevents the CCCL Judges from otherwise providing general information to misdemeanor arrestees about the CCCL Judges' court schedules or policies.
d. Within 180 days of appointment of the Monitor, the County will submit the updated fmms to the Monitor for review and approval in accordance with Sections 111- 114 below. The County will work with the Monitor to ensure that the required contents fit on any fmms updated in accordance with Section 48(a). If, upon evaluation, it is infeasible to fit all of the information required by Section 48(a) on Defendants' existing forms, Defendants will work with the Monitor to determine the best way to provide misdemeanor arrestees with the most essential components of the CCCL Judges' rescheduling policies and the consequences of nonappearance along with the updated forms, such as on a separate sheet of paper appended to the updated fmms . Whether the infotmation is presented on a single form or two forms, Defendants must provide all of the infmmation required by Section 48(a) to achieve the intended goal of minimizing confusion and misinfmmation about where and when misdemeanor an estees must show up to court for a scheduled appearance.
e. If Defendants decide to make any additional amendments to the forms for providing written notice of scheduled comt dates following the Monitor's review and approval under Section 48(d), Defendants will adopt the additional amendments within 60 days of approval by the Monitor, at which point the newly amended forms must be the exclusive forms used to provide notification of comt dates. Any additional amendments must conform with Section 48(a) above. Upon review and approval by the Monitor, Defendants will use the newly amended fmms to provide misdemeanor anestees written notice in accordance with Section 47 above. The updated or amended
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fmms may be subsequently updated with the advice of technical assistance providers and approval by the Monitor.
B. Court Date Reminder System
49. Defendants are required to implement Section 50 only as to misdemeanor arrestees for whom the County has a telephone number and who do not opt out in accordance with Section 50(a).
50. The County will adopt text-message-based and telephone-based reminder services to provide eligible misdemeanor arrestees76 with information about scheduled court appearances and related logistics. The reminders must be designed to reduce nonappearance by notifying misdemeanor arrestees of scheduled court appearances and encouraging misdemeanor anestees to appear in court on the date scheduled. The County will consult with the Monitor to determine whether any other reminder systems are necessary, taking into account cost and best practices. In developing the text-message-based and telephone-based reminder services, the County must consult existing research and best practices regarding the form and frequency of effective appointment reminders, as well as successful court date reminder systems employed by other jurisdictions, to ensure the services the County adopts have a track record of effectively facilitating comi appearances.
a. The County will provide every misdemeanor anestee released by the County the option to receive reminders and logistical information about upcoming and missed court dates by telephone and/or text message. Misdemeanor arrestees may affitmatively opt out of receiving the reminders by providing a wtitten waiver.
b. The reminders must, at a minimum, inform misdemeanor arrestees of the date, time, and location of their scheduled court appearance; and, if a misdemeanor anestee did not appear at a scheduled comt date, the reminders must notify the misdemeanor atTestee of the nonappearance and provide information about next steps for rescheduling or resolving the nonappearance.77
c. The County may satisfy the requirement to develop a text-message reminder system by implementing a one-way text-message reminder system. If the County implements a one-way text-message reminder system, it must also study the potential efficacy of a two-way text-message reminder system in promoting court appearance. "Two-way messaging" means that the recipient of the reminder would be able to respond to the message.
d. The substance, format, timing, and frequency of the reminders must be infmmed by evidence-based practices for effectively reducing nonappearance and be approved by
76 Eligible misdemeanor atTestees are misdemeanor arrestees who provide a phone number upon arrest and do not opt out in accordance with Section 50(a). 77 This Consent Decree does not prevent the County from providing text message and telephone call reminders to anestees in felony cases and victims of crime.
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the Monitor. Misdemeanor arrestees must be given the choice to opt out of receiving the reminders.
e. Within 180 days of the appointment of the Monitor, the County must submit the proposed substance, format, timing, and frequency of the text message or telephone call reminders, as well as a proposed process for permitting misdemeanor anestees to opt out of the reminders, to the Monitor for review and approval in accordance with Section 111-114.
f. The County will implement the text-message and telephone reminder systems within 180 days of approval by the Monitor, or as soon as practicable taking into account the County's procurement processes.
C. Determination and Mitigation of Actual Causes of Nonappearance in Harris County
51. The County will study and seek to mitigate the primaty wealth-based causes ofnonappearance among misdemeanor anestees in order to safeguard against unnecessary pretrial detention, while furthering the County's interests in reasonably assuring misdemeanor arrestees' court appearances and law-abiding conduct before trial. The County must provide programs and services to maximize the ability of the preh·ial bail practices set fmih in Section 30 of this Consent Decree to serve the government's compelling interests by mitigating possible causes of non-appearance.
52. Within 180 days of the effective date of this Consent Decree, or as soon as practicable taking into account the County's procurement processes, the County will engage one or more researchers to: (1) study the primary causes of nonappearance in the CCCL; and (2) based on the results of the study, recommend cost-effective policy solutions and programmatic interventions to mitigate the causes of nonappearances.
a. The study must be based on qualitative and quantitative research methods. The researcher(s) engaged by the County to design and conduct the study must have social science training and demonstrated experience evaluating pretrial systems and processes.
b. As soon as practicable after the study concludes, the researchers must provide written findings regarding the primary causes of nonappearance in the CCCL, as well as written recommendations to the County for mitigating nonappearance. The researchers' written findings and recommendations must be published in a repmi that the County will make available to the public online and upon request, as soon as practicable after publication.
c. The study must evaluate the extent to which and explain how economic, geographic, and structural factors conh·ibute to nonappearance for scheduled hearings before the County Criminal Courts at Law. At a minimum, the study must evaluate the following possible causes of nonappearance and may evaluate any other possible causes:
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1. lack of transportation;
11. lack of childcare;
111. lack of permanent housing;
1v. lack of access to a telephone and/or a computer;
v. confusion and misinformation about court dates;
vi. inflexible work schedules;
vii. detention by other jurisdictions;
viii. substance use disorders;
IX. mental health problems;
x. lack of sufficient notice or understanding of procedures; and
x1. medical emergencies.
d. The study must also investigate and identify best practices and provide reasonable, cost-effective recommendations that the County can implement to mitigate the causes of nonappearance by misdemeanor arrestees. The recommendations must also include best practices for advising misdemeanor arrestees of their upcoming scheduled court dates.
e. The study must provide initial actionable recommendations within 180 days of commencing (absent any exceptions afforded pursuant to Section 29), but the researcher(s) may continue the study beyond that date and may provide additional recommendations.
53. While the study required by Section 52 is ongoing, and until implementation of the p lan required by Section 55 begins, the County must allocate $250,000 annually, beginning in Fiscal Year 2020-21, toward assisting and supporting indigent misdemeanor arrestees in making court appearances. 78 The County may use the $250,000 in its discretion,79 except that,
78 If the length of time required to begin implementation is less than one year, this amount will be prorated to a portion of $250,000 that reflects the time required to begin implementation. 79 This investment is intended to provide assistance and supp01t to indigent misdemeanor arrestees. As a result, while investments in transpOt1ation to court, medical and mental health care, safe and affordable shelter, communication, tTanslation and interpretation, drug treatment, and other services are contemplated, the County will not be pennitted to satisfy this provision through expenditures on law enforcement, including j ailing; libeJty-rest:ricting conditions of pretrial release, such as electronic monitoring or substance abuse testing; or funding for prosecution.
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in order to satisfy this section (Section 53), the County must seek approval from the Monitor that its proposed allocation meets the requirements of Footnote 80. The Monitor must obtain Class Counsel's input in evaluating the County's proposed allocation. The County may provide its own funding or secure and utilize one or more external sources of funding to meet its obligations under this section (Section 53), including but not limited to allocating savings from Class Counsel's attomeys' fees donation or securing government grants and/or private philanthropic funding, to meet this obligation.
54. After the study concludes, the County must allocate at least $850,000 per year, absent demonstrating good cause to the Monitor for allocating a lesser amount, for each of the first seven (7) years following the conclusion of the study, toward mitigati ng the causes of nonappearance in the County in accordance with the plan required by Section 55. To establish good cause, the County must submit such purported cause to the Monitor. The Monitor must notify Class Counsel that Defendants have sought permission from the Monitor to spend less than $850,000 per year. The Monitor must make a determination of whether good cause exists for allocating a lesser amount. Either Party may file a motion to the Court if that Patty disagrees with the Monitor's dete1mination. The County may provide its own funding or secure and utilize one or more external sources of funding, including, but not limited to, allocating savings from Class Counsel's attorneys' fees donation or securing government grants and/or private philanthropic funding, to meet these obligations.
55. Within 180 days ofreceiving the published results ofthe study, absent any exceptions afforded pmsuant to Section 29, the County must work in consultation with the researchers that conduct the study to develop a written plan for mitigating the causes of nonappearance in the County, as determined by the results of the study, including a reasonable timeline for implementing the plan and a proposed budget for how the $850,000 (or more, in the County's discretion) will be spent annually in each of the initial three years following the study.80 After two years, the plan must be updated to identifY expenditures for subsequent years. The County will present the plan to the Monitor, who will convey the plan to Class Counsel for review.
a. The County will submit the plan to the Monitor for review and approval in accordance with Sections 111- 114. The Monitor will solicit Class Counsel's written comments and objections on the plan dming its 30-day review period provided by Sections 111114. Upon retuming its comments or objections to the County in accordance with Sections 11 1- 114, the Monitor will also convey Class Counsel's comments or objections to the County for the County's consideration and response. The County must respond to all comments and objections within 30 days of receipt from the Monitor. The County's response must explain its position on the comments or objections, if any, and include any proposed amendments necessary to address them.
80 Tllis investment is intended to provide assistance and support to indigent nlisdemeanor arrestees. As a result, whlle investments in transportation to court, medical and mental health care, safe and affordable shelter, communication, translation and interpretation, drug treatment, and other services are contemplated, the County will not be permitted to satisfy this provision through expenditW'es on law enforcement, including jailing; libetty-restricting conditions of pretrial release, such as electronic monitoring or substance abuse testing; or funding for prosecution.
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b. The Monitor may function as a liaison to secure Class Counsel's input on the plan. If Class Counsel objects to any aspect of the plan, and the Monitor is unable to resolve the dispute, the Parties may submit the dispute to the Court to resolve in accordance with Sections 111- 114.
56. Notwithstanding the Parties' agreement in this Consent Decree to study and implement best practices to mitigate nonappearance, nothing will prevent Defendants from seeking to implement, before the study is complete, additional good-faith efforts to reduce nonappearance for people on pretrial release.
IX. COURT POLICIES AND PROCEDURES CONCERNING NONAPPEARANCE FOR SCHEDULED COURT HEARINGS81
57. No later than 180 days after the entry of this Consent Decree, the County must develop and maintain a website where misdemeanor arrestees can access their court dates, times, location, attorney information, whether the next couti appearance is "required" or "regular," and any additional case information that the CCCL Judges or County deem appropriate. The website must be updated to reflect accurate comt dates and times within 24 hours of a court date being scheduled.
58. Options for rescheduling a court date: The County will provide technology that defense counsel and misdemeanor anestees can use to facilitate requesting a new court date or to be informed of a court date that the court has set. With the goal of identifying mechanisms for rescheduling comt dates that do not require the misdemeanor anestee or the anestee's counsel to appear in person to obtain a new court date, the County and the CCCL Judges will work with the Monitor to identify and implement the most effective technology to facilitate rescheduling comt dates. If a misdemeanor arrestee receives a new court date, notice of the new comt date must be provided via the telelphone and text-message reminders required by Section 49- 50. Ifdefense counsel has been appointed or retained, notice must also be provided to counsel. A record of the notice provided must be preserved in the misdemeanor arrestee's case file. The County will also ensme that there is an in-person option for rescheduling a comt date during regular business hours.
59. To comply with the requirement that there be an in-person option for rescheduling court dates during regular business hours, the CCCL Judges will designate one CCCL Judge each week, for at least one day each week, to preside over an "Open Hours Court" to be located in that CCCL Judge's own comtroom. The Open Hours Comt will occur on a predictable weekly schedule, and the schedule will be posted in the comihouse, at the jail, on the written notification(s) described in Sections 47-48, and on the website described in Section 57. This Consent Decree does not require the Open Hours Comt to operate beyond normal business homs.
81 "Defense counsel" or "attorney" for purposes of this Section refers to counsel appointed or retained to represent a misdemeanor atTestee before the Harris County Criminal Cour ts at Law.
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60. Beginning no later than 180 days from the appointment of the Monitor, the County and the CCCL Judges must implement the policies and practices in Sections 57-79. The objective of these provisions is to promote effective implementation of Local Rule 9 and accurate and transparent tracking and publication of rates of nonappearance.
61. Notice of the CCCL Judges' appearance, rescheduling, and warrant policies will be provided on the written notification(s) described in Sections 47---48 and on the website described in Section 57.
62. To ensure that people released from custody after arrest have an adequate oppmtunity to address the dismption to their lives caused by the arrest, absent a request made by an arrestee or the arrestee's counsel, no misdemeanor arrestee may be required to appear in court less than 72 hours of being released from jail for proceedings in the same misdemeanor case in which they were atTested and released.
63. The terms "regular setting" and "required appearance" are defined in Section 17(q) and Section 17(r) above.
64. Open Hours Court: County and CCCL Judges must provide at least one weekly "Open Hours Court" to be held at the same time and on the same day each week, which may be rescheduled from time to time, to account for holidays or other cowt business. Any change to the Open Hours Court schedule must be advertised on the website as described in Section 57 at least 30 days in advance of the change becoming operative. The location of the Open Hours Court must be advertised as described in Sections 48(a) and 57. Any misdemeanor arrestee who has missed a court appearance can appear at Open Hours Court to reschedule the missed court appearance, subject to the other provisions in this Consent Decree. The County will ensure that assistant public defenders and/or private appointed counsel will be available at this docket to assist unrepresented individuals who appear. The purpose of Open Hams Court is to provide an opportunity for people to move fmward with the business in their cases more efficiently and, to the extent permitted by other provisions of the Consent Decree, to do so without fear of going into custody for a prior nonappearance. This program must be advertised as described in Sections 48(a) and 57.
65. Waiver of appearance:
a. Upon request by counsel, before or dming a regular setting, a misdemeanor arrestee's appearance at any regular setting must be waived.
b. Notwithstanding Section 65(a), a CCCL Judge will be authorized to conve1t any regular setting into a required appearance with 7 days' written notice to the misdemeanor arrestee and/or her lawyer that the anestee's personal appearance in comt is required and will not be waived.
c. Notwithstanding any other provision in this Consent Decree, a CCCL Judge may, on his or her own motion, waive a misdemeanor arrestee's appearance at any comt appearance at which that CCCL Judge is presiding, consistent with Texas law.
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66. Rescheduling in advance of the court date:
a. A misdemeanor atTestee who is not in custody may reschedule any regular appearance in advance of the court date by using the rescheduling procedmes described in this Consent Decree.
b. A misdemeanor arrestee who has not sought a waiver of appearance and is not in custody may reschedule through counsel any regular appearance in advance of the court date two times per case for any reason with no adverse consequences. Ifmultiple open cases are consolidated onto a single schedule of court appearances, any rescheduling of any one of the open, consolidated cases will count toward the two permitted reschedulings for all of the open, consolidated cases.
c. After a misdemeanor arrestee reschedules twice, any subsequent nonappearance at a regular setting may result in a warrant being issued ifthe CCCL Judge finds that notice of that setting was provided in accordance with this Consent Decree, and does not make a finding of good cause.
67. Process for issuing a warrant after nonappearance at a regular setting:
a. If a misdemeanor arrestee does not appear at a regular setting, and the appearance was not waived in advance, the case will be rescheduled for the following week's Open Hours Court. The County and the CCCL Judges will inform the misdemeanor anestee of the new date and time for the court setting at which the misdemeanor arrestee's presence is required using the notification procedures set forth in this Consent Decree. The misdemeanor arrestee may appear at the following week's Open Hours Court or in the assigned court at any time between the date of the missed regular setting and close of business on the day of Open Hours Corut of the week following the missed setting to reschedule the missed regular setting without arrest or other adverse consequences for a missed regular setting.
b. If a misdemeanor arrestee does not appear at a regular setting, and does not appear in Open Hours Corut or the assigned court before close of business on the day of Open Homs Comt of the week following the missed appearance, a wanant for nonappearance may issue to the extent consistent with state law.
68. Process for issuing a warrant after nonappearance at a first setting or required appearance:
a. If a misdemeanor arrestee does not appear at a first setting or a required setting, meaning that the anestee has not appeared in corut within one hour of the time set for the misdemeanor anestee's appearance or by the time the docket (if applicable) has concluded, whichever is later:
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1. The CCCL Judge must determine whether the misdemeanor anestee had actual notice of the couti setting and whether there exists good cause for nonappearance.
Ifthe CCCL Judge finds that good cause exists for the misdemeanor arrestee's nonappearance then a wanant may not issue and the setting must be rescheduled for a minimum of seven days in the future. Because notice is a basic requirement of due process, lack of actual notice of the court setting constitutes good cause for nonappearance such that an arrest warrant for nonappearance may not issue. If the CCCL Judge finds that no good cause exists for the misdemeanor arrestee' s nonappearance, then the CCCL Judge may take any action consistent with Texas state law. 69. Process for rescheduling a court date after a warrant has been issued:
a. If a warrant is issued following nonappearance at a regular setting or first setting, the atTestee may appear in the assigned court or the Open Hours Cowt and request a new court date. In the absence of other bases for the misdemeanor arrestee's arrest, the warrant for nonappearance will be recalled when the misdemeanor arrestee seeks to reschedule the missed regular setting or first setting. A misdemeanor anestee may reschedule a first setting or a regular setting after a warrant for nonappearance has issued twice without risking arrest. In such circumstances, the warrant for nonappearance must be recalled.
b. If a wanant is issued following nonappearance at a required appearance, the arrestee must appear in person in the assigned couti or at Open Hams Court to request a new cowi date. Tf practicable, and to avoid the need to atTest, book, and jail the misdemeanor atTestee, the missed setting should be rescheduled for that day. If the setting cannot occur that day and must be rescheduled for another date, the judge will have discretion to recall the warrant, modify conditions of pretrial release, or order that the misdemeanor arrestee be taken into custody on the warrant if such custody is othe1wise consistent with state law and if the court finds after a hearing with counsel, that (i) there was actual notice of the required setting that was missed and (ii) no good cause exists for the nonappearance.
70. All misdemeanor anestees with outstanding arrest wanants for nonappearance issued for any type of misdemeanor court apperu·ance prior to January 1, 2019, will be permitted to appear at Open Hours Court or in the assigned court, or to use any of the rescheduling procedures described in this Consent Decree, to have the wan·ant for nonappearance recalled and to receive a new cowt date in the assigned court. No such misdemeanor anestee may be arrested for nonappearance pursuant to a wan·ant for nonappearance issued on or before December 31, 2018, upon voluntary appearance in Open Hours Cowi or in the assigned court. This option must be advertised on the website described in Section 57, in the joint processessing center, and by any other method determined by the County. The County may also choose, in its discretion, to advertise this option on local radio and television.
71. The CCCL Judges ru·e committed to recording data regarding nonappearance and failures to appear in an electronic, machine readable fmmat that will provide a basis for tracking and
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comparing nonappearance rates and failure-to-appear rates of misdemeanor arrestees released on different pretrial conditions.
72. The CCCL Judges will continue to evaluate their policies relating to court appearance and determine whether they can authorize misdemeanor arrestees who are represented by counsel to waive personal appearance at additional hearings in order to minimize the burden of court appearance on the system and on indigent arrestees. The CCCL Judges will provide a repmt to the Court Monitor and Class Counsel regarding the process used to evaluate local policies and the conclusions reached within 180 days of ently of this Consent Decree.
X. CONTINUING TRAINING
73. To enhance and promote compliance with the purpose and requirements of this Consent Decree, Defendants will provide ongoing training to the CCCL Judges and Defendants' agents and employees whose work is necessary to implementing Local Rule 9, including public defenders and private appointed counsel. The Monitor will recommend any additional training that is needed to promote full implementation of the Consent Decree more broadly.
74. To that end, and within 180 days of the appointment ofthe Monitor, or as soon as is practicable in light of the County's procurement processes, the Defendants may, in consultation with the Monitor, engage a consultant and/or technical assistance provider to assist in developing an ongoing training plan ("Training Plan") that Defendants will implement to promote full and effective implementation of the Consent Decree. If Defendants decide to engage such a consultant and/or technical assistance provider, that person or entity must have expettise in pretrial systems and experience developing or conducting tt·aining on pretrial practices.
75. The Training Plan must include both an initial training course and an annual refresher training course that the CCCL Judges and Defendants' agents and employees whose work is necessary to implement Local Rule 9 will be required to complete. The County may provide the training in person or online.
76. The Training Plan must incorporate qualitative and quantitative training on the following:
a. The pmpose, proper implementation, and enforcement of Local Rule 9 and this Consent Decree, and the requirements to uphold the constitutional rules and standards governing pretTial release and detention and the use of secured money bail;
b. Costs and consequences ofprettial detention on misdemeanor arrestees and the public, including empirical research concerning:
1. The effects of pretrial detention on case outcomes (including the effect of secured bail and pretrial detention on guilty pleas, time served pretrial, conviction and sentencing, and sentence length) and re-anest and recidivism during the pretrial period and following case disposition; and
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n. The social and economic impacts on accused persons, their families and communities, and the broader community resulting from pre- and post-trial incarceration;
c. The available altematives to pretrial detention locally, best practices and alternatives employed in other jurisdictions, and the costs and consequences of and alternatives to issuing bench warrants in response to nonappearance and failures to appear;
d. Discussion of cmrent data, research, and best practices relating to bail setting and pretrial release practices nationally;
e. Accounts and stories of people who have been affected by the bail system in Harris County or their family members.
77. Throughout the development of the Training Plan, the Monitor must consult with Class Counsel regarding the content of the training and the individuals and entities who will conduct the training.Defendants must submit the proposed Training Plan to the Monitor for review and approval in accordance with Sections 111- 114 below.
78. Class Counsel may review the Training Plan on an annual basis and recommend updates and improvements as necessary to maintain compliance with the provisions and purpose of this Consent Decree, policies and practices developed pursuant to this Consent Decree, and any developments in applicable law.
79. Defendants will begin implementing the Training Plan upon approval by the Monitor, who must review the trainings provided under the Training Plan annually and recommend updates and improvements as necessary to maintain compliance with the provisions and purpose of this Consent Decree, policies and practices developed pursuant to this Consent Decree, and any developments in applicable law. Class Counsel must review any proposed updates to the Training Plan before they are implemented.
XI. DATA COLLECTION, ANALYSIS, AND TRANSPARENCY
80. The purpose of this Section is to ensure that Harris County's pretrial system can be effectively monitored and evaluated to determine whether it is remedying the constitutional violations raised in this litigation, and whether Defendants are complying with the purpose and provisions of this Consent Decree. It is also intended to facilitate constitutional and effective misdemeanor pretTial decision-making and outcomes that maximize pretrial liberty and court appearance rates; and to enhance accountability and transparency related to Defendants' pretrial policies, practices, and decision-making conceming misdemeanor arrestees. 82
82 At a hearing on January 23, 2018, when Plaintiffs raised the concern that Defendants had not produced documents in discovery, the district cowt expressed concerns about Defendants' lack of "transparency" in this case. Transcript of 1/23/18 Hearing at 5, ODonnell v. Harris Cty., 251 F. Supp. 3d 1052 (S.D. Tex. 2017) (No. 16-cv-0 14 14) (THE COURT: "[T]ransparency is another feature that is in insufficient supply in many aspects of this case[.] ... And the lack oftransparency is not the Plaintiffs'."). Additionally, when the litigation was stayed in November 2018, P laintiffs
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81 . Defendants will systematically and continuously collect and preserve the data and records necessary to analyze and report on Defendants' compliance with the intent and requirements of thi s Consent Decree and the constitutional standards governing pretrial release and detention; Defendants' decision-making and perfmmance related to the pretrial release and detention of misdemeanor arrestees; and the effects of Defendants' pretrial policies, practices, and decision-making on the comparative case outcomes and nonappearance rates of misdemeanor atTestees. Within 180 days of appointment of the Monitor, Defendants will consult with the Monitor to detennine the extent to which Defendants already collect the data variables sufficient to permi t tracking, analysis, and repmting required by this Consent Decree. In consultation with the Monitor, within 180 days of appointment of the Monitor, Defendants will also:
a. Identify and define the data variables Defendants will be required to collect and preserve to effectively analyze and report on the measures identified in Section 85, with the exception of " nonappearance" and "failure to appear," which are defined in this Consent Decree.
b. Detetmine how Defendants can collect and maintain the data variables required in a manner that allows the Monitor, Class Counsel, Defendants, and members of the public to access, review, analyze, and repott on them efficiently and effectively. The Monitor should take into account that several County agencies are currently responsible for collecti ng and preserving the County's misdemeanor pretrial data and include in its recommendations ways the County can integrate the required data variables across those agencies' data systems upon coll ection.
82. If, upon evaluation, any of the Defendants concludes that it would be cost prohibitive or othetwise infeasible to collect or maintain any of the data variables they are required to collect under this Consent Decree, Defendants may submit a request to the Monitor seeking exemption from the requirement to collect and maintain the particular data variable(s). The Monitor will evaluate any such request by Defendants to determine whether they can be relieved of their obligation to collect and maintain the particular variables for which exemption is sought.
83. Within 180 days of appointment of the Monitor, the County will develop and implement a process by which the public can download, or othetwise readily access, the raw data that Defendants are required to collect and maintain under this Consent Decree in a usable format, such as an Excel spreadsheet. Any such process is expected to preserve and maintain compliance with applicable state and federal laws concerning confidentiality of information. The intent of this Section is to promote transparency and accountability by promoting public access to and analysis of the data and information collected pursuant to this Consent Decree.
had sought leave from the Court "to conduct futher depositions ... crucial to discovering why and how Defendants desh-oyed relvant evidence for almost a year into this case, and then failed to disclose that fact when they learned it more than a year ago," so that Plaintiffs could "determine whether it would be appropriate to move for sanctions." Plaintiffs' Pre-motion Letter Seeking Leave to Conduct Additional Depositions, ODonnelL v. Harris Cty., 251 F. Supp. 3d 1052 (S.D. Tex. 2017) (No. 16-cv-01414), ECF No. 523-1.
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84. The County will preserve all existing data relating to misdemeanor cases from 2009 through the present, including all data used to generate the rep01ts required by Sections 87 and 89, to faci litate comparative analysis of the County's prior misdemeanor pretrial system with the misdemeanor pretrial system that will be implemented pursuant to this Consent Decree.
85. Defendants will also continue to collect and maintain all of the misdemeanor case data variables they collect and maintain cunently, including all of the data variables that Defendants have produced to Plaintiffs in this litigation. If feasible and not cost prohibitive,83 Defendants will also collect and maintain data variables sufficient to permit tracking, analysis, and reporting of the fo llowing infonnation, to the extent applicable for each misdemeanor arrestee:
a. Race and ethnicity of the misdemeanor arrestee; b. Zip code of home residence of the misdemeanor arrestee and/or place of arrest; c. Primary language(s) spoken by the misdemeanor arrestee; d. Financial status of the misdemeanor arrestee (e.g. income bracket, employment status,
receipt of means-tested government benefits, automobile ownership, education level, and/or residence status or homelessness); e. Any concurrent holds and, if so, which type(s) and/or any concunent felony charges; f. Whether the misdemeanor anestee was identified as a "non-carve-out" or a "carveout" (including the relevant "carve-out" category) under Local Rule 9; g. To the extent applicable, all underlying constituent data points used in calculating an actuarial risk score or recommendation; h. Any amount of money the misdemeanor anestee reported being able to afford to pay at the time of the bail hearing, as set forth in Local Rule 9; 1. Whether the misdemeanor anestee was afforded the procedural requirements of a bail hearing, as set forth in Local Rule 9; J. Whether a motion for secured bail, high bail, or pretrial detention was filed, and, if so, which; k. Substantive findings made by the judicial officer at the bail hearing; l. Any date and times of release from custody; m. Any scheduled appearances that the misdemeanor anestee appeared at; n. All instances of "nonappearance" as defined in this Consent Decree; o. All instances of "failure to appear" as defined in this Consent Decree; p. Any scheduled appearances that were waived and/or rescheduled; q. Any pretrial release decisions by a judicial officer and the date of each; r. Any pretrial release recommendations (e.g. release, release to supervision, etc.) made by a judicial officer and the date of each; s. Any conditions of release or supervision imposed by a judicial officer, the date each was imposed, and the amount of any fees assessed; and t. Any fmdings that a bond condition was violated and the results of any such findings (e.g. revocation; forfeiture; additional conditions imposed; etc.).
83 As determined pursuant to Section 82.
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86. "Failure to appear" and "nonappearance" are defined in Section 17(f) and Section 17(m), respectively, of this Consent Decree. Within 180 days of the appointment of the Monitor, absent any exceptions afforded pursuant to Section 29, and subject to Section 29, Defendants, in consultation with the Monitor and any subject matter experts or technical assistance providers Defendants deem necessary, will begin collecting and maintaining data concerning nonappearances and failures to appear by misdemeanor anestees in a standardized electronic format. The process by which Defendants collect and maintain data concerning nonappearances and failures to appear must be approved by the Monitor and must permit transparent, consistent, and reliable collecting and reporting of comparative failure-to-appear rates and comparative nonappearance rates of misdemeanor arrestees released on different bond types and under various conditions of release.
87. Within 180 days of the appointment of the Monitor, Defendants must begin generating reports once every 60 days that provide the information in Section 89-except that, where Defendants do not yet collect the data needed to report on certain information in Section 89, they will work with the Monitor to dete1mine an appropriate timeline in which to collect, analyze, and begin repmiing on any new data that is feasible and not cost-prohibitive to collect. The reports must clearly indicate a break-down of numbers and percentages by race and zip code of residence. The purpose of these repotis is to ensure that basic information necessary to evaluate how the Consent Decree is affecting the County's misdemeanor pretrial system is readily available to and can be easily understood by Defendants and their agents and employees working within the system, community members, the Monitor, and Class Counsel. The reports must be made publicly available on the website described in Section 90. Defendants may authorize the Monitor, or a subject-matter expert or technical assistance provider with experience and expertise in analyzing large datasets, to generate the reports. Defendants will work with the Monitor, along with any technical assistance provider Defendants authorize to generate the reports, and to dete1mine additional perameters for the analysis such as the appropriate time period that each report will cover and whether the infmmation will be reported in tem1s of cases or persons.
88. To promote transparency and accountability, the County will also develop a web-based data platform ("Data Platform") that organizes, integrates, analyzes, and presents the information required by Section 89 into a public-facing interface.84 The County may engage a technical assistance provider with expertise in data analytics to create the Data Platform. Subject to Section 82, Defendants must also analyze and present, at a minimum, the following information listed in Parargaph 89 on the Data Platform, which must allow for a break-down of all numbers and percentages by race and zip code of residence.
89. If feasible and not cost-prohibitive,85 all of the following information will be published publicly through the Data Platform as required by Section 88. All such information will
84 The County is not precluded from organi zing, integrating, analyzing, and presenting additional infonnation or data on the Data Platform.
85 As determined pursuant to Section 82.
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preserve and maintain compliance with applicable state and federal laws concerning confidentiality of information. Defendants will work with the Monitor, as necessary, to identify and define any additional measmes and outcomes on which Defendants will report to the public to facilitate transparency and accountability in meeting the goals and requirements of this Consent Decree and the frequency with which Defendants will report on those measures and outcomes.
a. The misdemeanor pre-trial and post-conviction jail population, excluding detainees who are subject to holds and/or concurrent felony charges;
b. The percent of misdemeanor arrestees detained at disposition; c. Total number ofpeople arrested for misdemeanor offenses; d. Total number of people cited and released for misdemeanor offenses; e. Total number of misdemeanor cases filed; f. Total number and percent of misdemeanor atTestees who fell into the carve-out
categories and, separately, the non-carve-out categories; g. Total number of atTestees in each carve-out category; h. Total number and percent ofmisdemeanor arrestees released on a General Order Bond; 1. Total number of bail hearings that occurred in the Joint Processing Center; J. Total number of bail hearings that occurred in the CCCL; k. Total number of arrestees who had a bail hearing and remained detained longer than
24 hours after anest, and the length of time each atTestee was detained; 1. Total number of arrestees required to pay secured money bail as a condition of release,
and, of that number, the total number who did not pay the seemed bail amount required; m. Total number of people detained 24 hours or longer who were not detained for any reason other than a pending misdemeanor charge; n. Total number of arrestees:
i. Assigned to pretrial supervision; ii. Assigned to electronic monitoring; iii. Required to report in person at Pretrial Services; iv. Required to undergo any dmg testing; v. Required to undergo any form of mental health treatment; and vi. Whose release was conditioned on home detention; o. Total number of bond forfeitures ; p. Total number of bond revocations; q. The length of time to disposition for people released on different bond types; r. Median time to disposition for people detained at disposition; s. Median time to disposition for people released at disposition; t. Number and percent of cases resulting in a guilty finding, broken out by whether the misdemeanor anestee was detained or released at disposition; u. Number and percent of cases resulting in dismissal, broken out by whether the misdemeanor arrestee was detained or released at disposition;
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v. Number and percent of cases resulting in community supervision, broken out by whether the misdemeanor arrestee was detained or released at disposition;
w. Number and percent of cases in which the misdemeanor arrestee was sentenced to jail time, broken out by whether the misdemeanor arrestee was detained or released at disposition;
x. Number and percent of cases in which a motion for a high bond was filed, and, if generated, the final risk assessment score for each misdemeanor arrestee who was the subj ect of such a motion;
y. Number and percent of cases in which a motion to detain a misdemeanor arrestee was filed, the offense with which the misdemeanor arrestee was charged, and, ifgenerated, the final risk assessment score for each misdemeanor arrestee who was the subject of such a motion; and
z. Any other data analysis the Monitor detetmines is required to adequately understand how the County's pretrial system works.
90. Within 90 days of the entry of this Consent Decree, the County must launch and maintain a website ("Consent Decree Website") for information related to the ODonnell lawsuit and this Consent Decree. The website will be updated on an ongoing basis, as needed, and, once the website is accessible online, must provide public access to the following materials:
a. Links to the Consent Decree and all of the information and data the County is required by this Consent Decree to collect and report on in accordance with Sections 88 and 89;
b. Materials used for trammg concerning implementation, monitoring, or rep01ting related to this Consent Decree must be publicly available on the website.
XII. OVERSIGHT AND ACCOUNTABILITY
91. All Parties recognize that the input and involvement of the residents of Ranis County will be essential to meaningful and lasting reform and to effective and ongoing monitoring and evaluation of the system. Therefore, Defendants are committed to involving community members in the implementation and monitoring process. To that end, within 180 days, Defendants will submit a plan to the Monitor for conducting regular public meetings that are intended to promote transparency, accountability, and local participation in the implementation process. At each meeting, a representative of each Defendant group and the Court Monitor must report on implementation of the Consent Decree, including explicitly identifying areas of success and areas for improvement.
92. The following are minimum requirements for the meetings, but Defendants will have broad discretion within these parameters to detennine the most effective way to communicate and work with their constituents:
a. The meetings must occur at least every six months in at least two geographic locations that render them accessible to the maximum number of residents possible. To the
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extent practicable and cost-feasible, the County will simulcast the meetings via the website described in Section 90;
b. At least one representative of each Defendant group (i.e., the County, the Sheriff, and the CCCL Judges) with knowledge of the process for and progress toward implementing the Consent Decree, will attend the meeting, together with the Monitor;
c. Defendants will work with local community groups to detetmine the parameters of the meetings, including time of day, length of meeting, location of meeting, agenda, and allocation of time to specific agenda items, with the goal of reasonably maximizing transparency and information sharing. The Monitor must approve the parameters of the meetings;
d. Defendants will provide community members a reasonable opportunity to provide input relating to the County's criminal legal system, to ask questions of Defendants' representatives and the Monitor relating to implementation of the Consent Decree, and to have those questions answered during the meeting.
XIII. PUBLICATION OF POLICIES ENACTED TO IMPLEMENT THE CONSENT DECREE
93. As soon as practicable, key policies enacted to implement this Consent Decree must be made available online. In addition, a summary of the key policies must be made available in wtiting at each of the following locations and in each language in which Ranis County is required to provide a ballot tmder Section 203 of the Voting Rights Act of 1965:
a. Ranis County Joint Processing Center, 700 N San Jacinto St, Houston, TX 77002; and b. Harris County Ctiminal Justice Courthouse, 1201 Franklin St, Houston, TX 77002.
94. Within 60 days of the appointment of the Monitor, Defendants must confer and agree on the key policies to be summarized and made available at the above locations. The Monitor will resolve any disputes about the length and content of the summary. The policies and the summary of the policies must be reviewed every six (6) months and updated as necessary.
XIV. CONSENT DECREE MONITOR
A. The Monitor
95. The Patiies will jointly select an independent monitor ("Monitor") who will assess and report on whether the requirements of this Consent Decree have been implemented. The Monitor's decisions and evaluations will be guided by the principles of ensuring accountability, transparency, and compliance with this Consent Decree consistent with the overall goals of maximizing pretrial liberty, cowi appearance, and public safety.
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96. The Monitor may be an individual, team of individuals, non-profit institution, or non-profit organization. The Monitor must have the knowledge, skills, and expertise necessary to accomplish the Monitor's duties under this Consent Decree.
97. The Monitor will have only the duties, responsibilities, and authority conferred by this Consent Decree. The Monitor will not, and is not intended to, replace or assume the role or duties of the County, any County official, the Sheriff, or the CCCL Judges.
98. In order to assess and report on whether the requirements of this Consent Decree have been implemented and its objectives are being achieved, the Monitor will conduct the reviews, audits, and assessments specified below, and such additional audits, reviews, and assessments as the Monitor reasonably deems necessary to determine whether the Consent Decree has been implemented as required.
B. Selection and Compensation of the Monitor
99. The Parties will jointly select a Monitor that is acceptable to all. The Monitor will have expertise in some combination of the following: pretrial release and detention practices, monitoring and oversight, preparation of reports or other written materials for diverse audiences, law and civil rights, project management, data analysis and information technology, communication, and budgeting. The Monitor will also have a demonstrated ability to collaborate with government entities and knowledge of the diverse communities affected by the pretrial system. The Monitor will act in accordance with standards of integrity and will consistently demonstrate professionalism and respect in all interactions with the community, County officials and agents, members of the coutis, and all others with whom they interact in the course of performing the Monitor's duties.
100.The Monitor may evaluate and provide recommendations to the County regarding the resources and staffmg needed to promote efficient and effective implementation of this Consent Decree, which the County may consider in allocating resources to carry out this Consent Decree.
101.In selecting the Monitor, the Parties have established a mutually agreed-upon process:
a. As soon as practicable, but no later than 60 days from the date of approval of the Consent Decree, the Parties will request proposals from qualified candidates interested in serving as the Monitor that include an identification of qualifications, proposed team members, proposed Monitoring plan, and a proposed budget. The period for receiving applications may be no less than 30 days and no more than 60 days.
b. Within 30 days from the close of the period for submitting applications, the Pm1ies will review applications, interview candidates, and recommend a candidate to the Comt for appointment.
102.Ifthe Parties m·e tmable to agree on a Monitor, each Patty will submit the name of the proposed individuals, groups of individuals, or entities, along with resumes and cost proposals, to the
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Court. The Comt will consider the Parties' submissions and will choose a candidate or candidate team proposed by one of the Patties.
103 .The Parties recognize the importance of ensuring that the fees and costs associated with the Monitor are reasonable. Accordingly, the Monitor will submit a proposed budget annually. The County will fund the Monitor at a reasonable rate.
104.The County will provide the Monitor with office space and reasonable office support, such as furnitme, telephones, computers, intemet access, IT suppott, secme document storage, and document scanning capabilities.
105.The Monitor may hire, employ, or contract with such additional persons or entities as are reasonably necessary to perform tasks assigned to the Monitor by this Consent Decree. Any person or entity hired or otherwise retained by the Monitor will be subject to the provisions of this Consent Decree.
I 06. The Patties may submit written feedback to the Monitor, the Patties, and the Court regarding the Monitor. The feedback may address such topics as the Monitor's effectiveness, the Monitor's ability to work cost-effectively on the budget, and whether the Monitor is adequately engaging the community and relevant stakeholders. Upon receiving the Parties ' feedback, the Court may convene the Patties and Monitor to discuss the feedback.
107.At any time, on motion by any Patty or the Comt's own detetmination, the Comt may remove the Monitor for good cause.
108.In the event the Monitor is removed, resigns, or is no longer able to fulfill its responsibilities under this Consent Decree, the Court will appoint a replacement recommended by the Patties. The Patties' selection will follow the same process as desctibed in Sections 99-102.
109. Except for the period in which a new or replacement Monitor is selected, there will be a Monitor in place for seven (7) years from the appointment of the Monitor.
110.The Monitor must operate for a period of seven (7) years beginning on the date that the Monitor is appointed by the Court. The period may be extended for good cause. Good cause is shown if any Defendant has not been substantially in compliance with this Consent Decree in the two years immediately prior to the end of the fmal scheduled year.
C. Monitor's and Parties' Review of Implementation Plans, Policies and Procedures, Proposals, and Training Materials
111.The County, Shetiff, or CCCL Judges will submit their plans, policies, procedmes, proposals, or materials required by this Consent Decree to the Monitor for consultation, review, and, in specified cases, approval. The Monitor will provide Defendants any wtitten comments on or objections to any submissions by Defendants within 30 days of receipt from Defendants. Defendants will respond to any comments from the Monitor within 30 days of receipt from the Monitor. Defendants' response will explain Defendants' position and include any
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proposed amendments as necessary to address the Monitor's concerns. Where specified, the Monitor must approve summission before it can be implemented.
112.All such submissions must be sent simultaneously to Class Counsel. Any response from Class Counsel must be sent simultaneously to Defendants. The Monitor may function as a liaison to secure Class Counsel's input and feedback on any submissions. The Monitor will pennit all Parties to review and comment on any final plans, policies, procedmes, or other materials required by this Consent Decree prior to implementation with sufficient time such that Defendants can modify their plans, policies, procedures, or other materials prior to the implementation deadline in light of input from Class Counsel.
113.The Patties and the Monitor may work collaboratively on developing and revising any materials related to this Consent Decree.
114.Any party is free to seek intervention by the Court in the event the parties and the Monitor are unable to resolve any disagreements about the implementation of any provision of this Consent Decree. If a party seeks intetvention by the Court, the implementation timelines will be tolled while the Court tmdertakes review. Absent the objecting party's consent, implementation will not begin until the Court resolves the dispute.
D. The Monitor's Compliance Reviews and Reports
115.The Monitor will conduct reviews every six (6) months for the first three years the Monitor is in place and ammally fo r each year thereafter that the Monitor is in place to determine whether the County, CCCL Judges, and Sheriff have substantially complied with the requirements of this Consent Decree. Compliance with the requirements means that the County, CCCL Judges, and Sheriff: (a) have incorporated the requirements into policy and explicitly rescinded and eliminated any existing, contradictory policies; (b) have trained all relevant personnel as necessary to fulfill their responsibilities pursuant to the requirements; and (c) are canying out the requirements of the Consent Decree in actual practice.
116.No later than 60 days after appointment of the Monitor, the Monitor will develop a plan ("Monitoring Plan") for conducting compliance reviews and audits for the first year of implementation, and share it with the parties for review and comment. The Parties will have 30 days to provide comments or objections. In subsequent years, the Monitor will, in coordination with the Parties, prepare an annual Monitoring Plan for each year the Monitor is in place. The Monitoring Plan will be made public, including by being posted on the Website desctibed in Section 90, will clearly delineate the requirements of this Consent Decree to be assessed for compliance, will identify the proposed methodology for auditing compliance, and will create a schedule with target dates for conducting reviews or audits of applicable requirements.
117.Every six (6) months for the first three years after the Monitor is appointed and annually for each year thereafter, the Monitor will file with the Court, and the County will publish, written public reports regarding the status of compliance with this Consent Decree, which will include the following infmmation:
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a. A description of the work conducted by the Monitor during the repotiing period;
b. A description of each Consent Decree requirement assessed during the reporting period, indicating which requirements have been, as appropriate, incorporated into policy (and with respect to which pre-existing, contradictory policies have been rescinded), the subject of training, and carried out in actual practice;
c. The methodology and specific fmdings for each compliance review conducted;
d. For any requirements that were reviewed or audited and found not to have been implemented, the Monitor's recommendations regarding necessary steps to achieve compliance;
e. A projection of the work to be completed during the upcoming reporting period;
f. A summary of any challenges or concerns related to the County, CCCL Judges, and Sheriff achieving full and effective compliance with this Consent Decree;
g. Whether any ofthe definitions in the Consent Decree need to be updated, and whether any additional terms need to be defined;
h. For each requirement of the Consent Decree that is assessed, whether the requirement is producing the desired outcomes of:
i. Maximizing pretriallibetty; ii. Maximizing comt appearance; and iii. Maximizing public safety.
1. The feasibility of conducting an estimated accounting of the cost savings to the County through any reductions in pretrial detention, including comparing estimated costs of jailing misdemeanor arrestees prior to trial for each year the Monitor is in place relative to the costs of jailing misdemeanor arrestees prior to trial in each of2015, 2016, and 2017 and order an accounting if feasible.
118.The Monitor will provide a copy of the reports to the Parties in draft form not more than 30 days after the end of each reporting period. The Parties will have 30 days to comment and provide such comments to the Monitor and all other Parties. The Monitor will have 14 days to consider the Parties' comments and make appropriate changes, if any, before filing the report with the Court.
119.The Monitor will be available for the accountability meetings described in Sections 91- 92 of the Consent Decree to speak with community members regarding its findings and to leam what community input is being shared during such meetings.
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120.The Monitor will publish a comprehensive assessment after 2 years, 5 years, and 7 years have elapsed since the entry of this Consent Decree. The comprehensive assessment will report whether and to what extent the County, CCCL Judges, and Sheriffare in compliance with this Consent Decree, whether the outcomes intended by this Consent Decree are being achieved, and whether any modifications to this Consent Decree are necessary in light of changed circumstances or unanticipated impact (or lack of impact) of the requirements. The comprehensive assessment must be filed with the Court and is public.
a. This comprehensive assessment will also address the areas of greatest progress and achievement, and the requirements that appear to have contributed to these achievements, as well as areas of greatest concern, including strategies for accelerating full and effective compliance.
b. Based upon this comprehensive assessment, the Monitor will recommend any modifications to this Consent Decree necessary to achieve and sustain intended results . To the extent the Parties agree with the Monitor's recommendations, the Parties will move the Court to modify this Consent Decree accordingly. In the event of a disagreement that the Monitor is unable to resolve, the Parties will submit their positions to the Court for resolution. Nothing in this Consent Decree will empower the Monitor to unilaterally modify any tetm of this Consent Decree.
121. The Monitor may, at any time, prepare written reports on any issue or set of issues covered by the Consent Decree following the same process as applicable to the reports described in Sections 115- 119.
122.All reports must be filed with the Comt on the public docket and made available on the public website described in Section 90 of this Consent Decree.
123.The Monitor may raise any issue related to this Consent Decree with the Court at any time.
124. The Monitor must maintain regular contact with all parties, including conducting qua1terly meetings with each of Class Counsel and representatives of the County, the Sheriff, and the CCCL Judges about implementation of this Consent Decree.
E. Technical Assistance and Recommendations by the Monitor
128.The Monitor may, at the request of the County, CCCL Judges, Class Counsel, or on its own initiative, provide technical assistance, to the extent the Monitor has relevant skills and experience, and may make recommendations to the Parties regarding measures that the Monitor believes are likely to facilitate timely, full , and effective compliance with this Consent Decree and achievement of its underlying objectives. Such assistance may include recommending consultants and expetts to assist the County, Sheriff, CCCL Judges, and any other entity or agency involved in the implementation of this Consent Decree; suggestions to change, modify, or amend a provision of this Consent Decree; to develop or amend policy; to provide additional training in any area related to this Consent Decree; or to modify the content or form of existing training.
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F. Access and Confidentiality
129.The Court Monitor will have access to all staff, data, information, docmnents, and facilities reasonably necessary to conduct its work, all of which must be made accessible to the Monitor by the County, the CCCL Judges, and the Sheriff.
130.The Monitor will provide the County, CCCL Judges, and Sheriff with reasonable notice of a request for documents or data.
131.The Monitor will maintain all confidential or non-public information provided by the County, Sheriff, and CCCL Judges in a confidential manner in keeping with all applicable state and Federal laws. However, the Monitor may negotiate continued use of the information and data for non-profit and/or research purposes on its own behalf if consistent with federal and state law. Defendants will approve lawful continued use absent good cause as determined by the Comt.
132.Information obtained from the County, CCCL Judges, Sheriff, or other county agency will be the property of the County and copies of all completed or partially completed information, programs, inventions, software, firmware, designs, documentation or data developed, created, or invented under this Consent Decree must be delivered to the County, CCCL Judges, Sheriff, or other county agency upon conclusion of the Monitor's work, including upon resignation or tetmination, if applicable. Class Counsel must have access to all of the above, subject to reasonable procedures relating to confidentiality and nondisclosme.
133.The Monitor may not copy, recreate, or use any proprietary information or documents obtained in connection with this Consent Decree other than for the performance of this Consent Decree, subject to negotiated continued use for non-profit or research pruposes.
XV. CONTINUING JURISDICTION
A. Continuing Jurisdiction & E nforcement
134.The Parties will comply with the terms of this Consent Decree. The Court retains jurisdiction to enforce this Consent Decree.
135.This Court will retain jmisdiction over this matter and allow the Parties to this Consent Decree to apply to the Comt for any further order that may be necessary to construe, carry out, enforce compliance, and/or resolve any dispute regarding the tetms or conditions of this Consent Decree.
136.Nothing in this Consent Decree may be construed to limit the equitable powers of the CoUit to modify these terms upon a showing of good cause by any party.
B. Process for Seeking Modification
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137.The Court retains jurisdiction to oversee and enforce compliance with this Consent Decree and to require modifications for good cause shown in its equitable discretion. Either party may request modification of any aspect of this Consent Decree, provided that the parties confer prior to the request and make a good-faith effort to come to an agreement. The parties must also notify the Monitor at least 21 days prior to any such request, and the Monitor will provide a recommendation to the Court not later than seven (7) days after the filing of such a request by a party. The parties may jointly agree to modify or amend this Consent Decree. Such joint modifications and amendments will be encouraged when the parties agree, or when the Monitor's review demonstrates that an alternative policy would better further the goals of the Consent Decree, which include promoting the government's compelling interests in pretrial liberty, comt appearance, and public safety. At all times, Defendants will bear the bmden of demonstrating by a preponderance of the evidence full and effective compliance with this Consent Decree.
C. Procedures in the Event of Noncompliance
138.In the event any of the Defendants is deemed by the Monitor to be not in compliance with any term of the Consent Decree, the Parties must attempt to identify the source of any problems inhibiting compliance and create a plan and timeline for the County to achieve compliance. If the parties are unable to resolve the issue, they may submit the dispute to the Comt for resolution.
I 39.In the event Class Counsel has a reasonable belief that any of the Defendants is not in compliance with the terms of the Consent Decree, Class Counsel must notify the Monitor and Defendants and confer in a good-faith attempt to resolve the issue. Only if the Patties are unable to achieve a resolution may they submit the dispute to the Court.
D. Force Majeure
140.The Parties recognize that the possibility exists that circumstances outside the reasonable control of the County could delay compliance with the timetables contained in this Consent Decree. Such situations include, but are not limited to, unforeseen catastrophic environmental events, such as Huni.cane Ike in 2008 and Hunicane Harvey in 2017, both of which required an immediate and time-consuming response by Harris County govemment and both of which caused severe intenuptions in the operations of the County's court system. Should a delay occm due to such circumstances, any resulting failme to meet the timetables set forth herein will not constitute a failure to comply with the terms of this Consent Decree, and any deadlines OCCUlTing within one hundred twenty (120) days of the termination of the delay will be extended one day for each day of the delay, or more if the Patties so agree.
XVI. EFFECTIVE DATE
This Consent Decree will become effective upon entry by the Court.
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52

