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More on Abbott’s stay-in-jail order

Here’s that more detailed Chron story I referenced yesterday. I’m just going to quote the newer information about Greg Abbott’s executive order that attempts to basically stop most releases of inmates from the jail regardless of the coronavirus situation.

The newly appointed monitor over Harris County’s misdemeanor bail protocol, Duke law professor Brandon Garrett, said the decree violated “many state and federal constitutional provisions.”

Alec Karakatsanis, a civil rights attorney who represents thousands of indigent defendants awaiting trial at the lockup on felony charges, called the governor’s stance illegal and perilous.

“The edict is dangerous, unprecedented, chaotic, and a flagrantly unconstitutional attempt to infringe fundamental constitutional rights,” he said. “If enforced it would have catastrophic public health consequences.”

[…]

The governor’s order suspends portions of the Texas Code of Criminal Procedure and statues related to personal bonds, barring any personal bonds for anyone with a prior violent conviction or a conviction involving the threat of violence. He also outlawed releasing inmates with prior violent convictions on electronic monitoring.

In a barely veiled reference to the preparations taking place by Harris County Judge Lina Hidalgo, the governor suspended portions of the Texas Government Code permitting a county judge, mayor or emergency management director from releasing people outlawed under his new order. He said criminal court judges who handle misdemeanor and felony cases may still consider such releases on an individualized basis for health or medical reasons proper notice to prosecutors.

Among prison inmates, Abbott suspended portions of the state criminal code related to commuting sentences for anyone convicted of violence or threats.

Multiple plans for lowering the jail population have evolved in the past two weeks, including an executive order by Hidalgo that never came to fruition and a request by the lawyers who sued the county over its bail practices. District Attorney Kim Ogg also entered the discussion, telling the sheriff and presiding district judge that she wanted to weigh in and expedite releases of low-risk inmates in the “high likelihood” of a federal court order dictating either substantive bail hearings or outright release on personal bonds.

“As the legal representatives of the State of Texas, we also have the duty to be advocates for victims and the community in a full and fair bail hearing related to the proposed release of individuals who do pose a substantial risk to public safety,” Ogg wrote, in the letter obtained by the Houston Chronicle.

Hours before Abbott’s announcement, Chief U.S. District Judge Lee H. Rosenthal convened an emergency hearing by phone to address incomplete plans by plaintiffs in a federal civil rights case to craft the a release order for people accused of some nonviolent offenses, along with lawyers for the sheriff and the county judge.

An official from Attorney General Ken Paxton’s office told the federal judge that Paxton was poised to appeal any order by Rosenthal that called for blanket releases of inmates.

See here for the previous post. The Trib adds on.

Abbott’s order applies to inmates who have been accused or convicted of “a crime that involves physical violence or the threat of physical violence,” which defense attorneys called a vague and subjective standard. Abbott’s directive also appears to apply to inmates with any history of violent offenses — meaning a person arrested on a nonviolent drug charge last week could be held if he had a decades-old conviction of a violent offense.

Though the order bans release of inmates on no-cost, personal bonds, it does not set a standard for how high a bail amount must be. Presumably, judges could still release inmates on bonds of $1, defense attorneys said.

Legal experts questioned the order’s validity, and it drew immediate rebukes from Democrats and bail reform advocates, who argued the order discriminates against poor people. Several Texas counties, including Harris and Dallas, have in recent years had their bail practices deemed unconstitutional for discriminating against poor defendants.

“It is a dangerous, unprecedented, chaotic and flagrantly unconstitutional edict that if enforced would expose many people around the state of Texas to a public health catastrophe,” said Alec Karakatsanis, executive director of the Civil Rights Corp, which has been at the helm of Harris County’s federal bail lawsuits.

El Paso Democrat Joe Moody, a state representative and former prosecutor and defense attorney, said “if followed, this order will see jails bursting at the seams [with] minor drug offenders, homeless people whose most recent ‘crime’ was something like simple trespass & everyday citizens picked up on the flimsiest of allegations.”

According to Abbott’s order, a judge may consider a defendant’s release for health or medical reasons, after the district attorney is notified and there is an opportunity for a hearing.

You can see the executive order here, and a brief analysis of why it doesn’t pass constitutional muster here. Rep. Gene Wu was on a call with Abbott and reports that the Governor is either misinformed or not telling the truth about his own order. The ACLU of Texas has responded to Abbott’s order, and I presume we’ll have some action in the federal court today. I should note that Ken Paxton jumped out in front of this parade ahead of Abbott’s order, which prompted a couple of folks to observe that Ken Paxton is himself under a felony indictment and out free on bail. Hey, irony went into hospice care sometime back in 2002, so just keep swimming. The Texas Observer has more.

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4 Comments

  1. Paul Kubosh says:

    Ken Paxton get a P.R. Bond? Maybe that is why he is upset. Maybe he thinks that if he has to pay a Cash Bond then so should everyone else.

  2. Jason Hochman says:

    I am grateful that I don’t have to make decisions like this. Debates are a fun pastime for those off work or working at home, but without any sphere of influence on the decision making process.

    Let’s say that I am glad that I am no longer an officer in a jail. I saw TB, MRS, the entire alphabet of hepatitis, pneumonia, and everything else.

    I would like to know what is the public health effect of letting a bunch of indigent people out onto the street in the middle of the pandemic. No home. No job. Perhaps looking to get back into substance abuse, even more so due to the stress. Where will they go. Maybe try to move in with elderly parents or grandparents? Maybe Alec Karatkasanis can take them in. Wait until they start committing crimes and the police have lowered numbers due to some officers being sick or self quarantined for exposure. Wait until some of them start to OD and tax an already burdened system of paramedics and hospitals.

    Maybe in some hazy future this country will try to find a way to reduce its huge prison and jail population, but for now…who knows.

  3. […] here for the background. It’s still not clear to me what Abbott intended with this order and what […]

  4. […] here, here, and here for the background. A copy of the lawsuit is here and the full statement from the ACLU is […]