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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.

Still trying to do something about the coronavirus risk in the jail

Time is extremely limited for this.

A federal judge Friday asked lawyers to hammer out a plan for releasing about 1,000 indigent inmates detained on bonds of $10,000 or less amid fear of a COVID-19 outbreak at the third largest jail in the country. The judge indicated she would take up the fate of another 3,400 people in the Harris County Jail awaiting trial on higher bonds next week.

The instructions by Chief U.S. District Judge Lee H. Rosenthal came in response to an emergency request Friday by the team of lawyers who challenged the county’s bail policies. They argued that thousands of poor defendants trapped in the jail simply because they couldn’t afford bail should be granted immediate bail hearings or be released.

The pleading laid a grave situation at the hands of a judge who has made many tough decisions in the criminal justice realm.

“A public health catastrophe of historic proportion looms in the Harris County Jail. Only this Court can avert it,” the motion says. “With every passing hour, the risk of disaster increases. All eyes turn to this Court in this dire moment.”

The bail lawsuit motion for a temporary restraining order and preliminary injunction seeks release of about half the jail’s population of nearly 8,000 if they cannot be afforded immediate bail hearings. This would mean thousands of people charged with nonviolent offenses would be allowed to await trial on bond outside the facility, as they would otherwise be able to do if they could post cash bond.

Other local officials, including the sheriff, state district judges and top county official have been tackling the potential public health threat from different angles over the past two weeks, seeking compassionate releases of medically vulnerable inmates, bonds for those accused of nonviolent offenses, or some cross-section of the two groups.

But early Friday lawyers from Civil Rights Corps, the Texas Civil Rights Project and pro bono counsel from Susman Godfrey, stepped in with a constitutional approach to the jail problem that could allow much more drastic cuts in the population than the compassionate release plans outlined by the sheriff and the county judge.

Rosenthal asked the lawyers for indigent defendants and attorneys for the sheriff and the county to assemble by Monday a list of thousands of people who might qualify for release based on their bond amounts, charges, criminal histories and risk factors. In addition, the judge indicated she would move swiftly on a subset of the indigent defendants who can’t pay their bond. She asked for confirmation that 1,000 or so people being held on bonds of up to $10,000 were not subject to other holds or detainers.

The sheriff and county officials told the judge that they had no objection to this first group being released if they fit the judge’s criteria. According to a lawyer for the plaintiffs, the only agency that opposed the release of those facing $10,000 bonds was the Texas Attorney General’s Office.

Sheriff Gonzalez had been working on this for the past week, trying to get individual judges to allow some inmates to be released, but the process was slow. County Judge Lina Hidalgo had been working on an executive order that would have released a larger number of inmates, but she shelved it after objections from the Attorney General’s office; you can read that story for the details. And I know, we’re all going to be murdered in our sleep by a rampaging horde of pot smokers and check kiters, but let’s do pause for a moment and consider what the alternative might be:

In another effort to address the issue, Harris Health System leaders on Friday sent a letter asking for the release of defendants with nonviolent offenses.

The county medical system’s president and CEO stressed that an outbreak in the Harris County Jail is not a matter of if, but when.

“The Harris County Jail and other large correctional facilities pose a real and immediate danger to the health of the community,” Esmaeil Porsa said. “An even limited outbreak of COVID-19 in the Harris County Jail has the potential to overwhelm our already overburdened hospital system. If this happened — and the likelihood is high — it could leave many vulnerable people in our community without access to care.”

Porsa urged the county to consider prioritizing inmates over 60 with pre-existing conditions such as cancer, diabetes, asthma and chronic pulmonary disease, heart disease and HIV. Jails are known to have higher concentrations of people in the high-risk group, he said.

He added that social distancing is nearly impossible, with dorm settings holding between 20 and 60 people in a close space. And quarantine is also unfeasible when inmates are booked in and out of the jail on a daily basis.

We could just let them all die, I suppose. I’m sure Dan Patrick would approve. I would rather not do that.

UPDATE: And now Greg Abbott is involved, and I’m confused.

As the first Harris County inmate tested positive for COVID-19 Sunday, Gov. Greg Abbott issued an executive order blocking any release of inmates from jails and prisons accused or convicted of violent crime.

“Releasing dangerous criminals from jails into the streets is not the right solution and doing so is now prohibited by law by this declaration,” Abbott said at an afternoon briefing.

The news comes as federal, state and local government officials continued to squabble over details of what a jail release would look like as they attempted to prevent a catastrophic outbreak among the approximately 8,000 people incarcerated at the downtown facility.

The governor was referencing Attorney General Ken Paxton’s motion to prevent Harris County from releasing 4,000 people awaiting trial on felonies, saying such a move would “allow dangerous criminals to roam freely and commit more crimes during the ongoing COVID-19 pandemic.”

“Protecting Texans is one of my highest priorities. It is vital that we maintain the integrity of our criminal justice system and continue to enforce state law during this pandemic,” Paxton said. “My office will not stand for any action that threatens the health and safety of law-abiding citizens.”

Hours earlier a federal judge convened an emergency hearing to address plans that plaintiffs in a federal civil rights case had hammered out over the weekend with lawyers for the sheriff and the county judge to release inmates accused of some nonviolent offense.

An official from Paxton’s office appeared telephonically at that hearing and said the AG planned to appeal an order by the federal judge to the 5th U.S. Circuit if it called for any blanket releases.

The judge set a hearing for Tuesday to address a possible appeal.