 
 Case 4:16-cv-01414 Document 426 Filed in TXSD on 06/29/18
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 24
United States District Court Southern District of Texas
ENTERED
June 29, 2018
David J. Bradley, Clerk

MARANDA LYNN ODONNELL, et al., On behalf of themselves and all others similarly situated,
Plaintiffs,
VS.
HARRIS COUNTY, TEXAS, et al.,
Defendants.

§ § § § § § CIVIL ACTION NO. H-16-1414 § § § § §

MEMORANDUM AND OPINION

In May 2016, while detained in the Harris County Jail on misdemeanor charges, Maranda

Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder sued Harris County, the Harris County

Sheriff, Harris County Hearing Officers, and Harris County Criminal Courts at Law Judges, under

42 U.S.C. § 1983, alleging that they were detained because they were too poor to pay the amount

needed for release on the secured money bail imposed without individualized consideration based

on the County’s policies and practices. (Docket Entry Nos. 3, 41, 54). The defendants moved to

dismiss, and the court: (1) dismissed the claims against the Harris County Sheriff and sixteen County

Judges in their personal capacities; and (2) denied the motions to dismiss the claims against the

County, the personal-capacity claims against five Harris County Hearing Officers, and the official-

capacity claims against the Sheriff and the County Judges. (Docket Entry No. 125).

In March 2017, the court held an eight-day preliminary injunction hearing. (Docket Entry

Nos. 222, 223, 228, 229, 230, 246, 247, 251). On April 28, 2017, the court granted the plaintiffs’

motion for a preliminary injunction, (Docket Entry Nos. 143, 302), entered a preliminary injunction

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order against Harris County and its final policymakers for pretrial bail in misdemeanor cases, (Docket Entry No. 304), denied the defendants’ motion to stay, (Docket Entry Nos. 252, 305), and granted the plaintiffs’ motion for class certification, (Docket Entry Nos. 146, 303). The defendants appealed from the court’s motion-to-dismiss order, the April 28 memorandum and opinion, and the preliminary injunction order. (Docket Entry Nos. 125, 302, 304, 309, 310).
On appeal, the Fifth Circuit affirmed in part and vacated in part this court’s memorandum and opinion and preliminary injunction, and did so again after motions for reconsideration were filed and fully briefed. ODonnell v. Harris Cty., Texas, 882 F.3d 528 (5th Cir. 2018), opinion withdrawn and superseded on reh’g sub nom. ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018). The Circuit held that the preliminary injunction order was overbroad and that its relief should be more narrowly tailored to remedy the bail system’s procedural deficiencies:
The fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical application of the secured bail schedule without regard for the individual arrestee’s personal circumstances. Thus, the equitable remedy necessary to cure the constitutional infirmities arising under both clauses is the same: the County must implement the constitutionally-necessary procedures to engage in a case-by-case evaluation of a given arrestee’s circumstances, taking into account the various factors required by Texas state law (only one of which is ability to pay). . . . We will vacate the injunction and remand to allow the court to craft a remedy more finely tuned to address the harm. ODonnell, 892 F.3d at 163–64. On remand, the parties submitted proposed amended preliminary injunction orders and presented oral argument in support of their positions. (Docket Entry Nos. 401, 403, 413). The court entered a tentative amended preliminary injunction order with a memorandum and opinion that explained the changes between the original preliminary injunction order and the tentative order.
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(Docket Entry No. 414). The parties submitted comments and arguments. (Docket Entry Nos. 420, 421, 422, 424).
Based on the Fifth Circuit rulings, the applicable law, the record evidence, and the parties’ arguments and comments, this court enters an amended preliminary injunction order in a separate order. The amended order narrows the previous order to avoid the overbreadth the Fifth Circuit found. The amended order lengthens the maximum time between arrest and the hearing and individual assessment from 24 to 48 hours. The amended order does not forbid pretrial detention of those unable to pay secured money bail after an adequate hearing and individual assessment. Section (7) of this order narrowly addresses only the status of misdemeanor arrestees who are presumptively eligible for release on a personal bond and who would be released after arrest and before a hearing and individual assessment if they paid the prescheduled secured bail amount, but who cannot do so because they cannot afford to pay. Section (7) does not apply to all misdemeanor arrestees, or even all indigent misdemeanor arrestees. It applies only to those misdemeanor arrestees whom whom local law has already determined to be eligible for release on a personal bond and who are subject to no other basis for detention. Finally, the amended order adopts many of the parties’ comments and requests for clarification.
The reasons for the ordered relief are explained in detail below. I. Analysis of the Parties’ Specific Comments and Arguments
A. Sections (1)–(3) No substantive changes have been made to Sections (1)–(3). B. Section (4) The defendants argue that there is no requirement to deliver completed financial affidavits
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or declarations to the Harris County Sheriff’s Office. (Docket Entry No. 420). The Fifth Circuit

suggested including the following language: “Pretrial Services must deliver completed affidavits to

the Harris County Sheriff’s Office before a declarant’s probable cause hearing.” ODonnell, 892 F.3d

at 164. The amended preliminary injunction order states: “The completed affidavit or declaration

for each misdemeanor arrestee must be delivered to the Harris County Sheriff’s Office before each

affiant’s or declarant’s hearing and individual assessment held in accordance with Section (6).” This

provision is consistent with the Fifth Circuit’s opinion.

C. Section (5)

Section (5) has been altered to reflect changes to the mental-illness and intellectual-disability

exception provided in Section (11), and the addition of the medical-condition exception provided

in Section (12). Sections (11) and (12) are discussed in greater detail below.

D. Section (6)

Each party commented that the Fifth Circuit’s opinion requires only one hearing within 48

hours of arrest to provide each misdemeanor arrestee with an individual assessment of whether

financial or nonfinancial conditions of release will provide sufficient sureties. (Docket Entry Nos.

420 at 8; 421 at 4–5; 422 at 1); ODonnell, 892 F.3d at 160 (“[T]he federal due process right entitles

detainees to a hearing within 48 hours.”). The court agrees. Section (6) of the amended preliminary

injunction now makes this clear:

(6) All misdemeanor arrestees in the custody of Harris County:

•

who are not subject to formal holds, such as a federal immigration

detainer or an outstanding warrant from another county or municipal

authority; who are not subject to a pending finding of mental illness

or intellectual disability; who are not subject to family violence

detention procedures governed by Texas Code of Criminal Procedure

Articles 17.152–153; and who are not subject to a medical condition

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that prevents participation in the pretrial bail system;

•

who have executed an affidavit or declaration of financial condition

in accordance with Section (3) showing an inability to pay the

prescheduled or other secured financial conditions of release; and

•

who have not been granted release on an unsecured personal bond

with nonfinancial conditions of release,

are entitled to a hearing and individual assessment within 48 hours of arrest.

•

At the hearing, an impartial decisionmaker must conduct an

individual assessment of whether the prescheduled or other amount

of secured money bail, or other financial condition of release, will

provide sufficient sureties, or whether a personal bond, or other

nonfinancial conditions of release, will reasonably do so.

•

The purposes of this requirement are to provide each misdemeanor

arrestee timely protection of the liberty interest in being bailable by

sufficient sureties and to prevent the automatic imposition of

prescheduled or other secured money bail. Instead, each

misdemeanor arrestee must receive adequate process to ensure

individualized consideration of whether any secured financial

condition of release provides sufficient sureties.

•

At the hearing, each misdemeanor arrestee, or the arrestee’s counsel,

must have the opportunity to present evidence and make arguments

concerning the arrestee’s ability to afford a prescheduled or other

secured financial condition of release, to respond to any evidence

presented, and to respond to any argument made by the prosecution

or by law enforcement.

•

If the decisionmaker declines to lower the secured bail amount from

the prescheduled amount to an amount the arrestee is able to pay, or

to impose alternative conditions of release, including an unsecured

personal bond with nonfinancial conditions of release, then the

decisionmaker must either provide written factual findings or state the

factual findings on the record explaining the reasons for the decisions,

and the County must provide that arrestee with a formal adversarial

bail review hearing before a County Judge within one business day.

•

The Harris County Sheriff is authorized to decline to enforce any

order requiring payment of secured prescheduled bail amounts or

other financial conditions of release for misdemeanor arrestees if the

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order is not accompanied by a record adequate to show that a Hearing Officer provided the required individual assessment and that there was an opportunity for formal adversarial bail review before a County Judge within one business day.

•

All nonfinancial conditions of release ordered by the Hearing

Officers, including protective orders, drug testing, alcohol-intake

ignition locks, or GPS monitoring, will remain in effect.

The defendants commented on or contest four other aspects of Section (6). First, they argue

that there is no legal basis to require that misdemeanor arrestees be afforded counsel at the

individual-assessment hearing. (Docket Entry No. 420 at 9). The requirement that the County

provide public defenders to represent misdemeanor arrestees at these hearings was included in the

tentative order at the County’s request. (Docket Entry No. 401-3 at 3). Because ordering the County

to provide public defenders to represent misdemeanor arrestees at their hearings and individual

assessments does not remedy an identified constitutional violation, the requirement is not presently

included in the amended preliminary injunction order.

Second, the defendants asked for clarification as to when the County must provide an arrestee

with a formal adversarial bail review hearing after declining to lower the secured bail amount or to

impose alternative conditions of release. (Docket Entry No. 420 at 10). The defendants request an

injunction that sets a deadline of no less than two business days after the individual-assessment

hearing. Id. The court agrees that a specified deadline is helpful, but believes that one business day

is sufficient. The amended injunction order states: “the County must provide that arrestee with a

formal adversarial bail review hearing before a County Judge within one business day.”

Third, the defendants contest the duty to apply strict scrutiny at bail hearings. (Docket Entry

No. 420 at 11). The tentative order required that a decisionmaker provide factual findings stating

either that the arrestee had the ability to pay the secured financial condition of release or that a

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secured financial condition of release was necessary, and the least restrictive condition, to assure appearance and public safety if the decisionmaker declined to lower secured bail from the prescheduled amount to an amount the arrestee was able to pay, or to impose alternative conditions of release. The defendants are correct that the necessity requirement is not “narrowly tailored . . . to remedy the specific action,” and, on the present record, could be overbroad as a result. John Doe # 1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004).
“[T]he scope of injunctive relief is dictated by the extent of the violation established.” ODonnell, 892 F.3d at 163 (citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). In defining the scope of injunctive relief in this case, the Fifth Circuit held that “the constitutional defect in the process afforded was the automatic imposition of pretrial detention . . . .” Id. at 160 (emphasis in original). The Circuit held that “the equitable remedy necessary to cure the constitutional infirmities arising under [the Equal Protection and Due Process Clauses] is the same: the County must implement the constitutionally necessary procedures to engage in a case-by-case evaluation of a given arrestee’s circumstances . . . .” ODonnell, 892 F.3d at 163.
The plaintiffs have conceded that the necessity requirement is substantive, not procedural, which places that requirement beyond what the Fifth Circuit remand order appears to allow. (Docket Entry No. 402 at 4). To ensure consistency with the Fifth Circuit’s opinion, the amended preliminary injunction order requires the decisionmakers to “explain[] the reasons for the decisions” to decline to lower secured bail to an amount the arrestee is able to pay, or to impose alternative conditions of release. ODonnell, 892 F.3d at 160 (“[R]equiring magistrates to specifically enunciate their individualized, case-specific reasons for [imposing pretrial detention on indigent misdemeanor arrestees] is a sufficient remedy.”).
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Fourth, the defendants contest the provision in the tentative order preventing the Harris County Sheriff from enforcing secured bail orders unaccompanied by an adequate record. (Docket Entry Nos. 420 at 14; 422 at 6). The Fifth Circuit held that the Sheriff “is legally obliged to execute all lawful process,” and suggested the following language: “The Harris County Sheriff is therefore authorized to decline to enforce orders requiring payment of prescheduled bail amounts as a condition of release for said defendants if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided.” ODonnell, 892 F.3d at 165.
The amended preliminary injunction order adopts similar language to ensure consistency with the remand order:
The Harris County Sheriff is authorized to decline to enforce any order requiring payment of secured prescheduled bail amounts or other financial conditions of release for misdemeanor arrestees if the order is not accompanied by a record adequate to show that a Hearing Officer provided the required individual assessment and that there was an opportunity for formal adversarial bail review before a County Judge within one business day. The amended preliminary injunction order does not require that misdemeanor arrestees be released pending the formal adversarial bail review hearing before a County Judge within one business day. E. Section (7) The defendants contest the mandatory post-arrest release of certain misdemeanor arrestees. (Docket Entry Nos. 420 at 16; 422 at 4). They argue that Section (7) is inconsistent with the Fifth Circuit’s mandate, comparing it to an “outright elimination of secured bail for indigent misdemeanor arrestees.” (Docket Entry No. 420 at 16); ODonnell, 892 F.3d at 163. The plaintiffs point out that the defendants’ characterization of this provision is overbroad, and that this Section is narrowly
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aimed at addressing a problem that arose after the Fifth Circuit proceedings.

Section (7) of the amended preliminary injunction order provides:

(7) All misdemeanor arrestees in the custody of Harris County:

•

who are not subject to formal holds, such as a federal immigration

detainer or an outstanding warrant from another county or municipal

authority; who are not subject to a pending finding of mental illness

or intellectual disability; who are not subject to family violence

detention procedures governed by Texas Code of Criminal Procedure

Articles 17.152–153; and who are not subject to a medical condition

that prevents participation in the pretrial bail system;

•

who have executed an affidavit or declaration of financial condition

in accordance with Section (3) showing an inability to pay the

prescheduled or other secured financial conditions of release;

•

who have not been granted release on an unsecured personal bond

with nonfinancial conditions of release;

•

who would otherwise be released after arrest and before a hearing and

individual assessment within 48 hours of arrest in accordance with

Section (6) after paying a prescheduled or other secured bail amount

if not for their inability to pay the prescheduled or other secured

financial conditions of release,

must promptly be released by the County on a personal bond with nonfinancial conditions of release.

•

“Promptly” means on the same time frame of release that a

misdemeanor arrestee who is able to pay secured money bail would

receive. Verification of references must not delay release.

•

The County may require misdemeanor arrestees who are released on

unsecured personal bonds under this Section to return for a hearing

and individual assessment under Section (6), within 48 hours of arrest

or at a later time, but the County cannot detain those arrestees until a

hearing and individual assessment have been held in accordance with

Section (6).

•

The purpose of this requirement is to address and prevent the problem

of misdemeanor arrestees who are not able to pay secured money bail

from being detained longer than those able to pay secured money bail

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before receiving a hearing and individual assessment in accordance with Section (6). Section (7) prohibits the detention of a narrow category of misdemeanor arrestees on the basis of wealth. It does not, as the defendants argue, eliminate secured bail for all indigent misdemeanor arrestees. This order is much narrower, in that it does not apply to all misdemeanor arrestees, or even all indigent misdemeanor arrestees, but only those deemed by local law as eligible for release on personal bond. And it does not forbid pretrial detention after an adequate hearing and individual assessment. But it does prevent detaining the misdemeanor arrestees whom the County has already determined are presumptively releasable on a personal bond because they are not able to post bond before the hearing and individual assessment. Section (7) does not apply to misdemeanor arrestees who are not eligible for presumptive pretrial release on personal bond based on the nature of the offense and on the absence of other circumstances warranting detention. The court’s prior memorandum and opinion explained why the County’s current money bail policy discriminates on the basis of wealth: “under the current system, those who are able to pay secured money bail go free immediately, while those who cannot pay are detained for up to 48 hours” before their hearing and individual assessment. (Docket Entry No. 414 at 5). This practice violates equal protection. As the defendants note, “the equal protection that the Fifth Circuit found was the County’s alleged ‘custom and practice’ of a ‘lack of individualized assessment and mechanical application of the secured bail schedule.’” (Docket Entry No. 420 at 17). Automatically imposing a post-arrest bail amount on those who are presumptively eligible for release on personal bond, without a hearing and individual assessment, when an arrestee who can post bond is promptly released, is such an equal protection violation. The misdemeanor arrestees within one of the categories of those presumptively eligible for pretrial release on a personal bond, who are able to pay
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the initial secured bail amounts, are released before their hearing and individual assessment, while the misdemeanor arrestees who are not able to pay initial bail amounts are detained until a hearing and individual assessment, up to 48 hours after arrest.
Section (7) does not eliminate the County’s ability to impose secured bail or other secured financial conditions on those presumptively eligible misdemeanor arrestees who are released on an unsecured personal bond after arrest. It provides that the County may require those misdemeanor arrestees to return for a hearing and individual assessment within 48 hours of arrest, or at a later time. The rationale underlying the order is consistent with the Fifth Circuit’s holding that the County cannot detain misdemeanor arrestees who would be released if they were able to pay money bail until it affords those arrestees a hearing and individual assessment in accordance with Section (6).
The County defends its practice of using bail schedules. (Docket Entry No. 422 at 5). The constitutionality of bail schedules generally is not at issue. Section (7) remedies the specific practice of detaining certain misdemeanor arrestees on the basis of wealth until a hearing and individual assessment. The County argues that “[n]othing in the Fifth Circuit opinion implies that prior to the individualized assessment a jurisdiction cannot allow a person who has the means to post what the courts have deemed a sufficient financial security to ensure appearance . . . via a bail schedule.” Id. at 5–6. The issue is not whether a person should be able to post secured money bail, but whether a person who cannot pay an automatically imposed secured money bail should be detained because that person does not have the ability to pay. As stated above, wealth-based discriminatory practices, “with their lack of individualized assessment and mechanical application of the secured bail schedule,” violate the Equal Protection Clause. ODonnell, 892 F.3d at 163. Section (7) is consistent with the Fifth Circuit’s opinion.
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F. Section (8)

The defendants challenge the mandatory release of misdemeanor arrestees who have not

received a hearing and individual assessment within 48 hours of arrest under Section (6). (Docket

Entry No. 420 at 19). They argue that “the Fifth Circuit clearly concluded that the 48-hour time limit

is not a rigid, absolute requirement to be enforced with a release order no matter the justification for

the delay,” citing the Fifth Circuit’s reporting-requirement suggestion: “To enforce the 48-hour

timeline, the County must make a weekly report to the district court of misdemeanor defendants

identified above for whom a timely individual assessment has not been held.” ODonnell, 892 F.3d

at 166.

If a hearing and individual assessment are not completed within 48 hours after arrest in

accordance with Section (6), the hearing and individual assessment are not timely. The Fifth

Circuit’s suggestions are silent as to whether misdemeanor arrestees who have not received a hearing

and individual assessment must continue to be detained. Release of those arrestees is not

inconsistent with the Fifth Circuit’s opinion. Rather, it addresses the Circuit’s concern about “the

endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty

to secure faster release from pretrial detention.” Id.

Section (8) of the amended preliminary injection order states:

(8) All misdemeanor arrestees in the custody of Harris County:

•

who are not subject to formal holds, such as a federal immigration

detainer or an outstanding warrant from another county or municipal

authority; who are not subject to a pending finding of mental illness

or intellectual disability; who are not subject to family violence

detention procedures governed by Texas Code of Criminal Procedure

Articles 17.152–153; and who are not subject to a medical condition

that prevents participation in the pretrial bail system; and

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•

who have not appeared at a hearing and individual assessment within

48 hours of arrest in accordance with Section (6),

must promptly be released by the County on an unsecured personal bond.

•

“Promptly” means on the same time frame of release that a

misdemeanor arrestee who is able to pay a secured money bail would

receive. Verification of references must not delay release.

•

If the City of Houston Police Department has detained a misdemeanor

arrestee for more than 48 hours after arrest, the arrestee must be

promptly released on unsecured or nonfinancial conditions when the

Sheriff takes custody of that arrestee. That is, the arrestee must be

released on unsecured or nonfinancial conditions on the same time

frame as if the arrestee paid a secured bond amount when the Sheriff

took custody of the arrestee.

•

The County may require misdemeanor arrestees who are released on

unsecured personal bonds under this Section to return for a hearing

and individual assessment in accordance with Section (6), but the

County cannot detain those arrestees after the 48th hour after their

arrest until a hearing and individual assessment have been held in

accordance with Section (6).

Section (8), like Section (7), provides that the County may require misdemeanor arrestees

who are released after 48 hours after arrest without a hearing and individual assessment to return for

a hearing and individual assessment in accordance with Section (6). But the County cannot continue

to detain misdemeanor arrestees past the Fifth Circuit’s 48-hour limit unless the procedural

protections in Section (6) are afforded.

G. Section (9)

No substantive changes have been made to Section (9).

H. Section (10)

Section (10) provides the reporting requirements the County must follow. Two substantive

changes are reflected in the amended preliminary injunction order. First, when the County submits

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its weekly report of misdemeanor arrestees for whom a hearing and individual assessment has not been held within 48 hours of arrest, the County must identify which misdemeanor arrestees fall within the mental-illness or intellectual-disability exception or the medical-condition exception of Sections (11) and (12). The amended preliminary injunction order states:
The report must identify whether a misdemeanor arrestee, for whom a hearing and individual assessment within 48 hours of arrest has not been held, has not received a hearing and individual assessment because he or she falls within either: (a) the mental-illness or intellectual-disability exception provided in Section (11); or (b) the medical-condition exception provided in Section (12). The purpose of this requirement is to assure accurate information on how often the Section (11) and Section (12) exceptions are invoked to justify the lack of a hearing and individual assessment within 48 hours of arrest. Second, Section (10) orders the weekly reporting to begin on August 18, 2018. The County states that a joint processing center will open on August 18, 2018 that should “substantially shorten the time between when arrestees are arrested and when they appear before a Hearing Officer.” (Docket Entry Nos. 417 at 2; 422 at 8). The County asks that the reporting requirements not start until the center opens, so that the old data systems do not have to be reprogrammed for the limited time between when the amended preliminary injunction order takes effect and when the center, with its new data system, opens. (Docket Entry No. 422 at 8). The court agrees. The amended preliminary injunction order takes effect on Monday, July 30, 2018. The joint processing center opens on August 18, about three weeks later. The County does not have to rewrite its data programs for such a short period. However, the County must, at a minimum, continue its recordkeeping and retention practices needed to provide information on implementation. I. Section (11)
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The County asserts that Section (11), numbered Section (13) in the tentative order, should be modified to more accurately reflect Article 16.22 of the Texas Code of Criminal Procedure. (Docket Entry No. 422 at 8). The court agrees. Article 16.22 does not use the term “mental capacity.” Rather, it uses “mental illness” and “intellectual disability.” TEX. CODE. CRIM. P. § 16.22(a)(1). To more closely align Section (11) with Texas law, the amended preliminary injunction order states:
Misdemeanor arrestees in the custody of Harris County who do not appear mentally able to understand or to execute an affidavit or declaration of financial condition in accordance with Section (3), may be evaluated under the procedures governed by Texas Code of Criminal Procedure Article 16.22. If the evaluation results in a finding that no mental illness or intellectual disability exists that would prevent the execution of an affidavit or declaration of financial condition, the misdemeanor arrestee is covered by the relief this court orders, with the exception that the 48-hour deadline begins to run from the time of the finding rather than from the time of arrest. As under Article 16.22, nothing in this Order prevents a misdemeanor arrestee from being released on secured bail or an unsecured personal bond pending the evaluation. In order to monitor the frequency at which the mental-illness or intellectual-disability exception is invoked, the County must identify, in its weekly report under Section (10), when a misdemeanor arrestee for whom a hearing and individual assessment within 48 hours has not been held has not received a hearing and individual assessment because he or she falls within the mentalillness or intellectual-disability exception. J. Section (12) Section (12) recognizes instances in which misdemeanor arrestees are unable to participate in the pretrial bail system due to a medical condition, whether at the affidavit-or-declaration-offinancial-condition stage or at the hearing-and-individual-assessment stage. The 48-hour deadline for the misdemeanor arrestees to whom this exception applies “begins to run from the time the condition ceases to prevent execution of an affidavit or declaration or attendance at a hearing and
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individual assessment in accordance with Section (6), rather than from the time of arrest.” For example, if a misdemeanor arrestee is hospitalized and is unable to attend his or her hearing and individual assessment, the 48-hour deadline will begin as soon as he or she is released from the hospital.
In order to monitor the frequency at which the medical-condition exception is invoked, the County must identify, in its weekly report under Section (10), when a misdemeanor arrestee has not received a hearing and individual assessment within 48 hours of arrest because he or she falls within the medical-condition exception.
K. Sections (13)–(15) No substantive changes have been made to Sections (13), (14), and (15), numbered Sections (11), (12), and (14) in the tentative order. L. Section (16) Section (16) of the amended preliminary injunction order, numbered Section (15) in the tentative order, provides: “This Order applies to misdemeanor arrestees who are rearrested on misdemeanor charges only or on warrants for failing to appear while released before trial on bond (either secured or unsecured).” The defendants argue that this Section “requires Harris County magistrates, when determining bail at the individual hearing, to blind themselves to the fact that a misdemeanor arrestee has repeatedly failed to appear in court or has re-offended while on pretrial release.” (Docket Entry No. 420 at 21). The court disagrees. Section (16) does not order an impartial decisionmaker to consider or disregard any particular facts. It requires only that misdemeanor arrestees who are rearrested on misdemeanor charges only or on warrants for failing to appear while on pretrial release receive the same procedural protections that they would have received if they were being arrested for the first time. Those protections include a hearing and
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individual assessment in accordance with Section (6). The decisionmaker is free to consider the fact that the arrestee has been rearrested or has failed to appear when conducting an individual assessment of whether the prescheduled or other amount of secured money bail, or other financial conditions of release, will provide sufficient sureties.
M. Section (17) The defendants challenge the provision stating that “[t]he County Judges must not promulgate or implement any policy, written or unwritten, that permits the setting of secured financial conditions that operate to detain, rather to release, indigent misdemeanor arrestees before trial, or that otherwise conflict with this Order.” (Docket Entry No. 420 at 21). The defendants are correct. The provision is inconsistent with the Fifth Circuit’s opinion, which permits setting secured money bail or other financial conditions of release after a hearing and individual assessment within 48 hours of arrest. Section (17) of the amended preliminary injunction order, numbered Section (16) in the tentative order, states: “The County Judges need not amend the County Rules of Court as written. If they choose to amend the County Rules of Court, they must not create or implement rules or policies that conflict with this Order.” N. Section (18) No substantive changes have been made to Section (18), numbered Section (17) in the tentative order. II. Analysis of the Parties’ General Comments and Arguments A. Framing of the Rights at Issue The plaintiffs argue that the rights at stake are framed too narrowly in the tentative order. (Docket Entry No. 421 at 6). They assert that federal law provides the source for a requirement that
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detention be imposed only after a finding of necessity. Id. at 7. Basing relief on substantive due process is improper at this stage. As this court noted in its April 28, 2017 memorandum and opinion, “the plaintiffs’ claims and the court’s conclusions do not rely on substantive due process.” (Docket Entry No. 302 at 157). Similarly, the Fifth Circuit’s analysis and suggestions recognized only procedural due process and equal protection violations. ODonnell, 892 F.3d at 163.
This court is not expanding the finding of the source of the constitutional right at this time. Any change in that analysis must await the evidence and findings from the permanent injunction trial that has been scheduled.
B. Younger The defendants argue that the tentative order, particularly the necessity requirement at bail determinations, violates Younger v. Harris, 401 U.S. 37 (1971), because it impermissibly intrudes in state criminal proceedings. (Docket Entry No. 420 at 4). Even if the amended preliminary injunction order retained the necessity requirement, which it does not, the defendants’ argument would still be unpersuasive. Younger abstention is warranted when three factors are satisfied: “(1) the dispute must involve an ongoing state judicial proceeding, (2) an important state interest in the subject matter of the proceeding must be implicated, and (3) the state proceeding must afford an adequate opportunity to raise the constitutional challenge.” M.D. v. Perry, 799 F. Supp. 2d 712, 715 n.3 (S.D. Tex. 2011) (citing Middlesex Cty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982) (internal quotation marks omitted). This court held, and the Fifth Circuit affirmed, that the third factor is not satisfied in this case. (Docket Entry No. 125 at 37–38); ODonnell, 892 F.3d at 156. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court held that Younger did not apply
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to an injunction that “was not directed at . . . state prosecutions . . . , but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.” Id. at 108 n.9; Fuentes v. Shevin, 407 U.S. 67, 71 n.3 (1971). This lawsuit challenges a pretrial bail system that detains misdemeanor arrestees who would be released if they paid a prescheduled or other secured bail amount. The plaintiffs do not seek “relief which would impede pending or future prosecutions on various charges in the state courts.” Pugh v. Rainwater, 483 F.2d 778, 781 (5th Cir. 1973). A misdemeanor arrestee’s detention status will not impact future criminal prosecutions, nor can it be raised as a defense in a future criminal prosecution. Because the relief sought by the plaintiffs—“the adequacy of the state court review of bail-setting procedures”—“is not properly reviewed by criminal proceedings in state court,” Younger is inapplicable. ODonnell, 892 F.3d at 156–57.
C. Preiser The defendants argue that an injunction requiring the County to release arrestees violates Preiser v. Rodriguez, 411 U.S. 475 (1973). (Docket Entry No. 420 at 4). The Fifth Circuit affirmed this court’s holding that the defendants’ Preiser argument was waived at the preliminary injunction stage. ODonnell, 892 F.3d at 157 n.3 (“The County neither mentioned Preiser nor pressed the habeas argument until its motion for a stay of the injunction. The closest the County came to preserving this argument was one sentence in its response to ODonnell’s motion for preliminary injunction. This passing reference is insufficient to preserve the argument, especially given that it is dispositive of the case at the threshold stage.”). But even if the defendants’ Preiser argument was preserved, the amended order is consistent with it. The defendants argue that a misdemeanor arrestee seeking release from pretrial jail “may
19