There wasn’t anything in the previous story about people accused or convicted of violent crimes, hence my confusion. I assume there are still plenty of people in the Harris County jail for misdemeanor charges, so it’s not at all clear to me what the extent of the dispute is. Maybe later versions of the story will make that more clear.

UPDATE: There’s now a more detailed version of the Chron story and also a Trib story, but this post is too long already. I’ll be back with more tomorrow.

Another review of Judge Hidalgo’s first year

Though, oddly enough in a story about Harris County Judge Lina Hidalgo’s first year in office, most of the text is about outgoing Commissioner Steve Radack and the two-year-long temper tantrum he’s been throwing.

Judge Lina Hidalgo

For many years, the Harris County Commissioners’ Court, which oversees the third most populous county in the country and one of its most diverse, had been a place of easy consensus. At the time of Radack’s outburst, four of the five members of the commissioners’ court were white Republican men. They included county judge Ed Emmett, a popular moderate in a party running out of them. Most sessions passed by with the placidity of a koi pond. By cheering activists who sued the county and asserting that commissioners were supporting a racist policy while simultaneously trying to join their ranks, [Commissioner Rodney] Ellis was cannonballing into the water.

Three years later, in July of 2019, Radack looked considerably more chastened when the newly elected Ellis and the rest of the commissioners’ court met to vote on a settlement to the lawsuit—a sweeping $100 million overhaul that largely abolished the practice of jailing misdemeanor defendants who can’t afford cash bail. Reformers across the country hailed it as a major step toward making the criminal justice system fundamentally more equitable. The settlement was possible only because, just eight months before, Harris County voters had handed control of the commissioners’ court to Democrats for the first time since 1990. Radack and Jack Cagle were now the only two Republicans left on the court. Most astonishingly, voters had seen fit to replace Emmett, the beating heart of the county’s political establishment for more than a decade, with Lina Hidalgo, a 27-year-old Latina who had moved back to Houston to run against the 69-year-old Emmett. She was the first woman and Latino to lead Harris County.

Now Hidalgo and the other two Democrats—Ellis and former Harris County sheriff Adrian Garcia—ran things. For years, meetings had rarely lasted an hour. Under the new management they felt like committee hearings in the state legislature, often going for more than five hours and sometimes as long as nine, as the new majority pushed to enact its agenda—criminal justice reform, bringing transparency to county government, and improving flood planning—while members of the public came to support, oppose, and debate.

At the July meeting, Hidalgo beamed as she introduced the bail-reform settlement to the court. “This is a proud beginning,” she said, in the fight to build a criminal justice system in which “fairness and justice are preeminent.” She quoted from Martin Luther King Jr.’s 1963 address on the National Mall. She exuded, as members of her generation would say, good vibes only.

Ellis, a political operator who served 27 years in the Texas Senate, spoke glowingly too, calling the settlement, somewhat hyperbolically, “just as big as” Brown v. Board of Education. But the most dramatic moment came when he moved closer to his mic and stared at the side of the room where Radack and Cagle sat. “A very oppressive system has existed for decades,” he said. “And I don’t point an accusative finger at anyone, but it did, I think, indicate a certain blind indifference to what was going on. I think it’s incumbent on us to admit that,” he said, slowing for emphasis.

When it was his turn to speak, Radack turned to address the packed chamber, where during the period of public comments, most had spoken in support of the settlement. He understood that there were racial injustices in the system, he said.

But then he began pounding his palms on the wood in front of him. “This is a public table,” he said, his voice rising to a shout. Issues such as bail reform were supposed to be discussed in public, “not [by] a few people from the commissioners’ offices and whomever, behind closed doors . . . sitting there and discussing what they’re going to do for all of us.” He stood up, getting angrier and flipping through the lengthy settlement for the audience. “Every single page says ‘Draft,’ ‘Confidential,’ ” he said. “I think that sucks!”

Hidalgo politely noted that the text of the settlement had been made available to the commissioners three days earlier. “And let’s be careful with the public table,” she said. Radack was learning something Ellis knew very well: It’s not fun to be in the minority in a lawmaking body. “There are consequences to elections,” Ellis added calmly. At the end of the year, Radack announced he was retiring, boosting Democrats’ chances of electing the fourth Democrat to the commissioners’ court this November—and giving them the same level of dominance Republicans enjoyed just a few years ago.

[…]

Now in the minority, Radack and his fellow Republicans have found other ways to show their displeasure. For one, they’ve made a lot of noise. At one meeting regarding transportation funding, Cagle brought copies of George Orwell’s dystopian novel 1984 to distribute to the audience, accusing Hidalgo’s court of engaging in doublespeak.

But the most important scuffle came in October. The commissioners met to pass a tax hike that would increase the county’s revenue by 8 percent before an annual deadline, citing the need to raise money before new laws passed by the state legislature went into effect that would restrict their ability to do so in the future. Cagle and Radack didn’t show up—depriving the court of a quorum and preventing a vote. (State law requires that four of the five members of county commissioners’ courts be present to vote on tax increases.) Hidalgo says the consequences of that missing revenue will hurt the county in the long run. “You won’t see a huge difference from one year to the next,” she said, “but it will compound over time.”

That anti-majoritarian maneuver is one reason why many Republicans in Austin are closely watching what’s happening in Harris County. Never huge fans of cities and counties to begin with, GOP lawmakers, led by several Houston-area Republicans, cracked down hard on local government during the 2019 session.

Now imagine if the Democrats tighten their grip on Harris County, finally flip Fort Worth’s Tarrant County (the last urban Republican holdout), and take over quickly growing suburban counties like Hays (south of Austin) and Fort Bend (southwest of Houston). Then they draw new county commissioner precincts to solidify their control. In this dark future for conservatives, Republicans in the Legislature work even harder to rein in Hidalgo and her colleagues across the state.

If Democrats can pick up Radack’s seat, only one Republican would remain on the commissioners’ court, which would prevent that Republican from breaking the quorum again. But what if the Legislature, learning from Radack’s example, changed the law to require all five members of the commissioners’ court to be present? Many blue counties, even the big Democratic ones like Dallas and Travis, have at least one Republican commissioner who could, if the law were changed, nullify the wishes of the other four and hold one-person veto power over budgetary matters, with huge consequences for local governments across the board. “That would be a pretty major thing,” said Radack, who’s given the issue a good deal of thought. “Probably one of the most major pieces of legislation to come around in a long time.”

I should note, this story was written, and I wrote my draft post of it, before coronavirus took over all of our lives. It should be clear that every politician going forward will be judged on how they performed during this particular crisis. I think Judge Hidalgo is doing quite well on that score so far, but we still have a long way to go. Now here’s what I wrote when I first blogged about this.

Putting Radack’s jackassery aside, I’ve been thinking a lot about what might happen in the near future as Republicans continue to lose their grip on the larger counties and maybe possibly could lose control at the state level. We saw what they did on the way out the door in states like Wisconsin and North Carolina, after all. Imagine if Dems do take over the State House this November. Would Greg Abbott call a special session to get one last shot at passing bills in a full-GOP-control environment? Maybe even take some action to clip a future Democratic Governor’s wings? He’d want to act now and not wait till his hypothetical loss in the 2022 election, because if there’s a Dem-majority House, he’s out of luck. For sure, the assault on cities and counties will be much harder to pull off without a Republican monopoly. The good news for us Dems is that it would be hard for Republicans here to make like their counterparts in WI and NC, but not impossible. We need to be thinking about this, and have some strategies prepared for just in case.

Anyway. To reiterate what I said before, I think Judge Hidalgo has done a very good job, and has positioned herself and the Court to do a lot more good this year. It’s not necessary to trade out Radack for a better model – that 3-2 majority is fine almost all the time – but it would help. And Lord knows, the man has had more than enough time in the spotlight. Move along, already.

(By the way, Fort Bend has already flipped. In the same way that Harris did, by Dems winning one Commissioner’s Court seat and the County Judge’s office, to go from 4-1 GOP to 3-2 Dem. And as with Harris, Fort Bend Dems have a chance to win a Republican-leaning set this year to get to 4-1 in their favor.)

Meet your bail reform overseers

They’re where the buck will stop.

A federal judge Tuesday approved the choice of a Duke University law professor to oversee Harris County’s historic bail reform agreement that governs what happens to thousands of people arrested on low-level offenses.

Chief U.S. District Judge Lee H. Rosenthal ordered Brandon L. Garrett, from Duke’s Center for Science and Justice, to serve as monitor for implementation of the seven-year consent decree. The judge also approved Sandra Guerra Thompson, a former New York prosecutor who teaches at University of Houston Law Center, as deputy monitor for the settlement.

[…]

Garrett has a background in criminal justice, policy-making and reform, according to a biography on Duke’s website. His research and teaching has focused on criminal justice outcomes, evidence and constitutional rights. He has also studied DNA exoneration, eyewitness identification and corporate crime.

Guerra Thompson, a native of Laredo, is an award-winning professor who directs the university’s Criminal Justice Institute for the UH law program, according to the UH website. Her scholarly work includes articles on wrongful convictions, eyewitness identification, forensic science, civil asset forfeiture, federal sentencing, discrimination in jury selection, prosecutorial ethics, police interrogations and immigration-related crimes.

She has played a key role in the transition to office for Mayor Sylvester Turner in 2016 and Harris County District Attorney Kim Ogg in 2017. She was a founding board member for the Houston Forensic Science Center and was tapped in 2009 by Gov. Rick Perry to serve on the Timothy Cole Advisory Panel on Wrongful Convictions.

Sounds like two good people for the job. It’s not totally clear to me what exactly their responsibilities will be, but I assume if things are not going the way they should, we’ll hear about it from them.

Endorsement watch: For Menefee

We have our first major endorsement against an incumbent as the Chron recommends Christian Menefee for County Attorney over Vince Ryan.

Christian Menefee

Harris County Attorney Vince Ryan’s decision to spend millions of dollars and waste precious legal resources to prolong the defense of an unconstitutional bail system raises serious questions about his judgment.

That Ryan still contends that the bail process was constitutional demands change.

This is a large part of why we recommend civil litigation attorney Christian Menefee in the March 3 Democratic primary for the job Ryan has held since 2008.

We were also impressed by promises made by Menefee, 31, to bring added energy and fresh perspective to the part of the job that goes beyond serving as a lawyer to county officials and judges. The county attorney also is responsible for using civil enforcement to protect neighborhoods, clean up the environment and shut down illegal enterprises.

“We need a relentless advocate who’s going to fight for the people of Harris County, all the people,” Menefee said in an interview with the Chronicle Editorial Board.

[…]

“I have great respect for Judge Rosenthal, but her finding of an unconstitutional system was, quite frankly, not something we agreed with,” Ryan told the Editorial Board, a stand that puts him in conflict with the courts and a growing body of legal reformers locally and across the country.