Case 4:16-cv-01414 Document 426 Filed in TXSD on 06/29/18 Page 20 of 24
obtain such relief only through a petition for habeas corpus; such claims are not cognizable under 42 U.S.C. § 1983.” (Docket Entry No. 420 at 5). In Preiser, the Supreme Court held that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” 411 U.S. at 500. But, as this court noted in its memorandum and order denying the defendants’ motion to stay, (Docket Entry No. 327), “[t]he Court has since noted that some portions of Preiser on which the defendants rely were ‘dicta’ that has turned out to be ‘an unreliable, of not an unintelligible guide.’” Id. at 7 (citing Heck v. Humphrey, 512 U.S. 477, 482 (1994)). As the cases after Preiser have shown, “Preiser does not preclude all § 1983 challenges that would, if successful, cast doubt on the validity of state administrative decisions bearing on the fact or duration of state prisoners’ confinement.” Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1116 (5th Cir. 1987) (citing Wolff v. McDonnell, 418 U.S. 539 (1974); Gerstein, 420 U.S. at 107 n.6; Greenholtz v. Inmates of Neb. Pen. & Corr. Complex, 442 U.S. 1 (1979)).
“[C]laims that would merely enhance eligibility for accelerated release” may be brought under § 1983, while “those that would create entitlement to such relief” must be brought in a habeas action. Serio, 821 F.2d at 1119. Determining whether success of a § 1983 claim would “automatically terminate or shorten the period of . . . confinement” requires a court to “rigorous[ly] analy[ze] . . . the system being challenged and the types of allegations made.” Id. at 1116–17 (quotation and citations omitted). “Distinctions must be made not only between claims seeking hearings and those seeking release, but also claims seeking to establish parole ‘eligibility’ rather than parole ‘entitlement’ and claims seeking to restore good-time credits that affect a prisoner’s
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entitlement to early release rather than merely his eligibility for parole consideration.” Id. at 1117 (citations omitted).
The plaintiffs do not challenge ongoing confinement, or the validity of their arrest or their convictions. Nor do they bring a “narrow attack[] on the procedure followed in a single hearing.” Id. at 1118. The plaintiffs’ “broad-based attack,” id., challenges the “administrative policies and procedures used to set money bail on a secured basis, almost always according to a preset bail schedule, resulting in detention solely for those who cannot pay up front but who are otherwise entitled to release and allowing those who can pay to be released.” (Docket Entry No. 327 at 8).
A thorough review of the system the plaintiffs challenge, and the allegations they make, shows that the plaintiffs do not seek “entitlement” to pretrial release. The plaintiffs challenge the automatic imposition of secured money bail without a hearing and individual assessment of ability to pay and other factors. The relief that this court orders does not “automatically entitle one or more claimants to immediate or earlier release,” but only requires that constitutionally protected procedures must be satisfied before a misdemeanor arrestee is detained before trial. Serio, 821 F.2d at 1119.
More fundamentally, an arrestee who is “released” on secured money bail, on an unsecured personal bond, or without any financial condition pending trial, is still confined and retains the same status as a detained arrestee charged and standing for trial. Preiser, 411 U.S. at 486 n.7 (a person “released on bail or in his own recognizance, is ‘in custody’ within the meaning of the federal habeas corpus statute”); Hensley v. Mun. Court, San Jose Milpitas Judicial Dist., Santa Clara Cty., Cal., 411 U.S. 345, 353 (1973) (a state defendant “released on bail or on his own recognizance pending trial . . . must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus
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relief in the federal courts”); Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300 (1984) (“Our cases make clear that the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.” (citation omitted)). Like the defendants in Hensley and Lydon, misdemeanor arrestees in Harris County who are released on secured or unsecured bond are “subject to restraints ‘not shared by the public generally.’” Hensley, 411 U.S. at 351; Lydon, 466 U.S. at 301. They are obligated to appear at trial, and “cannot come and go as [they] please[].” Hensley, 411 U.S. at 351; Lydon, 466 U.S. at 301. And in Texas, as in California and Massachusetts, “[d]isobedience itself is a criminal offense.” Hensley, 411 U.S. at 351; Lydon, 466 U.S. at 301; see TEX. PENAL CODE § 38.10 (bail-jumping and failure-to-appear charges range from Class A misdemeanors to third degree felonies).
The plaintiffs do not challenge the “fact or duration” of their confinement, but rather the “conditions” of confinement. Serio, 821 F.2d at 1116. Under the amended preliminary injunction order, misdemeanor arrestees remain in confinement, whether detained or released on financial or nonfinancial conditions of release. The plaintiffs’ challenge does not seek the same type of relief afforded by habeas. Nor does the amended preliminary injunction order grant habeas relief through the procedural vehicle of § 1983. Preiser does not bar the relief the court orders.
D. The Eighth Amendment The defendants argue that the relief the plaintiffs seek is available only under the Eighth Amendment. (Docket Entry No. 420 at 5). This argument appears to be inconsistent with the Fifth Circuit’s opinion. ODonnell, 892 F.3d at 157 (“It is certainly true that, when a constitutional provision specifically addresses a given claim for relief under 42 U.S.C. § 1983, a party should seek to apply that provision directly. . . . But we have already concluded that “[t]he incarceration of those
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who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” (citation omitted)).
The defendants’ argument also relies on the faulty premise that “[t]he substantive relief provided by the Court’s proposed injunction limits the County’s ability to impose bail in excess of what arrestees can afford.” (Docket Entry No. 420 at 5). The County is not limited from imposing unaffordable bail under the amended preliminary injunction order. What the County cannot do is discriminate on the basis of wealth or detain misdemeanor arrestees under an automatically imposed bail schedule without a hearing and individual assessment. The amended preliminary injunction order does not create a substantive right to “affordable bail.” Rather, it requires the procedural protections that the Fifth Circuit identified as necessary to protect due process and equal protection requirements. This is not an Eighth Amendment case. (See also Docket Entry Nos. 125 at 24; 302 at 156). III. Conclusion
For the reasons explained above, the amended preliminary injunction order is “narrowly tailor[ed] . . . to remedy the specific action which gives rise to the order.” Veneman, 380 F.3d at 818. Consistent with the Fifth Circuit’s opinion, the amended preliminary injunction order provides only procedural relief in order to remedy the equal protection and due process violations committed by the defendants.
The accompanying amended preliminary injunction order is entered by the court pursuant to its equitable power under Rule 65 of the Federal Rules of Civil Procedure. It will take effect on July 30, 2018. Consistent with the Fifth Circuit’s guidance, the current preliminary injunction order, (Docket Entry No. 304), remains in effect and will not dissolve until the amended preliminary
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Case 4:16-cv-01414 Document 426 Filed in TXSD on 06/29/18 Page 24 of 24 injunction order takes effect. ODonnell, 892 F.3d at 164, 166 (suggesting that the amended preliminary injunction order take effect within 30 days and staying vacatur of the current injunction “so as to maintain a stable status quo”).
SIGNED on June 29, 2018, at Houston, Texas. ______________________________________ Lee H. Rosenthal Chief United States District Judge
24

 
 ODonnell v. Harris County, 892 F.3d 147 (2018)

892 F.3d 147 United States Court of Appeals, Fifth Circuit.
Maranda Lynn ODONNELL, Plaintiff—Appellee v.
HARRIS COUNTY, Texas; Eric Stewart Hagstette; Joseph Licata, III; Ronald Nicholas; Blanca Estela
Villagomez; Jill Wallace; Paula Goodhart; Bill Harmon; Natalie C. Flemng; John
Clinton;Margaret Harris; Larry Standley; Pam Derbyshire; Jay Karahan; Judge Analia Wilkerson; Dan Spjut; Judge Diane Bull; Judge Robin Brown;
Donald Smyth; Jean Hughes, Defendants—Appellants
Loetha Shanta Mcgruder; Robert Ryan Ford, Plaintiffs—Appellees v.
Harris County, Texas; Jill Wallace; Eric Stewart Hagstette; Joseph Licata, III; Ronald Nicholas; Blanca Estela Villagomez, Defendants—Appellants
No. 17-20333 |
June 1, 2018
Synopsis Background: Arrestees brought § 1983 action, on behalf of themselves and others similarly situated, against county, county sheriff, county judges, and other county officials, alleging that county’s system for setting bail for indigent misdemeanor arrestees, which resulted in detention of indigent arrestees solely due to their inability to pay bail, violated Equal Protection and Due Process Clauses. The United States District Court for the Southern District of Texas, Lee H. Rosenthal, Chief Judge, 251 F.Supp.3d 1052, granted plaintiffs’ motion for preliminary injunction and denied county’s motion for summary judgment. County appealed.
Holdings: On rehearing, the Court of Appeals, Edith Brown Clement, Circuit Judge, held that:
under Texas law, county judges were appropriate defendants in § 1983 action;
under Texas law, county sheriff was not appropriate defendant in § 1983 action;
abstention under Younger doctrine was not warranted;

provision of Texas Constitution requiring that prisoners be bailable upon sufficient sureties created right to bail that appropriately weighed detainees’ interest in pretrial release and court’s interest in securing detainees’ attendance;
county’s bail-setting procedures were inadequate to protect detainees’ Due Process rights; and
county’s bail-setting procedures violated indigent arrestees’ rights to equal protection.
Affirmed in part, reversed in part, vacated in part, and remanded.
Opinion, 882 F.3d 528, superseded.
Procedural Posture(s): On Appeal; Motion for Summary Judgment; Motion for Preliminary Injunction.
*151 Appeals from the United States District Court for the Southern District of Texas.
Attorneys and Law Firms
Alec George Karakatsanis, Esq., Elizabeth Anne Rossi, Civil Rights Corps, Washington, Rebecca Bernhardt, Austin, Arpit Kumar Garg, Daniel Volchok, Seth Paul Waxman, WilmerHale, L.L.P., Washington, Michael Gervais, Susman Godfrey, L.L.P., New York, Neal Manne, Alexandra Giselle White, Krisina Janaye Zuniga, Susman Godfrey, L.L.P., Houston, for Plaintiffs–Appellees.
Susanne Ashley Pringle, Texas Fair Defense Project, Austin, for Plaintiff–Appellee Loetha Shanta Mcgruder.
Stacy R. Obenhaus, Foley Gardere, Dallas, Katharine D. David, Philip J. Morgan, Mike Anthony Stafford, Husch Blackwell, L.L.P., Houston, for Defendants–Appellants.
Charles Justin Cooper, Michael Kirk, William C. Marra, John David Ohlendorf, Harold Reeves, Cooper & Kirk, P.L.L.C., Washington, Sheryl Anne Falk, John R. Keville, Attorney, Winston & Strawn, L.L.P., Houston, for Defendants–Appellants.
Murray Jules Fogler, Esq., Attorney, Fogler, Brar, Ford, O’Neil & Gray, L.L.P., Houston, for Amicus Curiae Harris County Sheriff Ed Gonzalez.
Katherine R. Goldstein, Milbank, Tweed, Hadley & McCloy, L.L.P., New York, Nicole Wignall DeBorde, Esq., Bires, Schaffer & DeBorde, Houston, Michelle

ODonnell v. Harris County, 892 F.3d 147 (2018)

Simpson Tuegel, Hunt & Tuegel, P.L.L.C., Waco, for Amicus Curiae National Association of Criminal Defense Lawyers. Before CLEMENT and HAYNES, Circuit Judges.*

its terms in a manner consistent with this opinion.

ON PETITION FOR REHEARING
EDITH BROWN CLEMENT, Circuit Judge:
*152 The appellees’ petition for panel rehearing is granted. The prior panel opinion, ODonnell v. Harris County, 882 F.3d 528 (5th Cir. 2018) is withdrawn, and the following opinion is substituted:
Maranda ODonnell and other plaintiffs (collectively, “ODonnell”) brought a class action suit against Harris County, Texas, and a number of its officials—including County Judges,1 Hearing Officers, and the Sheriff (collectively, the “County”)—under 42 U.S.C. § 1983. ODonnell alleged the County’s system of setting bail for indigent misdemeanor arrestees violated Texas statutory and constitutional law, as well as the equal protection and due process clauses of the Fourteenth Amendment. ODonnell moved for a preliminary injunction, and the County moved for summary judgment. After eight days of hearings, at which the parties presented numerous fact and expert witnesses and voluminous written evidence, the district court denied the County’s summary judgment motion and granted ODonnell’s motion for a preliminary injunction. The County then applied to this court for a stay of the injunction pending appeal, but the motion was denied, and the injunction went into effect. Before this court now is the County’s appeal, seeking vacatur of the injunction and raising numerous legal challenges.
For the reasons set forth, we affirm most of the district court’s rulings, including its conclusion that ODonnell established a likelihood of success on the merits of its claims that the County’s policies violate procedural due process and equal protection. We disagree, however, with the district court’s analysis in three respects: First, its definition of ODonnell’s liberty interest under due process was too broad, and the procedures it required to protect that interest were too onerous. Second, it erred by concluding that the County Sheriff can be considered a County policymaker under § 1983. Finally, the district court’s injunction was overbroad. As a result, we will vacate the injunction and order the district court to modify

*153 I.
We need not conduct an exhaustive review of the facts. The district court’s account is expansive: It comprised over 120 pages of factual findings, including not only the specific details of the County’s bail-setting procedures, but also the history of bail and recent reform attempts nationwide.
Bail in Texas is either secured or unsecured. Secured bail requires the arrestee to post bond either out of the arrestee’s pocket or from a third-party surety (often bail bondsmen, who generally require a 10% non-refundable premium in exchange for posting bond). Unsecured bail, by contrast, allows the arrestee to be released without posting bond, but if he fails to attend his court date and/or comply with any nonfinancial bail conditions, he becomes liable to the County for the bail amount. Both secured and unsecured bail may also include nonfinancial conditions to assure the detainee’s attendance at future hearings.
The basic procedural framework governing the administration of bail in Harris County is set by the Texas Code of Criminal Procedure and local rules promulgated by County Judges. See Tex. Gov’t Code § 75.403(f). When a misdemeanor defendant is arrested, the prosecutor submits a secured bail amount according to a bond schedule established by County Judges. See Harris County Criminal Courts at Law Rule 9 (hereinafter, “Local Rule”). Bonds are then formally set by Hearing Officers and County Judges. Tex. Code. Crim. Pro. art. 2.09, 17.15. Hearing Officers are generally responsible for setting bail amounts in the first instance. This often occurs during the arrestee’s initial probable cause hearing, which must be held within 24 hours of arrest. Tex. Code Crim. Pro. art. 17.033; Local Rule 4.2.1.1. County Judges review the Hearing Officers’ determinations and can adjust bail amounts at a “Next Business Day” hearing. Local Rule 4.3.1.
The Hearing Officers and County Judges are legally proscribed from mechanically applying the bail schedule to a given arrestee. Instead, the Texas Code requires officials to conduct an individualized review based on five enumerated factors, which include the defendant’s ability to pay, the charge, and community safety. Tex. Code of Crim. Pro. art. 17.15. The Local Rules explicitly state the schedule is not mandatory. They also authorize a similar, individualized assessment using factors which

ODonnell v. Harris County, 892 F.3d 147 (2018)
partially overlap with those listed in the Code. Local Rule 4.2.4. Hearing Officers and County Judges sometimes receive assessments by Pretrial Services, which interviews the detainees prior to hearings, calculates the detainees flight and safety risk based on a point system, and then makes specific recommendations regarding bail.2
Despite these formal requirements, the district court found that, in practice, County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so. The district court noted that the statutorily-mandated probable cause hearing (where bail is usually set) frequently does not occur within 24 hours of arrest. The hearings often last seconds, and rarely more than a few minutes. Arrestees are instructed not to *154 speak, and are not offered any opportunity to submit evidence of relative ability to post bond at the scheduled amount.
The court found that the results of this flawed procedural framework demonstrate the lack of individualized assessments when officials set bail. County officials “impose the scheduled bail amounts on a secured basis about 90 percent of the time. When [they] do change the bail amount, it is often to conform the amount to what is in the bail schedule.” The court further found that, when Pretrial Services recommends release on personal bond, Hearing Officers reject the suggestion 66% of the time. Because less than 10% of misdemeanor arrestees are assigned an unsecured personal bond, some amount of upfront payment is required for release in the vast majority of cases.
The court also found that the “Next Business Day” hearing before a County Judge fails to provide a meaningful review of the Hearing Officer’s bail determinations. Arrestees routinely must wait days for their hearings. County Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases. Furthermore, prosecutors routinely offer time-served plea bargains at the hearing, and arrestees are under immense pressure to accept the plea deals or else remain incarcerated for days or weeks until they are appointed a lawyer.
The district court further noted the various ways in which the imposition of secured bail specifically targets poor arrestees. For example, under the County’s risk-assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.

The court also observed that Hearing Officers imposed secured bails upon arrestees after having been made aware of an arrestee’s indigence by the risk-assessment reports or by the arrestee’s own statements. And further, after extensive review of numerous bail hearings, the court concluded Hearing Officers were aware that, by imposing a secured bail on indigent arrestees, they were ensuring that those arrestees would remain detained.
The court rejected the argument that imposing secured bonds served the County’s interest in ensuring the arrestee appeared at the future court date and committed no further crime. The court’s review of reams of empirical data suggested the opposite: that “release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision.” Instead, the County’s true purpose was “to achieve pretrial detention of misdemeanor defendants who are too poor to pay, when those defendants would promptly be released if they could pay.” In short, “secured money bail function[ed] as a pretrial detention order” against the indigent misdemeanor arrestees.
The district court also reviewed voluminous empirical data and academic literature to evaluate the impact of pretrial detention on an arrestee. The court found that the expected outcomes for an arrestee who cannot afford to post bond are significantly worse than for those arrestees who can. In general, indigent arrestees who remain incarcerated because they cannot make bail are significantly more likely to plead guilty and to be sentenced to imprisonment. They also receive sentences that are on average twice as long as their bonded *155 counterparts. Furthermore, the district court found that pretrial detention can lead to loss of job, family stress, and even an increase in likeliness to commit crime.
The court concluded that ODonnell had established a likelihood of success on the merits of their claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor detainees. It granted the motion for a preliminary injunction, requiring the implementation of new safeguards and the release of numerous detainees subjected to the insufficient procedures.
II.
This court reviews a “district court’s grant of a preliminary injunction ... for abuse of discretion.”

ODonnell v. Harris County, 892 F.3d 147 (2018)
Women’s Med. Cty. of Nw. Hous. v. Bell, 248 F.3d 411, 418–19 (5th Cir. 2001). “Findings of fact are reviewed only for clear error; legal conclusions are subject to de novo review.” Id. at 419. “Issuance of an injunction rests primarily in the informed discretion of the district court. Yet injunctive relief is a drastic remedy, not to be applied as a matter of course.” Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 733 (5th Cir. 1977) (internal citations omitted). A district court abuses its discretion if it issues an injunction that “is not narrowly tailored to remedy the specific action which gives rise to the order as determined by the substantive law at issue.” Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016) (internal quotation marks and alterations omitted).
III.
The County raises a number of arguments that do not implicate the merits of ODonnell’s constitutional claims. We address these first.
A. Status of County Judges and Sheriff as County Policymakers under § 1983 The County appeals the district court’s ruling that the County Judges and Sheriff qualified as Harris County policymakers under 42 U.S.C. § 1983. Liability under § 1983 attaches to local government officers “whose [unlawful] decisions represent the official policy of the local governmental unit.” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Whether an officer has been given this authority is “a question of state law.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). “Official policy” includes unwritten widespread practices that are “so common and well settled as to constitute a custom that fairly represents municipal policy.” Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) ). And unlawful decisions include “acquiescence in a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity.” Jett, 491 U.S. at 737, 109 S.Ct. 2702 (internal quotation marks omitted).
Though a judge is not liable when “acting in his or her judicial capacity to enforce state law,” Moore, 958 F.2d at 94, we agree with the district court that the County Judges

are policymakers for the municipality. Texas law explicitly establishes that the Judges are “county officers,” TEX. CONST. art. V § 24, imbued with broad authority to promulgate rules that will dictate post-arrest policies consistent with the provisions of state law, Tex. Gov’t Code § 75.403(f). Here, ODonnell alleged that, despite having this authority, County Judges acquiesced in an unwritten, countywide process for setting bail that violated *156 both state law and the Constitution. In other words, they sue the County Judges as municipal officers in their capacity as county policymakers. Section 1983 affords them an appropriate basis to do so.
We agree with the County that its Sheriff is not an appropriate party for attaching municipal liability, however. The Sheriff does not have the same policymaking authority as the County Judges. To the contrary, the Sheriff is legally obliged to execute all lawful process and cannot release prisoners committed to jail by a magistrate’s warrant—even if prisoners are committed “for want of bail.” See Tex. Code Crim. Pro. arts. 2.13, 2.16, 2.18; Tex. Loc. Gov’t Code § 351.041(a) (noting the Sheriff’s authority is “subject to an order of the proper court”). State statutes, in other words, do not authorize the County Sheriff to avoid executing judicial orders imposing secured bail by unilaterally declaring them unconstitutional. Accordingly, the County Sheriff does not qualify as a municipal policymaker under § 1983.
B. Younger Abstention The County next argues that Younger abstention precludes our review of ODonnell’s claims. We are not persuaded.
The Supreme Court held in Younger v. Harris that, when a party in federal court is simultaneously defending a state criminal prosecution, federal courts “should not act to restrain [the state] criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” 401 U.S. 37, 43–44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Its conclusion was motivated by the “basic doctrine of equity jurisprudence,” “notion[s] of ‘comity,’ ” and “Our Federalism.” Id. Courts apply a three-part test when deciding whether to abstain under Younger. There must be (1) “an ongoing state judicial proceeding” (2) that “implicate[s] important state interests” and (3) offers “adequate opportunity” to “raise constitutional challenges.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).

ODonnell v. Harris County, 892 F.3d 147 (2018)
The third prong of this test is not met. As the Supreme Court has already concluded, the relief sought by ODonnell—i.e., improvement of pretrial procedures and practice—is not properly reviewed by criminal proceedings in state court. See Gerstein v. Pugh, 420 U.S. 103, 108 n.9, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (noting that abstention did not apply because “[t]he injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution”); see also Pugh v. Rainwater, 483 F.2d 778, 781–82 (5th Cir. 1973) (noting that a federal question whose “resolution ... would [only] affect state procedures for handling criminal cases .... is not ‘against any pending or future court proceedings as such’ ” (quoting Fuentes v. Shevin, 407 U.S. 67, 71 n.3, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ) ), rev’d on other grounds by Gerstein, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. As the district court noted, the adequacy of the state court review of bail-setting procedures is essential to ODonnell’s federal cause of action. In short, “[t]o find that the plaintiffs have an adequate hearing on their constitutional claim in state court would decide [its] merits.”
We also note that the policy concerns underlying this doctrine are not applicable here. The injunction sought by ODonnell seeks to impose “nondiscretionary procedural safeguard[s],” which will not require federal intrusion into pre-trial decisions on a case-by-case basis. *157 Tarter v. Hury, 646 F.2d 1010, 1013–14 (5th Cir. Unit A June 1981); compare O’Shea v. Littleton, 414 U.S. 488, 499–502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (noting that the enforcement of the improper injunction in question required “continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondents’ broadly defined class”). Such relief does not implicate our concerns for comity and federalism.3
C. The County’s Eighth Amendment Argument The County contends that ODonnell’s complaint “is an Eighth Amendment case wearing a Fourteenth Amendment costume.” The Eighth Amendment states in relevant part that “[e]xcessive bail shall not be required.” U.S. CONST. amend. VIII. It is certainly true that, when a constitutional provision specifically addresses a given claim for relief under 42 U.S.C. § 1983, a party should seek to apply that provision directly. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d

443 (1989); cf. Manuel v. City of Joliet, ––– U.S. ––––, 137 S.Ct. 911, 917, 197 L.Ed.2d 312 (2017). But we have already concluded that “[t]he incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc). ODonnell’s present claims do not run afoul of Graham.
IV.
We now address the merits of ODonnell’s constitutional claims. For the reasons set forth below, we affirm the court’s rulings that the County’s bail system violates both due process and equal protection, though we modify the basis for its conclusion as to due process.
A. Due Process Claim Procedural due process claims are subject to a two-step inquiry: “The first question asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010) (internal quotation marks omitted). Applying this framework, we disagree with the district court’s formulation of the liberty interest created by state law, but agree that the procedural protections of bail-setting procedures are nevertheless constitutionally deficient.
Liberty interests protected by the due process clause can arise from two sources, “the Due Process Clause itself and the laws of the States.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (internal citation omitted). Here, our focus is the law of Texas, which has acknowledged the two-fold, conflicting purpose of bail. This tension defines the protected liberty interest at issue here.
*158 On the one hand, bail is meant “to secure the presence of the defendant in court at his trial.” Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980). Accordingly, “ability to make bail is a factor to be considered, [but] ability alone, even indigency, does not control the amount of bail.” Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980). On the other

ODonnell v. Harris County, 892 F.3d 147 (2018)
hand, Texas courts have repeatedly emphasized the importance of bail as a means of protecting an accused detainee’s constitutional right “in remaining free before trial,” which allows for the “unhampered preparation of a defense, and ... prevent[s] the infliction of punishment prior to conviction.” Ex parte Anderer, 61 S.W.3d 398, 404–05 (Tex. Crim. App. 2001) (en banc). Accordingly, the courts have sought to limit the imposition of “preventive [pretrial] detention” as “abhorrent to the American system of justice.” Ex parte Davis, 574 S.W.2d 166, 169 (Tex. Crim. App. 1978). Notably, state courts have recognized that “the power to ... require bail,” not simply the denial of bail, can be an “instrument of [such] oppression.” Taylor v. State, 667 S.W.2d 149, 151 (Tex. Crim. App. 1984) (en banc) (emphasis added).
These protections are also ensconced in the Texas Constitution. Specifically, Article 1 § 11 reads in relevant part, “[a]ll prisoners shall be bailable by sufficient sureties.” TEX. CONST. art. 1, § 11. The provision is followed by a list of exceptions—i.e., circumstances in which an arrestee may be “denied release on bail.” Id. §§ 11b, 11c. The only exception tied to misdemeanor charges pertains to family violence offenses. See id. § 11c. The scope of these exceptions has been carefully limited by state courts, which observe that they “include the seeds of preventive detention.” Davis, 574 S.W.2d at 169.
The district court held that § 11 creates a state-made “liberty interest in misdemeanor defendants’ release from custody before trial. Under Texas law, judicial officers ... have no authority or discretion to order pretrial preventive detention in misdemeanor cases.” This is too broad a reading of the law. The Constitution creates a right to bail on “sufficient sureties,” which includes both a concern for the arrestee’s interest in pretrial freedom and the court’s interest in assurance. Since bail is not purely defined by what the detainee can afford, see Charlesworth, 600 S.W.2d at 317, the constitutional provision forbidding denial of release on bail for misdemeanor arrestees does not create an automatic right to pretrial release.4
Instead, Texas state law creates a right to bail that appropriately weighs the detainees’ interest in pretrial release and the court’s interest in securing the detainee’s attendance. Yet, as noted, state law forbids the setting of bail as an “instrument of oppression.” Thus, magistrates may not impose a secured bail solely for the purpose of detaining the accused. And, when the accused is indigent, setting a secured bail will, in most cases, have the same effect as a detention order. Accordingly, such decisions must reflect a careful weighing of the individualized factors set forth by both the state Code of Criminal Procedure and Local Rules.

Having found a state-created interest, we turn now to whether the procedures in place adequately protect that interest. As always, we are guided by a *159 three-part balancing test that looks to “the private interest ... affected by the official action”; “the risk of an erroneous deprivation of such interest through the procedure used, and the probable value, if any, of additional or substitute procedural safeguards”; and “the Government’s interest, including the function involved and the fiscal and administrative burdens” that new procedures would impose. Meza, 607 F.3d at 402 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ).
As the district court found, the current procedures are inadequate—even when applied to our narrower understanding of the liberty interest at stake. The court’s factual findings (which are not clearly erroneous) demonstrate that secured bail orders are imposed almost automatically on indigent arrestees. Far from demonstrating sensitivity to the indigent misdemeanor defendants’ ability to pay, Hearing Officers and County Judges almost always set a bail amount that detains the indigent. In other words, the current procedure does not sufficiently protect detainees from magistrates imposing bail as an “instrument of oppression.”
The district court laid out specific procedures necessary to satisfy constitutional due process when setting bail. Specifically, it found that,
Due process requires: (1) notice that the financial and other resource information Pretrial Services officers collect is for the purpose of determining a misdemeanor arrestee’s eligibility for release or detention; (2) a hearing at which the arrestee has an opportunity to be heard and to present evidence; (3) an impartial decisionmaker; (4) a written statement by the factfinder as to the evidence relied on to find that a secured financial condition is the only reasonable way to assure the arrestee’s appearance at hearings and law-abiding behavior before trial; and (5) timely proceedings within 24 hours of arrest.5
The County challenges these requirements on appeal. We find some of their objections persuasive.
As this court has noted, the quality of procedural protections owed a defendant is evaluated on a

ODonnell v. Harris County, 892 F.3d 147 (2018)
“spectrum” based on a case-by-case evaluation of the liberty interests and governmental burdens at issue. Meza, 607 F.3d at 408–09. We note that the liberty interest of the arrestees here are particularly important: the right to pretrial liberty of those accused (that is, presumed innocent) of misdemeanor crimes upon the court’s receipt of reasonable assurance of their return. See id. So too, however, is the government’s interest in efficiency. After all, the accused also stands to benefit from efficient processing because it “allow[s] [for his or her] expeditious release.” United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983); cf. Cty. of Riverside v. McLaughlin, 500 U.S. 44, 53, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (noting that defendants might be disserved by adding procedural complexity into an already complicated system). The sheer number of bail hearings in Harris County each year—according to the court, over 50,000 people were arrested on misdemeanor charges in 2015—is a significant factor militating against overcorrection.
*160 With this in mind, we make two modifications to the district court’s conclusions regarding the procedural floor. First, we do not require factfinders to issue a written statement of their reasons. While we acknowledge “the provision for a written record helps to insure that [such officials], faced with possible scrutiny by state officials ... [and] the courts ... will act fairly,” Wolff v. McDonnell, 418 U.S. 539, 565, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), such a drastic increase in the burden imposed upon Hearing Officers will do more harm than good. We decline to hold that the Constitution requires the County to produce 50,000 written opinions per year to satisfy due process. Cf. United States v. McConnell, 842 F.2d 105, 110 (5th Cir. 1988) (concluding that, under the Bail Reform Act of 1984, the “court must [merely] explain its reasons for concluding that the particular financial requirement is a necessary part of the conditions for release” when setting a bond that a detainee cannot pay). Moreover, since the constitutional defect in the process afforded was the automatic imposition of pretrial detention on indigent misdemeanor arrestees, requiring magistrates to specifically enunciate their individualized, case-specific reasons for so doing is a sufficient remedy.
Second, we find that the district court’s 24-hour requirement is too strict under federal constitutional standards. The court’s decision to impose a 24-hour limit relied not on an analysis of present Harris County procedures and their current capacity; rather, it relied on the fact that a district court imposed this requirement thirty years ago (that is, prior to modern advancements in computer and communications technology). See Sanders v. City of Hous., 543 F.Supp. 694 (S.D. Tex. 1982). But Sanders’s holding, which was not grounded in procedural

due process but in the Fourth Amendment, relied on the Supreme Court opinion, Gerstein, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. Id. at 699. And Gerstein was later interpreted as establishing a right to a probable cause hearing within 48 hours. McLaughlin, 500 U.S. at 56–57, 111 S.Ct. 1661. Further, McLaughlin explicitly included bail hearings within this deadline. Id. at 58, 111 S.Ct. 1661.
We conclude that the federal due process right entitles detainees to a hearing within 48 hours. Our review of the due process right at issue here counsels against an expansion of the right already afforded detainees under the Fourth Amendment by McLaughlin. We note in particular that the heavy administrative burden of a 24-hour requirement on the County is evidenced by the district court’s own finding: the fact that 20% of detainees do not receive a probable cause hearing within 24 hours despite the statutory requirement. Imposing the same requirement for bail would only exacerbate such issues.
The court’s conclusion was also based on its interpretation of state law. But while state law may define liberty interests protected under the procedural due process clause, it does not define the procedure constitutionally required to protect that interest. See Wansley v. Miss. Dep’t of Corr., 769 F.3d 309, 313 (5th Cir. 2014) (noting that state law cannot serve as “the source of ... process due”); Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (“[W]here a liberty ... interest is infringed, the process which is due under the United States Constitution is that measured by the due process clause, not that called for by state regulations. Mere failure to accord the procedural protections called for by state law or regulation does not of itself amount to a denial of due process.” (internal citation omitted) ). Accordingly, although the parties contest *161 whether state law imposes a 24- or 48-hour requirement, we need not resolve this issue because state law procedural requirements do not impact our federal due process analysis.
The district court’s definition of ODonnell’s liberty interests is too broad, and the procedural protections it required are too strict. Nevertheless, even under our more forgiving framework, we agree that the County procedures violate ODonnell’s due process rights.
B. Equal Protection The district court held that the County’s bail-setting procedures violated the equal protection clause of the Fourteenth Amendment because they treat otherwise

ODonnell v. Harris County, 892 F.3d 147 (2018)
similarly-situated misdemeanor arrestees differently based solely on their relative wealth. The County makes three separate arguments against this holding. It argues: (1) ODonnell’s disparate impact theory is not cognizable under the equal protection clause, see Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997); (2) rational basis review applies and is satisfied; (3) even if heightened scrutiny applies, it is satisfied. We disagree.
First, the district court did not conclude that the County policies and procedures violated the equal protection clause solely on the basis of their disparate impact. Instead, it found the County’s custom and practice purposefully “detain[ed] misdemeanor defendants before trial who are otherwise eligible for release, but whose indigence makes them unable to pay secured financial conditions of release.” The conclusion of a discriminatory purpose was evidenced by numerous, sufficiently supported factual findings, including direct evidence from bail hearings. This custom and practice resulted in detainment solely due to a person’s indigency because the financial conditions for release are based on predetermined amounts beyond a person’s ability to pay and without any “meaningful consideration of other possible alternatives.” Rainwater, 572 F.2d at 1057. Under this circuit’s binding precedent, the district court was therefore correct to conclude that this discriminatory action was unconstitutional. Id. at 1056–57 (noting that pretrial “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible” under both “due process and equal protection requirements”); see also Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (noting that the indigent are protected by equal protection “at all stages of [criminal] proceedings”). Because this conclusion is sufficient to decide this case, we need not determine whether the equal protection clause requires a categorical bar on secured money bail for indigent misdemeanor arrestees who cannot pay it.
Second, the district court’s application of intermediate scrutiny was not in error. It is true that, ordinarily, “[n]either prisoners nor indigents constitute a suspect class.” Carson v. Johnson, 112 F.3d 818, 821–22 (5th Cir. 1997). But the Supreme Court has found that heightened scrutiny is required when criminal laws detain poor defendants because of their indigence. See, e.g., Tate v. Short, 401 U.S. 395, 397–99, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (invalidating a facially neutral statute that authorized imprisonment for failure to pay fines because it violated the equal protection rights of indigents); Williams v. Illinois, 399 U.S. 235, 241–42, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (invalidating a facially neutral statute that required convicted defendants to remain in jail beyond the maximum sentence if they could not pay other

fines associated with their sentences because it violated the equal protection rights of indigents). Reviewing this case law, the Supreme Court *162 later noted that indigents receive a heightened scrutiny where two conditions are met: (1) “because of their impecunity they were completely unable to pay for some desired benefit,” and (2) “as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).
We conclude that this case falls into the exception created by the Court. Both aspects of the Rodriguez analysis apply here: indigent misdemeanor arrestees are unable to pay secured bail, and, as a result, sustain an absolute deprivation of their most basic liberty interests—freedom from incarceration. Moreover, this case presents the same basic injustice: poor arrestees in Harris County are incarcerated where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to pay a secured bond. Heightened scrutiny of the County’s policy is appropriate.6
Third, we discern no error in the court’s conclusion that the County’s policy failed to meet the tailoring requirements of intermediate scrutiny. In other words, we will not disturb the court’s finding that, although the County had a compelling interest in the assurance of a misdemeanor detainee’s future appearance and lawful behavior, its policy was not narrowly tailored to meet that interest.
The court’s thorough review of empirical data and studies found that the County had failed to establish any “link between financial conditions of release and appearance at trial or law-abiding behavior before trial.” For example, both parties’ experts agreed that the County lacked adequate data to demonstrate whether secured bail was more effective than personal bonds in securing a detainee’s future appearance. Notably, even after analyzing the incomplete data that were available, neither expert discerned more than a negligible comparative impact on detainees’ attendance. Additionally, the court considered a comprehensive study of the impact of Harris County’s bail system on the behavior of misdemeanor detainees between 2008 and 2013. The study found that the imposition of secured bail might increase the likelihood of unlawful behavior. See Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 786–87 (2017) (estimating that the release on personal bond of the lowest-risk detainees would have resulted in 1,600 fewer felonies and 2,400 fewer misdemeanors within the following eighteen months). These findings mirrored those of various empirical studies from other jurisdictions.

ODonnell v. Harris County, 892 F.3d 147 (2018)
The County, of course, challenges these assertions with empirical studies of its own. But its studies at best cast some doubt on the court’s conclusions. They do not establish clear error. We are satisfied that the court had sufficient evidence to *163 conclude that Harris County’s use of secured bail violated equal protection.
In sum, the essence of the district court’s equal protection analysis can be boiled down to the following: take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent. Applying the County’s current custom and practice, with their lack of individualized assessment and mechanical application of the secured bail schedule, both arrestees would almost certainly receive identical secured bail amounts. One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart. The district court held that this state of affairs violates the equal protection clause, and we agree.
V.
Having largely affirmed the district court’s determinations that constitutional violations occurred, we turn to the court’s remedy. When crafting an injunction, district courts are guided by the Supreme Court’s instruction that “the scope of injunctive relief is dictated by the extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). A district court abuses its discretion if it does not “narrowly tailor an injunction to remedy the specific action which gives rise to the order.” John Doe # 1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004). Thus, an injunction must be vacated if it “fails to meet these standards” and “is overbroad.” Id. “The broadness of an injunction refers to the range of proscribed activity .... [and] is a matter of substantive law.” U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236, 1246 n.19 (5th Cir. 1975).
The County argues that, even if the panel credits every one of the district court’s factual findings and conclusions of law, the injunction it ultimately crafted is still overbroad. We agree. There is a significant mismatch

between the district court’s procedure-focused legal analysis and the sweeping injunction it implemented.
The fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical application of the secured bail schedule without regard for the individual arrestee’s personal circumstances. Thus, the equitable remedy necessary to cure the constitutional infirmities arising under both clauses is the same: the County must implement the constitutionally-necessary procedures to engage in a case-by-case evaluation of a given arrestee’s circumstances, taking into account the various factors required by Texas state law (only one of which is ability to pay). These procedures are: notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.
That is not what the preliminary injunction does, however. Rather, it amounts to the outright elimination of secured bail for indigent misdemeanor arrestees. That remedy makes some sense if one assumes a fundamental substantive due process right to be free from any form of wealth-based detention. But, as the foregoing analysis establishes, no such right is in view. The sweeping injunction is overbroad.
*164 We therefore conclude that the district court abused its discretion in crafting an injunction that was not “narrowly tailor[ed] ... to remedy the specific action which gives rise to the order.” Veneman, 380 F.3d at 818. We will vacate the injunction and remand to allow the court to craft a remedy more finely tuned to address the harm.
The following represents the sort of modification that would be appropriate here, although we leave the details to the district court’s discretion:
With these principles in mind, the court will order the following relief, to take effect within 30 days, unless those enjoined move for and show good cause for a reasonable, brief extension. Any motions for extension will be set for prompt hearing and resolution.
• Harris County is enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring that there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties.
• Pretrial Services officers, as County employees and subject to its policies, must verify an

ODonnell v. Harris County, 892 F.3d 147 (2018)
arrestee’s ability to pay a prescheduled financial condition of release by an affidavit, and must explain to arrestees the nature and significance of the verification process.
• The purpose of the explanation is to provide the notice due process requires that a misdemeanor defendant’s state constitutional right to be bailable by sufficient sureties is at stake in the proceedings. Pretrial Services may administer either the form of the affidavit currently used to determine eligibility for appointed counsel or the adapted form that Dr. VanNostrand testified was prepared for Pretrial Services to be administered by July 1, 2017, if they comply with the below guidelines. Pretrial Services must deliver completed affidavits to the Harris County Sheriff’s Office before a declarant’s probable cause hearing.
• The affidavit must give the misdemeanor arrestee sufficient opportunity to declare under penalty of perjury, after the significance of the information has been explained, the maximum amount of financial security the arrestee would be able to post or pay up front within 24 hours of arrest. The affidavit should ask the arrestee to provide details about their financial situation sufficient to help the County make reliable determinations regarding the amount of bail that would provide sufficient sureties, including: 1) arrestee and spouse’s income from employment, real property, interest and dividends, gifts, alimony, child support, retirement, disability, unemployment payments, public-assistance, and other sources; 2) arrestee and spouse’s employment history for the prior two years and gross monthly pay; 3) arrestee and spouse’s present cash available and any financial institutions where cash is held; 4) assets owned, e.g., real estate and motor vehicles; 5) money owed to arrestee and spouse; 6) dependents of arrestee and spouse, and their ages; 7) estimation of itemized monthly expenses; 8) taxes and legal costs; 9) expected major *165 changes in income or expenses; 10) additional information the arrestee wishes to provide to help explain the inability to pay. The question is neither the arrestee’s immediate ability to pay with cash on hand, nor what assets the arrestee could eventually produce after a period of pretrial detention. The question is what amount the arrestee could reasonably pay within 24 hours of his or her arrest, from any source, including the contributions of family and friends.
• The purpose of this requirement is to provide a

better, easier, and faster way to get the information needed to determine a misdemeanor defendant’s ability to pay. The Hearing Officers and County Judges testified that they presently do not know who has the ability to pay. The affidavit can be completed within 24 hours after arrest; the current process of verifying references by phone extends for days after arrest.
• The court does not order relief against the Hearing Officers or against the County Judges in their judicial or legislative capacities.
• Misdemeanor defendants who are not subject to: (1) formal holds preventing their release from detention; (2) pending mental-health evaluations to determine competency; or (3) pretrial preventive detention orders for violating a condition of release for a crime of family violence, have a constitutionally protected state-created liberty interest in being bailable by sufficient sureties before trial. If a misdemeanor defendant has executed an affidavit showing an inability to pay prescheduled money bail and has not been released either: (1) on an unsecured personal bond with nonfinancial conditions of release; or (2) on a secured money bond for which the defendant could pay a commercial surety’s premium, as indicated on the affidavit, then the defendant is entitled to a hearing within 48 hours of arrest in which an impartial decision-maker conducts an individual assessment of whether another amount of bail or other condition provides sufficient sureties. At the hearing, the arrestee must have an opportunity to describe evidence in his or her favor, and to respond to evidence described or presented by law enforcement. If the decision-maker declines to lower bail from the prescheduled amount to an amount the arrestee is able to pay, then the decisionmaker must provide written factual findings or factual findings on the record explaining the reason for the decision, and the County must provide the arrestee with a formal adversarial bail review hearing before a County Judge. The Harris County Sheriff is therefore authorized to decline to enforce orders requiring payment of prescheduled bail amounts as a condition of release for said defendants if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided. All nonfinancial conditions of release ordered by the Hearing Officers, including protective orders, drug testing, alcohol intake ignition locks, or GPS monitoring, will remain in effect.

ODonnell v. Harris County, 892 F.3d 147 (2018)

*166 • The purpose of this requirement is to provide timely protection for the state-created liberty interest in being bailable by sufficient sureties and to prevent the automatic imposition of prescheduled bail amounts without an adequate process for ensuring that there is individualized consideration of whether another amount or condition provides sufficient sureties.
• To enforce the 48-hour timeline, the County must make a weekly report to the district court of misdemeanor defendants identified above for whom a timely individual assessment has not been held. The County must also notify the defendant’s counsel and/or next of kin of the delay. A pattern of delays might warrant further relief from the district court. Because the court recognizes that the County might need additional time to comply with this requirement, the County may propose a reasonable timeline for doing so.
• The purpose of this requirement is to give timely protection to the state-created liberty interest in being bailable by sufficient sureties by enforcing federal standards indicating that 48 hours is a reasonable timeframe for completing the administrative incidents to arrest. The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention.
• For misdemeanor defendants who are subject to formal holds and who have executed an affidavit showing an inability to pay the prescheduled financial condition of release, the Sheriff must treat the limitations period on their holds as beginning to run the earliest of: (1) after the probable cause hearing; or (2) 24 hours after arrest. The purpose of this requirement is to ensure that misdemeanor defendants are not prevented from or delayed in addressing their holds because

they are indigent and therefore cannot pay a prescheduled financial condition of release.
• Misdemeanor defendants who do not appear competent to execute an affidavit may be evaluated under the procedures set out in the Texas Code of Criminal Procedure Article 16.22. If competence is found, the misdemeanor defendant is covered by the relief the court orders, with the exception that the 48-hour period begins to run from the finding of competence rather than from the time of arrest. As under Article 16.22, nothing in this order prevents the misdemeanor arrestee from being released on secured bail or unsecured personal bond pending the evaluation.
VI.
For the forgoing reasons, we AFFIRM the district court’s findings of fact. We AFFIRM its conclusions of law except its conclusion that the County Sheriff qualifies as a municipal policymaker under § 1983 and its determination of the specific procedural protections owed under procedural due process. On those issues, we REVERSE the district court’s conclusions. Accordingly, we VACATE the preliminary injunction as overbroad and REMAND to the district court to craft a revised injunction—one that is narrowly tailored to cure the constitutional deficiencies the district *167 court properly identified. But we also STAY the vacatur pending implementation of the revised injunction, so as to maintain a stable status quo.
All Citations
892 F.3d 147

Footnotes

*

Judge Prado was a member of the original panel and participated in the initial decision. He retired from the Court on

April 2, 2018, and therefore did not participate in the panel’s review of the petitions for panel rehearing. The case is

being decided by a quorum. 28 U.S.C. § 46(d).

1

The parties use the term “County Judges” to refer to the judges of the County Criminal Courts of Harris County, and

we will use that same term. This term does not refer to the County Judge who is the head of the County

Commissioners’ Court of Harris County.

ODonnell v. Harris County, 892 F.3d 147 (2018)

2

Individualized assessment is also assured by a preexisting federal consent decree, which requires County officials to

make individualized assessments of each misdemeanor defendant’s case and adjust the scheduled bail amount

accordingly, or else release the defendant on unsecured or nonfinancial conditions.

3

The County also argues that we are precluded from reviewing ODonnell’s claims because they should have been

raised as a petition for habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

We agree with the district court that this argument has been waived. The County neither mentioned Preiser nor

pressed the habeas argument until its motion for a stay of the injunction. The closest the County came to preserving

this argument was one sentence in its response to ODonnell’s motion for preliminary injunction. This passing

reference is insufficient to preserve the argument, especially given that it is dispositive of the case at the threshold

stage.

4

We also note that Texas courts have never sought to eliminate the use of bail bonds. To the contrary, the use of

secured bail was affirmed by the Texas Court of Criminal Appeals in Anderer, despite the opinion’s strong language

in support of an accused’s pretrial freedom. Anderer, 61 S.W.3d at 403.

5

The district court analyzed new efforts by both the County and State to improve their bail-setting procedures. We

need not review its discussion here. We note, however, that we agree with its conclusions that the County’s

proposed remedies, which are beginning to be implemented, fail to address the constitutional violations at issue.

We also agree that the changes proposed by the State would provide a more adequate remedy. Should these

provisions become law, the need for the court’s intervention must be revisited.

6

We acknowledge that the cited Supreme Court cases applied to indigents who were already found guilty. But this

court in Rainwater concluded that the distinction between post-conviction detention targeting indigents and pretrial

detention targeting indigents is one without a difference. We found that, regardless of its timing, “imprisonment

solely because of indigent status is invidious discrimination and not constitutionally permissible.” Rainwater, 572

F.2d at 1056 (citing Williams and Tate). Our conclusion was based on the “punitive and heavily burdensome nature

of pretrial confinement” and the fact that it deprives someone who has only been “accused but not convicted of

crime” of their basic liberty. Id.; see also Anderson v. Nosser, 438 F.2d 183, 190 (5th Cir. 1971) (noting that the

pre-trial detainment of “unconvicted misdemeanants” was a “[p]unitive measure[ ] ... out of harmony with the

presumption of innocence”). We are bound by this analysis.

 
 Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 1 of 83

U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:16−cv−01414

CLOSED,LEAD

ODonnell v. Harris County, Texas et al Assigned to: Judge Lee H Rosenthal Related Cases: 4:16−cv−03745
4:16−cv−01436 Cause: 28:1983 Civil Rights Plaintiff
Maranda Lynn ODonnell

Date Filed: 05/19/2016 Date Terminated: 11/26/2019 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alec George Karakatsanis Civil Rights Corps 1601 Connecticut Avenue NW Suite 800 Washington, DC 20009 202−894−6142 Email: alec@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Krisina Janaye Zuniga Susman Godfrey LLP 1000 Louisiana Street Stuie 5100 Houston, TX 77002 713−655−5660 Fax: 713−654−6666 Email: KZuniga@susmangodfrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lexie Giselle White Susman Godfrey LLP 1000 Louisiana St Ste 5100 Houston, TX 77002 713−653−7883 Email: lwhite@susmangodfrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neal S Manne Susman Godfrey LLP 1000 Louisiana Ste 5100 Houston, TX 77002−5096 713−653−7827 Email: nmanne@susmangodfrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra C. Salinas Susman Godfrey LLP 1000 Louisiana St. Ste 5100 Houston, TX 77002 713−651−9366 Email: asalinas@susmangodfrey.com ATTORNEY TO BE NOTICED
Charles Lewis Gerstein

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 2 of 83
Civil Rights Corps 1601 Connecticut Ave NW Suite 800 Washington, DC 20009 202−894−6142 Email: charlie@civilrightscorps.org ATTORNEY TO BE NOTICED
Elizabeth Anne Rossi Civil Rights Corps 1601 Connecticut Ave. NW Suite 800 Washington, DC 20009 202−894−6142 Email: elizabeth@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Gervais Susman Godfrey L.L.P. 1900 Avenue of the Stars Ste 1400 Los Angeles, NY 90067 212−336−8330 Email: mgervais@susmangodfrey.com ATTORNEY TO BE NOTICED
Rebecca Bernhardt Texas Fair Defense Project 314 E Highland Mall Blvd Ste 108 Austin, TX 78752 512−637−5220 Email: rbernhardt@fairdefense.org TERMINATED: 11/16/2017 ATTORNEY TO BE NOTICED
Susanne Ashley Pringle Texas Fair Defense Project 314 E Highland Mall Ave No. 108 Austin, TX 78752 512−367−5220 ext. 103 Email: springle@fairdefense.org TERMINATED: 05/02/2019 ATTORNEY TO BE NOTICED

V. Consol Plaintiff Loetha Shanta McGruder

represented by Krisina Janaye Zuniga (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neal S Manne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susanne Ashley Pringle (See above for address) TERMINATED: 05/02/2019 LEAD ATTORNEY

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 3 of 83

ATTORNEY TO BE NOTICED

Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED

Alejandra C. Salinas (See above for address) ATTORNEY TO BE NOTICED

Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anne Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lexie Giselle White (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Robert Ryan Ford

represented by Krisina Janaye Zuniga (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal S Manne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susanne Ashley Pringle (See above for address) TERMINATED: 05/02/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED

Alejandra C. Salinas (See above for address) ATTORNEY TO BE NOTICED

Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Anne Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lexie Giselle White (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 4 of 83

Harris County, Texas

represented by James G Munisteri Foley Gardere 1000 Louisiana Ste 2000 Houston, TX 77002−5007 713−276−5752 Fax: 713−276−5555 Email: jmunisteri@foley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katharine Davenport David Husch Blackwell LLP 600 Travis Suite 2350 Houston, TX 77002 713−525−6258 Fax: 713−647−6884 Email: kate.david@huschblackwell.com TERMINATED: 04/12/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Lynn Spinks Harris County Attorney's Office 1019 Congress 15th Floor Houston, TX 77002 713−274−5132 Fax: 713−755−8924 Email: melissa.spinks@cao.hctx.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael A Stafford Husch Blackwell LLP 600 Travis Street Suite 2350 Houston, TX 77002 713−647−6800 Fax: 713−647−6884 Email: mikestafford@huschblackwell.com TERMINATED: 04/12/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Celena Cavazos Vinson The Office of Vince Ryan County Attorney 1019 Congress 15th Floor Houston, TX 77002 713−274−5181 Email: celena.vinson@cao.hctx.net ATTORNEY TO BE NOTICED

Michael Paul Fleming Michael P. Fleming & Associates, P.C. 1345 Campbell Rd. Suite 100 Houston, TX 77055 (713) 221−6800 Fax: (713) 221−6806 Email: mfleming@flemingattorneys.com TERMINATED: 09/07/2016 ATTORNEY TO BE NOTICED

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 5 of 83

Defendant Sheriff Ron Hickman TERMINATED: 02/01/2017
Defendant Eric Stewart Hagstette TERMINATED: 04/08/2019
Defendant Joseph Licata III TERMINATED: 04/08/2019

Philip James Morgan Husch Blackwell, LLP 600 Travis Street Suite 2350 Houston, TX 77002 713−647−6800 Fax: 713−647−6884 Email: phil.morgan@huschblackwell.com TERMINATED: 04/12/2019 ATTORNEY TO BE NOTICED
represented by James G Munisteri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine Davenport David (See above for address) LEAD ATTORNEY
Melissa Lynn Spinks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Paul Fleming (See above for address) TERMINATED: 09/07/2016 ATTORNEY TO BE NOTICED
represented by Katharine Davenport David (See above for address) LEAD ATTORNEY
Michael A Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Paul Fleming (See above for address) TERMINATED: 09/07/2016 ATTORNEY TO BE NOTICED
Philip James Morgan (See above for address) ATTORNEY TO BE NOTICED
represented by Katharine Davenport David (See above for address) LEAD ATTORNEY
Michael A Stafford (See above for address)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 6 of 83

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Paul Fleming (See above for address) TERMINATED: 09/07/2016 ATTORNEY TO BE NOTICED

Philip James Morgan (See above for address) ATTORNEY TO BE NOTICED

Defendant Ronald Nicholas

represented by Katharine Davenport David (See above for address) LEAD ATTORNEY

Michael A Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Paul Fleming (See above for address) TERMINATED: 09/07/2016 ATTORNEY TO BE NOTICED

Philip James Morgan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Blanca Estela Villagomez TERMINATED: 04/08/2019

represented by Katharine Davenport David (See above for address) LEAD ATTORNEY

Michael A Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Paul Fleming (See above for address) TERMINATED: 09/07/2016 ATTORNEY TO BE NOTICED

Philip James Morgan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jill Wallace TERMINATED: 04/08/2019

represented by Katharine Davenport David (See above for address) LEAD ATTORNEY

Michael A Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Paul Fleming (See above for address) TERMINATED: 09/07/2016

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 7 of 83

ATTORNEY TO BE NOTICED

Philip James Morgan (See above for address) ATTORNEY TO BE NOTICED

Defendant Paula Goodhart

represented by Paula Goodhart PRO SE

Brian W Barnes Cooper and Kirk PLLC 1523 New Hampshire Ave NW Washington, DC 20036 202−220−9600 Email: bbarnes@cooperkirk.com TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper Cooper & Kirk PLLC 1523 New Hampshire Ave NW Washington, DC 20036 202−220−9600 Email: ccooper@cooperkirk.com TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill Winston and Strawn LLP 1111 Louisiana St 25th Floor Houston, TX 77002 713−651−2600 Fax: 713−651−2700 Email: joneill@winston.com TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk Cooper Kirk 1523 New Hampshire Ave NW Washington, DC 20036 202−220−9600 Email: mkirk@cooperkirk.com TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss Cooper & Kirk, PLLC 1523 New Hampshire Avenue, N.W. Washington, DC 20036 202−220−9600 Email: nmoss@cooperkirk.com TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 8 of 83

Corinne Stone Winston and Strawn LLP 1111 Louisiana St 25th Floor Houston, TX 77002 713−651−2600 Email: cstone@winston.com TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville Winston Strawn 1111 Louisiana St 25th Floor Houston, TX 77002 713−651−2600 Email: jkeville@winston.com TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III Winston and Strawn LLP 1111 Louisiana St 25th Floor Houston, TX 77002 713−651−2603 Email: rlgreen@winston.com TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk Winston Strawn LLP 1111 Louisiana Street 25 Th Floor Houston, TX 77002 713−651−2615 Email: SFalk@winston.com TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra Cooper & Kirk, PLLC 1523 New Hampshire, Avenue N.W. Washington, DC 20036 202−220−9600 Email: wmarra@cooperkirk.com TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Bill Harmon

represented by Bill Harmon PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 9 of 83

ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Natalie C. Fleming

represented by Natalie C. Fleming PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 10 of 83

(See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant John Clinton

represented by John Clinton PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 11 of 83

ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Margaret Harris

represented by Margaret Harris PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 12 of 83

(See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Larry Standley

represented by Larry Standley PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 13 of 83

ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Pam Derbyshire

represented by Pam Derbyshire PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 14 of 83

Defendant Jay Karahan

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
represented by Jay Karahan PRO SE
Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corinne Stone (See above for address)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 15 of 83

TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Judge Analia Wilkerson

represented by Analia Wilkerson PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 16 of 83

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Dan Spjut

represented by Dan Spjut PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 17 of 83

ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Judge Diane Bull

represented by Diane Bull PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 18 of 83

(See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Judge Robin Brown

represented by Robin Brown PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 19 of 83

Defendant Donald Smyth

William C Marra (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
represented by Donald Smyth PRO SE
Brian W Barnes (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Charles J Cooper (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
William C Marra (See above for address)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 20 of 83

TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant Judge Mike Fields

represented by Mike Fields PRO SE

Bruce Stephen Powers Office of the Harris County Attorney 1019 Congress 15 Floor Houston, TX 77002 713−274−5144 Fax: 713−755−8924 Email: bruce.powers@cao.hctx.net TERMINATED: 02/01/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 09/27/2017 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 09/27/2017 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 09/27/2017 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 09/27/2017 ATTORNEY TO BE NOTICED

Defendant Jean Hughes

represented by Jean Hughes PRO SE

Brian W Barnes (See above for address) TERMINATED: 01/03/2019

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 21 of 83

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Moss (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles J Cooper (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Corinne Stone (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Defendant
Linda Garcia TERMINATED: 02/01/2017

represented by John Ellis O'Neill (See above for address) TERMINATED: 01/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John R Keville (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Robert Lawrence Green , III (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 22 of 83

Defendant Ed (Sheriff) Gonzalez
Defendant Darrell William Jordan

Sheryl Anne Falk (See above for address) TERMINATED: 01/03/2019 ATTORNEY TO BE NOTICED
represented by Victoria Lynn Jimenez Harris County Attorney's Office 1019 Congress 15th Floor Houston, TX 77002 713−274−5140 Fax: 713−755−8924 Email: victoria.jimenez@cao.hctx.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Murray J Fogler Fogler, Brar, O'Neil & Gray LLP 909 Fannin St Suite 1640 2 Houston Center Houston, TX 77002 713−481−1010 Fax: 713−574−3224 Email: mfogler@foglerbrar.com ATTORNEY TO BE NOTICED
represented by George Allan Van Fleet G. Allan Van Fleet, P.C. 6218 Elm Heights LN Suite 201 Houston, TX 77081−2409 713−826−1954 Email: allanvanfleet@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Beckman Hedge Harris County Attorney's Office 1019 Congress St. 15th Floor Houston, TX 77002 712−274−5137 Email: Laura.Hedge@cao.hctx.net TERMINATED: 05/25/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Robert Hull Office of Harris County Attorney 1019 Congress 15th Floor Houston, TX 77002 713−274−5138 Fax: 713−755−8924 Email: michael.hull@cao.hctx.net TERMINATED: 02/01/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Anthony Correro

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 23 of 83

Attorney at Law 2909 Hillcroft Suite 350 Houston, TX 77057 713−858−6698 Email: mark@correroleisure.com ATTORNEY TO BE NOTICED

Defendant William E. Johnson

Defendant Hon. Alex Salgado

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Ronnisha Bowman

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Erica Hughes

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Shannon Baldwin

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. David Fleischer

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Kelley Andrews

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Andrew Wright

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Franklin Bynum

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Toria J. Finch

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Lee Harper Wilson

represented by

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 24 of 83

George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Sedrick T. Walker, II

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Cassandra Y. Holleman

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Raul Rodriguez

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. David Springer

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Tonya Jones

represented by George Allan Van Fleet (See above for address) ATTORNEY TO BE NOTICED

Defendant Hon. Genesis Draper

represented by George Allan Van Fleet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Mothers Against Drunk Driving

represented by Daniel D McGuire Polsinelli PC 2501 N. Harwood St. Suite 1900 Dallas, TX 75201 214−661−5580 Fax: 214−397−0033 Email: dmcguire@polsinelli.com ATTORNEY TO BE NOTICED

Movant John McCluskey

represented by Kenneth Wayne Good The Good Law Firm 5604 Old Bullard Rd Ste 102 Tyler, TX 75703 903−579−7507 Fax: 8663810455 Email: keng@tyler.net ATTORNEY TO BE NOTICED

Movant Carolyn Campbell

represented by

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 25 of 83

Kenneth Wayne Good (See above for address) ATTORNEY TO BE NOTICED

Movant Andre Gaskin

represented by Andre Gaskin #02748394 Harris County Sheriff's Office Jail 1200 Baker Street Houston, TX 77002 PRO SE

Movant
Harris County Domestic Violence 2990 Richmond, Suite 555 Houston, TX 77027 281−400−3680 Barbie Brashear, Executive Director / Amy Smith, Deputy Director

V. Amicus Kim Ogg Harris County District Attorney 1201 Franklin, Suite 600 Houston, TX 77002
Amicus Commissioner Steve Radack 1001 Preston Houston, TX 77002
Amicus Mr. J. Marcus Hill

represented by Kimbra Kathryn Ogg Harris County District Attorney's Office 1201 Franklin Ste 600 Houston, TX 77002−1901 713−274−5810 Email: ogg_kim@dao.hctx.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Anthony Durfee Assistant District Attorney 1201 Franklin 6th Flr Houston, TX 77002 713−755−5816 Fax: 713−368−9275 Email: durfee_scott@dao.hctx.net ATTORNEY TO BE NOTICED
represented by Fred A Keys , Jr Fred Keys Consulting LLC 2651 W. Broadway Blvd., No.14104 Tucson, AZ 85745 713−880−8805 Email: keysfa@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by J Marcus Hill Hill Hill PC 1770 St James Place Ste 115 Houston, TX 77056 713−688−6318 Fax: 713−688−2817

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 26 of 83

Email: marc@hillpclaw.com ATTORNEY TO BE NOTICED

Amicus EQUAL JUSTICE NOW

represented by Alan N Magenheim Magenheim & Associates 3701 Kirby Dr Ste 913 Houston, TX 77098 713−529−1700 Fax: 713−529−1705 Email: EFlood@magenheimlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus R. Jack Cagle

represented by W Mark Lanier The Lanier Law Firm 10940 W. Sam Houston Parkway North Suite 100 Houston, TX 77064 713−659−5200 Fax: 713−659−2204 Email: jrm@lanierlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Houston Area Police Chiefs Association

represented by Jonathan S Stoger Stoger Law Firm 2301 Morse Houston, TX 77019 713−522−2848 Fax: 713−522−1120 Email: jstoger@stogerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Texas School District Police Chief's Association

represented by Jonathan S Stoger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party American Bail Coalition

represented by Andrew C Lawrence Kirkland & Ellis LLP 655 Fifteenth Street NW Washington, DC 20005 202−879−5000 Fax: 202−879−5200 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher G. Michel 655 Fifteenth Street, NW Washington, DC 20005 (202) 879−5000 Email: christopher.michel@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 27 of 83

Interested Party Professional Bondsmen of Texas
Interested Party Professional Bondsmen of Harris County (Amici Curiae)
Interested Party Devin Paul Cole TERMINATED: 02/21/2018

Paul D Clement 655 Fifteenth Street, NW Washington, DC 200005 (202) 879−5000 Email: paul.clement@kirkland.com TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew C Lawrence (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher G. Michel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul D Clement (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew C Lawrence (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin R Pennell Pennell Law Firm PLLC 1177 West Loop South Suite 1100 Houston, TX 77027−2826 United Sta 713−965−7568 Fax: 713−583−9455 Email: kevin@pennellfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul D Clement (See above for address) TERMINATED: 01/03/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher G. Michel (See above for address) ATTORNEY TO BE NOTICED
represented by Devin Paul Cole 2168076 Stiles Unit 3060 FM 3514 Beaumont, TX 77705

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 28 of 83

PRO SE

Interested Party
Pct One Commissioner Rodney Ellis Precinct One Commissioner Rodney Ellis

represented by Rodney Ellis Harris County Administrative Bldg. 1001 Preston 9th Floor Houston, TX 77002 713−755−6111 PRO SE

Kathryn M Kase Kathryn M Kase, Attorney at Law 3720 Greenbriar PO Box 980849 Houston, TX 77098−9998 713−444−2044 Email: kmkase@aol.com ATTORNEY TO BE NOTICED

Interested Party
NAACP Legal Defense and Educational Fund, Inc. NAACP Legal Defense and Educational Fund, Inc.

represented by NAACP Legal Defense and Educational Fund, Inc. NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212−965−2267 Email: cswarns@naacpldf.org PRO SE

Kathryn M Kase (See above for address) ATTORNEY TO BE NOTICED

Interested Party
Josh Bruegger Chief of Police of the City of Pasadena

represented by Josh Bruegger 1201 Davis Pasadena, TX 77506 713−475−7256 PRO SE

Interested Party
Robert A. Armbruster Houston Police Officers' Union 1600 State Street, Ste. 200 Houston, TX 77007 8322003420 Robert A Armbruster

represented by Robert Anthony Armbruster Houston Police Officers' Union Office of Legal Counsel 1600 State St Ste 200 Houston, TX 77007 832−200−3420 Fax: 832−200−3426 Email: rarmbruster@hpou.org ATTORNEY TO BE NOTICED

Interested Party Doug Smith

represented by Doug Smith PRO SE

Interested Party Dianna Williams

represented by

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 29 of 83

Dianna Williams PRO SE

Interested Party John Gamage

represented by John Gamage PRO SE

Interested Party Monica Joseph

represented by Monica Joseph PRO SE

Interested Party Olga C Watkins, Ph. D

represented by Olga C Watkins, Ph. D 2118 Swift Blvd Houston, Tx 77030 713−471−2285 PRO SE

Interested Party Kaleb J Taylor

represented by Kaleb J Taylor PRO SE

Interested Party Koretta Brown

represented by Koretta Brown PRO SE

Interested Party Ashton Woods

represented by Ashton Woods PRO SE

Interested Party Carl Davis

represented by Carl Davis PRO SE

Interested Party
Office of the Attorney General of Texas

represented by Adam Arthur Biggs Office of the Attorney General P.O. Box 12548, Capitol Station Austin, TX 78711 512−463−2120 Email: adam.biggs@oag.texas.gov ATTORNEY TO BE NOTICED

Date Filed 05/19/2016
05/19/2016 05/19/2016 05/19/2016

# Docket Text
1 MOTION for Temporary Restraining Order by Maranda Lynn ODonnell, filed. Motion Docket Date 6/9/2016. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Proposed Order)(White, Lexie) (Entered: 05/19/2016)
2 MOTION to Certify Class by Maranda Lynn ODonnell, filed. Motion Docket Date 6/9/2016. (Attachments: # 1 Affidavit of Alec Karakatsanis, # 2 Proposed Order)(White, Lexie) (Entered: 05/19/2016)
3 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541−16677599) filed by Maranda Lynn ODonnell. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1, # 3 Exhibit 2)(White, Lexie) (Entered: 05/19/2016)
4 MOTION for Alec G. Karakatsanis to Appear Pro Hac Vice by Maranda Lynn ODonnell, filed. Motion Docket Date 6/9/2016. (White, Lexie) (Entered: 05/19/2016)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 30 of 83

05/19/2016 05/20/2016
05/20/2016 05/20/2016 05/23/2016 05/23/2016 05/23/2016 05/23/2016 05/23/2016 05/24/2016 05/25/2016
06/03/2016 06/07/2016
06/10/2016 06/10/2016
06/15/2016
06/16/2016

5 MOTION for Elizabeth Rossi to Appear Pro Hac Vice by Maranda Lynn ODonnell, filed. Motion Docket Date 6/9/2016. (White, Lexie) (Entered: 05/19/2016)
6 ORDER Scheduling Rule 16 Conference With the Court and Setting Out the Requirements for Initial Pretrial Work. Initial Conference set for 8/26/2016 at 08:45 AM in Courtroom 11B before Judge Lee H Rosenthal. (Signed by Judge Lee H Rosenthal) (Attachments: # 1 Judge's Procedure) Parties notified. (wbostic, 4) (Entered: 05/20/2016)
7 MOTION for Michael Gervais to Appear Pro Hac Vice by Maranda Lynn ODonnell, filed. Motion Docket Date 6/10/2016. (White, Lexie) (Entered: 05/20/2016)
8 NOTICE of Appearance by Rebecca Bernhardt on behalf of Maranda Lynn ODonnell, filed. (Bernhardt, Rebecca) (Entered: 05/20/2016)
9 NOTICE of Withdrawal of Motion for Temporary Restraining Order by Maranda Lynn ODonnell, filed. (White, Lexie) (Entered: 05/23/2016)
10 Request for Issuance of Summons as to All Defendants, filed. (Attachments: # 1 Summon, # 2 Summon, # 3 Summon, # 4 Summon, # 5 Summon, # 6 Summon)(White, Lexie) (Entered: 05/23/2016)
11 ORDER granting 7 MOTION for Michael Gervais to Appear Pro Hac Vice (Signed by Judge Lee H Rosenthal) Parties notified.(olindor, 4) (Entered: 05/23/2016)
12 ORDER granting 5 MOTION for Elizabeth Rossi to Appear Pro Hac Vice (Signed by Judge Lee H Rosenthal) Parties notified.(olindor, 4) (Entered: 05/24/2016)
13 ORDER granting 4 Alec G. Karakatsanis Motion to Appear Pro Hac Vice.(Signed by Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 05/24/2016)
Summons Issued as to All Defendants. Issued summons returned to plaintiff by: First−class mail, filed.(hler, 4) (Entered: 05/24/2016)
14 MOTION to Consolidate Lead Case No. 16−cv−01414 and Member Case No. 16−cv−01436 by Maranda Lynn ODonnell, filed. Motion Docket Date 6/15/2016. (Attachments: # 1 Exhibit A − Civil Cover Sheet, # 2 Exhibit B − Proposed Order)(White, Lexie) (Entered: 05/25/2016)
15 NOTICE of Setting. Parties notified. Status Conference set for 6/20/2016 at 11:00 AM in Courtroom 11B before Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 06/03/2016)
16 RETURN of Service of SUMMONS Executed as to Eric Stewart Hagstette served on 5/26/2016, answer due 6/16/2016; Harris County, Texas served on 5/26/2016, answer due 6/16/2016; Joseph Licata III served on 5/26/2016, answer due 6/16/2016; Sheriff Ron Hickman served on 5/26/2016, answer due 6/16/2016; Blanca Estela Villagomez served on 5/26/2016, answer due 6/16/2016, filed. (Attachments: # 1 Executed Summons Harris County, # 2 Executed Summons Joseph Licata, # 3 Executed Summons Blanca Villagomez, # 4 Executed Summons Sheriff Ron Hickman)(White, Lexie) (Entered: 06/07/2016)
17 NOTICE of Appearance by Susanne Pringle on behalf of Maranda Lynn ODonnell, filed. (Pringle, Susanne) (Entered: 06/10/2016)
18 NOTICE of Appearance by Katharine D. David on behalf of Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace, filed. (David, Katharine) (Entered: 06/10/2016)
19 Unopposed MOTION for Extension of Time to answer or respond to Plaintiff's Complaint by Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 7/6/2016. (Attachments: # 1 Proposed Order)(David, Katharine) (Entered: 06/15/2016)
20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Harris County, Texas, Sheriff Ron Hickman, filed. Motion Docket Date 7/7/2016. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(David, Katharine) (Entered: 06/16/2016)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 31 of 83

06/20/2016 06/20/2016
06/21/2016 06/24/2016
06/27/2016 07/18/2016 07/18/2016
07/18/2016 07/19/2016 08/01/2016 08/01/2016 08/01/2016 08/12/2016 08/12/2016 08/12/2016

21 ORDER granting 19 Motion for Extension of Time; Answer due for Eric Stewart Hagstette 6/27/2016; Joseph Licata III 6/27/2016; Ronald Nicholas 6/27/2016; Blanca Estela Villagomez 6/27/2016; Jill Wallace due by 6/27/2016.(Signed by Judge Lee H Rosenthal) Parties notified.(arrivera, 4) (Entered: 06/20/2016)
22 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on June 20, 2016. The parties will confer and submit a proposed scheduling order. No later than June 22, 2016, the parties will submit three to four suggested dates for oral argument. Appearances: Lexie White/Neal Manne/Elizabeth Rossi/Alec Karakatsanis/Susanne Pringle for Pltf and Katharine David/Mike Stafford for Defts.(Court Reporter: B. Slavin), filed.(leddins, 4) (Entered: 06/21/2016)
23 Joint MOTION Joint Proposed Scheduling Order by Maranda Lynn ODonnell, filed. Motion Docket Date 7/12/2016. (White, Lexie) (Entered: 06/21/2016)
24 SCHEDULING AND DOCKET CONTROL ORDER; Granting 23 Joint MOTION Joint Proposed Scheduling Order (Motion To Dismiss 6/27/2016., Plaintiff's Response to Motion To Dismiss due by 7/18/2016., Defendant's replies to the Motions To Dismiss due by 8/1/2016., Motions for Temporary Injunctions and For Class Certification 7/18/2016., Plaintiffs' replies to the Motion for Temporary Injunction and Class Certification due by 8/1/2016., Oral Argument set for 8/18/2016 at 08:30 AM at Courtroom 11B before Judge Lee H Rosenthal)(Signed by Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 06/27/2016)
25 MOTION to Dismiss All Claims by Harris County, Texas, filed. Motion Docket Date 7/18/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(David, Katharine) (Entered: 06/27/2016)
26 RESPONSE in Opposition to 1 MOTION for Temporary Restraining Order, filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(David, Katharine) (Entered: 07/18/2016)
27 RESPONSE in Opposition to 25 MOTION to Dismiss All Claims, filed by Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1−−Memorandum in Support of Motion for Leave to Amend filed in Cain v. City of New Orleans, # 2 Exhibit 2−−Dallas County bail schedule, # 3 Exhibit 3−−Harris County Courts at Law Rules of Court)(White, Lexie) (Entered: 07/18/2016)
28 RESPONSE to 2 MOTION to Certify Class filed by Harris County, Texas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(David, Katharine) (Entered: 07/18/2016)
29 CERTIFICATE OF SERVICE of 27 Response in Opposition to Motion, by Maranda Lynn ODonnell, filed.(White, Lexie) (Entered: 07/19/2016)
30 REPLY in Support of 1 MOTION for Temporary Restraining Order, filed by Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 08/01/2016)
31 REPLY in Support of 2 MOTION to Certify Class, filed by Maranda Lynn ODonnell. (Attachments: # 1 Exhibit A)(Rossi, Elizabeth) (Entered: 08/01/2016)
32 REPLY in Support of 25 MOTION to Dismiss All Claims, filed by Harris County, Texas. (David, Katharine) (Entered: 08/01/2016)
33 NOTICE of New Authority re: 25 MOTION to Dismiss All Claims by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(David, Katharine) (Entered: 08/12/2016)
34 SURREPLY to 1 MOTION for Temporary Restraining Order, filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace. (David, Katharine) (Entered: 08/12/2016)
35 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Maranda Lynn ODonnell, filed. (Attachments: # 1 Proposed Order Scheduling and Docket Control Order)(White, Lexie) (Entered: 08/12/2016)

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08/12/2016 08/15/2016 08/17/2016 08/18/2016 08/18/2016
08/19/2016 08/19/2016 08/22/2016 08/25/2016 08/26/2016 08/26/2016