My interview with Vince Ryan is here, my interview with Christian Menefee is here, and my interview with Ben Rose is here. The Chron did endorse some challengers in judicial races, but this is a more significant decision. I’ve been saying for a long time that the bail lawsuit was going to be the main factor in this race, and however you feel about Vince Ryan – as I have said, I think he has been a pretty darned good County Attorney overall – Ryan has had to answer for this, and his answers have not been great. I don’t understand why the Chron didn’t stick to their position of strong support for bail reform in the primary between Judge George Powell and challenger Natalia Cornelio, but they are being consistent here. Again, I don’t know what the effect of the expected high turnout for the primary will be. I do expect that this issue has resonated with the Democratic electorate, but I don’t know how deep that goes.

The Observer overviews the DA primary

You’ve had a chance to listen to my interviews with DA candidates, now read this story for more on this important primary.

Kim Ogg

When Kim Ogg first ran for Harris County district attorney, she had a simple pitch for criminal justice reform: stop jailing people for petty pot possession. The position, novel to Houston politics in 2014, proved so popular that even her Republican opponent embraced a version of it. Ogg lost that first race, but she tried again in 2016, this time adding bail reform and a promise to create “a system that doesn’t oppress the poor” to her platform. She beat the incumbent by 8 percentage points to become Harris County’s first Democratic DA in 40 years.

Ogg was among the first wave of reform-minded “progressive prosecutors” elected across the country in recent years. This new class rejected a tough-on-crime ethos, advocating instead for fairness and jailing fewer people. Ogg quickly declared herself “part of the national reform movement” and started dismissing low-level marijuana charges for people who took a class and paid a fine. She also rejected so-called “trace cases” involving miniscule drug amounts and called for diversion instead of jail for small-time offenders. 

Over the course of her first term, however, progressives have soured on Ogg. While she publicly supported bail reform, she continued to seek high bail for people charged with minor offenses. She further disappointed them by objecting to historic bail reforms that followed a years-long lawsuit to end the practice of keeping low-level offenders in jail simply because they’re poor. Progressives have also bristled at Ogg’s repeated attempts to expand her office.

Now at the end of her first term, Ogg feels squeezed between opposing forces: a police union that accuses her of being soft on crime and critics on the left who say she’s failed to live up to her reputation. She’s facing a combative Democratic primary next month, flanked by challengers who insist that she’s stood in the way of progress during her first term. A Democratic sweep in the midterms that turned Harris County solid blue further emboldened local organizers who are seeking a new kind of reform prosecutor. 

While Ogg credits herself with boosting diversion programs and reducing prison sentences during her first term, her critics insist more fundamental changes are needed to fix yawning racial inequalities in the local justice system and to decarcerate one of the largest jails in the country. There was palpable tension between Ogg and the forces that helped elect her at a ACLU of Texas candidate forum in downtown Houston last Thursday. Some people in the standing-room-only crowd jeered as Ogg urged them to stick with her “balanced approach” to reform. After the forum, a woman walked up to Ogg and began arguing with her before campaign staffers quickly intervened.

In a phone call this week, Ogg sounded aggrieved and unappreciated, the way incumbents often do during tough re-election fights. “I started running before people in our local political arena even knew what a district attorney did,” she said. “Everything I wanted to do was a reformation of decades of static prosecutorial policy in Harris County. So of course I’m a reformer, and to be labeled otherwise—that’s a political issue more than a factual one.”

Ogg’s primary is one of several prosecutor races in Texas this year that could redefine the bounds of criminal justice reform in the state. As state lawmakers fail to make meaningful progress each legislative session, advocates for change have increasingly focused on amplifying key district attorney, judge, and sheriff races to transform how their communities are policed and prosecuted.

The article touches on the race in Travis County as well, where incumbent Margaret Moore is under similar fire. I have no idea what will happen in these races – they’re as prominent as any local election, but it’s hard to say how much of that breaks through in the non-stop fusillade of national political news – but they will have a significant effect in Harris and Travis Counties. A side issue I’ve been pondering, which I asked Audia Jones about when I spoke to her, is whether the Legislature (especially but not exclusively if it remains in Republican hands) will step in and try to impose some limits on what prosecutors can and can’t do. I can very easily see this as a red meat law-and-order issue for Dan Patrick (and, whenever someone wakes him up and reminds him that he’s Governor, Greg Abbott) in the 2021 session. I have no idea what they may try to do, but I’m sure their imagination won’t be so limited. Just something to keep in mind.

Endorsement watch: The judges

After a couple of Republican endorsements, the Chron gives us a slate of judicial candidates for the Democratic primary in the district courts. A brief summary:

Singhal in Democratic primary for 1st Court of Appeals, Place 3

We recommend Dinesh Singhal, 52, who has tried more than 25 cases and handled 19 appeals.

Hootman in Democratic primary for 1st Court of Appeals, Place 5

We recommend Tim Hootman, 57, an experienced appellate lawyer who is known for having an atypical legal approach.

Robinson in Democratic primary for chief of the 14th Court of Appeals

We recommend Jane Robinson, 46, who is board certified in civil appellate law by the Texas Board of Legal Specialization.

Kronzer in Democratic primary for 14th Court of Appeals Place 7

We recommend Wally Kronzer, 65, who has extensive appellate court experience in state and federal courts.

Weiman in Democratic primary for 80th Harris County District Court

We recommend incumbent Larry Weiman, 64, who has been on this bench since 2008.

Harvey in the Democratic primary for the 164th Harris County District Court

We recommend Grant J. Harvey, 55, who is a highly regarded litigator who has participated in numerous trials and appeals.

Daic in the Democratic primary for the 165th Harris County District Court

We recommend Megan Daic, 34, for a court that needs a more efficient and decisive judge.

Acklin in the Democratic Primary for the 176th Harris County District Court

We recommend Bryan Acklin, 34, who is a former prosecutor and is now a criminal defense attorney.

Martinez in the Democratic Primary for the 179th Harris County District Court

We recommend Ana Martinez, 39, who gained a sterling reputation as a human trafficking prosecutor before she became a defense attorney.

Moore in the Democratic Primary for the 333th Harris County District Court

We recommend incumbent Daryl Moore, 58, who may be the most respected incumbent running in Harris County.

Kirkland in the Democratic Primary for the 334th Harris County District Court

We recommend incumbent Steven Kirkland, 59, who has been on this bench since 2016 and served on another civil bench and a municipal bench before that.

Gaido in the Democratic Primary for the 337th Harris County District Court

We recommend Colleen Gaido, 39, who is a respected former prosecutor and current criminal defense attorney.

Bell in the Democratic Primary for the 339TH Harris County District Courts

We recommend Te’iva Bell, 39, who has served in the felony courts from three perspectives – as a prosecutor, a criminal defense attorney and a public defender. H

Powell in the Democratic Primary for the 351th Harris County District Court

We recommend incumbent George Powell, 54, who was elected to this bench in 2016.

Phillips in the Democratic Primary for the 507th Harris County District Court

We recommend C.C. “Sonny” Phillips, 59, who has been practicing family law, and occasionally appellate law, for 34 years.

They did actually say more about the candidates they recommend, and they noted who else was on the ballot. Go read all that for yourself. As noted, Weiman, Moore, Kirkland, and Powell are incumbents, while Harvey (Alex Smoots-Thomas), Daic (Ursula Hall), Acklin (Nikita Harmon), Martinez (Randy Roll), and Phillips (Julia Maldonado) are running against incumbents. Here are the Q&A’s I’ve run from candidates in these races:

Tim Hootman, 1st Court of Appeals, Place 5
Jane Robinson, Chief Justice, 14th Court of Appeals
Wally Kronzer, 14th Court of Appeals, Place 7

Grant Harvey, 164th Civil Court
Megan Daic, 165th Civil Court
Bryan Acklin, 176th Criminal Court
Ana Martinez, 179th Criminal Court
Judge Steven Kirkland, 334th Civil Court

Q&A’s from candidates not endorsed by the Chron:

Tamika Craft, 14th Court of Appeals, Place 7
V.R. “Velda” Faulkner, 14th Court of Appeals, Place 7
Lennon Wright, 14th Court of Appeals, Place 7

Cheryl Elliott Thornton, 164th Civil Court
Jimmie Brown, 165th Civil Court
Judge Randy Roll, 179th Criminal Court
Judge Julia Maldonado, 507th Family Court
Robert Morales, 507th Family Court

Q&A responses from Natalia Cornelio (351st Criminal Court) and Cheri Thomas (14th Court of Appeals, Place 7) are in the queue and will be published in the next couple of days. The Chron will do endorsements for the Supreme Court and Court of Criminal Appeals separately, and will not be endorsing in the County Court, Justice of the Peace, and Constable races. That’s one way to get through this long list of candidates and races in a (mostly) timely fashion.

One last thing: As is often the case with these judicial endorsements, I agree with some and not so much with others. The one that surprises me is the endorsement of Judge Powell. After the big deal the Chron made about not endorsing any judge or judicial candidate who didn’t support bail reform in 2018, it’s a bit jarring to see no mention at all of that subject in this context.

Endorsement watch: Ed again

This is an easy call.

Sheriff Ed Gonzalez

[Sheriff Ed] Gonzalez, 50, a soft-spoken Houston native, former councilman and 18-year veteran of the Houston Police Department, ran as a reformer and he hasn’t disappointed in his first term. From taking a bold stance in support of bail reform to minimizing the use of solitary confinement to expanding vocational programs to women in the jail, changes big and small have prioritized public safety as well as fairness and the dignity of inmates.

To address the opioid crisis, Gonzalez made the Harris County jail the first in Texas to offer Vivitrol, a drug that helps curb cravings and prevent relapses. In October, the jail began equipping departing inmates grant-funded supplies of the drug naloxone, which can save lives by reversing overdoses.

Certainly, bringing a jail of 8,500 inmates that was under two consent decrees when he took office into full compliance with state standards was no easy task. The sheriff has struggled at times to address vexing problems such as jail suicides, of which there were five in a span of two years. With new protocols in place, however, there have been none in the last year, a trend we hope continues.

[…]

Gonzalez’s track record and his drive to continue reform have earned our recommendation for sheriff in the Democratic primary.

They mention the recent cite and release policy as another reform effort Gonzalez has initiated. I think Sheriff Gonzalez has had a pretty darned solid first term, and he did not draw serious opposition. Like I said, this is an easy call.

Cite and release

This has been a long time coming.

Sheriff Ed Gonzalez

Harris County law enforcement officials on Tuesday will begin a “cite and release” program that treats some misdemeanor charges like court citations for speeding tickets, just days after the district attorney’s office said it could not fully comply with the initiative.

The program, which applies to six charges handled in Harris County’s misdemeanor courts, comes amid countywide discussions about bail reform and over-incarceration, as well as District Attorney Kim Ogg’s repeated requests that Harris County Commissioners Court fund more prosecutors for her office.

The Harris County Sheriff’s Office is the first policing agency in the area that is reported to be participating in the program approved by a working group that includes judges. After voicing concerns in a letter to the sheriff, Ogg’s office agreed to the new procedures.

Ogg’s office sent the Chronicle a copy of the letter but declined further comment.