36 CERTIFICATE OF INTERESTED PARTIES by Maranda Lynn ODonnell, filed.(White, Lexie) (Entered: 08/12/2016)
37 CERTIFICATE OF INTERESTED PARTIES by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 08/15/2016)
38 NOTICE of Appearance by Michael P. Fleming on behalf of Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace, filed. (Fleming, Michael) (Entered: 08/17/2016)
41 ORDER TO CONSOLIDATE CASES: Lead Case No. 4:16−cv−1414 and Member Case No. 4:16−cv−1436, CONSENT JUDGMENT (Signed by Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 08/22/2016)
43 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Motion hearing held on August 18, 2016. The court heard oral argument from counsel on the defendants' motion to dismiss and on issues raised by the motion for a preliminary injunction and for class certification. The court consolidated the case with Civil Action No. 16−1436, McGruder v. Harris County. All pleadings and submissions will be filed under Civil Action No. 16−1414. Civil Action No. 16−1436 is administratively closed. An order of consolidation will be separately entered. The court also addressed with the parties whether and when motions for summary judgment will be filed and the relationship between those motions and the pending motions for injunctive relief and class certification. The court and parties agreed to defer the presentation of evidence and specific arguments on those pending motions until the parties had conferred and decided whether the plaintiffs will amend their current complaint; whether another motion to dismiss will be filed if they do; and whether discovery is needed before other threshold motions are heard and decided. The motion to dismiss is taken under advisement. The next pretrial conference is set for August 26, 2016 at 10:30 a.m. At this conference, the plaintiffs must advise whether they intend to amend their complaint and how, and whether they seek discovery before or after amending. The defendants will advise whether they want to file dispositive motions before or after other motions are raised and decided. Out of town counsel may appear by telephone. The court sets a hearing on the motion for a preliminary injunction for September 28, 2016 at 8:30 a.m. This is an evidentiary hearing and counsel must be present in the courtroom. Appearances: Susanne Pringle/Lexie White/Rebecca Bernhardt, Michael Gervais, Elizabeth Rossi, Alec Karakatsanis for Pltfs. and Michael Fleming/Katharine David/Phillip Morgan/Ben Stephens/Mike Stafford for Defts.(Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 08/23/2016)
39 AO 435 TRANSCRIPT REQUEST by Philip Morgan for Transcript of Motion Hearing on 8/18/16 before Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (David, Katharine) (Entered: 08/19/2016)
42 AO 435 TRANSCRIPT REQUEST by Kristina Vrana for Transcript of Motion hearing 8/18/16 before Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (smurdock, 4) (Entered: 08/22/2016)
40 NOTICE of Resetting. Parties notified. Initial Conference reset for 8/26/2016 at 10:30 AM in Courtroom 11B before Judge Lee H Rosenthal, filed. NOTE: THE CHANGE IS TO TIME ONLY. (leddins, 4) (Entered: 08/22/2016)
44 TRANSCRIPT re: Motion Hearing held on 8/18/2016 before Judge Lee H Rosenthal. Court Reporter/Transcriber K. Metzger. Release of Transcript Restriction set for 11/23/2016, filed. (kmetzger) (Entered: 08/25/2016)
45 Notice of Filing of Official Transcript as to 44 Transcript. Party notified, filed. (dhansen, 4) (Entered: 08/26/2016)
46 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on August 26, 2016. ODonnell agreed to file an amended complaint by August 31, 2016. If the amended complaint names no new defendants, or if all the newly added defendants retain the same defense counsel, the defendants must file any motion to dismiss the amended complaint by September 7, 2016. ODonnell's response will be

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08/29/2016 08/30/2016 08/30/2016 08/31/2016 08/31/2016
08/31/2016 09/01/2016 09/01/2016 09/02/2016
09/02/2016 09/02/2016

due September 14, 2016. The court will hear arguments on the motion to dismiss on September 23, 2016, at 3:00 p.m. The court will hold a hearing on ODonnell's application for a preliminary injunction on September 28, 2016, beginning at 8:30 a.m.If any of the new defendant parties named in the amended complaint retain new counsel, counsel must notify the court by September 2, 2016. The scheduling order will be modified by extending the existing unexpired deadline 60 days. The amended scheduling order will be as follows: Motions to dismiss amended complaint: November 9, 2016; Response: November 18, 2016; Argument: November 28, 2016; Preliminary Injunction Hearing: December 5, 2016. Appearances: Lexie White/Neal Manne/Elizabeth Rossi(by phone)/Susanne Pringle(by phone) for Pltfs. and Michael Stafford/Katharine David/Melissa Spinks/John Odom for Defts. (Court Reporter: K. Metzger), filed.(leddins, 4) Modified on 8/29/2016 (leddins, 4). (Entered: 08/29/2016)
47 ORDER entered: regarding mediation issued raised by the court and setting response deadline to respond.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/29/2016)
48 Letter in Response to Court's Order (Docket No. 47) by Maranda Lynn ODonnell, filed.(Gervais, Michael) (Entered: 08/30/2016)
49 AO 435 TRANSCRIPT REQUEST by Kristina Vrana for Transcript of 8/26/2016, before Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (mmapps, 4) (Entered: 08/31/2016)
50 BRIEF Regarding Appeal in Walker v. City of Calhoun by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 08/31/2016)
51 Agreed MOTION for Leave to File First Amended Complaint by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 9/21/2016. (Attachments: # 1 Exhibit 1 (First Amended Complaint), # 2 Ex. 1 to First Amended Complaint (ODonnell Declaration), # 3 Ex. 2 to First Amended Complaint (McGruder Declaration), # 4 Ex. 3 to First Amended Complaint (Ford Declaration), # 5 Ex. 4 to First Amended Complaint (Bail Schedule), # 6 Ex. 5 to First Amended Complaint (March 2016 jail population report), # 7 Ex. 6 to First Amended Complaint (June 2016 Jail Population Report), # 8 Ex. 7 to First Amended Complaint (July 2016 Jail Population Report), # 9 Exhibit 2 (Redlined Version of First Amended Complaint), # 10 Exhibit 3 (Proposed Order Granting Motion for Leave to File), # 11 Exhibit 4 (Proposed Order granting preliminary injunction))(Rossi, Elizabeth) (Entered: 08/31/2016)
52 NOTICE of New Authority by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 DOJ Amicus Brief, # 2 ABA Amicus Brief, # 3 Cain v. NOLA Motion to Review Magistrate's Order)(Rossi, Elizabeth) (Entered: 08/31/2016)
53 ORDER granting 51 Motion for Leave to File First Amended Complaint. (Signed by Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 09/01/2016)
54 AMENDED COMPLAINT against All Defendants filed by Maranda Lynn ODonnell. Related document: 3 Complaint filed by Maranda Lynn ODonnell. (wbostic, 4) (Entered: 09/01/2016)
55 Unopposed MOTION for Michael P. Fleming to Withdraw as Attorney by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Sheriff Ron Hickman, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 9/23/2016. (Attachments: # 1 Proposed Order)(Fleming, Michael) (Entered: 09/02/2016)
56 Letter Addressed to Judge Rosenthal by Harris County, Texas, filed.(David, Katharine) (Entered: 09/02/2016)
57 AMENDED SCHEDULING/DOCKET CONTROL ORDER. Motions To Dismiss Filing due by 11/9/2016. Responses due by 11/18/2016. Defendants' replies to motion to dismiss due by 11/25/2016. Motions for Temporary Injunction Filing due by 12/5/2016., Oral Argument set for 11/28/2016 at 08:30 AM in Courtroom 11B before Judge Lee H Rosenthal. Replies to Motions for Temporary Injunction and class

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09/02/2016 09/06/2016 09/06/2016 09/07/2016 09/07/2016 09/08/2016 09/08/2016 09/08/2016 09/09/2016 09/13/2016 09/14/2016 10/19/2016
10/19/2016
10/19/2016

certification due by 12/12/2016. Oral Argument set for 12/15/2016.(Signed by Judge Lee H Rosenthal) Parties notified.(olindor, 4) (Entered: 09/02/2016)
Oral Argument set for 12/15/2016 at 08:30 AM at Courtroom 11B before Judge Lee H Rosenthal (olindor, 4) (Entered: 09/02/2016)
58 Opposed MOTION to Dismiss Oppossed Motion for Consideration of Sheriff Hickman's Motion to Dismiss on Expedited Schedule Set Forth in August 26, 2016 Minute Entry by Harris County, Texas, filed. Motion Docket Date 9/27/2016. (Attachments: # 1 Proposed Order)(David, Katharine) (Entered: 09/06/2016)
60 ORDER granting 55 Unopposed MOTION for Michael P. Fleming to Withdraw as Attorney (Signed by Judge Lee H Rosenthal) Parties notified.(olindor, 4) (Entered: 09/07/2016)
59 RESPONSE to 50 Brief , filed by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Exhibit)(Rossi, Elizabeth) (Entered: 09/07/2016)
61 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Harris County, Texas, filed. Motion Docket Date 9/28/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(David, Katharine) (Entered: 09/07/2016)
62 ORDER entered: Parties opposing Sheriff Ron Hickman's motion to expedite hearing his motion to dismiss must file their opposition brief by 5:00 p.m. on Thursday, September 8, 2016. The opposition brief is limited to five pages. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 09/08/2016)
63 RESPONSE in Opposition to 58 Opposed MOTION to Dismiss Oppossed Motion for Consideration of Sheriff Hickman's Motion to Dismiss on Expedited Schedule Set Forth in August 26, 2016 Minute Entry, filed by Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1)(Manne, Neal) (Entered: 09/08/2016)
64 ORDER entered: DENYING 58 Opposed MOTION to Dismiss Oppossed Motion for Consideration of Sheriff Hickman's Motion to Dismiss on Expedited Schedule Set Forth in August 26, 2016 Minute Entry. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 09/08/2016)
***Set/Reset Hearings: Injunction Hearing set for 12/15/2016 at 08:30 AM in Courtroom 11B before Judge Lee H Rosenthal (leddins, 4) (Entered: 09/09/2016)
65 TRANSCRIPT re: Hearing held on 08/26/2016 before Judge Lee H Rosenthal. Court Reporter/Transcriber K. Metzger. Ordering Party Kristina Vrana Release of Transcript Restriction set for 12/12/2016, filed. (kmetzger) (Entered: 09/13/2016)
66 Notice of Filing of Official Transcript as to 65 Transcript. Party notified, filed. (hcarr, 4) (Entered: 09/14/2016)
67 Opposed MOTION for Extension of Time Deadlines by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 11/9/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(O'Neill, John) (Entered: 10/19/2016)
68 NOTICE of Appearance by John R. Keville on behalf of Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Keville, John) (Entered: 10/19/2016)
69 NOTICE of Appearance by Sheryl A. Falk on behalf of Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Falk, Sheryl) (Entered: 10/19/2016)

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10/19/2016 10/20/2016 10/21/2016 10/23/2016 10/26/2016 10/26/2016 10/26/2016
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70 NOTICE of Appearance by Robert L. Green on behalf of Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Green, Robert) (Entered: 10/19/2016)
71 Letter to Judge Rosenthal by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 Exhibit Courtesy Copy of DE 67)(O'Neill, John) (Entered: 10/20/2016)
72 NOTICE of Setting as to 67 Opposed MOTION for Extension of Time Deadlines. Parties notified. Motion Hearing set for 10/26/2016 at 09:00 AM in Courtroom 11B before Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 10/21/2016)
73 RESPONSE to 67 Opposed MOTION for Extension of Time Deadlines filed by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Proposed Order Denying Defendants' Motion)(Rossi, Elizabeth) (Entered: 10/23/2016)
74 AO 435 TRANSCRIPT REQUEST by John E. O'Neill for Transcript of Motion Hearing (i.e., Motion for Extension of Time) held on 10/26/16 before Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (O'Neill, John) (Entered: 10/26/2016)
75 Letter to Judge Rosenthal by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 Exemplar Pretrial Services Report)(O'Neill, John) (Entered: 10/26/2016)
76 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Motion hearing held October 26, 2016. The county judge defendants' motion for extension of time, (Docket Entry No. 67), is denied. The amended scheduling and docket control order, (Docket Entry No. 57), remains in effect. The court will relax the rules governing the defendants' reply due on November 25, 2016. The defendants may supplement their brief with arguments and information that go beyond the issues raised in their motion to dismiss or in the plaintiffs' response. The plaintiffs will have an opportunity to reply to any new arguments or information at the November 28 hearing on the motion to dismiss. Mr. O'Neill accepted service of the complaint on behalf of the 16 county judge defendants. The parties will confer to expedite their productions and set a deadline for filing their exhibit lists for the preliminary injunction hearing and exchanging exhibits. That deadline must be at least two weeks before the preliminary injunction hearing, which will proceed as scheduled on December 15, 2016. Appearances:Susanne Pringle/Elizabeth Rossi/Michael Gervais/Alec Karakatsanis (by phone) for the Pltfs, Michael A Stafford/Katharine David for Deft. Harris County and John O'Neill/John Keville/Sheryl Falk for the Deft. Judges(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 10/26/2016)
77 AO 435 TRANSCRIPT REQUEST by Harris County/Ben Stephens for Transcript of Motion Hearing 10/26/16 at 9:00 am Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (David, Katharine) (Entered: 10/27/2016)
78 TRANSCRIPT re: Hearing held on October 26, 2016 before Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party Ben Stephens Release of Transcript Restriction set for 2/6/2017., filed. (kmiller, ) (Entered: 11/07/2016)
79 Notice of Filing of Official Transcript as to 78 Transcript. Party notified, filed. (dhansen, 4) (Entered: 11/08/2016)
80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS ( Motion Docket Date 11/30/2016.), MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6) by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 Exhibit A, # 2

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11/09/2016 11/09/2016
11/09/2016 11/09/2016 11/09/2016 11/10/2016 11/10/2016 11/10/2016 11/10/2016 11/14/2016
11/15/2016 11/18/2016
11/18/2016

Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M − Filed Under Seal, # 14 Exhibit N)(O'Neill, John) (Entered: 11/09/2016)
81 Sealed Event, filed. (With attachments) (Entered: 11/09/2016)
82 Agreed MOTION for Harris County Criminal County Court at Law Judges to File Combined Motions to Dismiss by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 11/30/2016. (O'Neill, John) (Entered: 11/09/2016)
83 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. by Harris County, Texas, filed. Motion Docket Date 11/30/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(David, Katharine) (Entered: 11/09/2016)
84 Amended MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. by Harris County, Texas, filed. Motion Docket Date 11/30/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(David, Katharine) (Entered: 11/09/2016)
85 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. by Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 11/30/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(David, Katharine) (Entered: 11/09/2016)
86 PROPOSED ORDER re: 82 Agreed MOTION for Harris County Criminal County Court at Law Judges to File Combined Motions to Dismiss, filed.(O'Neill, John) (Entered: 11/10/2016)
87 ORDER entered GRANTING 82 Agreed MOTION for Harris County Criminal County Court at Law Judges to File Combined Motions to Dismiss.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 11/10/2016)
88 PROPOSED ORDER No. 1 re: 80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6), 81 Sealed Event, filed.(O'Neill, John) (Entered: 11/10/2016)
89 PROPOSED ORDER No. 2 re: 80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6), 81 Sealed Event, filed.(O'Neill, John) (Entered: 11/10/2016)
90 Joint MOTION for Protective Order by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 12/5/2016. (Attachments: # 1 Exhibit A − Agreed Protective Order)(O'Neill, John) (Entered: 11/14/2016)
91 AGREED PROTECTIVE ORDER entered : GRANTING 90 Joint MOTION for Protective Order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 11/15/2016)
92 RESPONSE in Opposition to 80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6), filed by Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Rossi, Elizabeth) (Entered: 11/18/2016)
93 RESPONSE in Opposition to 84 Amended MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Rossi, Elizabeth) (Entered: 11/18/2016)

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11/18/2016 11/18/2016 11/22/2016
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11/25/2016 11/25/2016

94 RESPONSE in Opposition to 83 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Rossi, Elizabeth) (Entered: 11/18/2016)
95 RESPONSE in Opposition to 85 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 11/18/2016)
96 Opposed MOTION to Stay Resolution of Sheriff Hickman's Amended Motion to Dismiss (Docket Entry No. 84) by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 12/13/2016. (Attachments: # 1 Exhibit 1 − Declaration of Sheriff−Elect Ed Gonzalez)(Rossi, Elizabeth) (Entered: 11/22/2016)
97 RESPONSE in Opposition to 96 Opposed MOTION to Stay Resolution of Sheriff Hickman's Amended Motion to Dismiss (Docket Entry No. 84), filed by Harris County, Texas, Sheriff Ron Hickman. (David, Katharine) (Entered: 11/22/2016)
98 REPLY in Support of 85 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (David, Katharine) (Entered: 11/23/2016)
99 Letter to Judge Rosenthal by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 Plaintiff's Privilege Log)(O'Neill, John) (Entered: 11/23/2016)
100 REPLY in Support of 84 Amended MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Sheriff Ron Hickman. (David, Katharine) (Entered: 11/23/2016)
101 MOTION for Partial Summary Judgment by Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 12/14/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(David, Katharine) (Entered: 11/23/2016)
102 REPLY in Support of 83 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Harris County, Texas. (Attachments: # 1 Exhibit A)(David, Katharine) (Entered: 11/23/2016)
103 RESPONSE to 99 Document, Letter, filed by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 11/23/2016)
104 MOTION for Joinder as to 101 MOTION for Partial Summary Judgment by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 12/16/2016. (Attachments: # 1 Proposed Order)(O'Neill, John) (Entered: 11/25/2016)
105 Letter to Judge Rosenthal by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed.(O'Neill, John) (Entered: 11/25/2016)
106 REPLY in Support of 81 Sealed Event, 80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6), filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(O'Neill, John) (Entered: 11/25/2016)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 38 of 83

11/25/2016 11/28/2016 11/28/2016
11/28/2016
11/29/2016 12/06/2016 12/06/2016 12/06/2016 12/07/2016 12/07/2016 12/07/2016

107 Amended RESPONSE in Opposition to 96 Opposed MOTION to Stay Resolution of Sheriff Hickman's Amended Motion to Dismiss (Docket Entry No. 84), filed by Harris County, Texas, Sheriff Ron Hickman. (Attachments: # 1 Exhibit Susman Godfrey Emails to Gardere)(David, Katharine) (Entered: 11/25/2016)
108 ORDER entered GRANTING 104 MOTION for Joinder as to 101 MOTION for Partial Summary Judgment (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 11/28/2016)
109 AMENDED SCHEDULING ORDER entered: The parties must advise the court on their settlement negotiations and whether they intend to proceed on the preliminary injunction and class certification hearing. If the case is not settled by January 6, the following deadlines apply : January 17, 2017, MOTIONS FOR PRELIMINARY INJUNCTION AND FOR CLASS CERTIFICATION Plaintiffs amended or supplemented motions for a preliminary injunction and class certification, and their reply to the hearing officer and county judge defendants motion for partial summary judgment, are due. January 30, 2017 Defendants response to the motions for a preliminary injunction and class certification, and the hearing officer and county judge defendants reply on the motion for partial summary judgment, are due: February 13, 2017: Plaintiffs replies to the motions for a preliminary injunction and class certification: Injunction/Motion Hearing reset for 2/21/2017 at 08:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 11/28/2016)
110 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Motion hearing held November 28, 2016. The court heard arguments on the defendants' motions to dismiss. In order to facilitate negotiations with newly elected officials, the court will enter an amended scheduling and docket control order for hearing motions for class certification, preliminary injunction, and partial summary judgment. Plaintiffs' motion to stay consideration of the sheriff defendant's motion to dismiss, Docket Entry No. 96, is denied as moot. Appearances: John Ellis O'Neill, John R Keville, Sheryl Anne Falk, Susanne Ashley Pringle, Lexie Giselle White, Neal S Manne, Elizabeth Anne Rossi, Michael A Stafford, Katharine Davenport David, James G Munisteri, Michael Gervais, Alec Karakatsanis.(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 11/29/2016)
111 AO 435 TRANSCRIPT REQUEST by John E. O'Neill for Transcript of Motion Hearing (i.e., Motions to Dismiss) held on 11/28/16 before Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (O'Neill, John) (Entered: 11/29/2016)
112 MOTION Reschedule Oral Argument and Preliminary Injunction Hearing by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 12/27/2016. (Rossi, Elizabeth) (Entered: 12/06/2016)
113 RESPONSE in Opposition to 112 MOTION Reschedule Oral Argument and Preliminary Injunction Hearing, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (O'Neill, John) (Entered: 12/06/2016)
114 NOTICE of Supplemental Authority in Support of Harris County's Motion to Dismiss re: 83 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. by Harris County, Texas, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(David, Katharine) (Entered: 12/06/2016)
115 REPLY in Support of 112 MOTION Reschedule Oral Argument and Preliminary Injunction Hearing, filed by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 12/07/2016)
116 RESPONSE to 112 MOTION Reschedule Oral Argument and Preliminary Injunction Hearing , filed by Harris County, Texas. (David, Katharine) (Entered: 12/07/2016)
117 SURREPLY to 112 MOTION Reschedule Oral Argument and Preliminary Injunction Hearing, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (Attachments: # 1 Proposed Order)(O'Neill, John) (Entered: 12/07/2016)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 39 of 83

12/07/2016
12/08/2016 12/08/2016 12/08/2016 12/09/2016 12/12/2016 12/16/2016 12/16/2016
12/28/2016
12/28/2016 12/29/2016 12/29/2016

118 SUPPLEMENT to 80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6) by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(O'Neill, John) (Entered: 12/07/2016)
119 RESPONSE to 114 Notice (Other), of Supplemental Authority, filed by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 12/08/2016)
120 MOTION to Strike 118 Supplement,, Defendants' Supplemental Briefing on Motion to Dismiss by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 12/29/2016. (Attachments: # 1 Proposed Order)(Gervais, Michael) (Entered: 12/08/2016)
121 RESPONSE to 120 MOTION to Strike 118 Supplement,, Defendants' Supplemental Briefing on Motion to Dismiss filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (O'Neill, John) (Entered: 12/08/2016)
122 TRANSCRIPT re: Motion Hearing held on November 28, 2016 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 3/9/2017., filed. (kmiller, ) (Entered: 12/09/2016)
123 Notice of Filing of Official Transcript as to 122 Transcript. Party notified, filed. (hcarr, 4) (Entered: 12/12/2016)
124 ORDER entered DENYING 112 MOTION Reschedule Oral Argument and Preliminary Injunction Hearing.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 12/16/2016)
125 MEMORANDUM AND OPINION entered MOOTING 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , DENYING 85 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , MOOTING 25 MOTION to Dismiss All Claims,DENYING 80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6),DENYING 120 MOTION to Strike 118 Supplement,, Defendants' Supplemental Briefing on Motion to Dismiss, MOOTING 61 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ,DENYING 84 Amended MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , DENYING 83 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , DENYING 81 Sealed Event. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 12/16/2016)
126 NOTICE County Criminal Court at Law Judges' Report on Settlement Progress by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Linda Garcia, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 Exhibit 1 − O'Donnell v. Harris Cty Judges re Settlement Proposal, # 2 Exhibit 2 − Confidential Proposal to County (Filed under Seal))(O'Neill, John) (Entered: 12/28/2016)
127 Sealed Event, filed. (Entered: 12/28/2016)
128 MOTION to Strike 126 Notice (Other),, by Ronald Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 1/19/2017. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 12/29/2016)
129 NOTICE of Setting as to 126 Notice (Other),,. Parties notified. Pre−Motion Conference set for 1/6/2017 at 03:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (arrivera, 4) (Entered: 12/29/2016)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 40 of 83

12/29/2016 01/03/2017 01/05/2017 01/06/2017
01/11/2017 01/13/2017 01/13/2017 01/13/2017 01/13/2017
01/13/2017 01/13/2017 01/13/2017
01/13/2017 01/17/2017 01/17/2017 01/17/2017

130 Sealed Event. Parties notified.(arrivera, 4) (Entered: 12/29/2016)
131 MOTION for Reconsideration of 125 Memorandum and Opinion,,, by Harris County, Texas, filed. Motion Docket Date 1/24/2017. (David, Katharine) (Entered: 01/03/2017)
132 ADVISORY by Harris County, Texas, filed.(David, Katharine) (Entered: 01/05/2017)
133 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held January 6, 2017. The parties advised the court on their settlement and discovery negotiations. By January 9, 2017, the plaintiffs will produce for in camera review 15 pages of Mr. Dudani's unredacted notes withheld from production. By the same date, the parties will brief the court on case law supporting their positions on the remaining discovery issues Appearances: John Ellis O'Neill, John R Keville, Sheryl Anne Falk, Susanne Ashley Pringle, Lexie Giselle White, Neal S Manne, Elizabeth Anne Rossi, Michael A Stafford, Katharine Davenport David, Michael Gervais, Alec Karakatsanis, Corey Stone and Phil Morgan.(Court Reporter: G. Dye), filed.(leddins, 4) (Entered: 01/09/2017)
134 ORDER entered regarding the discovery issues addressed at the last hearing held before this court. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 01/11/2017)
135 NOTICE of Appearance by Victoria Jimenez on behalf of Ed (Sheriff) Gonzalez, filed. (Jimenez, Victoria) (Entered: 01/13/2017)
136 MOTION for Extension of Time to Answer or Otherwise Respond to Plaintiff's First Amended Class Action Complaint by Ed (Sheriff) Gonzalez, filed. Motion Docket Date 2/3/2017. (Attachments: # 1 Proposed Order)(Jimenez, Victoria) (Entered: 01/13/2017)
137 NOTICE of Appearance by Laura Beckman Hedge on behalf of Darrell William Jordan, filed. (Hedge, Laura) (Entered: 01/13/2017)
138 ANSWER to 54 Amended Complaint/Counterclaim/Crossclaim etc. by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed.(O'Neill, John) (Entered: 01/13/2017)
139 ANSWER to 54 Amended Complaint/Counterclaim/Crossclaim etc. by Harris County, Texas, filed.(David, Katharine) (Entered: 01/13/2017)
140 ANSWER to 54 Amended Complaint/Counterclaim/Crossclaim etc. by Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 01/13/2017)
141 MOTION for John E. ONeill, John R. Keville, Sheryl A. Falk, and Robert L. Green of Winston & Strawn LLP to Withdraw as Attorney by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 2/3/2017. (Attachments: # 1 Proposed Order to Withdraw as Counsel for Defendant County Criminal Court at Law Number 16 Judge Darrell Jordan)(O'Neill, John) (Entered: 01/13/2017)
142 Agreed MOTION for Extension of Time To File Answer by Darrell William Jordan, filed. Motion Docket Date 2/3/2017. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Hedge, Laura) (Entered: 01/13/2017)
143 Amended MOTION for Preliminary Injunction by Maranda Lynn ODonnell, filed. Motion Docket Date 2/7/2017. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Proposed Order)(White, Lexie) (Entered: 01/17/2017)
144 Sealed Event, filed. (With attachments) (Entered: 01/17/2017)
145 RESPONSE in Opposition to 101 MOTION for Partial Summary Judgment , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(White, Lexie) (Entered: 01/17/2017)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 41 of 83

01/17/2017
01/17/2017 01/19/2017 01/19/2017
01/19/2017
01/19/2017 01/20/2017 01/20/2017 01/23/2017 01/27/2017
01/30/2017 01/30/2017 01/31/2017
01/31/2017
02/01/2017 02/01/2017 02/02/2017

146 Amended MOTION to Certify Class by Maranda Lynn ODonnell, filed. Motion Docket Date 2/7/2017. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 − Filed Separately Under Seal, # 3 Exhibit 3 − Filed Separately Under Seal, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Proposed Order)(Gervais, Michael) (Entered: 01/17/2017)
147 Sealed Event, filed. (With attachments) (Entered: 01/17/2017)
148 ORDER entered GRANTING 142 Agreed MOTION for Extension of Time To File Answer. Answer due by 1/23/17. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 01/19/2017)
149 ORDER entered GRANTING 136 MOTION for Extension of Time to Answer or Otherwise Respond to Plaintiff's First Amended Class Action Complaint. Answer due by 1/23/17.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 01/19/2017)
150 ORDER entered GRANTING 141 MOTION for John E. ONeill, John R. Keville, Sheryl A. Falk, and Robert L. Green of Winston & Strawn LLP to Withdraw as Attorney as to Judge Darrell Jordan. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 01/19/2017)
151 Agreed MOTION for Extension of Time to File Answer by Darrell William Jordan, filed. Motion Docket Date 2/9/2017. (Attachments: # 1 Proposed Order)(Hedge, Laura) (Entered: 01/19/2017)
152 ORDER granting 151 Defendant's Agreed to Extend Time to File Answer. Answer due by 1/30/2017. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (rosaldana, 4) (Entered: 01/20/2017)
153 RESPONSE in Opposition to 131 MOTION for Reconsideration of 125 Memorandum and Opinion,,,, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 01/20/2017)
154 ANSWER to 54 Amended Complaint/Counterclaim/Crossclaim etc. by Ed (Sheriff) Gonzalez, filed.(Jimenez, Victoria) (Entered: 01/23/2017)
155 Unopposed MOTION for Extension of Time of Time by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 2/17/2017. (Attachments: # 1 Proposed Order)(David, Katharine) (Entered: 01/27/2017)
156 ORDER entered GRANTING 155 Unopposed MOTION for Extension of Time of Time.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 01/30/2017)
157 ANSWER to 54 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand by Darrell William Jordan, filed.(Hedge, Laura) (Entered: 01/30/2017)
158 Unopposed MOTION to Substitute Party in place of Linda Garcia, Sheriff Ron Hickman by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 2/21/2017. (Attachments: # 1 Proposed Order)(Gervais, Michael) (Entered: 01/31/2017)
159 Unopposed MOTION for Extension of Time to Reply to the Amended Motions for Preliminary Injunction and Class Certification by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 2/21/2017. (Attachments: # 1 Proposed Order)(Gervais, Michael) (Entered: 01/31/2017)
160 ORDER granting 159 Motion for Extension of Time. Plaintiffs' replies are now due February 16, 2017. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 02/01/2017)
168 ORDER granting 158 Unopposed MOTION to Substitute Party in place of Linda Garcia, Sheriff Ron Hickman (Signed by Chief Judge Lee H Rosenthal) Parties notified.(olindor, 4) (Entered: 02/03/2017)
161 REPLY in Support of 101 MOTION for Partial Summary Judgment , filed by Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (David, Katharine) (Entered: 02/02/2017)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 42 of 83

02/02/2017 02/02/2017
02/02/2017 02/02/2017 02/02/2017
02/03/2017 02/03/2017 02/03/2017 02/06/2017

162 RESPONSE to 143 Amended MOTION for Preliminary Injunction filed by Ed (Sheriff) Gonzalez, Eric Stewart Hagstette, Harris County, Texas, Darrell William Jordan, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(David, Katharine) (Entered: 02/02/2017)
163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Ed (Sheriff) Gonzalez, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. Motion Docket Date 2/23/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(David, Katharine) (Entered: 02/02/2017)
164 Joint RESPONSE in Opposition to 146 Amended MOTION to Certify Class, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson. (O'Neill, John) (Entered: 02/02/2017)
165 Opposed MOTION for Emergency Hearing re: 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Ed (Sheriff) Gonzalez, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. Motion Docket Date 2/23/2017. (David, Katharine) (Entered: 02/02/2017)
166 RESPONSE in Opposition to 143 Amended MOTION for Preliminary Injunction, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (Attachments: # 1 Affidavit of Ed Wells, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S)(O'Neill, John) (Entered: 02/02/2017)
167 NOTICE of Setting as to 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits, 165 Opposed MOTION for Emergency Hearing re: 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits. Parties notified. Motion Hearing set for 2/8/2017 at 02:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 02/03/2017)
***Set/Reset Hearings: Injunction Hearing set for 2/21/2017 at 08:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal (leddins, 4) (Entered: 02/03/2017)
169 RESPONSE in Opposition to 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 02/03/2017)
170 REPLY in Support of 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson. (Attachments: # 1 Exhibit A, # 2 Exhibit

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 43 of 83

02/07/2017 02/07/2017
02/07/2017 02/07/2017 02/08/2017
02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017

B)(David, Katharine) (Entered: 02/06/2017)
171 SURREPLY to 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Karakatsanis, Alec) (Entered: 02/07/2017)
172 REPLY to Response to 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson. (David, Katharine) (Entered: 02/07/2017)
173 RESPONSE to 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits filed by Darrell William Jordan. (Hedge, Laura) (Entered: 02/07/2017)
174 RESPONSE to 163 Opposed MOTION to Stay or, in the Alternative, Motion to Continue the Preliminary Injunction Hearing and Consolidate with Expedited Hearing on the Merits filed by Ed (Sheriff) Gonzalez. (Jimenez, Victoria) (Entered: 02/07/2017)
176 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Motion conference held on February 8, 2017. For the reasons stated in detail on the record, the defendants' alternative motions to stay or to expedite trial, Docket Entry No. 163, are both denied. The preliminary injunction hearing is reset for March 6, at 1:00 p.m., March 7 at 8:30 a.m., and March 8 at 8:30 a.m. For that hearing the plaintiffs must designate no more than two experts and submit their reports by February 13, 2017. Harris County and the County Judge defendants must designate no more than two experts each and submit their reports by February 20, 2017. The court will hear disputed evidentiary issues on February 22, 2017 at 9:00 a.m. Counsel may appear by telephone. Final supplemented exhibit lists must be exchanged by March 1, 2017. Proposed findings of fact and conclusions of law will be scheduled at the March 6−8 hearing. The court will also hear and consider the defendants' motion for summary judgment and the plaintiffs' motion for class certification at the March 6−8 hearing. Appearances: John Ellis O'Neill, Sheryl Anne Falk, Susanne Ashley Pringle, Lexie Giselle White, Neal S Manne, Elizabeth Anne Rossi, Alec Karakatsanis, Victoria Lynn Jimenez, Katharine Davenport David, Melissa Lynn Spinks, James G Munisteri, Michael Gervais.(Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 02/10/2017)
175 AO 435 TRANSCRIPT REQUEST by John E. O'Neill for Transcript of Motion Hearing (i.e., Motion for Stay) held on 02/08/17 before Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (O'Neill, John) (Entered: 02/09/2017)
177 MOTION for Paul D. Clement to Appear Pro Hac Vice by American Bail Coalition, Professional Bondsmen of Harris County (Amici Curiae), Professional Bondsmen of Texas, filed. Motion Docket Date 3/6/2017. (cjones, 7) (Entered: 02/13/2017)
178 MOTION for Andrew C. Lawrence to Appear Pro Hac Vice by American Bail Coalition, Professional Bondsmen of Harris County (Amici Curiae), Professional Bondsmen of Texas, filed. Motion Docket Date 3/2/2017. (vrios, 2) (Entered: 02/13/2017)
179 MOTION for Christopher G. Michel to Appear Pro Hac Vice by American Bail Coalition, Professional Bondsmen of Harris County (Amici Curiae), Professional Bondsmen of Texas, filed. Motion Docket Date 3/2/2017. (cjones, 7) (Entered: 02/13/2017)
180 MOTION for Leave to File Brief of Amici Curiae American Bail Coalition, Professional Bondsmen of Texas, and Professional Bondsmen of Harris County In Support of Defendants by American Bail Coalition, Professional Bondsmen of Harris County (Amici Curiae), Professional Bondsmen of Texas, filed. Motion Docket Date 3/2/2017. (Attachments: # 1 Proposed Order, # 2 Brief of Amicu Curiae American Bail

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 44 of 83

02/13/2017
02/13/2017 02/13/2017 02/13/2017 02/13/2017 02/14/2017
02/15/2017 02/16/2017 02/16/2017 02/16/2017 02/20/2017 02/21/2017 02/21/2017
02/22/2017 02/22/2017 02/22/2017

Coalition, Professional Bondsmen of Texas, and Professional Bondsmen of Harris County In Support of Defendants)(cjones, 7) (Entered: 02/13/2017)
181 ORDER granting 180 MOTION for Leave to File Brief of Amici Curiae American Bail Coalition, Professional Bondsmen of Texas, and Professional Bondsmen of Harris County In Support of Defendants.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 02/13/2017)
182 Amicus Curiae Brief In Support of Defendants by American Bail Coalition, Professional Bondsmen of Harris County (Amici Curiae), Professional Bondsmen of Texas, filed.(gkelner, 4) (Entered: 02/13/2017)
183 ORDER granting 177 Motion for Paul D. Clement to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 02/13/2017)
184 ORDER granting 179 Motion for Christopher G. Michel to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 02/13/2017)
185 ORDER granting 178 Motion for Andrew C. Lawrence to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 02/13/2017)
186 TRANSCRIPT re: Motion Hearing held on 2/8/2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber K. Metzger. Ordering Party John E. O'Neill Release of Transcript Restriction set for 5/15/2017, filed. (kmetzger) (Entered: 02/14/2017)
187 Notice of Filing of Official Transcript as to 186 Transcript. Party notified, filed. (dhansen, 4) (Entered: 02/15/2017)
188 REPLY in Support of 143 Amended MOTION for Preliminary Injunction, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Proposed Order Amended proposed order)(Rossi, Elizabeth) (Entered: 02/16/2017)
189 REPLY in Support of 143 Amended MOTION for Preliminary Injunction, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Proposed Order Amended proposed order)(Rossi, Elizabeth) (Entered: 02/16/2017)
190 REPLY in Support of 146 Amended MOTION to Certify Class, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 02/16/2017)
191 DECLARATION of Alexander Bunin, filed.(Callistien, Barbara) (Entered: 02/20/2017)
192 NOTICE of Resetting. Parties notified. Miscellaneous Hearing reset for 2/22/2017 at 09:30 AM at Courtroom 11B before Chief Judge Lee H Rosenthal, filed. NOTE: THE CHANGE IS TO TIME ONLY. (leddins, 4) (Entered: 02/21/2017)
193 SURREPLY to 143 Amended MOTION for Preliminary Injunction, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson. (Attachments: # 1 Exhibit 1)(O'Neill, John) (Entered: 02/21/2017)
194 MOTION for Alejandra Salinas to Appear Pro Hac Vice by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 3/15/2017. (White, Lexie) (Entered: 02/22/2017)
195 MOTION for Krisina Zuniga to Appear Pro Hac Vice by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 3/15/2017. (White, Lexie) (Entered: 02/22/2017)
196 NOTICE of Appearance by Colin Watterson on behalf of Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (White, Lexie) (Entered: 02/22/2017)

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197 ORDER granting 195 Motion for Krisina Zuniga to Appear Pro Hac Vice. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (rosaldana, 4) (Entered: 02/23/2017)
198 ORDER granting 194 Motion for Alejandra Salinas to Appear Pro Hac Vice. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (rosaldana, 4) (Entered: 02/23/2017)
199 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Miscellaneous hearing held on February 22, 2017. The court resolved the discovery disputes as stated on the record. A miscellaneous hearing is scheduled for March 1, 2017 at 5:00 p.m. Appearances: John Ellis O'Neill, John R Keville, Sheryl Anne Falk, Robert Lawrence Green, III, Susanne Ashley Pringle, Lexie Giselle White, Neal S Manne, Elizabeth Anne Rossi, Alec Karakatsanis, Victoria Lynn Jimenez, Katharine Davenport David, Melissa Lynn Spinks, James G Munisteri, Rebecca Bernhardt and Phil Morgan. (Court Reporter: L. Wells), filed.(leddins, 4) (Entered: 02/23/2017)
200 DECLARATION of Alexander Bunin, filed.(Callistien, Barbara) (Entered: 03/01/2017)
201 MEMORANDUM AND OPINION entered DENYING 131 MOTION for Reconsideration of 125 Memorandum and Opinion.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/01/2017)
202 Opposed MOTION to Intervene by John McCluskey, Carolyn Campbell, filed. Motion Docket Date 3/22/2017. (Attachments: # 1 Exhibit Declaration of John McCluskey, # 2 Exhibit Declaration of Carolyn Campbell, # 3 Exhibit Proposed Answer, # 4 Proposed Order Granting Intervention)(Good, Kenneth) (Entered: 03/01/2017)
203 Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Summary of Evidence, # 2 Affidavit)(Rossi, Elizabeth) (Entered: 03/01/2017)
204 PRETRIAL MEMORANDUM by Harris County, Texas(David, Katharine) (Entered: 03/01/2017)
205 Joint Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(O'Neill, John) (Entered: 03/01/2017)
212 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Miscellaneous hearing held on March 1, 2017. The court resolved the discovery disputes as stated on the record. For the reasons stated in detail on the record, the proposed intervenors' motion to intervene, Docket Entry No. 202, is denied. The proposed intervenors may file an amicus brief so long as it does not duplicate the one already docketed, Docket Entry No. 182. The hearing for partial summary judgment, class certification, and a preliminary injunction is set for March 6 at 1:00 p.m., March 7 at 8:30 a.m., March 8 at 9:30 a.m., and if a continuance is needed, March 21 at 8:30 a.m. and March 22 at 8:30 a.m. Appearances: John R Keville, Sheryl Anne Falk, Kenneth Wayne Good, Lexie Giselle White, Neal S Manne, Elizabeth Anne Rossi, Katharine Davenport David, Melissa Lynn Spinks, James G Munisteri, Laura Beckman Hedge.(Court Reporter: H. Alcaraz), filed.(leddins, 4) (Entered: 03/06/2017)
206 Amicus Curiae APPEARANCE by Maranda Lynn ODonnell, filed.(Berg, Thomas) (Entered: 03/03/2017)
207 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Expert Rebuttal Report of Dr. Stephen Demuth, # 2 Exhibit Exhibit A − Materials Reviewed)(Rossi, Elizabeth) (Entered: 03/03/2017)
208 Additional EXHIBITS re: 207 Exhibits by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Appendix 1, # 2 Appendix 2)(White, Lexie) (Entered: 03/03/2017)
209 NOTICE of Appearance by Corinne Stone on behalf of Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Stone, Corinne) (Entered: 03/04/2017)