Sheriff Ed Gonzalez noted that Harris County is behind the curve on using cite and release, as other Texas counties began employing it after the state Legislature in 2007 authorized such programs. The hope is that fewer bookings will allow deputies to have more time to patrol neighborhoods, while people who are eligible can stay with their families and keep going to work, he said.

“This administrative policy should help reduce our pre-trial county jail population and provide local costs savings to taxpayers,” the sheriff said. “Citations can divert lower risk individuals from detention, reserving limited space and resources for more dangerous individuals.”

The class A and B misdemeanor charges that apply are criminal mischief, $100-$750; graffiti, $100-$2,500; theft, $100-$750; theft of service $100-$750; contraband in a correctional facility; and driving while license invalid.

If a resident is stopped on one of those offenses, the sheriff’s office will run a check for active warrants and contact the district attorney’s office to see if the person is eligible for cite and release, according to an internal memo about the procedures.

Once prosecutors accept the charges, the deputy completes the citation as long as it’s signed off by the defendant. The suspect is given a court date on the spot and then released.

These are exactly the types of defendants who would be at the top of the list for a personal recognizance bond, so it makes sense to treat them this way. I feel like we’ve been talking about this for a long time, including with HPD, but it just hasn’t happened before now. As the story notes it’s happened as a direct result of the 2018 election, as the Democratic misdemeanor court judges were a driving force behind it. This is the moment, and it’s clearly the way to go. And now that the Sheriff’s office has adopted this policy, maybe HPD will follow.

Chron overview of Commissioners Court Precinct 1

As with endorsement editorials, they’re going to need to write a lot of these in the next couple of weeks.

Commissioner Rodney Ellis

Few Harris County politicians — of any party — are eager to challenge Rodney Ellis, the widely known, well-funded, well-connected Precinct 1 commissioner. Former state district judge Maria T. Jackson says she is up to the task.

The Democratic primary in March will all but crown the winner in November’s general election, as the Republican Party has put forth no candidates in the heavily Democratic precinct, which includes Sunnyside, Downtown, Midtown, Montrose, The Heights, Acres Homes, Greenspoint, Kashmere Gardens and parts of northeast Harris County.

Ellis casts himself as a champion of progressive causes, citing his work reforming Harris County’s bail system, raising the minimum wage for county contractors and ensuring that funds from the landmark $2.5 billion flood bond benefit rich and poor neighborhoods equally.

“During my four years on Commissioners Court, I think I’ve had the same energy, despite my many years in public service, of being a change-maker,” Ellis said.

[…]

Jackson said she would better represent Precinct 1’s impoverished communities than Ellis and be a moderate advocate on criminal justice issues. She said the commissioner has failed to promote economic development in neighborhoods like Sunnyside and neglected the downtown criminal justice complex which was badly damaged by 2017’s Hurricane Harvey. For starters, she said, Commissioners Court needs to build a new criminal courthouse.

“To me, Harris County has gone backwards,” Jackson said of Ellis’s tenure.

After five years as a municipal court judge, Jackson was elected as a felony judge in the 339th State District Court in 2008. She was the longest serving judge in Harris County when she stepped down in September to take a position in the tax assessor’s office and prepare for her Precinct 1 campaign.

During a 90-minute candidate screening with the Houston Chronicle editorial board last month, Ellis displayed a rapt attention for policy details he brings to Commissioners Court meetings. He said he benefits from a sharp team of analysts he assembled, in contrast to other commissioners who organize their staffs around road and park maintenance.

Jackson, 55, struggled to articulate positions on issues such as flood control and criminal justice reform.

She said she supported the landmark misdemeanor bail settlement Ellis helped draft, though she misstated parts of the deal. She alleged the settlement, which could cost as much as $97 million over seven years, would provide free Uber rides and cell phones to defendants. Those benefits were part of a draft settlement proposal, but were removed before Commissioners Court approved the agreement in July.

Jackson said she supports reforming the felony bail system, but criticized Ellis for supporting a potential lawsuit against the county’s felony judges to force changes. Judges have the expertise, she said, to ensure only defendants who pose a public safety risk are jailed before trial.

“You have to be thoughtful about dangerous criminals hurting the public,” Jackson said. “I just want to be smart on who’s released.”

My interview with Commissioner Ellis is here; as noted in that post, Jackson declined to do an interview with me. If you’re wondering what a “moderate advocate on criminal justice issues” might be, this appears later in the story:

Jackson accepted contributions from six bail bond firms, as well as the state bail bondsmen and Houston Police Officers Union political action committees in the last six months of 2019. Bail bond firms and the police union have lobbied against criminal justice reforms that would allow more defendants to be released without bail.

Yeah. The bail reform settlement we got doesn’t happen without Rodney Ellis. I was supporting him anyway, but that clinches it beyond any doubt. This is not a time to go backwards.

Judge Powell back on the ballot

So be it.

Judge George Powell

A civil court judge Wednesday ordered that sitting criminal district Judge George Powell be included on the March primary ballot after the Harris County Democratic Party denied his application for candidacy last month.

Party officials had to accept Powell’s application within 24 hours, and he needs to appear as a choice for voters during the election, Judge Lauren Reeder ordered. But the ruling is technically temporary and could be subject to appeal by the party or Powell’s primary opponent, who was a third-party “intervener” in Powell’s suit against the party.

“I’m very happy that the judge granted our request for an injunction and that he gets the chance to run again,” said Kent Schaffer, Powell’s attorney. “Ultimately, it’s the voters who should decide who the candidate’s going to be, and not a select few people who feel like it’s their right.”