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210 Supplemental Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(O'Neill, John) (Entered: 03/05/2017)
211 Amended RESPONSE to 143 Amended MOTION for Preliminary Injunction filed by Darrell William Jordan. (Hedge, Laura) (Entered: 03/06/2017)
213 Supplemental Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(David, Katharine) (Entered: 03/06/2017)
214 Supplemental EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit 12, # 2 Exhibit 15, # 3 Exhibit Supplement to Exhibit 6(a))(White, Lexie) (Entered: 03/06/2017)
215 Supplemental Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(O'Neill, John) (Entered: 03/06/2017)
216 Amended Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(White, Lexie) (Entered: 03/06/2017)
217 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit 7(s) Judge Enquist Declaration)(White, Lexie) (Entered: 03/06/2017)
222 Minuteentry for proceedings before the Hon. Lee H. Rosenthal.Day1 of Preliminary Injunction Hearingheld March 6, 2017. The court admitted the parties'exhibits. The parties presented opening statements. Court adjourned until March 7, at 8:30 am. Appearances: Neal Manne/Susanne Pringle/Lexie White/Elizabeth Rossi,/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. And John O'Neill,/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/ Melissa Spinks,/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts.(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 03/08/2017)
218 Supplemental EXHIBITS re: 143 Amended MOTION for Preliminary Injunction by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 9 − Defendants' Admissions, # 2 Appendix A to Defendants' Admissions, # 3 Appendix B to Defendants' Admissions, # 4 Appendix C to Defendants' Admissions, # 5 Appendix D to Defendants' Admissions, # 6 Appendix E to Defendants' Admissions, # 7 Appendix F to Defendants' Admissions)(White, Lexie) (Entered: 03/07/2017)
223 Minuteentry for proceedings before the Hon. Lee H. Rosenthal. DayTWO of Preliminary Injunction Hearingheld March 7, 2017. Testimony began. Assistant District Attorney Joanne Musick, Dr. Stephen Demuth, and Judge Truman Morrison testified. Court adjourned until March 8, at 9:30 am. Appearances:Neal Manne/Susanne Pringle/Lexie White/Elizabeth Rossi,/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. And John O'Neill,/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/ Melissa Spinks,/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts.(Court Reporter: M. Malone−am/K. Miller−pm), filed.(leddins, 4) (Entered: 03/08/2017)
219 Amended Summary of Evidence by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed.(White, Lexie) (Entered: 03/08/2017)
220 Amended Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit, # 2 Exhibit)(White, Lexie) (Entered: 03/08/2017)

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221 Additional EXHIBITS re: 143 Amended MOTION for Preliminary Injunction by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit 2a, # 2 Exhibit 3, # 3 Exhibit 6a, # 4 Exhibit 8a, # 5 Exhibit 8b)(White, Lexie) (Entered: 03/08/2017)
224 Joint RESPONSE to 218 Exhibits,, and Objections to the Plaintiffs' Summary Exhibit 1 of Selected Admissions by Defendants, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson. (David, Katharine) (Entered: 03/08/2017)
228 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Day THREE of Preliminary Injunction Hearing held on March 8, 2017. Testimony continued. County Judge Darrell Jordan, Sheriff Ed Gonzalez, Major Patrick Dougherty, and Director of Pretrial Services Kelvin Banks testified. Court adjourned until 8:00 a.m. on March 9, 2017. Appearances:Neal S Manne/ Susanne Pringle/Lexie White/Elizabeth Rossi,/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. And John O'Neill,/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/ Melissa Spinks,/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts.(Court Reporter: M. Malone(am)/K. Miller(pm)), filed.(leddins, 4) (Entered: 03/10/2017)
225 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit Exhibit 7(t), # 2 Exhibit Exhibit 12(m)(ii), # 3 Exhibit Exhibit 13(p), # 4 Exhibit Exhibit 12(d)(i), # 5 Exhibit Exhibit 12(rr), # 6 Exhibit Exhibit 12(h), # 7 Exhibit Exhibit 8(c)(xxii))(Rossi, Elizabeth) (Entered: 03/09/2017)
226 Third Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(Rossi, Elizabeth) (Entered: 03/09/2017)
227 Supplemental Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(O'Neill, John) (Entered: 03/09/2017)
229 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Day FOUR of Preliminary Injunction Hearing held on March 9, 2017. Testimony continued. Director of Pretrial Services Kelvin Banks, Chief Hearing Officer Blanca Villagomez, Hearing Officer Eric Hagstette, Dr. Robert Morris, and Mr. Bob Wessels testified. Court adjourned until 8:15 a.m. on March 10, 2017. Final exhibits responsive to the court's inquiries must be docketed by noon on Wednesday, March 15, 2017. Final supplemental expert reports must be filed by the end of the day on Friday, March 17, 2017, as stated on the record. The parties' experts, as well as Dr. Marie VanNostrand, will be available to be called to testify when the hearing resumes at 8:00 a.m. on March 21, 2017. Appearances: Neal S Manne/ Susanne Pringle/Lexie White/Elizabeth Rossi,/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. And John O'Neill,/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/ Melissa Spinks,/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts(Court Reporter: M.Malone (am)/K. Miller (pm)), filed.(leddins, 4) Modified on 3/10/2017 (leddins, 4). (Entered: 03/10/2017)
230 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Day FIVE of Preliminary Injunction Hearing held on March 10, 2017. Testimony continued. Mr. Bob Wessels and County Judge Paula Goodhart testified. The court adjourned until March 21, 2017 at 8:00 a.m. Appearances:Neal S Manne/ Susanne Pringle/Lexie White/Elizabeth Rossi,/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. And John O'Neill,/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/ Melissa Spinks,/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts.(Court Reporter: M. Malone), filed.(leddins, 4) (Entered: 03/10/2017)
231 ORDER entered: The parties proposed findings of fact from the preliminary injunction hearing are due by the end of the day on Wednesday, March 22, 2017. Proposed conclusions of law must be submitted by March 29, 2017.(Signed by Chief Judge Lee

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H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/10/2017)
232 PROPOSED ORDER re: 143 Amended MOTION for Preliminary Injunction, filed. (Attachments: # 1 Exhibit 1 −− Long−form proposed order, # 2 Exhibit 2 −− Walker Order)(Rossi, Elizabeth) (Entered: 03/13/2017)
233 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Rossi, Elizabeth) (Entered: 03/15/2017)
234 Fourth Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(Rossi, Elizabeth) (Entered: 03/15/2017)
235 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Rossi, Elizabeth) (Entered: 03/15/2017)
236 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Discovery telephone hearing held on March 15, 2017. The court resolved the parties' dispute as stated on the record. By 6:00 p.m. today, March 15, 2017, the defendants must produce information identifying: (1) who was asked to compile and, if different, who did compile the data for today's production; (2) what the compilers were asked to provide; and (3) what processes or programs the defendants used to present the data or prepare demonstrative exhibits in the record. Appearances: John Keville, Robert Green, Neal Manne, Elizabeth Rossi, Alec Karakatsanis, Victoria Jimenez, Katharine David, Laura Hedge and Phil Morgan.(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 03/15/2017)
237 Hearing EXHIBITS by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed.(David, Katharine) (Entered: 03/15/2017)
238 Supplemental Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(O'Neill, John) (Entered: 03/15/2017)
239 NOTICE of Deposition Testimony that Judges for Harris County Criminal Court at Law NOs. 1−15 Offer into Evidence at the Preliminary Injunction Hearing by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (O'Neill, John) (Entered: 03/17/2017)
240 Expert Report of Robert G. Morris, Ph.D by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. (Attachments: # 1 Exhibit 03.17.17 Supplemental Report of Robert Morris, Ph.D)(O'Neill, John) (Entered: 03/17/2017)
241 Supplemental Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(O'Neill, John) (Entered: 03/17/2017)
242 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit Materials Reviewed, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix)(Rossi, Elizabeth) (Entered: 03/17/2017)

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243 Hearing EXHIBITS re: 242 Exhibits by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Rossi, Elizabeth) (Entered: 03/17/2017)
244 Supplemental Exhibit List by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(O'Neill, John) (Entered: 03/21/2017)
246 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Day SIX of Preliminary Injunction Hearing held on March 21, 2017. Testimony continued. Dr. Marie VanNostrand, Dr. Robert Morris, and Dr. Stephen Demuth testified. The court adjourned until March 22, 2017 at 8:30 a.m. Appearances:Neal Manne/ Susanne Pringle/Lexie White/Elizabeth Rossi/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. and John O'Neill/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/Melissa Spinks/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts.(Court Reporter: M. Malone(am)/K. Miller(pm)), filed.(leddins, 4) (Entered: 03/22/2017)
245 Supplemental Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(White, Lexie) (Entered: 03/22/2017)
247 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Day SEVEN of Preliminary Injunction Hearing held on March 22, 2017. Testimony continued. Dr. Stephen Demuth testified. The court adjourned until March 23, 2017 at 8:30 a.m. Appearances:Neal Manne/Susanne Pringle/Lexie White/Elizabeth Rossi/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. and John O'Neill/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/Melissa Spinks/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts.(Court Reporter: M. Malone(am)/K. Miller(pm)), filed.(leddins, 4) (Entered: 03/22/2017)
248 Amended Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(White, Lexie) (Entered: 03/22/2017)
249 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 4(e) Demuth comments on Robert Morris's March 17, 2017, Supplemental Report)(White, Lexie) (Entered: 03/22/2017)
250 Letter/Motion to be added to Case with Permission by Devin Paul Cole, filed. Motion Docket Date 4/13/2017. (dbenavides, 1) (Entered: 03/23/2017)
251 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Day EIGHT of Preliminary Injunction Hearing held on March 23, 2017. The parties made their closing arguments. The court heard further argument on the plaintiffs' motion to certify a Rule 23(b)(2) class. The hearing concluded. Appearances:Neal Manne/Susanne Pringle/Lexie White/Elizabeth Rossi/Alec Karakatsanis/Rebecca Bernhardt for Pltfs. and John O'Neill/John Keville/Sheryl Falk/Robert Green/Corinne Stone/Katharine David/Melissa Spinks/James Munisteri/Laura Hedge/Ben Stevens/Phil Morgan for Defts.(Court Reporter: M. Malone(am)/K. Miller(pm)), filed.(leddins, 4) (Entered: 03/24/2017)
252 MOTION to Stay Contingent Pending Appeal and Brief in Support by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. Motion Docket Date 4/14/2017. (Attachments: # 1 Proposed Order)(David, Katharine) (Entered: 03/24/2017)
253 Proposed Findings of Fact by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(David, Katharine) (Entered: 03/24/2017)

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254 POST−TRIAL BRIEF Summary of Evidence by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace(David, Katharine) (Entered: 03/24/2017)
255 RESPONSE to 233 Exhibits Plaintiffs' Summary of Other Jurisdictions, filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (David, Katharine) (Entered: 03/24/2017)
256 POST−TRIAL BRIEF On The Applicable Level of Scrutiny by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace(David, Katharine) (Entered: 03/24/2017)
257 PROPOSED ORDER , filed. (Attachments: # 1 Exhibit)(Rossi, Elizabeth) (Entered: 03/24/2017)
258 Proposed Findings of Fact by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(Rossi, Elizabeth) (Entered: 03/24/2017)
259 OBJECTIONS to 257 Proposed Order , filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (O'Neill, John) (Entered: 03/27/2017)
260 OBJECTIONS to 257 Proposed Order Plaintiffs' Proposed Injunctive Relief, filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (David, Katharine) (Entered: 03/27/2017)
261 Amicus Curiae APPEARANCE by Rodney Ellis, NAACP Legal Defense and Educational Fund, Inc., filed. (Attachments: # 1 Exhibit Proposed Brief of Amici Curiae, # 2 Proposed Order Granting Leave to File Brief of Amici Curiae)(Kase, Kathryn) (Entered: 03/27/2017)
262 RESPONSE in Opposition to 252 MOTION to Stay Contingent Pending Appeal and Brief in Support, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 03/27/2017)
263 POST−TRIAL BRIEF by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson(O'Neill, John) (Entered: 03/29/2017)
264 Proposed Conclusions of Law by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson(David, Katharine) (Entered: 03/29/2017)
265 Amended MOTION for Leave to File Amended Brief of Amicus Curiae by Rodney Ellis, NAACP Legal Defense and Educational Fund, Inc., filed. Motion Docket Date 4/19/2017. (Attachments: # 1 Exhibit Amended Amicus Brief, # 2 Proposed Order)(Kase, Kathryn) (Entered: 03/29/2017)
266 POST−TRIAL BRIEF on Texas State Policy Challenged by Plaintiffs' Application for Temporary Injunction by Harris County, Texas(David, Katharine) (Entered: 03/29/2017)
267 Amended Exhibit List by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(White, Lexie) (Entered: 03/29/2017)
268 Proposed Conclusions of Law by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(White, Lexie) (Entered: 03/29/2017)
269 Proposed Findings of Fact by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell(White, Lexie) (Entered: 03/29/2017)
270 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 10(b))(White, Lexie) (Entered: 03/29/2017)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 51 of 83

03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017

271 ORDER granting 265 Motion for Leave to File Amended Amicus Brief. The earlier motion, [Dkt. Entry 261], is DENIED AS MOOT. The brief is deemed filed in the above captioned case. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 03/30/2017)
272 AMENDED Amicus Brief filed by NAACP Legal Defense and Educational Fund, Inc., filed. (wbostic, 4) (Entered: 03/30/2017)
273 TRANSCRIPT re: Day Two − Morning Session − Injunction Hearing held on March 7, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (mmalone, ) (Entered: 03/30/2017)
274 TRANSCRIPT re: Day Three − Morning Session − Injunction Hearing held on March 8, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (mmalone, ) (Entered: 03/30/2017)
275 TRANSCRIPT re: Day Four − Morning Session − Injunction Hearing held on March 9, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (mmalone, ) (Entered: 03/30/2017)
276 TRANSCRIPT re: Day Five − Injunction Hearing held on March 10, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (mmalone, ) (Entered: 03/30/2017)
277 TRANSCRIPT re: Day Six − Morning Session − Injunction Hearing held on March 21, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (mmalone, ) (Entered: 03/30/2017)
278 TRANSCRIPT re: Day Seven − First Morning Session − Injunction Hearing held on March 22, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (mmalone, ) (Entered: 03/30/2017)
279 TRANSCRIPT re: Day Eight − Morning Session − Injunction Hearing held on March 23, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (mmalone, ) (Entered: 03/30/2017)
280 TRANSCRIPT re: Injunction Hearing, Day 1 held on March 6, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (kmiller, ) (Entered: 03/30/2017)
328 TRANSCRIPT re: Injunction Hearing, Day 2, PM Session held on March 7, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (kmiller, ) (emathis, 4). (Entered: 03/30/2017)
281 TRANSCRIPT re: Injunction Hearing, Day 3, PM Session held on March 8, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (kmiller, ) (Entered: 03/30/2017)
282 TRANSCRIPT re: Injunction Hearing, Day 4, PM SESSION held on March 9, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (kmiller, ) (Entered: 03/30/2017)
283 TRANSCRIPT re: Injunction Hearing, Day 6, PM Session held on March 21, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (kmiller, ) (Entered: 03/30/2017)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 52 of 83

03/30/2017
03/30/2017
03/30/2017 03/31/2017
04/03/2017 04/03/2017 04/04/2017 04/07/2017 04/10/2017
04/10/2017 04/11/2017 04/12/2017 04/14/2017 04/17/2017
04/18/2017 04/18/2017 04/18/2017

284 TRANSCRIPT re: Injunction Hearing, Day 7, 2nd Session held on March 22, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (kmiller, ) (Entered: 03/30/2017)
285 TRANSCRIPT re: Injunction Hearing, Day 8, 2nd Session held on March 23, 2017 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party John O'Neill Release of Transcript Restriction set for 6/28/2017., filed. (kmiller, ) (Entered: 03/30/2017)
286 POST−TRIAL BRIEF In Support of Its Conclusions of Law Detailing Why the Pretrial System Satisfies Procedural Due Process by Harris County, Texas(David, Katharine) (Entered: 03/30/2017)
287 Notice of Filing of Official Transcript as to 273 Transcript, 276 Transcript, 278 Transcript, 275 Transcript, 274 Transcript, 283 Transcript, 279 Transcript, 285 Transcript, 281 Transcript, 282 Transcript, 277 Transcript, 280 Transcript, 284 Transcript, Transcript,. Party notified, filed. (dhansen, 4) (Entered: 03/31/2017)
288 RESPONSE to 260 Objections, 259 Objections, , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 04/03/2017)
289 NOTICE of New Authority by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Rossi, Elizabeth) (Entered: 04/03/2017)
290 NOTICE of New Authority by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 1 − Harris County 2016 Pretrial Services)(Rossi, Elizabeth) (Entered: 04/04/2017)
291 NOTICE by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Rossi, Elizabeth) (Entered: 04/07/2017)
292 RESPONSE to 291 Notice (Other) , filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 (Filed Under Seal))(O'Neill, John) (Entered: 04/10/2017)
293 Sealed Event, filed. (With attachments) (Entered: 04/10/2017)
294 MOTION for Judgment by Devin Paul Cole, filed. Motion Docket Date 5/2/2017. (Attachments: # 1 Cover Letter, # 2 Envelope)(rosaldana, 4) (Entered: 04/11/2017)
295 RESPONSE to Plaintiffs' Notice of New Authority, filed by Harris County, Texas. (David, Katharine) (Entered: 04/12/2017)
296 MOTION for Judgment by Devin Paul Cole, filed. Motion Docket Date 5/5/2017. (Attachments: # 1 Cover Letter, # 2 Requests, # 3 Envelope)(ocasas, 7) (Entered: 04/17/2017)
297 RESPONSE in Opposition to 296 MOTION for Judgment, 294 MOTION for Judgment, 250 MOTION Letter/Motion to be added to Case with Permission, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(O'Neill, John) (Entered: 04/17/2017)
298 MOTION to Amend 3 Complaint by Maranda Lynn ODonnell, filed. Motion Docket Date 5/9/2017. (mmapps, 4) (Entered: 04/18/2017)
299 MOTION to Compel Permanent Injunction and Relief by Maranda Lynn ODonnell, filed. Motion Docket Date 5/9/2017. (mmapps, 4) (Entered: 04/18/2017)
300 MOTION of Prospective Plaintiff Devin Paul Cole to Hold Attorney James Musisteri in Contempt by Devin Paul Cole, filed. Motion Docket Date 5/9/2017. (mmapps, 4)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 53 of 83

04/25/2017 04/28/2017 04/28/2017 04/28/2017 04/28/2017 05/05/2017 05/08/2017 05/08/2017 05/09/2017 05/09/2017
05/09/2017
05/09/2017

(Additional attachment(s) added on 4/18/2017: # 1 Cover Letter and Envelope) (mmapps, 4). (Entered: 04/18/2017)
301 RESPONSE to 299 MOTION to Compel, 296 MOTION for Judgment, 298 MOTION to Amend 3 Complaint filed by Darrell William Jordan. (Attachments: # 1 Proposed Order)(Hedge, Laura) (Entered: 04/25/2017)
302 MEMORANDUM AND OPINION entered GRANTING 143 Amended MOTION for Preliminary Injunction, and DENYING 101 MOTION for Partial Summary Judgment . (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 04/28/2017)
303 MEMORANDUM AND ORDER entered DENYING 250 MOTION Letter/Motion to be added to Case with Permission, GRANTING 146 Amended MOTION to Certify Class.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 04/28/2017)
304 ORDER OF PRELIMINARY INJUNCTION entered. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 04/28/2017)
305 ORDER ON CONTINGENT MOTION TO STAY entered DENYING 252 MOTION to Stay Contingent Pending Appeal and Brief in Support. Motion is denied without prejudice. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 04/28/2017)
306 REBUTTAL to Response to 296 MOTION for Judgment, 294 MOTION for Judgment, filed by Maranda Lynn ODonnell. (Attachments: # 1 Letter, # 2 Envelope)(BelindaSaenz, 7) (Entered: 05/08/2017)
307 MOTION for Charles J. Cooper to Appear Pro Hac Vice by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 5/30/2017. (O'Neill, John) (Entered: 05/08/2017)
308 MOTION for Michael W. Kirk to Appear Pro Hac Vice by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 5/30/2017. (O'Neill, John) (Entered: 05/08/2017)
309 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 302 Memorandum and Opinion, 125 Memorandum and Opinion,,, 304 Preliminary Injunction by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace (Filing fee $ 505, receipt number 0541−18335575), filed. (David, Katharine) (Entered: 05/09/2017)
310 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 302 Memorandum and Opinion, 125 Memorandum and Opinion,,, 304 Preliminary Injunction by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson (Filing fee $ 505, receipt number 0541−18335655), filed. (O'Neill, John) (Entered: 05/09/2017)
311 EMERGENCY MOTION by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. Motion Docket Date 5/30/2017. (Attachments: # 1 Proposed Order)(David, Katharine) (Entered: 05/09/2017)
312 ORDER entered: Harris County, the five Hearing Officers, and County Judges Nos. 1 through 15 have filed an emergency motion to stay. (Docket Entry No. 311). All responses to the motion, including by the plaintiffs and nonmoving defendants, must be filed no later than 5:00 p.m. on May 10, 2017.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 05/09/2017)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 54 of 83

05/09/2017 05/09/2017 05/09/2017 05/10/2017 05/10/2017 05/10/2017 05/10/2017 05/10/2017 05/10/2017 05/10/2017
05/10/2017
05/10/2017 05/10/2017
05/10/2017 05/10/2017

313 RESPONSE to 311 EMERGENCY MOTION filed by Darrell William Jordan. (Hedge, Laura) (Entered: 05/09/2017)
314 ORDER granting 307 Motion for Charles J. Cooper to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jdav, 4) (Entered: 05/10/2017)
321 ORDER granting 308 Motion for Michael W. Kirk to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(sguevara, 4) (Entered: 05/10/2017)
315 Amicus Curiae APPEARANCE by Kim Ogg, filed.(Berg, Thomas) (Entered: 05/10/2017)
316 MOTION for Clarification as to 304 Preliminary Injunction by Ed (Sheriff) Gonzalez, filed. Motion Docket Date 5/31/2017. (Attachments: # 1 Exhibit, # 2 Exhibit)(Jimenez, Victoria) (Entered: 05/10/2017)
317 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 309 Notice of Appeal. Fee status: Paid, filed. (Attachments: # 1 Notice of Appeal, # 2 Memorandum and Opinion, # 3 Order being appealed, # 4 Public docket sheet) (rnieto, 1) (Entered: 05/10/2017)
318 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 310 Notice of Appeal. Fee status: Paid, filed. (Attachments: # 1 Notice of Appeal, # 2 Memorandum and Opinion, # 3 Order being appealed, # 4 Public docket sheet) (rnieto, 1) (Entered: 05/10/2017)
Appeal Review Notes re: 309 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid. Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 19, filed. (rnieto, 1) (Entered: 05/10/2017)
Appeal Review Notes re: 310 Notice of Appeal. Fee status: Paid. Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 19, filed. (rnieto, 1) (Entered: 05/10/2017)
319 DKT13 TRANSCRIPT ORDER REQUEST by Stacy R. Obenhaus. Transcript is already on file in Clerks office regarding Preliminary Injunction on 3/6−10/2017 and 3/21−23/2017, Hon. Lee H. Rosenthal. (No transcript is needed). Court Reporter/Transcriber: Kathleen Miller. This order form relates to the following: 230 Injunction Hearing,, 251 Injunction Hearing,, 223 Injunction Hearing,, 228 Injunction Hearing,, 229 Injunction Hearing,,,, 246 Injunction Hearing,, 222 Injunction Hearing,, 247 Injunction Hearing,,, filed. (Obenhaus, Stacy) (Entered: 05/10/2017)
320 DKT13 TRANSCRIPT ORDER REQUEST by Stacy R. Obenhaus. Transcript is already on file in Clerks office regarding Preliminary Injunction, 3/6−10/2017 and 3/21−23/2017, Hon. Lee H. Rosenthal. (No transcript is needed). Court Reporter/Transcriber: Mayra Malone. This order form relates to the following: 230 Injunction Hearing,, 251 Injunction Hearing,, 223 Injunction Hearing,, 228 Injunction Hearing,, 229 Injunction Hearing,,,, 246 Injunction Hearing,, 222 Injunction Hearing,, 247 Injunction Hearing,,, filed. (Obenhaus, Stacy) (Entered: 05/10/2017)
322 Supplemental MOTION for Clarification as to 316 MOTION for Clarification as to 304 Preliminary Injunction by Ed (Sheriff) Gonzalez, filed. Motion Docket Date 5/31/2017. (Attachments: # 1 Exhibit)(Jimenez, Victoria) (Entered: 05/10/2017)
323 ORDER entered DENYING Devin Cole's Motions: 298 MOTION to Amend 3 Complaint, 299 MOTION to Compel, 300 MOTION, 294 MOTION for Judgment, 296 MOTION for Judgment are all DENIED. The defendant's motions to strike are moot. (Entries 297 and 301) (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 05/10/2017)
324 OBJECTIONS to 311 EMERGENCY MOTION to Stay Pending Appeal, filed by Ed (Sheriff) Gonzalez. (Jimenez, Victoria) (Entered: 05/10/2017)
325 ORDER of CLARIFICATION entered regarding 316 MOTION for Clarification as to 304 Preliminary Injunction. The court denies the request for modification as unnecessary. The court appreciates the Sheriff's thoughtful requests and his commitment to complying with the court's Order and to continue collaborative efforts to implement the County's planned reforms to the misdemeanor bail system. If further clarification is needed, the Sheriff must promptly notify the court and a conference

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 55 of 83

05/10/2017 05/11/2017 05/12/2017 05/12/2017 05/15/2017
05/19/2017 05/23/2017
05/23/2017
05/24/2017 05/24/2017
05/25/2017 05/25/2017 05/26/2017

will be held on May 12, 2017, at 2:00 p.m. in Courtroom 11−B.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 05/10/2017)
326 RESPONSE in Opposition to 311 EMERGENCY MOTION, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 05/10/2017)
327 MEMORANDUM AND ORDER entered DENYING Defts. 311 EMERGENCY MOTION TO STAY.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Main Document 327 replaced on 5/11/2017) (leddins, 4). (Entered: 05/11/2017)
Notice of Assignment of USCA No. 17−20333 re: 310 Notice of Appeal, 309 Notice of Appeal, filed. (rnieto, 1) (Entered: 05/12/2017)
329 Letter from Joseph P. Morra re: bail system, filed. (LaurenWebster, 4) (Entered: 05/12/2017)
330 Order of USCA − Per Curiam re: 310 Notice of Appeal, 309 Notice of Appeal ; USCA No. 17−20333. IT IS FURTHER ORDERED that the opposed motion of appellants Judge Robin Brown, Judge Diane Bull, John Clinton, Pam Derbyshire, Judge Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karashan, Donald Smyth, Dan Spjut, Larry Standley and Judge Analia Wilkerson to stay the preliminary injunction of the district court pending appeal is TEMPORARILY GRANTED until further order of this court, filed.(mperez, 1) (Entered: 05/16/2017)
***Hard drive of trial exhibits on file with the Clerk's office. Exhibits will not be made part of the electronic ROA but will be provided at the request of the Circuit Court of Appeals., filed. (dhansen, 4) (Entered: 05/19/2017)
331 DKT13 TRANSCRIPT ORDER REQUEST by Charles J. Cooper. Transcript is already on file in Clerks office regarding Preliminary Injunction on 3/6−10/2017 and 3/21−23/2017. (No transcript is needed). Court Reporter/Transcriber: Kathleen Miller. This order form relates to the following: 230 Injunction Hearing,, 251 Injunction Hearing,, 223 Injunction Hearing,, 228 Injunction Hearing,, 310 Notice of Appeal, 229 Injunction Hearing,,,, 246 Injunction Hearing,, 222 Injunction Hearing,, 247 Injunction Hearing,,, filed. (Cooper, Charles) (Entered: 05/23/2017)
332 DKT13 TRANSCRIPT ORDER REQUEST by Charles J. Cooper. Transcript is already on file in Clerks office regarding Preliminary Injunction, 3/6−10/2017 and 3/21−23/2017. (No transcript is needed). Court Reporter/Transcriber: Mayra Malone. This order form relates to the following: 230 Injunction Hearing,, 251 Injunction Hearing,, 223 Injunction Hearing,, 228 Injunction Hearing,, 310 Notice of Appeal, 229 Injunction Hearing,,,, 246 Injunction Hearing,, 222 Injunction Hearing,, 247 Injunction Hearing,,, filed. (Cooper, Charles) (Entered: 05/23/2017)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 310 Notice of Appeal, USCA No. 17−20333, filed.(avleal, 1) (Entered: 05/24/2017)
Electronic Access to Record on Appeal Provided re: 309 Notice of Appeal, to Alexandra Giselle White, Harold Reeves, John David Ohlendorf, Stacy R. Obenhaus, William C. Marra, Neal Stuart Manne, Michael Kirk, Alec George Karakatsanis, Micharl Gervais, Charles Justin Cooper. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 17−20333), filed.(avleal, 1) (Entered: 05/24/2017)
Electronic Access to Record on Appeal Provided re: 310 Notice of Appeal, 309 Notice of Appeal, to John E. O'Neill. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 17−20333), filed.(avleal, 1) (Entered: 05/25/2017)
333 NOTICE of attorney substitution by Darrell William Jordan. Attorney Michael R. Hull added. Attorney Laura Beckman Hedge terminated, filed. (Hull, Michael) (Entered: 05/25/2017)
Electronic Access to Record on Appeal Provided re: 310 Notice of Appeal, 309 Notice of Appeal, to Katharine D. David, Sheryl Anne Falk, Murray Jules Fogler. Attorneys

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 56 of 83

05/31/2017 05/31/2017 05/31/2017 06/01/2017
06/01/2017
06/01/2017 06/02/2017 06/06/2017 06/07/2017 06/08/2017 06/08/2017

of record at the Circuit may download the record from the Court of Appeals. (USCA No. 17−20333), filed.(avleal, 1) (Entered: 05/26/2017)
Electronic Access to Record on Appeal Provided re: 309 Notice of Appeal, to Mike Anthony Stafford. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 17−20333), filed.(avleal, 1) (Entered: 05/31/2017)
334 Amended NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 325 Order,, by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(Obenhaus, Stacy) (Entered: 05/31/2017)
335 Amended NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 325 Order,, by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed.(O'Neill, John) (Entered: 05/31/2017)
336 NOTICE OF FILING OF DOCUMENTS TO BE INCLUDED IN THE ELECTRONIC RECORD OF APPEAL by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 DX 1 − DX 25, # 2 DX 26 − DX 30, # 3 DX 34, # 4 DX 35 − DX 38, # 5 DX 44 − DX 45, # 6 DX 46 − DX 56, # 7 DX 57 − DX 70, # 8 DX 72, # 9 DX 73 − DX 75, # 10 DX 76 − DX 78, # 11 DX 80 − DX 91, # 12 DX 92 − DX 98, # 13 DX 99, # 14 DX 100, # 15 DX 101, # 16 DX 102, # 17 DX 103, # 18 DX 104, # 19 DX 105, # 20 DX 106 − DX 108, # 21 DX 109, # 22 DX 110 − DX 111, # 23 DX 112 − DX 113, # 24 DX 114, # 25 DX 115 − DX 116, # 26 DX 117 − DX 120, # 27 DX 121 − DX 122, # 28 DX 123 − DX 124, # 29 DX 125, # 30 DX 126 − DX 128, # 31 DX 129, # 32 DX 130 − DX 136, # 33 DX 137 − DX 138, # 34 DX 139, # 35 DX 140, # 36 DX 145, DX 148, DX 150−151, AND DX 153−159, # 37 DX 160−161 AND DX 163)(O'Neill, John) (Entered: 06/01/2017)
337 NOTICE OF FILING OF DOCUMENTS TO BE INCLUDED UNDER SEAL IN THE ELECTRONIC RECORD ON APPEAL by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. (Attachments: # 1 Exh M (DE 81) − Filed Under Seal, # 2 Exh 6 (DE 293) − Filed Under Seal, # 3 DX 71 − Filed Under Seal)(O'Neill, John) (Entered: 06/01/2017)
338 Sealed Event, filed. (Entered: 06/01/2017)
Electronic Access to Record on Appeal Provided re: 310 Notice of Appeal, 335 Notice of Appeal − Amended, 309 Notice of Appeal, 334 Notice of Appeal − Amended to John R. Keville. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 17−20333), filed.(avleal, 1) (Entered: 06/02/2017)
339 Fifth Circuit Court of Appeals LETTER advising Appellants' Motion to stay the preliminary injunction of the district court pending appeal is DENIED. (USCA No. 17−20333), filed.(bcampos, 1) (Entered: 06/06/2017)
Assignment of USCA No. 17−20333 re: 335 Notice of Appeal − Amended, 334 Notice of Appeal − Amended filed by Harris County and Hearing Officers, filed.(bcampos, 1) (Entered: 06/07/2017)
Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 335 Notice of Appeal − Amended, 334 Notice of Appeal − Amended USCA No. 17−20333, filed.(bcampos, 1) (Entered: 06/08/2017)
Electronic Access to Supplemental Record on Appeal Provided re: 335 Notice of Appeal − Amended, 334 Notice of Appeal − Amended to to all of the following attorneys of record, O'Neill, John E.; White, Alexandra Giselle; Falk, Sheryl Anne; Bernhardt, Rebecca; Keville, John R.; David, Katharine D.; Stafford, Mike Anthony; Obenhaus, Stacy R.; Cooper, Charles Justin; Fogler, Murray Jules; Manne, Neal Stuart; Ohlendorf, John David; Marra, William C.; Reeves, Harold; Kirk, Michael; Karakatsanis, Alec George; and Gervais, Michael. Attorneys of record at the Circuit

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 57 of 83

06/09/2017 06/12/2017
06/12/2017
06/12/2017 06/12/2017 06/12/2017 06/14/2017
06/14/2017
06/21/2017 06/21/2017
06/28/2017 06/28/2017
06/29/2017
06/29/2017 06/30/2017 07/19/2017

may download the record from the Court of Appeals. (USCA No. 17−20333), filed.(bcampos, 1) (Entered: 06/08/2017)
340 Letter from Devin P Cole re: Copies of Documents, filed. (ShoshanaArnow, )Copies sent. Modified on 6/9/2017 (ShoshanaArnow, ). (Entered: 06/09/2017)
341 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit PX 2(b), # 2 Exhibit PX 4(a), # 3 Exhibit PX 4(b), # 4 Exhibit PX 6(b)(ii), # 5 Exhibit PX 6(c))(White, Lexie) (Entered: 06/12/2017)
342 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit PX 7(a)−(u), # 2 Exhibit PX 9, # 3 Exhibit PX 10(a), # 4 Exhibit PX 10(b), # 5 Exhibit PX 10(c), # 6 Exhibit PX 10(d))(White, Lexie) (Entered: 06/12/2017)
343 Hearing EXHIBITS by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell (Attachments: # 1 Exhibit PX 11, # 2 Exhibit PX 12(a)−(x), # 3 Exhibit PX 12(aa)−(ww), # 4 Exhibit PX 13(a)−(q))(White, Lexie) (Entered: 06/12/2017)
344 Sealed Event, filed. (With attachments) (Entered: 06/12/2017)
345 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 323 Order, by Devin Paul Cole, filed. (Attachments: # 1 Letter, # 2 Envelope)(klopez, 7) (Entered: 06/13/2017)
346 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 345 Notice of Appeal. Fee status: Not Paid, filed. (Attachments: # 1 Notice of Appeal, # 2 Order, # 3 Docket Sheet) (mperez, 1) (Entered: 06/14/2017)
Appeal Review Notes re: 345 Notice of Appeal. Fee status: Not Paid. The appeal filing fee has not been paid, and appellant is a pro se litigant.Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 1, filed.(mperez, 1) (Entered: 06/14/2017)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 310 Notice of Appeal, USCA No. 17−20333, filed.(mperez, 1) (Entered: 06/21/2017)
Electronic Access to Record on Appeal Provided re: 310 Notice of Appeal, 309 Notice of Appeal, to counsels for appellant, counsels for appellees. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 17−20333), filed.(mperez, 1) (Entered: 06/21/2017)
Notice of Assignment of USCA No. 17−20392 re: 345 Notice of Appeal, filed.(dbenavides, 1) (Entered: 06/28/2017)
347 MOTION for Clarification as to 304 Preliminary Injunction by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 7/19/2017. (Attachments: # 1 Exhibit 1 − Proposed Amendments, # 2 Exhibit 2 − Current Local Rules, # 3 Proposed Order)(Cooper, Charles) (Entered: 06/28/2017)
348 ORDER entered. Any nonmoving party intending to respond to the fourteen County Judges' motion for clarification, Docket Entry No. 347 , must do so by the end of the day Thursday, June 29, 2017. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 06/29/2017)
349 RESPONSE to 347 MOTION for Clarification as to 304 Preliminary Injunction filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Gervais, Michael) (Entered: 06/29/2017)
350 SECOND ORDER of Clarification entered. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 06/30/2017)
351 MOTION for Clarification and Judicial Response to Questions with Material Fact Relevancy to Proceedings by Devin Paul Cole, filed. Motion Docket Date 8/9/2017. (Attachments: # 1 Cover Letter, # 2 Envelope)(srussell, 2) (Entered: 07/19/2017)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 58 of 83

07/26/2017 08/15/2017 09/11/2017 09/21/2017 09/21/2017 09/22/2017 09/26/2017 09/26/2017 09/26/2017
09/27/2017 09/28/2017 09/29/2017 10/20/2017 11/16/2017 11/16/2017 12/21/2017

352 Order of USCA re: 345 Notice of Appeal ; USCA No. 17−20392. Under 5TH CIR. R. 42.3, the appeal is dismissed as of July 26, 2017, for want of prosecution. The appellant failed to timely pay the docketing fee, filed.(scastillo, 1) (Entered: 07/26/2017)
353 ORDER entered DENYING as Moot 351 MOTION for Clarification.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/15/2017)
354 Letter from Devin P Cole re: from Devin P Cole re: Status of Complaint; Case No; Added to Case; and Request for Copy of Docket Sheet, filed. (sanderson, 3)*** Copy of Docket Sheet mailed to Devin P. Cole (Entered: 09/11/2017)
355 MOTION to be merged into Original Class of this Class Action Lawsuit & Motion to be Certified and Consolidated into Original Certified and Consolidated Plaintiffs Class by Devin Cole, filed. Motion Docket Date 10/12/2017. (Attachments: # 1 letter, # 2 Envelope)(mxperez, 5) Modified on 9/25/2017 (leddins, 4). (Entered: 09/21/2017)
356 MOTION for Appointment of Counsel by Devin Cole, filed. Motion Docket Date 10/12/2017. (Attachments: # 1 Envelope)(mxperez, 5) Modified on 9/25/2017 (leddins, 4). (Entered: 09/21/2017)
357 NOTICE of Setting. Parties notified. Discovery Hearing set for 9/26/2017 at 01:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 09/22/2017)
358 ORDER denying as moot 355 Motion to be Merged into Certified Class; denying as moot 356 Motion to Appoint Counsel. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 09/26/2017)
359 Unopposed MOTION to Substitute Attorney Bruce S. Powers in place of Charles J. Cooper, Michael W. Kirk, John E. ONeill, Corinne Stone, John R. Keville, Robert L Greene III, and Sheryl Anne Falk by Mike Fields, filed. Motion Docket Date 10/17/2017. (Attachments: # 1 Proposed Order)(Powers, Bruce) (Entered: 09/26/2017)
361 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Discovery hearing held on September 26, 2017. The court heard argument from counsel and resolved the parties' disputes, as stated on the record. The plaintiff will file a proposed order on the court's rulings by September 29, 2017. Appearances: Sheryl Falk, Neal Manne, Elizabeth Rossi, Katharine David, Melissa Spinks, James G Munisteri, Phil Morgan, Bruce Powers, Michael Kirk and Will Marra(Court Reporter: K. MIller), filed.(leddins, 4) (Entered: 09/27/2017)
360 ORDER granting 359 Motion to Substitute Attorney Attorney Robert Lawrence Green, III; John R Keville; Michael W Kirk; John Ellis O'Neill; Corinne Stone; Charles J Cooper and Sheryl Anne Falk terminated.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 09/27/2017)
362 MOTION for Clarification by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 10/19/2017. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 09/28/2017)
363 ORDER entered GRANTING 362 MOTION for Clarification.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 09/29/2017)
364 NOTICE of Setting. Parties notified. Discovery Hearing set for 10/24/2017 at 01:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 10/20/2017)
365 MOTION for Rebecca Bernhardt to Withdraw as Attorney by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 12/7/2017. (Attachments: # 1 Proposed Order)(Pringle, Susanne) (Entered: 11/16/2017)
366 ORDER granting 365 Motion to Withdraw as Attorney. Attorney Rebecca Bernhardt terminated. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(gclair, 4) (Entered: 11/20/2017)
367 MOTION for John E. O'Neill to Withdraw as Attorney by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon,

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 59 of 83

01/02/2018 01/09/2018 01/18/2018 01/18/2018 01/23/2018 01/23/2018
01/24/2018 01/25/2018 01/25/2018 01/25/2018 01/29/2018 01/30/2018

Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 1/11/2018. (Attachments: # 1 Proposed Order)(Falk, Sheryl) (Entered: 12/21/2017)
368 ORDER Granting 367 Motion to Withdraw as Attorney. Attorney John Ellis O'Neill terminated. Sheryl A. Falk New Lead Counsel of record for the County Court Law Judges 1−13 and 15..(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 01/02/2018)
369 NOTICE of Change of Address by Devin Paul Cole, filed. (jguajardo, 4) (Entered: 01/10/2018)
370 NOTICE of Setting. Parties notified. Discovery Hearing set for 1/23/2018 at 02:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 01/18/2018)
371 ORDER entered: A hearing is set for Tuesday, January 23, 2018 at 2:00 p.m. in Courtroom 11B. The Hearing Officers who testified or who submitted affidavits in this court or to the Commission on Judicial Conduct and the Harris County Criminal Courts at Law Judge defendants are ordered to appear in person.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 01/18/2018)
372 AO 435 TRANSCRIPT REQUEST by Sheryl A. Falk for Transcript of Discovery Hearing held on 01/23/18 before Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Gayle Dye, filed. (Falk, Sheryl) (Entered: 01/23/2018)
376 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Discovery hearing held January 23, 2018. The court heard arguments on the plaintiffs' request to compel production of evidence. The defendants did not object and agreed to the production. As stated on the record, the court ordered the defendants to produce any evidence, written or oral, of instructions, guidelines, rules, or directions given at any time by Harris County Criminal Courts at Law Judges or District Court Judges to Hearing Officers affecting bail, including financial and nonfinancial conditions. The defendants must produce the evidence byFebruary 23, 2018. If the plaintiffs believe on reviewing the evidence that further relief is warranted, the plaintiffs may then file a motion to strike, or for sanctions, or for other relief. If a party believes that further discovery is warranted, a premotion conference must be sought. Appearances: Lexie White/Neal Manne/Elizabeth Rossi/Alec Karakatsanis/Michael Gervais for Pltfs. and Sheryl Falk, Katharine David, Phil Morgan, Celina Vinson, Melissa Spinks and Michael Kirk for Defts.(Court Reporter: G. Dye), filed.(leddins, 4) (Entered: 01/25/2018)
373 MOTION for William C. Marra to Appear Pro Hac Vice by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 2/14/2018. (Falk, Sheryl) (Entered: 01/24/2018)
374 AO 435 TRANSCRIPT REQUEST by Neal S. Manne for Transcript of Discovery Hearing on Jan. 23 2018, Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Gayle Dye, filed. (Manne, Neal) (Entered: 01/25/2018)
375 NOTICE of Change of Address and Request for Status of the Case by Devin Paul Cole, filed. (ShoshanaArnow, 4) (Entered: 01/25/2018)
377 ORDER granting 373 MOTION for William C. Marra to Appear Pro Hac Vice for Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 01/26/2018)
378 Order of USCA re: 335 Notice of Appeal − Amended, ; USCA No. 17−20333. IT IS ORDERED that the appellant's unopposed motion to partially dismiss the appeal as to Judge Mike Fields only is GRANTED, filed.(jtabares, 1) (Entered: 01/29/2018)
379 TRANSCRIPT re: Discovery Hearing held on January 23, 2018, before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Dye. Ordering Party Sheryl A. Falk Release of Transcript Restriction set for 4/30/2018., filed. (gdye, ) (Entered:

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 60 of 83

01/31/2018 02/01/2018 02/05/2018
02/15/2018
02/16/2018 02/19/2018 02/21/2018 02/23/2018 02/23/2018 02/26/2018
02/26/2018
02/28/2018 03/02/2018

01/30/2018)
380 Notice of Filing of Official Transcript as to 379 Transcript. Party notified, filed. (dhansen, 4) (Entered: 01/31/2018)
381 NOTICE of attorney substitution by Darrell William Jordan. Attorney G. Allan Van Fleet added. Attorney Michael Robert Hull terminated, filed. (Van Fleet, George) (Entered: 02/01/2018)
382 Second MOTION for Summary Judgment on the Pleadings as a Matter of Law With Written Objections to Any Settlement Without the Awarding of Monetary Damages to all Plaintiffs and Plaintiff's Motion to Amend the Original Section 1983 Complaint with Written Objections and Brief in Support ( Motion Docket Date 2/26/2018.) by Devin Paul Cole, filed. (bcampos, 1) (Entered: 02/05/2018)
383 ORDER entered: Based on the decision issued by the Fifth Circuit, the parties will confer and submit either an agreed proposed modified order or, if not agreed, a redlined version showing the disputed provisions no later than February 26, 2018. The parties will appear for a status conference on February 28, 2018 at 9:00 a.m. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 02/15/2018)
384 RESPONSE to 383 Order, , filed by Maranda Lynn ODonnell. (Gervais, Michael) (Entered: 02/16/2018)
385 ORDER entered GRANTING the request to reset the conference. Status Conference reset for 3/6/2018 at 05:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 02/19/2018)
386 ORDER entered DENYING 382 MOTION for Summary Judgment MOTION to Amend 54 Amended Complaint/Counterclaim/Crossclaim etc. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 02/21/2018)
387 Amicus Curie Brief In Re to Bail Issue and Illegal Hold by Ramon Torres, filed. (Attachments: # 1 Cover Letter, # 2 Envelope)(drodriguez, 7) (Entered: 02/23/2018)
388 Amicus Challenge to Court's Opinion Being Biased and Discriminatory in Holding to Certain Class of Individual Where State Law and Constitution are Not by William Johnson, filed. (Attachments: # 1 Envelope)(drodriguez, 7) (Entered: 02/23/2018)
389 MOTION for Continuance of the Status Conference scheduled for March 6, 2018, and the related March 2, 2018 deadline for related submissions by Maranda Lynn ODonnell, filed. Motion Docket Date 3/19/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order Granting Motion to Continue)(Gervais, Michael) (Entered: 02/26/2018)
390 RESPONSE in Opposition to 389 MOTION for Continuance of the Status Conference scheduled for March 6, 2018, and the related March 2, 2018 deadline for related submissions, filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D − Proposed Order)(Falk, Sheryl) (Entered: 02/26/2018)
391 REPLY in Support of 389 MOTION for Continuance of the Status Conference scheduled for March 6, 2018, and the related March 2, 2018 deadline for related submissions, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 02/28/2018)
392 ORDER entered: The plaintiffs motion to continue is granted. (Docket Entry No. 389). The defendants cross−motion for stay of the preliminary injunction and entry of a modified injunction is denied. (Docket Entry No. 390). The status conference and written submission deadline will be continued until the Fifth Circuit decides the rehearing petitions and the parties confer on how to modify the injunction in light of those rulings and the prior ruling and order.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/02/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 61 of 83

04/03/2018 04/06/2018 05/23/2018 06/01/2018
06/01/2018 06/01/2018 06/04/2018 06/08/2018 06/11/2018
06/11/2018
06/12/2018 06/12/2018 06/12/2018 06/12/2018 06/13/2018

394 Correspondence from William Johnson (filed in case per Memorandum on Dismissal in 4:18−cv−1145), filed. (kpicota, 4) (Entered: 05/21/2018)
393 NOTICE of Change of Address by Kate David, counsel for Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. (David, Katharine) (Entered: 04/06/2018)
395 NOTICE of Setting. Parties notified. Status Conference set for 7/11/2018 at 03:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 05/23/2018)
396 Order of USCA − JUDGMENT; Judgment issued as mandate 6/1/2018 re: 335 Notice of Appeal − Amended, 334 Notice of Appeal − Amended, 310 Notice of Appeal, 309 Notice of Appeal, ; USCA No. 17−20333. judgment of the district court is affirmed, reversed, vacated and the cause is remanded to the district court for further proceedings in accordance with the opinion of this court, filed.(dnoriega, 1) (Entered: 06/01/2018)
397 Order of USCA − PER CURIAM re: 335 Notice of Appeal − Amended, 334 Notice of Appeal − Amended, 310 Notice of Appeal, 309 Notice of Appeal, ; USCA No. 17−20333. REMAND, filed.(dnoriega, 1) (Entered: 06/01/2018)
398 ORDER RESETTING HEARING Status Conference reset for 6/14/2018 at 01:00 PM in Courtroom 11D before Chief Judge Lee H Rosenthal. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 06/01/2018)
399 NOTICE of Resetting. Parties notified. Status Conference reset for 6/14/2018 at 09:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. NOTE: The change is to TIME only. (leddins, 4) (Entered: 06/04/2018)
400 MOTION for Partial Summary Judgment by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 6/29/2018. (Attachments: # 1 Exhibit 1 − Statement of Undisputed Facts, # 2 Proposed Order Proposed Order)(Rossi, Elizabeth) (Entered: 06/08/2018)
401 Joint RESPONSE to 398 Order , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1 − Fields/Jordan/Plaintiffs' Proposed Order, # 2 Exhibit 2 − Fourteen Judges' Proposed Order, # 3 Exhibit 3 − County Defendants' Proposed Order, # 4 Exhibit 4 − Redline version comparing Ex. 1 and Ex. 3)(Rossi, Elizabeth) (Entered: 06/11/2018)
402 BRIEF in Support of the Fields/Jordan/Plaintiffs Proposed Revised Injunction re: 401 Response, by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 1 − Demuth Report, # 2 Exhibit 2 − Jordan Declaration, # 3 Exhibit 3 − Fields Declaration, # 4 Exhibit 4 − Demuth Analysis (May 14, 2018), # 5 Exhibit 5 − Wells Declaration (May 21, 2018), # 6 Exhibit 6 − Fleming Declaration (May 21, 2018), # 7 Exhibit 7 − Email from Phil Morgan, # 8 Exhibit 8 − Declaration of Alex Bunin, # 9 Exhibit 9 − County Interrogatory Response, # 10 Exhibit 10 − Wells Declaration (May 3, 2018))(Rossi, Elizabeth) (Entered: 06/11/2018)
403 Supplemental RESPONSE to 401 Response, , filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (Attachments: # 1 Exhibit)(Morgan, Philip) (Entered: 06/12/2018)
404 NOTICE of Resetting. Parties notified. Status Conference reset for 6/14/2018 at 08:30 AM in Courtroom 11D before Chief Judge Lee H Rosenthal, filed. NOTE: The change is to TIME only. The hearing will be held in Courtroom 11−D due to construction. (leddins, 4) (Entered: 06/12/2018)
405 RESPONSE , filed by Kim Ogg. (Durfee, Scott) (Entered: 06/12/2018)
410 AMICUS BRIEF by William E. Johnson, filed. (Attachments: # 1 Cover Letter, # 2 Envelope)(AdrianDeLaRosa, 7) (Entered: 06/14/2018)
406 NOTICE of Appearance by Charles Gerstein on behalf of Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Gerstein, Charles) (Entered: 06/13/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 62 of 83

06/13/2018 06/13/2018 06/13/2018 06/14/2018 06/14/2018
06/15/2018 06/18/2018
06/18/2018 06/19/2018 06/21/2018
06/21/2018 06/22/2018 06/25/2018

407 NOTICE of Appearance by Mark A. Correro on behalf of Darrell William Jordan, filed. (Correro, Mark) (Entered: 06/13/2018)
408 STATEMENT of Defendant Judge Mike Fields in Support of Proposed Order re: 401 Response, by Mike Fields, filed. (Attachments: # 1 Exhibit −Statement of Judge Mike Fields)(Powers, Bruce) (Entered: 06/13/2018)
409 STATEMENT by Darrell William Jordan, filed. (Attachments: # 1 Exhibit Exhibit to Statement of Judge Darrell Jordan)(Correro, Mark) (Entered: 06/13/2018)
411 AO 435 TRANSCRIPT REQUEST by Corinne Stone for Transcript of Status Conference held on 06/14/18 before Judge Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Bruce Slavin, filed. (Stone, Corinne) (Entered: 06/14/2018)
413 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on June 14, 2018. The court heard argument on the parties proposals for an amended preliminary injunction order. The court took the matter under advisement. The parties must submit a joint proposed scheduling order by Thursday, June 21, 2018. Appearances: Michael W Kirk, Charles J Cooper, William C Marra, Sheryl Anne Falk, Bruce Stephen Powers, Susanne Ashley Pringle, Neal S Manne, Elizabeth Anne Rossi, Alec Karakatsanis, Victoria Lynn Jimenez, Philip James Morgan, Michael A Stafford, Katharine Davenport David, Melissa Lynn Spinks, Mark Anthony Correro.(Court Reporter: B. Slavin), filed.(leddins, 4) (Entered: 06/18/2018)
412 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of 6/14/18 status conference, Judge Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Bruce Slavin, filed. (White, Lexie) (Entered: 06/15/2018)
414 MEMORANDUM AND OPINION entered: Based on the Fifth Circuit rulings, the law, the evidence in the record, and the parties proposals and arguments, this court attaches an amended preliminary injunction order as a tentative ruling. The order is tentative so that the parties may review and comment. The comments are to be limited to substantive issues that are most significant. The parties must first confer in a cooperative effort to agree, if possible. The comments are due by Monday, June 25, 2018, by 12:00p.m. (Signed by Chief Judge Lee H Rosenthal) (Attachments: # 1 Proposed Order) Parties notified.(leddins, 4) (Entered: 06/18/2018)
415 TRANSCRIPT re: Status Conference held on 6−14−18 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber B. Slavin. Ordering Party Defendant Harris County, TX Release of Transcript Restriction set for 9/17/2018., filed. (bslavin, ) (Entered: 06/18/2018)
416 Notice of Filing of Official Transcript as to 415 Transcript. Party notified, filed. (hcarr, 4) (Entered: 06/19/2018)
417 BRIEF in Support re: 413 Status Conference,, by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. (Attachments: # 1 Proposed Order Proposed Scheduling Order)(Cooper, Charles) (Entered: 06/21/2018)
418 BRIEF in Support of Plaintiffs' Proposed Scheduling Order by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Proposed Order Plaintiffs' Proposed Scheduling Order)(Rossi, Elizabeth) (Entered: 06/21/2018)
419 RESPONSE to 418 Brief , filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson. (Cooper, Charles) (Entered: 06/22/2018)
420 RESPONSE to 414 Memorandum and Opinion,, , filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (Cooper, Charles) (Entered: 06/25/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 63 of 83

06/25/2018 06/25/2018 06/25/2018 06/25/2018 06/26/2018
06/29/2018 06/29/2018 07/03/2018 07/06/2018 07/06/2018 07/06/2018 07/06/2018
07/06/2018

421 RESPONSE to 414 Memorandum and Opinion,, Concerning the Proposed Tentative Injunction, filed by Maranda Lynn ODonnell. (Gervais, Michael) (Entered: 06/25/2018)
422 RESPONSE to 414 Memorandum and Opinion,, , filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (Morgan, Philip) (Entered: 06/25/2018)
423 AMENDED SCHEDULING ORDER entered: Joint Pretrial Order due by 11/2/2018; Trial Term on the merits set for 12/3/2018 ; Motion Hearing set for 8/22/2018 at 09:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal. Remaining deadlines as outlined. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 06/25/2018)
424 BRIEF in Response re: 420 Response, by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed.(Rossi, Elizabeth) (Entered: 06/25/2018)
425 NOTICE TO ALL COUNSEL: The court has received the parties comments and appreciates the thorough and careful response to the tentative amended preliminary injunction order. The court is reviewing the comments and will be revising the order in light of the comments, the record, and the applicable law. The Amended Order of Preliminary Injunction, consistent with the Fifth Circuit's opinions and orders entered on February 14, 2018 and June 1, 2018, and accompanying Memorandum and Opinion, will be issued on Friday, June 29 or Monday, July 2, since July 1 falls on a Sunday. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) Modified on 6/27/2018 (leddins, 4). (Entered: 06/26/2018)
426 MEMORANDUM AND OPINION (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 06/29/2018)
427 Amended Order of PRELIMINARY INJUNCTION (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 06/29/2018)
428 NOTICE of Appearance by Joseph S. Grinstein on behalf of Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Grinstein, Joseph) (Entered: 07/03/2018)
429 MOTION for Summary Judgment by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 7/27/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(David, Katharine) (Entered: 07/06/2018)
430 MOTION for Summary Judgment by Harris County, Texas, filed. Motion Docket Date 7/27/2018. (David, Katharine) (Entered: 07/06/2018)
431 Unopposed MOTION for Leave to File Excess Pages by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 7/27/2018. (Attachments: # 1 Exhibit A −− Proposed Order)(Cooper, Charles) (Entered: 07/06/2018)
432 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment (ECF No. 400) by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 7/27/2018. (Attachments: # 1 Exhibit A (14 Judges Statement of Undisputed Facts), # 2 Exhibit B (14 Judges Response to Plaintiffs Statement of Undisputed Facts), # 3 Exhibit C (August 2017 Local Rules), # 4 Exhibit D (March 2016 Local Rules), # 5 Exhibit E (Fleming Declaration), # 6 Exhibit F (Bail Order Form), # 7 Exhibit G (Wells Declaration), # 8 Exhibit H (DX 1 to 24), # 9 Exhibit I (DX 55), # 10 Exhibit J (DX 59), # 11 Exhibit K (DX 28A), # 12 Exhibit L (DX 110), # 13 Exhibit M (DX 112), # 14 Exhibit N (Proposed Order))(Cooper, Charles) (Entered: 07/06/2018)
433 RESPONSE to 400 MOTION for Partial Summary Judgment filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(David, Katharine) (Entered:

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 64 of 83

07/09/2018 07/10/2018
07/10/2018 07/11/2018 07/11/2018 07/11/2018
07/11/2018 07/12/2018 07/13/2018 07/13/2018
07/13/2018 07/13/2018

07/06/2018)
437 EXHIBITS re: 429 MOTION for Summary Judgment by Harris County, Texas; and 433 Response to 400 Motion for Partial Summary Judgment, filed.(srussell, 2) (Entered: 07/11/2018)
434 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 427 Preliminary Injunction, 426 Memorandum and Opinion by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson (Filing fee $ 505, receipt number 0541−20434054), filed. (Cooper, Charles) (Entered: 07/10/2018)
435 Opposed MOTION to Stay Pending Appeal by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 7/31/2018. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Entered: 07/10/2018)
436 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 435 Opposed MOTION to Stay Pending Appeal, 434 Notice of Appeal,. Fee status: Paid. Reporter(s): B. Slavin; G. Dye; H. Alcaraz; K. Miller; M. Malone, filed. (Attachments: # 1 Notice of Appeal) (mperez, 1) (Entered: 07/11/2018)
Appeal Review Notes re: 434 Notice of Appeal,. Fee status: Paid. The appeal filing fee has been paid or an ifp motion has been granted.Hearings were held in the case. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal. Number of DKT−13 Forms expected: 4, filed.(mperez, 1) (Entered: 07/11/2018)
438 ORDER entered: The Fourteen Judges of Harris County Criminal Courts at Law move to stay several sections of the courts revised preliminary injunction order pending appeal. (Docket Entry Nos. 427, 434, 435). The plaintiffs oppose the relief sought. (Docket Entry No. 435 at 5 n.1). The County Judges ask that their motion be considered on an expedited basis. Id. at 5. The court agrees that expedited consideration is proper. The plaintiffs must file a response to the stay motion by Monday, July 16, 2018 at 5:00 p.m. CST. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/11/2018)
439 STATEMENT of Harris County and the Hearing Officers' Request for Clarification re: 427 Preliminary Injunction by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 07/11/2018)
440 RESPONSE to 439 Statement, of Harris County and the Hearing Officers Requesting Clarification, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 07/12/2018)
441 REPLY to 439 Statement, Request for Clarification, filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (David, Katharine) (Entered: 07/13/2018)
442 MOTION for Appointment of Mediator by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Ed (Sheriff) Gonzalez, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, William E. Johnson, Darrell William Jordan, Jay Karahan, Joseph Licata III, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. Motion Docket Date 8/3/2018. (David, Katharine) (Entered: 07/13/2018)
443 ORDER OF CLARIFICATION entered. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/13/2018)
444 NOTICE of Setting. Parties notified. Telephone Conference set for 7/16/2018 at 11:30 AM by telephone before Chief Judge Lee H Rosenthal, filed. Counsel is advised to call 713−250−5550 to participate in the call. (leddins, 4) (Entered: 07/13/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 65 of 83

07/16/2018 07/16/2018 07/16/2018
07/19/2018
07/19/2018 07/19/2018 07/19/2018 07/20/2018 07/20/2018 07/23/2018 07/23/2018
07/24/2018

445 RESPONSE in Opposition to 442 MOTION for Appointment of Mediator, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Gervais, Michael) (Entered: 07/16/2018)
446 RESPONSE in Opposition to 435 Opposed MOTION to Stay Pending Appeal, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 07/16/2018)
447 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Telephone conference held on July 16, 2018. The court heard argument on the defendants' motion to appoint a mediator. The court deferred ruling on the motion, to give the defendants time to finish preparing a settlement proposal that all the defendants are able to accept. The court will order mediation when the defendants have an agreed and specific settlement proposal. The defendants must submit a status report by the end of today indicating whether they have an agreed settlement proposal. The defendants must also submit status reports on Wednesday and Friday, and every two days thereafter, indicating whether they have reached, or are continuing to work toward, a settlement proposal to present to the plaintiffs. The plaintiffs have no opposition to the three mediators suggested by the defendants, but counsel for the plaintiffs may propose up to three different potential mediators byTuesday, July 17, at 12:00 p.m. Appearances: Michael W Kirk, Bruce Stephen Powers, Susanne Ashley Pringle, Neal S Manne, Elizabeth Anne Rossi, Alec Karakatsanis, Victoria Lynn Jimenez, Philip James Morgan, Katharine Davenport David, George Allan Van Fleet, Michael Gervais.(Court Reporter: F. Warner), filed.(leddins, 4) (Entered: 07/17/2018)
448 NOTICE TO ALL COUNSEL: The defendants have informed the court that all but Judge Fields have reached an agreement on a written settlement proposal to present to the plaintiffs. The court appreciates the efforts and the progress the defendants report. The court will continue to defer ordering mediation until all of the defendants agree on a proposal. If the defendants reach agreement, the court will order mediation before Marc Hill, Esq. The court directs all counsel to promptly coordinate contacting Mr. Hill and verifying that he is available and able to conduct the mediation in the next weeks. Again, the court appreciates the parties cooperative and responsive work.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/19/2018)
449 STATEMENT by Ed (Sheriff) Gonzalez, filed.(Jimenez, Victoria) (Entered: 07/19/2018)
450 STATEMENT re status of settlement discussions by Darrell William Jordan, filed.(Van Fleet, George) (Entered: 07/19/2018)
Notice of Assignment of USCA No. 18−20466 re: 434 Notice of Appeal, filed.(mperez, 1) (Entered: 07/19/2018)
451 NOTICE OF DESIGNATION OF LEAD COUNSEL FOR DEFENDANTS COUNTY CRIMINAL COURT AT LAW JUDGES 1−13 AND 15 by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Larry Standley, Analia Wilkerson, filed. (Falk, Sheryl) (Entered: 07/20/2018)
452 STATEMENT by Ed (Sheriff) Gonzalez, filed.(Jimenez, Victoria) (Entered: 07/20/2018)
453 NOTICE TO ALL COUNSEL OF RECORD entered. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/23/2018)
454 DKT13 TRANSCRIPT ORDER REQUEST by Charles J. Cooper. Transcript is already on file in Clerks office regarding Preliminary Injunction Hearing on 3/6−10/2017 before Judge Rosenthal; Preliminary Injunction Hearing on 3/21−23/2017 before Judge Rosenthal; Status Conference on 6/14/2018 before Judge Rosenthal. (No transcript is needed). Court Reporter/Transcriber: Kathleen Miller. This order form relates to the following: 434 Notice of Appeal,, filed.(Cooper, Charles) (Entered: 07/23/2018)
455 NOTICE of Compliance by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Mike Fields, Natalie C. Fleming, Paula Goodhart, Eric Stewart Hagstette, Bill Harmon, Margaret Harris, Harris County, Texas, Jean Hughes, Jay Karahan, Joseph

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 66 of 83

07/24/2018 07/27/2018 07/27/2018 07/27/2018 07/27/2018 07/27/2018
07/27/2018 07/29/2018 07/29/2018
08/01/2018 08/02/2018 08/03/2018

Licata III, Ronald Nicholas, Donald Smyth, Dan Spjut, Larry Standley, Blanca Estela Villagomez, Jill Wallace, Analia Wilkerson, filed. (David, Katharine) (Entered: 07/24/2018)
456 Mail Returned Undeliverable as to NAACP Legal Defense and Educational Fund, Inc. re: 427 Preliminary Injunction, filed. (dgonzalez, 5) (Entered: 07/25/2018)
457 MOTION for Clarification as to 427 Preliminary Injunction by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 8/17/2018. (Morgan, Philip) (Entered: 07/27/2018)
458 RESPONSE to 457 MOTION for Clarification as to 427 Preliminary Injunction filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 07/27/2018)
459 ORDER entered GRANTING 431 Unopposed MOTION for Leave to File Excess Pages.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/27/2018)
460 ORDER entered DENYING 442 MOTION for Appointment of Mediator.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/27/2018)
461 MEMORANDUM AND ORDER entered DENYING 435 Opposed MOTION to Stay Pending Appeal. The amended scheduling and docket control order, (Docket Entry No. 423), controls the summary judgment motions and merits trial deadlines. The Amended Preliminary Injunction Order, (Docket Entry No. 427), takes effect on Monday, July 30, 2018. The current preliminary injunction order, (Docket Entry No. 304), remains in effect until then.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/27/2018)
462 ORDER entered :Regarding 457 MOTION for Clarification as to 427 Preliminary Injunction : (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/27/2018)
463 MOTION for Clarification by Ed (Sheriff) Gonzalez, filed. Motion Docket Date 8/20/2018. (Jimenez, Victoria) (Entered: 07/29/2018)
464 ORDER entered regarding 463 MOTION for Clarification: The Sheriff asked the court to clarify whether, with the Fifth Circuit's temporary stay of Sections (7), (8), (9), and (16) of the Amended Preliminary Injunction Order, any misdemeanor arrestees must be released by the Sheriff on an unsecured bond. The answer is no. The original Preliminary Injunction Order will dissolve when the Amended Preliminary Injunction Order takes effect on July 30, 2018. Sections (1)(6), (10)(15), and (17)(18) do not require the Sheriff to release misdemeanor arrestees, either before a hearing and individual assessment or after 48 hours if a hearing and individual assessment are not provided. The Amended Preliminary Injunction Order does not, however, prohibit the Sheriff from releasing, or otherwise limit the Sheriffs authority to release, misdemeanor arrestees as appropriate under the law or any other rule, custom, or practice. The court appreciates the Sheriff's commitment to ensuring timely compliance with the court's Amended Preliminary Injunction Order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) Modified on 7/30/2018 (leddins, 4). Modified on 7/30/2018 (leddins, 4). (Entered: 07/29/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Charles Cooper, Sheryl Falk, Michael Gervais, Joseph Grinstein, Alec Karakatsanis, Michael Kirk, Neal Manne, William Marra, Alexandra White (Granted Access to 71, of 71 Volumes). Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 08/01/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Daniel Volchok. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 08/02/2018)
465 REPLY to Response to 400 MOTION for Partial Summary Judgment , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Exhibit A Statement of Undisputed Material Facts)(Gerstein, Charles) (Entered: 08/03/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 67 of 83

08/03/2018 08/08/2018 08/09/2018 08/09/2018 08/09/2018 08/09/2018 08/13/2018
08/14/2018 08/14/2018 08/15/2018
08/15/2018 08/15/2018 08/15/2018

466 REPLY to Response to 400 MOTION for Partial Summary Judgment , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Gerstein, Charles) (Entered: 08/03/2018)
467 NOTICE of Setting. Parties notified. Discovery Hearing set for 8/13/2018 at 10:00 AM by telephone before Chief Judge Lee H Rosenthal, filed. Counsel is directed to call the Court's conference line at 713−250−5550 to participate. (leddins, 4) (Entered: 08/08/2018)
468 MOTION for Brian W. Barnes to Appear Pro Hac Vice by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 8/30/2018. (Cooper, Charles) (Entered: 08/09/2018)
469 MOTION for Nicole J. Moss to Appear Pro Hac Vice by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 8/30/2018. (Cooper, Charles) (Entered: 08/09/2018)
470 ORDER granting 468 Motion for Brian Barnes to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) (Attachments: # 1 Exhibit) Parties notified.(kpicota, 4) (Entered: 08/10/2018)
471 ORDER granting 469 Motion for Nicole Moss to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(kpicota, 4) (Entered: 08/10/2018)
473 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Discovery hearing held on August 13, 2018. The court heard from the parties on their discovery disputes and resolved them, as stated in detail on the record. The parties will submit a proposed agreed order setting out the rulings no later than the close of business on August 15, 2018. The oral argument set for August 22, 2018 is cancelled, pending resolution of the Fifth Circuit appeal. The parties are aware that the court will promptly reset the hearing after the Fifth Circuit issues its ruling. Appearances: Michael W Kirk, Nicole Moss, Sheryl Anne Falk, Bruce Powers, Charles Gerstein, Elizabeth Anne Rossi, Philip Morgan, Michael Gervais.(Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 08/14/2018)
472 AO 435 TRANSCRIPT REQUEST by Corinne Stone for Transcript of Discovery Hearing held on 08/13/18 before Judge Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (Stone, Corinne) (Entered: 08/14/2018)
474 Order of USCA re: 434 Notice of Appeal, ; USCA No. 18−20466. This is a motion for stay pending appeal. We grant the stay, filed.(jtabares, 1) (Entered: 08/14/2018)
475 ORDER and NOTICE TO ALL COUNSEL OF RECORD: On August 14, 2018, the Fifth Circuit issued a ruling staying four sections of the Revised Amended Preliminary Injunction, pending the merits appeal of that injunction. The court seeks input from the parties about the current schedule and the impact of the pending appeal. The parties should submit a written statement no later than August 22, 2018 addressing the following issues: 1. whether the court can and should proceed with deciding the summary judgment motions while the current appeal is pending; and 2. whether the court can and should proceed with the permanent bench injunction trial while the current appeal is pending. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/15/2018)
476 NOTICE Concerning Stay Ruling by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Rossi, Elizabeth) (Entered: 08/15/2018)
477 NOTICE of Filing of Proposed Order by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 08/15/2018)
478 MOTION for Protective Order by Harris County, Texas, filed. Motion Docket Date 9/5/2018. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(David, Katharine) (Entered: 08/15/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 68 of 83

08/16/2018 08/18/2018 08/20/2018 08/20/2018 08/20/2018 08/22/2018 08/22/2018 08/22/2018 08/22/2018 08/22/2018 08/24/2018 08/24/2018
08/24/2018 08/30/2018 08/30/2018 09/04/2018

479 ORDER entered: Harris County moved for a protective order to quash the deposition of Harris County Commissioner Steve Radack. (Docket Entry No. 478). The plaintiffs must respond to the motion no later than August 22, 2018. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/16/2018)
480 TRANSCRIPT re: Discovery Hearing held on 8/13/2018 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber K. Metzger. Ordering Party Corinne Stone Release of Transcript Restriction set for 11/16/2018, filed. (kmetzger) (Entered: 08/18/2018)
481 AO 435 TRANSCRIPT REQUEST by Plaintiff/Alexandra White for Transcript of Discovery Hearing on 8/13/18 before Judge Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (White, Lexie) (Entered: 08/20/2018)
482 Notice of Filing of Official Transcript as to 480 Transcript. Party notified, filed. (hcarr, 4) (Entered: 08/20/2018)
483 ORDER entered regarding discovery issues addressed at 8/13/18 hearing. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/20/2018)
484 RESPONSE to 475 Order,, Statement of Judge Mike Fields in Response to Court's Order, filed by Mike Fields. (Powers, Bruce) (Entered: 08/22/2018)
485 RESPONSE to 475 Order,, , filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (David, Katharine) (Entered: 08/22/2018)
486 RESPONSE in Opposition to 478 MOTION for Protective Order, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Rossi, Elizabeth) (Entered: 08/22/2018)
487 RESPONSE to 475 Order,, , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 08/22/2018)
488 RESPONSE to 475 Order,, , filed by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson. (Cooper, Charles) (Entered: 08/22/2018)
489 REPLY in Support of 478 MOTION for Protective Order, filed by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace. (Attachments: # 1 Exhibit)(David, Katharine) (Entered: 08/24/2018)
490 ORDER entered regarding [Docket Entry No. 478]: The court grants the motion to the extent of at least deferring the deposition until the parties take the other scheduled depositions and depose County Commissioner Rodney Ellis. When that discovery is complete, the plaintiffs may ask for a premotion hearing on deposing Commissioner Radack if they believe that the other depositions do not provide sufficient relevant information.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/24/2018)
491 ORDER entered: A Scheduling and Status Conference is set for 9/6/2018 at 08:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/24/2018)
492 NOTICE TO ALL COUNSEL OF RECORD: The court has received counsel's correspondence on the issue of deposing the three named representative plaintiffs. The court will address the issue at the hearing already scheduled. for September 6, 2018 at 8:30 a.m. Parties notified.(leddins, 4) (Entered: 08/30/2018)
493 Order of USCA re: 434 Notice of Appeal, ; USCA No. 18−20466. the court has granted the motion to supplement the record, filed. (Attachments: # 1 Motion)(dnoriega, 1) (Entered: 08/30/2018)
499 Weekly Report Submitted by Harris County as Required under Section 10 of the Amended Preliminary Injunction by Harris County, Texas filed.(rguerrero, 4) (Entered: 09/20/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 69 of 83

09/06/2018 09/06/2018 09/06/2018
09/07/2018 09/07/2018 09/11/2018 09/14/2018 09/14/2018 09/18/2018 09/18/2018 09/19/2018 09/20/2018 09/25/2018

494 AO 435 TRANSCRIPT REQUEST by Defendants County Criminal Court at Law Judges 1−13, 15/Robert L. Green for Transcript of Scheduling & Status Conference held on 09/06/18 before Judge Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Johnny Sanchez, filed. (Green, Robert) (Entered: 09/06/2018)
495 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Scheduling & Status Hearing of 9/6/2018, Judge Lee H. Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Johnny Sanchez, filed. (White, Lexie) (Entered: 09/06/2018)
496 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Hearing held on September 6, 2018. The court heard argument on the parties' discovery dispute, the scope of discovery, and, in light of the merits appeal pending in the Fifth Circuit, when to rule on the parties' motions for summary judgment and to hold the bench trial on the permanent injunction. The court decided to delay rulings pending resolution of the appeal, but to allow the deposition discovery already set and the written discovery to continue, to allow the parties and court to be prepared to move expeditiously when the appeal is decided. The court heard the discovery disputes and ordered that discovery could be conducted on (1) Harris County's reporting requirements under Section 10 of the Amended Preliminary Injunction; and (2) Harris County bail procedures in place from the time of the plaintiffs' arrest to the present. The parties may proceed with scheduled depositions. The parties must advise the court of specific objections to written discovery. The court ordered Harris County to comply with the additional reporting requirements provided on the record no later than October 8, 2018. The court resolved the discovery dispute as stated on the record. Appearances: Michael W Kirk, William C Marra, Nicole Moss, Sheryl Anne Falk, Robert Lawrence Green, III, Bruce Stephen Powers, Neal S Manne, Elizabeth Anne Rossi, Alec Karakatsanis, Victoria Lynn Jimenez, Katharine Davenport David, George Allan Van Fleet, Michael Gervais.(Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 09/13/2018)
Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 434 Notice of Appeal, USCA No. 18−20466, filed.(scastillo, 1) (Entered: 09/07/2018)
Electronic Access to Supplemental Record on Appeal Provided re: 434 Notice of Appeal, to Charles Cooper, Sheryl Falk, Michael Gervais, Joseph Grinstein, Alec Karakatsanis, Michael Kirk, Neal Manne, William Marra, Daniel Volchok, Alexandra White. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(scastillo, 1) (Entered: 09/07/2018)
500 Weekly Report Submitted by Harris County as Required under Section 10 of the Amended Preliminary Injunction.(rguerrero, 4) (Entered: 09/20/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Aprit Kumar Garg. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 09/14/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Seth Paul Waxman. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 09/14/2018)
497 NOTICE of Setting. Parties notified. Discovery Hearing set for 10/1/2018 at 10:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 09/18/2018)
501 Weekly Report Submitted by Harris County as Required under Section 10 of the Amended Preliminary Injunction.(rguerrero, 4) (Entered: 09/20/2018)
498 ORDER regarding updated reporting requirements entered.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 09/19/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Joseph David Hughes. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 09/20/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Elizabeth Murrill. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 09/25/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 70 of 83

09/25/2018 09/25/2018 09/26/2018
09/27/2018
09/27/2018 09/28/2018 09/29/2018 09/29/2018 10/01/2018 10/01/2018
10/01/2018 10/02/2018 10/03/2018 10/08/2018 10/09/2018 10/15/2018 10/16/2018