During a Tuesday court hearing, the local chapter of the Democratic Party sought to justify its decision in leaving Powell off the ballot, urging him to take responsibility for his application’s failure. A statement party officials issued after Wednesday’s ruling made little mention of the outcome, however, and pointed to issues with the election code.

Party leaders weren’t able to approve Powell’s candidacy because state rules prevented it, they said. The judge paid an insufficient filing fee too close to the filing deadline, meaning his application was denied and the problem couldn’t be fixed without breaking state rules, party chair Lillie Schechter testified Tuesday.

“The Harris County Democratic Party regrets the situation Judge Powell found himself in,” party officials said in a statement. “Without question, we believe all eligible candidates should have access to the ballot.”

See here for the background, and here for a pre-hearing version of the story, which was also covered by Texas Lawyer. On the one hand, I agree with the HCDP: The rules are easy to understand. He could have filed earlier than the very last minute, when there was no time to fix this easily-corrected mistake. The party doesn’t have much discretion according to the law. On the other hand, I hate seeing people bumped from the ballot for nit-picky reasons. The law in question should be amended to allow a post-deadline grace period to correct technical errors like this (though again, if you know you’re going to run, file at least a day before the deadline and save yourself the trouble).

This is probably the end of the story. The HCDP does not plan to appeal, and intervenor/primary opponent Natalia Cornelio does not appear to be appealing, either. Fine by me, let’s get on to the campaign. One more thing first:

Powell’s lawyers hinted in Tuesday’s injunction hearing that the party might have an interest in keeping the judge from running for re-election, even though paying the incorrect amount might have been no more than a convenient mistake. Schaffer clarified afterward that he believes Ellis is pulling strings in the local Democratic Party, and wants his employee to run unopposed for the 351st state judicial district.

Ellis and Cornelio both helped draft a landmark settlement over Harris County’s misdemeanor bail system, which a federal judge said was unconstitutional and discriminated against poor defendants.

Powell was one of 11 current and former judges in the area who were admonished by the State Commission on Judicial Conduct in 2019 related to complaints that they instructed hearing officers to deny no-cost bail to indigent defendants. That admonishment has since been retracted for unknown reasons.

Randle called the claims “ludicrous,” and Cornelio’s attorney, Mynor E. Rodriguez, said he hadn’t heard those accusations.

Yeah, that admonishment, whatever happened to it. I wasn’t inclined to vote for Powell before any of this happened. I’m less inclined to vote for him now.

Former judge McSpadden rebuked by State Commission on Judicial Conduct

Good.

A former district judge who served on the Harris County bench for 36 years has received a formal reprimand from a state watchdog commission for comments he made to a Houston Chronicle reporter stating black defendants were getting poor guidance from their parents about how to behave when they’re suspected of crimes.

The commission’s rebuke also cited the former judge’s comments in an editorial he penned for the Chronicle expounding on black defendants’ attitudes toward the justice system.

The State Commission on Judicial Conduct issued a warning on Nov. 12 to Michael McSpadden, a Republican who served on the 209th Criminal Court from 1982 through the 2018 election, for “casting public discredit on the judiciary and the administration of justice,” based on a series of comments he made about defendants’ attitudes toward judges and police officers. The commission announced its decision on Monday.

The Austin-based panel found that McSpadden violated a portion of the Texas Code of Judicial Conduct that instructs judges not to do anything outside of court that casts reasonable doubt on the judge’s ability to act impartially. The panel also found McSpadden violated the Texas Constitution’s prohibition against “willful and persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice.”

The warning does not prevent McSpadden from sitting by assignment as a visiting judge, according to Eric Vinson, former executive director of the commission.

[…]

Ashton Woods, president of Black Lives Matter Houston, who called for McSpadden to come under scrutiny for the comments, said the former judge’s statement in chambers and in his editorial called into question his ideology, indicating he could not be fair to black defendants and people of color who came before him due to his preconceived notions of how they may think.

“There’s already an imbalance … and when people put their thumb on the scale like McSpadden did, it increases the disparity,” Woods said. “There may have well been innocent people going through his court and he may have thrown the book at them because he had a bias toward them.”

Woods said he hoped all of McSpadden’s rulings would be reviewed for impartiality.

James Douglas, president of the Houston branch of the NAACP, said he did not think the commission went far enough.

“I think he should be banned from sitting on the bench,” Douglas said. “I don’t think he has the mental temperament or understanding of racial issues…Those views are not the views of a person who is totally impartial on the issue. He indicates he is not impartial when it relates to charges against African American males.”

See here and here for some background. The original comments from McSpadden, who was thankfully removed from the bench last year by the voters, came in a story about how he and others had “directed magistrates to deny no-cash bail to all newly arrested defendants”, over a period of nearly ten years. I agree that McSpadden’s previous rulings should be reviewed, and I definitely agree that he should never be allowed near a bench again. The visiting judge system needs an overhaul as it is, and it should be updated to exclude specifically problematic jurists like McSpadden. This is a no-brainer.

Judge officially approves final Harris County bail settlement

It’s officially finally final and official.

A federal judge has signed off on a historic bail reform agreement for Harris County, setting in place new protections for people accused of minor offenses in the country’s third largest criminal justice system.

The sweeping agreement and consent decree, officially approved Thursday by Chief U.S. District Judge Lee H. Rosenthal, seeks to level the playing field for the thousands of people arrested each year on misdemeanor charges. For years, judges jailed poor people by default while they awaited trial, while those with money to cover bail could walk free and return to their families and livelihoods.

[…]

Rosenthal wrote that her ruling was rooted in extensive legal findings over the past three years.