502 RESPONSE to 498 Order , filed by Harris County, Texas. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(David, Katharine) (Entered: 09/25/2018)
503 STATUS REPORT by Harris County, Texas, Joseph Licata III, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 09/25/2018)
504 RESPONSE to 498 Order , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Exhibit 1 (Gaut Deposition Part 1, 9/7/18), # 2 Exhibit 2 (Gaut Deposition Part 2, 9/13/18))(Rossi, Elizabeth) (Entered: 09/26/2018)
505 Opposed MOTION to Seal Weekly Reports by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. Motion Docket Date 10/18/2018. (Attachments: # 1 Exhibit Email C. Washington to L. Eddins)(David, Katharine) (Entered: 09/27/2018)
507 ORDER Re: Plaintiff's report. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 09/28/2018)
506 NOTICE of New Authority by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. (David, Katharine) (Entered: 09/28/2018)
508 RESPONSE in Opposition to 505 Opposed MOTION to Seal Weekly Reports, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 09/29/2018)
509 RESPONSE to 506 Notice (Other) , filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Rossi, Elizabeth) (Entered: 09/29/2018)
510 AO 435 TRANSCRIPT REQUEST by Harris County/Kate David for Transcript of Hearing on 10/1/18 before Judge Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (David, Katharine) (Entered: 10/01/2018)
513 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Hearing held on October 1, 2018. The court denied Harris Countys motion to seal documents, (Docket Entry No. 505), for the reasons stated in detail on the record. The court denied the defendants' request to redact the weekly reports required under Section (10) of the amended preliminary injunction, (Docket Entry No. 427), for the reasons stated in detail on the record. The court resolved the discovery disputes as stated on the record. Appearances: Nicole Moss, Sheryl Falk, Robert Green, III, Bruce Powers, Elizabeth Rossi, Victoria Jimenez, Philip Morgan, Katharine David and Corinne Stone.(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 10/03/2018)
514 Hearing EXHIBITS List of Court re: 513 Discovery Hearing (rguerrero, 4) (Entered: 10/03/2018)
511 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Hearing, 10/1/2018, Hon. Lee Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (White, Lexie) (Entered: 10/02/2018)
512 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 10/03/2018)
515 STATUS REPORT by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit)(Rossi, Elizabeth) (Entered: 10/08/2018)
516 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 10/09/2018)
517 Joint MOTION to Amend 363 Order by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 11/5/2018. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Rossi, Elizabeth) (Entered: 10/15/2018)
518 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 71 of 83

10/22/2018 10/23/2018 10/26/2018 10/29/2018
10/29/2018
10/29/2018 10/30/2018 11/06/2018 11/06/2018 11/06/2018 11/06/2018 11/09/2018 11/09/2018 11/09/2018 11/13/2018

(Entered: 10/16/2018)
519 ORDER granting 517 Joint MOTION to Amend 363 Order.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 10/22/2018)
520 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 10/23/2018)
521 NOTICE of Setting. Parties notified. Discovery Hearing set for 10/30/2018 at 03:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 10/26/2018)
522 MOTION to Postpone Discovery Hearing Set for October 30, 2018 by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 11/19/2018. (Kirk, Michael) (Entered: 10/29/2018)
523 RESPONSE in Opposition to 522 MOTION to Postpone Discovery Hearing Set for October 30, 2018, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Attachments: # 1 Appendix Plaintiffs' Response to Harris County's Pre−Motion Letter, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 5A, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19)(Rossi, Elizabeth) (Entered: 10/29/2018)
524 ORDER granting 522 MOTION to Postpone Discovery Hearing Set for October 30, 2018 ( Discovery Hearing re−set for 11/13/2018 at 08:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal)(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 10/29/2018)
525 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 10/30/2018)
526 NOTICE of Change of Address by Kate David, Mike Stafford, Philip Morgan, Ben Stephens, counsel for Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed. (David, Katharine) (Entered: 11/06/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Jared Brandon Caplan. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 11/06/2018)
Electronic Access to Record on Appeal Provided re: 434 Notice of Appeal, to Jonathan Lee Marcus. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−20466), filed.(dbenavides, 1) (Entered: 11/06/2018)
527 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 11/06/2018)
528 TRANSCRIPT re: Hearing held on October 1, 2018 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party Kate David Release of Transcript Restriction set for 2/7/2019., filed. (kmiller, ) (Entered: 11/09/2018)
529 Opposed MOTION to Stay New Discovery Pending Investiture of Newly Elected Officials by Harris County, Texas, filed. Motion Docket Date 11/30/2018. (David, Katharine) (Entered: 11/09/2018)
530 NOTICE of Change of Address by Michael Gervais, counsel for Maranda Lynn ODonnell, filed. (Gervais, Michael) (Entered: 11/09/2018)
531 Notice of Filing of Official Transcript as to 528 Transcript. Party notified, filed. (jdav, 4) (Entered: 11/13/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 72 of 83

11/13/2018
11/13/2018 11/14/2018 11/14/2018 11/15/2018 11/15/2018 11/16/2018 11/19/2018 11/20/2018
11/20/2018 11/28/2018 12/04/2018 12/11/2018 12/20/2018

532 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Hearing held on November 13, 2018. The court heard argument from counsel on the defendants' motion to stay the case until February 1, 2019. The plaintiffs agreed to defer their discovery requests pending settlement negotiations. Because nothing else is scheduled between now and January 2019, the formal stay request is moot. The parties will negotiate to attempt a resolution, advising the court if a mediator is appropriate and should be appointed. The parties must submit a proposed order by the end of the day on Thursday, November 15, 2018, as stated on the record. The court will hold a hearing on February 1, 2019 at 8:30 a.m. Appearances: Michael W Kirk, Nicole Moss, Sheryl Anne Falk, Robert Lawrence Green, III, Susanne Ashley Pringle, Neal S Manne, Charles Lewis Gerstein, Elizabeth Anne Rossi, Alec Karakatsanis, Victoria Lynn Jimenez, Philip James Morgan, Katharine Davenport David, George Allan Van Fleet.(Court Reporter: M. Malone), filed.(leddins, 4) (Entered: 11/13/2018)
533 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 11/13/2018)
534 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Discovery Hearing, November 13, 2018, Hon. Judge Lee H. Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Mayra Malone, filed. (White, Lexie) (Entered: 11/14/2018)
535 AO 435 TRANSCRIPT REQUEST by Philip Morgan for Transcript of Discovery Hearing − Judge Rosenthal − November 13, 2018. 14−Day turnaround requested. Court Reporter/Transcriber: Mayra Malone, filed. (David, Katharine) (Entered: 11/14/2018)
536 Unopposed MOTION for Entry of Order re: Agreed Discovery Order by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 12/6/2018. (Attachments: # 1 Exhibit A − Agreed Discovery Order)(Gervais, Michael) (Entered: 11/15/2018)
539 ORDER Granting 536 Motion for Agreed Discovery Order..(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 11/19/2018)
537 TRANSCRIPT re: Discovery Hearing held on November 13, 2018 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Mayra Malone. Ordering Party Alexandra White Release of Transcript Restriction set for 2/14/2019., filed. (mmalone, ) (Entered: 11/16/2018)
538 Notice of Filing of Official Transcript as to 537 Transcript. Party notified, filed. (hcarr, 4) (Entered: 11/19/2018)
540 ORDER entered: The court denies the parties' motions for summary judgment, (Docket Entry Nos. 400, 429, 430, 432), without prejudice and with the right to reargue as appropriate, after the February 1, 2019, hearing, in light of the status of the case at that point. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 11/20/2018)
541 STATUS REPORT by Harris County, Texas, filed.(David, Katharine) (Entered: 11/20/2018)
542 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 11/28/2018)
543 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 12/04/2018)
544 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 12/11/2018)
545 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 12/20/2018)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 73 of 83

12/24/2018 01/01/2019 01/02/2019
01/02/2019
01/03/2019
01/07/2019 01/08/2019 01/09/2019 01/14/2019 01/18/2019 01/23/2019 01/25/2019
01/28/2019 01/28/2019

546 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 12/24/2018)
547 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 01/01/2019)
548 NOTICE of Appearance by George Allan Van Fleet; Mark A. Correro on behalf of Alex Salgado, Ronnisha Bowman, Erica Hughes, Shannon Baldwin, David Fleischer, Kelley Andrews, Andrew Wright, Franklin Bynum, Toria J. Finch, Lee Harper Wilson, Sedrick T. Walker, II, Cassandra Y. Holleman, Raul Rodriguez, David Springer, Tonya Jones, filed. (Van Fleet, George) (Entered: 01/02/2019)
549 MOTION for Sheryl A. Falk, John R. Keville, Robert L. Green, Corinne Stone, and the law firm of Winston & Strawn LLP; and Charles J. Cooper, Michael W. Kirk, Brian W. Barnes, Nicole J. Moss, William C. Marra, and the law firm of Cooper & Kirk, PLLC to Withdraw as Attorney by Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley, Analia Wilkerson, filed. Motion Docket Date 1/23/2019. (Attachments: # 1 Proposed Order)(Falk, Sheryl) (Entered: 01/02/2019)
550 ORDER granting 549 Motion to Withdraw as Attorney. Attorney Charles J Cooper; Sheryl Anne Falk; Robert Lawrence Green, III; John R Keville; Michael W Kirk; William C Marra; Nicole Moss; Corinne Stone; Brian W Barnes and Paul D Clement terminated.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(kpicota, 4) (Entered: 01/03/2019)
551 Order of USCA re: 434 Notice of Appeal, ; USCA No. 18−20466. The appeal is dismissed as of January 7, 2019 pursuant to appellants' motion, filed.(dbenavides, 1) (Entered: 01/07/2019)
552 NOTICE of Resetting. Parties notified. Miscellaneous Hearing reset for 2/1/2019 at 02:30 PM at Courtroom 11B before Chief Judge Lee H Rosenthal, filed. NOTE: The change is to TIME only. Hearing reset from 8:30 to the afternoon. (leddins, 4) (Entered: 01/08/2019)
553 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 01/09/2019)
554 Order of USCA − −PER CURIAM − re: 434 Notice of Appeal; USCA No. 18−20466. The motion to vacate the opinion granting the stay is DENIED, filed. (rnieto, 1) (Entered: 01/15/2019)
555 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 01/18/2019)
556 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 01/23/2019)
557 NOTICE Jointly Filed Notice and Explanation of New Local Rule by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 1 − Amended Local Rule 9.1, # 2 Exhibit 2 − Brief Explaining Amended Local Rule 9.1, # 3 Exhibit 3 − Redline reflecting nonsubstantive edits to LR 9.1)(Rossi, Elizabeth) (Entered: 01/25/2019)
558 NOTICE of Appearance by Murray Fogler on behalf of Ed (Sheriff) Gonzalez, filed. (Fogler, Murray) (Entered: 01/28/2019)
559 NOTICE of Resetting. Parties notified. Discovery Hearing reset for 2/1/2019 at 04:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. NOTE: Reset is based on this Court's trial docket and is to TIME only. (leddins, 4) (Entered: 01/28/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 74 of 83

01/29/2019 01/30/2019 02/01/2019 02/01/2019
02/08/2019 02/12/2019 02/12/2019 02/13/2019 02/14/2019 02/19/2019 02/26/2019 03/04/2019 03/04/2019 03/05/2019 03/06/2019 03/07/2019

560 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 01/29/2019)
561 Unopposed MOTION for Bruce S. Powers to Withdraw as Attorney by Mike Fields, filed. Motion Docket Date 2/20/2019. (Attachments: # 1 Proposed Order)(Powers, Bruce) (Entered: 01/30/2019)
562 ORDER granting 561 Motion to Withdraw as Attorney. Attorney Bruce Stephen Powers terminated.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 02/01/2019)
563 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on February 1, 2019. The court reviewed the amended local rule submitted by the parties on January 25, 2019, and the parties informed the court that they are actively pursuing settlement negotiations. The parties will appear for a status conference on March 8, 2019, at 9:00 a.m. Appearances: Allan Van Fleet, Susanne Pringle, Lexie White, Neal S Manne, Charles Gerstein, Elizabeth Rossi, Alec Karakatsanis, Murray Fogler, Philip Morgan, Katharine David, Melissa Spinks, Mark Correro, Michael Gervais.(Court Reporter: B. Slavin), filed.(leddins, 4) Modified on 2/13/2019 (leddins, 4). (Entered: 02/04/2019)
564 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 02/08/2019)
565 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of 2/1/2019 Judge Rosenthal. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Bruce Slavin, filed. (White, Lexie) (Entered: 02/12/2019)
566 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 02/12/2019)
567 TRANSCRIPT re: Status Conference held on 2−1−19 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber B. Slavin. Ordering Party Defendant Harris County Release of Transcript Restriction set for 5/14/2019., filed. (bslavin, ) (Entered: 02/13/2019)
568 Notice of Filing of Official Transcript as to 567 Transcript. Party notified, filed. (hcarr, 4) (Entered: 02/14/2019)
569 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 02/19/2019)
570 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 02/26/2019)
571 NOTICE Notice of Substitution by Genesis Draper, filed. (Van Fleet, George) (Entered: 03/04/2019)
574 Request for Joinder as Plaintiff by Andre Gaskin, filed. Motion Docket Date 3/25/2019. (SarahShelby, 4) (Entered: 03/06/2019)
572 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 03/05/2019)
573 Joint MOTION Joint Motion for Entry of Proposed Order by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 3/27/2019. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 03/06/2019)
575 ORDER entered GRANTING 573 Joint MOTION Joint Motion for Entry of Proposed Order. Status conference reset to 3/27/19 at 9:00 am.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/07/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 75 of 83

03/07/2019 03/08/2019 03/13/2019 03/24/2019 03/25/2019 03/25/2019
03/26/2019 04/02/2019 04/03/2019 04/08/2019
04/08/2019 04/09/2019 04/09/2019 04/12/2019
04/16/2019 04/16/2019
04/17/2019

***Set/Reset Hearings: Status Conference reset for 3/27/2019 at 09:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal (leddins, 4) (Entered: 03/07/2019)
576 ORDER denying 574 Motion for Joinder as plaintiff. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(gclair, 4) (Entered: 03/08/2019)
577 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 03/13/2019)
578 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 03/24/2019)
579 Joint MOTION for Continuance of Status Conference Scheduled for March 27, 2019 at 9 a.m. by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 4/15/2019. (Rossi, Elizabeth) (Entered: 03/25/2019)
580 ORDER entered: The parties have jointly moved to postpone the March 27, 2019, status conference. (Docket Entry No. 579). The motion is granted. The hearing is reset for April 16, 2019, at 2:00 p.m. No further continuance of the status conference will be granted.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/25/2019)
581 STATUS REPORT by Eric Stewart Hagstette, Harris County, Texas, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, Jill Wallace, filed.(David, Katharine) (Entered: 03/26/2019)
582 Joint MOTION Motion to Dismiss Defendant Hearing Officers by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 4/23/2019. (Rossi, Elizabeth) (Entered: 04/02/2019)
583 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 04/03/2019)
584 Unopposed MOTION for Katharine David, Mike Stafford & Philip Morgan of Husch Blackwell to Withdraw as Attorney by Harris County, Texas, filed. Motion Docket Date 4/29/2019. (Attachments: # 1 Proposed Order)(Morgan, Philip) (Entered: 04/08/2019)
587 ORDER granting 582 Motion to dismiss defendant hearing officers.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 04/10/2019)
585 AO 435 TRANSCRIPT REQUEST by Mike Stafford for Transcript of Hearing held on 02/01/2019. Hourly turnaround requested. Court Reporter/Transcriber: Bruce Slavin, filed. (Stafford, Michael) (Entered: 04/09/2019)
586 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 04/09/2019)
588 ORDER Granting 584 Motion to Withdraw as Attorney. Attorney Michael A Stafford; Katharine Davenport David and Philip James Morgan terminated. Melissa Spinks is designated as Attorney In Charge for Deft. Harris County, Texas..(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 04/15/2019)
589 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 04/16/2019)
590 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on April 16, 2019. The parties must appear for a status conference on June 12, 2019, at 8:30 a.m., if the case has not been settled by that date. Appearances: Neal Manne/Elizabeth Rossi/Alec Karakatsanis/Joseph Grinstein for Pltfs. and Allan Van Fleet/ Murray Fogler/Victoria Jimenez/Melissa Spinks for Defts.(Court Reporter: B. Slavin), filed.(leddins, 4) (Entered: 04/17/2019)
594 ORDER Status Conference set for 6/12/2019 at 08:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal. If the case settles before that date, the parties must schedule a hearing to present the settlement agreement to the court. (Signed by Chief

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 76 of 83

04/18/2019 04/18/2019
04/18/2019 04/19/2019 04/24/2019 05/01/2019
05/01/2019 05/02/2019 05/07/2019 05/14/2019 05/22/2019 05/28/2019 06/04/2019 06/07/2019 06/07/2019
06/11/2019 06/18/2019 06/26/2019 07/02/2019

Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 04/19/2019)
591 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Status Conference, 04/16/2019, Hon. Lee H. Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Bruce Slavin, filed. (White, Lexie) (Entered: 04/18/2019)
592 AO 435 TRANSCRIPT REQUEST by Melissa Spinks for Transcript of Status Conference, 04/16/2019, Judge Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Bruce Slavin, filed. (Spinks, Melissa) (Entered: 04/18/2019)
593 TRANSCRIPT re: Status Conference held on 4−16−19 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber B. Slavin. Ordering Party Plaintiffs Release of Transcript Restriction set for 7/17/2019., filed. (bslavin, ) (Entered: 04/18/2019)
595 Notice of Filing of Official Transcript as to 593 Transcript. Party notified, filed. (mmapps, 4) (Entered: 04/19/2019)
596 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 04/24/2019)
597 MOTION for Susanne A Pringle to Withdraw as Attorney by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 5/22/2019. (Attachments: # 1 Proposed Order)(Pringle, Susanne) (Entered: 05/01/2019)
598 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 05/01/2019)
599 ORDER granting 597 Motion to Withdraw as Attorney. Attorney Susanne Ashley Pringle terminated.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 05/03/2019)
600 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 05/07/2019)
601 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 05/14/2019)
602 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 05/22/2019)
603 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 05/28/2019)
604 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 06/04/2019)
605 Unopposed MOTION to Reset Status Conference by Harris County, Texas, filed. Motion Docket Date 6/28/2019. (Attachments: # 1 Proposed Order)(Spinks, Melissa) (Entered: 06/07/2019)
606 ORDER entered GRANTING 605 Unopposed MOTION to Reset Status Conference. Status Conference reset for 7/25/2019 at 09:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal. No further extensions will be granted. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 06/07/2019)
607 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 06/11/2019)
608 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 06/18/2019)
609 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 06/26/2019)
610 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 07/02/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 77 of 83

07/11/2019 07/15/2019 07/17/2019 07/23/2019 07/25/2019
07/30/2019 08/01/2019
08/01/2019
08/05/2019 08/06/2019 08/07/2019 08/08/2019 08/08/2019

611 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 07/11/2019)
612 NOTICE of Resetting. Parties notified. Status Conference reset for 7/25/2019 at 11:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. NOTE: The change is to TIME only. (leddins, 4) (Entered: 07/15/2019)
613 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 07/17/2019)
614 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 07/23/2019)
615 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on July 25, 2019. The parties must file the proposed consent decree and the motion to approve the settlement agreement no later than August 1, 2019. The parties must promptly submit a joint statement as to the Commissioners Court's decision no later than August 2, 2019. The court will hold a fairness hearing on August 21, 2019, at 9:00 a.m. Appearances: Neal Manne/Elizabeth Rossi for Plfs. and Murray Fogler/Victoria Jimenez/ George Van Fleet/Melissa Spinks/David Mitcham for Defts.(Court Reporter: N. Forrest), filed.(leddins, 4) (Entered: 07/25/2019)
616 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 07/30/2019)
617 Joint MOTION Joint Motion and Memorandum in Support of Joint Motion for Preliminary Approval of Proposed Consent Decree and Settlement Agreement and for Approval of Class Notice by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 8/22/2019. (Attachments: # 1 Exhibit 1 − Proposed Consent Decree, # 2 Exhibit 2 − Proposed Settlement Agreement, # 3 Exhibit 3 − Proposed Notice, # 4 Exhibit 4 − Email from Sheriff's Counsel to Plaintiffs' Counsel, # 5 Exhibit 5 − Declaration of Craig Smyser, # 6 Exhibit 6 − Declaration of Alec Karakatsanis, # 7 Exhibit 7 − Declaration of Neal Manne, # 8 Exhibit 8 − Declaration of Daniel Volchok, # 9 Exhibit 9 − Declaration of Emily Gerrick, # 10 Proposed Order)(Rossi, Elizabeth) (Entered: 08/01/2019)
618 Unopposed MOTION for Attorney Fees by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 8/22/2019. (Attachments: # 1 Exhibit 1 − Proposed Settlement Agreement, # 2 Exhibit 2 − Declaration of Alec Karakatsanis, # 3 Exhibit 3 − Declaration of Emily Gerrick, # 4 Exhibit 4 − Declaration of Daniel Volchok, # 5 Exhibit 5 − Declaration of Neal Manne, # 6 Exhibit 6 − Declaration of Craig Smyser, # 7 Proposed Order)(Rossi, Elizabeth) (Entered: 08/01/2019)
619 ORDER entered regarding Fairness hearing requirements. Fairness Hearing set for 8/21/19 at 9:00 am.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/05/2019)
620 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 08/06/2019)
621 NOTICE of Setting. Parties notified. Telephone Conference set for 8/8/2019 at 11:00 AM by telephone before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 08/07/2019)
622 AO 435 TRANSCRIPT REQUEST by Melissa Spinks for Transcript of Telephone Conference Setting on 8/8/19 before Judge Rosenthal. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Laura Wells, filed. (Spinks, Melissa) (Entered: 08/08/2019)
623 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on August 8, 2019. The fairness hearing set for August 21, 2019, is reset to September 19, 2019, at 9:00 a.m. Opposition to the joint motion for preliminary approval of the settlement agreement and the consent decree must be submitted no later than August 22, 2019. Notice of the fairness hearing must be sent to class no earlier than August 23, 2019, and no later than August 29, 2019. Appearances: Neal Manne/Elizabeth Rossi/Alec Karakatsanis for Pltfs. and Murray Fogler/ Victoria Jimenez/Melissa Spinks for Defts.(Court Reporter: L. Wells), filed.(leddins, 4)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 78 of 83

08/08/2019
08/09/2019
08/12/2019 08/14/2019 08/20/2019 08/20/2019 08/20/2019 08/21/2019 08/21/2019 08/21/2019 08/22/2019 08/22/2019
08/22/2019 08/22/2019 08/22/2019 08/22/2019 08/22/2019

(Entered: 08/08/2019)
624 ORDER entered: On August 1, 2019, the parties filed a joint motion for preliminary approval of the proposed consent decree and settlement agreement and for approval of class notice. (Docket Entry No. 617). Any opposition to the motion must be submitted no later than August 22, 2019. Notice of the final fairness hearing will be sent to the class on August 29, 2019. See FED. R. CIV. P. 23(e)(1). The fairness hearing set for August 21, 2019, is reset to September 19, 2019, at 9:00 a.m. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/08/2019)
625 TRANSCRIPT re: Conference in Chambers held on August 8, 2019 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Laura Wells. Ordering Party Ms. Melissa Spinks Release of Transcript Restriction set for 11/7/2019., filed. (lwells, ) (Entered: 08/09/2019)
626 Notice of Filing of Official Transcript as to 625 Transcript. Party notified, filed. (dhansen, 4) (Entered: 08/12/2019)
627 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 08/14/2019)
628 NOTICE of Appearance by Fred A. Keys, Jr. on behalf of Steve Radack, filed. (Keys, Fred) (Entered: 08/20/2019)
629 MOTION for Leave to File Brief for Amici Curiae by J. Marcus Hill, filed. Motion Docket Date 9/10/2019. (Hill, J) (Entered: 08/20/2019)
630 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 08/20/2019)
631 MOTION for Leave to File amicus brief by Professional Bondsmen of Harris County (Amici Curiae), filed. Motion Docket Date 9/11/2019. (Attachments: # 1 Proposed Order, # 2 Exhibit A (amicus brief))(Pennell, Kevin) (Entered: 08/21/2019)
632 ORDER entered GRANTING 629 MOTION for Leave to File Brief for Amici Curiae.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/21/2019)
633 ORDER entered GRANTING 631 MOTION for Leave to File amicus brief.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/21/2019)
634 MOTION for Leave to File Amicus Curiae Brief by Steve Radack, filed. Motion Docket Date 9/12/2019. (Attachments: # 1 Appendix Amicus Brief, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Keys, Fred) (Entered: 08/22/2019)
635 Unopposed MOTION for Leave to File Amicas Curiae Brief by EQUAL JUSTICE NOW, filed. Motion Docket Date 9/12/2019. (Attachments: # 1 Exhibit Amicus Brief, # 2 Proposed Order Granting Motion for Leave)(Magenheim, Alan) (Entered: 08/22/2019)
636 LETTER REGARDING PROPOSED SETTLEMENT filed by Crime Stoppers of Houston Inc. (leddins, 4) (Entered: 08/22/2019)
637 STATEMENT Regarding Proposed Consent Decree by Josh Bruegger, filed.(hlerma, 4) (Entered: 08/22/2019)
638 MOTION for Leave to File Brief for Amicus Curiae by R. Jack Cagle, filed. Motion Docket Date 9/12/2019. (Lanier, W) (Entered: 08/22/2019)
639 MOTION for Leave to File Amicus Curiae Brief in Opposition to Proposed Consent Decree by Harris County Domestic Violence, filed. Motion Docket Date 9/12/2019. (Attachments: # 1 Proposed Order)(hlerma, 4) (Entered: 08/22/2019)
640 Opposed MOTION for Extension of Time to File Amicus Curiae Briefing by Houston Area Police Chiefs Association, Texas School District Police Chief's Association, filed. Motion Docket Date 9/12/2019. (Attachments: # 1 Proposed Order Proposed Order)(Stoger, Jonathan) (Entered: 08/22/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 79 of 83

08/22/2019 08/23/2019 08/23/2019
08/24/2019
08/27/2019 08/29/2019 08/30/2019 08/30/2019 08/30/2019 09/03/2019 09/05/2019
09/05/2019

641 MOTION for Leave to File Amicus Curiae Brief by Kim Ogg, filed. Motion Docket Date 9/12/2019. (Attachments: # 1 Amicus Curiae Brief, # 2 Proposed Order)(Durfee, Scott) (Entered: 08/22/2019)
642 ORDER entered: If the parties moving for preliminary approval wish to file a response to the objections that have been filed, they may do so if the response is filed with the court by 5:00 p.m. Central Time on Sunday, August 25, 2019. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/23/2019)
643 ORDER entered: Harris County Commissioner Steve Radack, Equal Justice Now, Harris County Commissioner R. Jack Cagle, the Harris County Domestic Violence Coordinating Council, and Harris County District Attorney Kim Ogg moved for leave to file amicus briefs regarding the proposed consent decree and settlement agreement. (Docket Entry Nos. 634, 635, 638, 639, 641). The motions to file briefs are granted.The Houston Area Police Chiefs Association and the Texas School District Police Chief's Association moved for an extension of time, until September 2, 2019, to file amicus briefs. (Docket Entry No. 640). The court grants the two associations leave to file by September 2 for consideration in connection with the final fairness hearing. This extension will not delay resolution of the joint motion for preliminary approval of the proposed consent decree and settlement agreement and for approval of class notice. (Docket Entry No. 617). (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/23/2019)
644 ORDER entered: The fairness hearing set for September 19, 2019 is reset to October 2, 2019 at 9:00 a.m. The parties have until August 30, 2019 to respond to the amicus briefs. If the court grants the joint motion for preliminary approval, (Docket Entry No. 617), notice of the final fairness hearing must be sent to the class by September 6, 2019; objections must be filed with the court by September 25, 2019; and the parties must move for final approval by September 30, 2019. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 08/24/2019)
645 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 08/27/2019)
646 MOTION for Leave to File Amicus Curiae Brief by Houston Area Police Chiefs Association, Texas School District Police Chief's Association, filed. Motion Docket Date 9/19/2019. (Attachments: # 1 Exhibit Amicus Brief, # 2 Proposed Order)(Stoger, Jonathan) (Entered: 08/29/2019)
647 RESPONSE Amicus Briefs, filed by Ed (Sheriff) Gonzalez. (Fogler, Murray) (Entered: 08/30/2019)
648 RESPONSE to Amici Briefs, filed by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell. (Manne, Neal) (Entered: 08/30/2019)
649 REPLY TO CERTAIN AMICI CURIAE, filed by Darrell William Jordan. (Van Fleet, George) (Entered: 08/30/2019)
650 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 09/03/2019)
651 MEMORANDUM AND OPINION entered: The parties' joint motion for preliminary approval of the consent decree and settlement agreement and for approval of class notice, (Docket Entry No. 617), is granted. The court: (1) preliminarily approves the proposed consent decree and settlement agreement (Docket Entry Nos. 617−1, 617−2); (2) approves the proposed notice (with minor changes) and the methods of distribution; and (3) directs the parties to issue the notice using those methods by September 9, 2019. The parties must move for final approval by September 27, 2019. Nonduplicative written objections must be filed by October 11, 2019. A final fairness hearing on the proposed consent decree and settlement agreement is set for October 21, 2019, at 9:00 a.m., in Courtroom 11−B.(Signed by Chief Judge Lee H Rosenthal) (Attachments: # 1 Notice to Misdemeanor Arrestees) Parties notified.(leddins, 4) (Entered: 09/05/2019)
652 NOTICE of Resetting. Parties notified. Final Approval Fairness Hearing is reset for 10/28/2019 at 08:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 09/05/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 80 of 83

09/06/2019 09/11/2019 09/17/2019 09/26/2019 09/27/2019
10/02/2019 10/03/2019 10/08/2019 10/08/2019 10/14/2019
10/16/2019 10/17/2019 10/17/2019

653 OBJECTIONS to 651 Memorandum and Opinion filed by Gerry D. Dickens. (mmapps, 4) (Entered: 09/06/2019)
654 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 09/11/2019)
655 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 09/17/2019)
656 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 09/26/2019)
657 Joint MOTION for Approval of PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 10/18/2019. (Attachments: # 1 Exhibit 1 − Amended Proposed Consent Decree, # 2 Exhibit 2− Amended Declaration of Neal Manne, # 3 Exhibit 3 − Redline version of Amended Proposed Consent Decree, # 4 Exhibit 4 − Redline version of Amended Declaration of Neal Manne)(Rossi, Elizabeth) (Entered: 09/27/2019)
658 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 10/02/2019)
659 Hearing EXHIBITS re: 657 Joint MOTION for Approval of PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit Declaration of Melissa Spinks)(Rossi, Elizabeth) (Entered: 10/03/2019)
660 NOTICE of Change of Address by Civil Rights Corps, counsel for Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Rossi, Elizabeth) (Entered: 10/08/2019)
661 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 10/08/2019)
662 ORDER entered: The court wants to ensure that at the final fairness hearing on October 28, 2019, there is a fair and full opportunity for the different views on the proposed settlement to be heard. That is done most effectively by setting out certain procedural steps designed to minimize repetition and confusion, while ensuring robust participation in the hearing. Any individual who wants to make a statement in open court, on the record, at the October 28 hearing must notify the court, in writing, no later than October 21, 2019, by filing with the clerk of court a written statement of intent to appear. The filed written statement must clearly indicate the individuals name; the entity the individual works with, if applicable (e.g., the district attorney or police department of a certain county or city); the case name; and the case number. The written materials submitted by the parties and by the amici, who are nonparties filing separate briefs, were voluminous and expressed many of the views of those likely to appear. The oral statements in court will therefore be limited to no more than 15 minutes for each person, entity, or category of entity. No more than one individual may testify for any entity or category of entity. Each entityor category of entity must select a spokesperson, whose name must be provided on the written statement of intent to appear to be filed by October 21. The court appreciates the opportunity to hear the different views and continue to consider the issues.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) Modified on 10/15/2019 (leddins, 4). (Entered: 10/14/2019)
663 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 10/16/2019)
664 NOTICE of Setting. Parties notified. Telephone Conference set for 10/21/2019 at 04:00 PM by telephone before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 10/17/2019)
665 STATEMENT OF INTENT TO APPEAR AND SUPPLEMENTAL AMICUS BRIEF re: 662 Order,,,,,, by Kim Ogg, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Durfee, Scott) (Entered: 10/17/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 81 of 83

10/18/2019
10/18/2019 10/18/2019 10/18/2019
10/21/2019
10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019
10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019 10/21/2019

666 NOTICE of Intent to Appear by Monique Jospeh, Olga Watkins, Margarita Luna, Anthony Gamage, John Taylor, Dianna Williams, filed. (jguajardo, 4) (Entered: 10/18/2019)
667 STATEMENT OF INTENT TO APPEAR re: 662 Order,,,,,, by Houston Area Police Chiefs Association, filed.(Stoger, Jonathan) (Entered: 10/18/2019)
668 NOTICE of Appearance by Andy Kahan, filed. (jguajardo, 4) (Entered: 10/18/2019)
669 Opposed RESPONSE in Opposition to 657 Joint MOTION for Approval of PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT, filed by Gilbert Morales. (Good, Kenneth) (Entered: 10/18/2019)
670 NOTICE of intent to speak at fairness hearing re: 662 Order,,,,,, by Professional Bondsmen of Harris County (Amici Curiae), filed. (Pennell, Kevin) (Entered: 10/21/2019)
671 NOTICE of intent to speak at fairness hearing re: 662 Order,,,,,, by Gilbert Morales, filed. (Good, Kenneth) (Entered: 10/21/2019)
672 NOTICE Notice of Intent to Appear by Robert A. Armbruster, filed. (Armbruster, Robert) (Entered: 10/21/2019)
673 RESPONSE to 651 Memorandum and Opinion,,,, filed by Doug Smith. (JenniferOlson, 4) (Entered: 10/21/2019)
674 NOTICE OF FILING OF DECLARATION by Darrell William Jordan, filed. (Van Fleet, George) (Entered: 10/21/2019)
675 NOTICE OF FILING OF DECLARATION IN SUPPORT OF FINAL APPROVAL OF CONSENT DECREE by Franklin Bynum, filed. (Van Fleet, George) (Entered: 10/21/2019)
676 NOTICE of Appearance by Steve Radack, filed. (Keys, Fred) (Entered: 10/21/2019)
677 NOTICE of Intent to Appear re: 662 Order by Dianna Williams, filed. (JenniferOlson, 4) (Entered: 10/21/2019)
678 NOTICE of Intent to Appear re: 662 Order by John Gamage, filed. (JenniferOlson, 4) (Entered: 10/21/2019)
679 NOTICE of Intent to Appear re: 662 Order by Monica Joseph, filed. (JenniferOlson, 4) (Entered: 10/21/2019)
680 NOTICE of Intent to Appear by EQUAL JUSTICE NOW, filed. (Magenheim, Alan) (Entered: 10/21/2019)
681 NOTICE of Intent to Appear re: 662 Order,,,,,, by Olga C Watkins, Ph. D, filed. (BrendaLacy, 4) (Entered: 10/21/2019)
682 Statement of Intent to Appear by J. Marcus Hill, filed.(Hill, J) (Entered: 10/21/2019)
683 NOTICE of Appearance by Celena Vinson on behalf of Harris County, Texas, filed. (Vinson, Celena) (Entered: 10/21/2019)
684 STATEMENT of Intent to Appear re: 662 Order, by Kaleb J Taylor, filed.(BrendaLacy, 4) (Entered: 10/21/2019)
685 STATEMENT of Intent to Appear re: 662 Order, by Koretta Brown, filed.(BrendaLacy, 4) (Entered: 10/21/2019)
686 STATEMENT of Intent to Appear re: 662 Order, by Ashton Woods, filed.(BrendaLacy, 4) (Entered: 10/21/2019)
687 STATEMENT to Speak before the Court re: 662 Order, by Carl Davis, filed.(BrendaLacy, 4) (Entered: 10/21/2019)
688 NOTICE of Appearance by Dan McGuire on behalf of Mothers Against Drunk Driving, filed. (McGuire, Daniel) (Entered: 10/21/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 82 of 83

10/21/2019 10/21/2019
10/21/2019
10/22/2019 10/23/2019 10/23/2019
10/25/2019 10/27/2019 10/28/2019
10/30/2019 10/30/2019 10/30/2019 11/04/2019
11/06/2019

689 STATEMENT of Intent to Appear re: 662 Order,,,,,, by Office of the Attorney General of Texas, filed.(Biggs, Adam) (Entered: 10/21/2019)
690 Hearing EXHIBITS re: 657 Joint MOTION for Approval of PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 1 − ODonnell Declaration, # 2 Exhibit 2 − McGruder Declaration, # 3 Exhibit 3 − Ford Declaration, # 4 Exhibit 4 − Demuth Expert Report (with CV and References, and copies of four of Dr. Demuth's previously filed expert reports))(Rossi, Elizabeth) (Entered: 10/21/2019)
691 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Telephone conference held on October 21, 2019. The parties and the court conferred about the final fairness hearing procedures. The court will enter an order elaborating on the hearing procedures. Appearances: Lexie White/Neal Manne/Elizabeth Rossi/Alec Karakatsanis/Michael Gervais/Joe Grinstein for Pltfs. and Murray Fogler/Victoria Jimenez/Melissa Spinks for Defts.(Court Reporter: H. Alcaraz), filed.(leddins, 4) (Entered: 10/22/2019)
692 ORDER entered Regarding the appearances and procedures for the Fairness Hearing set for October 28. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 10/22/2019)
693 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 10/23/2019)
694 MOTION to Strike Morales Objection (Dkt. 669) and for Other Miscellaneous Relief by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. Motion Docket Date 11/13/2019. (Attachments: # 1 Exhibit 1− Professional Bondsmen's Amicus (highlighted), # 2 Exhibit 2− Morales Brief (highlighted), # 3 Exhibit 3− Harris County court records, # 4 Exhibit 4− Records of Sept. 8 arrest on Fort Bend charges, # 5 Exhibit 5− Author, # 6 Proposed Order)(Rossi, Elizabeth) (Entered: 10/23/2019)
695 ORDER Granting 694 MOTION to Strike Gilbert Morales's Objection (Dkt. 669) and Denying Mr. Morales Permission to Speak at The Final Fairness Hearing. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 10/25/2019)
696 STATEMENT by Kim Ogg, filed.(Durfee, Scott) (Entered: 10/27/2019)
700 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Final fairness hearing held on October 28, 2019. The court heard testimony and arguments from the parties and statements by nonparties. The court has under advisement the joint motion for final approval of the proposed settlement and consent decree.Appearances: George Allan Van Fleet, Neal S Manne, Charles Lewis Gerstein, Elizabeth Anne Rossi, Alec George Karakatsanis, Murray J Fogler, Victoria Lynn Jimenez, Celena Cavazos Vinson.(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 11/04/2019)
697 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Fairness Hearing, 10/28/19, Judge Rosenthal. 14−Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (White, Lexie) (Entered: 10/30/2019)
698 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 10/30/2019)
699 AO 435 TRANSCRIPT REQUEST by Victoria Jimenez for Transcript of Fairness Hearing, 10/28/2019, Judge Rosenthal. 3−Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Jimenez, Victoria) (Entered: 10/30/2019)
701 NOTICE Joint Notice of Two Non−Substantive Corrections to Consent Decree re: 657 Joint MOTION for Approval of PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT by Robert Ryan Ford, Loetha Shanta McGruder, Maranda Lynn ODonnell, filed. (Attachments: # 1 Exhibit 1− Redlined Consent Decree, # 2 Exhibit 2− Consent Decree (clean version))(Rossi, Elizabeth) (Entered: 11/04/2019)
702 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 11/06/2019)

Case: 4:16-cv-1414 As of: 02/15/2020 11:56 AM CST 83 of 83

11/12/2019 11/18/2019
11/19/2019 11/20/2019 11/21/2019
11/21/2019 11/26/2019
02/03/2020

703 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 11/12/2019)
704 TRANSCRIPT re: Final Fairness Hearing held on October 28, 2019 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party Celena Vinson Release of Transcript Restriction set for 2/18/2020., filed. (kmiller, ) (Entered: 11/18/2019)
705 Notice of Filing of Official Transcript as to 704 Transcript. Party notified, filed. (jdav, 4) (Entered: 11/19/2019)
706 STATUS REPORT by Harris County, Texas, filed.(Spinks, Melissa) (Entered: 11/20/2019)
707 MEMORANDUM AND OPINION entered GRANTING 657 Joint MOTION for Approval of PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT. Consent Decree to follow. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Main Document 707 replaced on 11/22/2019) (leddins, 4). (Entered: 11/21/2019)
708 CONSENT DECREE entered. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 11/21/2019)
709 ORDER entered: The case is administratively closed because the court granted the joint motion for final approval of the consent decree and class settlement and entered the consent decree. Case terminated on 11/26/19. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 11/26/2019)
710 Letter from Charles Bocock re: Copy of Amended Complaint DE#54, filed. (lcorbett, 7) (Entered: 02/06/2020)