“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,” Rosenthal said in a 55-page opinion. “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 … can stop systematically depriving indigent misdemeanor defendants of their constitutionally-protected rights by detaining them simply because they cannot afford to post money bail.”

Her opinion acknowledged the objections brought up by “amici,” or friends of the court, including the state Attorney General’s Office, District Attorney Kim Ogg and County Commissioner Steve Radack, who voiced concerns at the final hearing that the deal limited judicial discretion and did not do enough to ensure the safety of communities.

“The court does not question the amici and objectors’ good faith,” she wrote. “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,” the opinion said.

Harris County Judge Lina Hidalgo issued a statement following the judge’s decision, saying it “puts to rest the arguments used to instill fear regarding the impact of bail reform.”

“We do not have to choose between protecting the constitutional rights of defendants and protecting public safety,” she said. “In fact, by reforming our broken bail system, we are taking a step toward rebuilding trust between our system of justice and the residents it serves.”

Precinct 1 Commissioner Rodney Ellis said: “After decades of harmful injustice and three years of a legal battle waged in defense of our core principles of liberty, equal treatment and due process for all — no matter how much money you have or the color of your skin — Harris County’s oppressive and discriminatory misdemeanor cash bail practices are ending.”

You know the story by now. At this point, we need to focus on making this work as it is supposed to, to ensuring that we are making adjustments to the risk assessment tool as needed, and just generally measuring everything so a year from now we can present some metrics to show how it all has gone. There are still political fights to be had – just ask the people running against Vince Ryan and Kim Ogg, for starters, and the Lege still needs to address bail reform in a meaningful way – and there are still legal fights to be had – the second bail lawsuit, which is about felony defendants, and the Dallas County bail lawsuit, among others – but this was a huge step forward. A copy of the consent decree is here, and a copy of the settlement agreement is here. Kudos to everyone who helped make this happen.

The state of the county 2019

Harris County Judge Lina Hidalgo has a lot of accomplishments to tout.

Judge Lina Hidalgo

Harris County in the past year has made significant progress on flood control, criminal justice and improving public health, County Judge Lina Hidalgo said in her first State of the County address Friday.

The county executive also announced her administration would make significant investments in early childhood development in the coming year.

Hidalgo said the Houston area continues to enjoy a bustling economy and low unemployment, but said business and government leaders must not be complacent.

“To a veteran coming home ill-prepared for the 21st century job market, a low unemployment rate doesn’t mean much,” Hidalgo said at the annual luncheon, held this year at the Hilton Americas-Houston Hotel downtown. “To a family who struggles, a great medical center can’t help them if they don’t have health insurance.”

[…]

She lauded a historic settlement to reform the county’s bail system for misdemeanor defendants, which a federal judge had declared unconstitutional. Hidalgo thanked Commissioner Rodney Ellis, who has long been an advocate on criminal justice issues.

She noted that in response to a series of chemical fires in east Harris County, Commissioners Court significantly increased the size of the pollution control and fire marshal’s offices, as well as purchased new air monitors.

“We’ve established the most robust environmental policy that Harris County has seen in at least 30 years,” Hidalgo said.

Hidalgo thanked the county’s flood control district and engineering department for speeding up work on the $2.5 billion flood infrastructure program and fast-tracking drainage projects in 105 subdivisions.

She also said her office has made county government more transparent by holding a series of town halls, developing a 311 call system and making a greater effort to include the public at more open, albeit lengthy, Commissioners Court meetings. Hidalgo said to date, four times as many residents have participated than last year.

You can see a copy of Judge Hidalgo’s prepared remarks here. I like the way she addressed the “concerns” some people had about her age, noting that the legendary Judge Roy Hofheinz was three years younger than she was when he was first elected. I think she has a lot to be proud of, and there’s clearly a lot more she has in mind to do. I’m looking forward to it. The Texas Signal has more.

Last bail lawsuit hearing

At least I assume it’s the last one. I’ve been thinking this was all over but for the formality for months now, so what do I know?

Dianna Williams has witnessed the “collateral damage” of jailing on the fabric of a family. The 61-year-old criminal justice advocate told a federal judge Monday that for generations, her relatives lived paycheck to paycheck and could not afford cash bail when her father and then her brother and her son were held pretrial on low level drug charges.

Mary Nan Huffman offered an opposing take to the judge presiding over a deal upending Harris County money bail for low level offenses. She recounted how her friend was walking with her 3-month-old when a man in a red truck trailed her and later showed up in her yard, masturbating with a knife in his hand. Under the new bail deal, the man would never see a judge and no one would hear that he was a three-time felon who’d been to prison for rape, indecent exposure or kidnapping, said Huffman, a spokesperson for Houston Police Officers’ Union.

Ultimately, the sheriff who oversees the third largest jail in the country sought to assuage fears of constituents on both sides of this contentious issue, telling Chief U.S. District Judge Lee H. Rosenthal the consent decree approved last summer provides fundamental guarantees of justice enshrined in American law and warning against the inclination to let scary scenarios involving particular cases be the foundation of a bail system.

“I don’t think it’s effective for us to develop public policy on outliers,” Sheriff Ed Gonzalez said during the court gathering known as a fairness hearing. “We have to rely on research and facts.”

The hearing attended by six misdemeanor judges who support the historic settlement and three commissioners court members, two of whom oppose it, and about 100 stakeholders lasted three hours, with the judge saying she would consider the input and issue an order soon.

[…]

In a typical class action, a fairness hearing offers class members a chance to express concerns with a settlement. The hearing Monday was unique in that nearly all the speakers were not parties in the lawsuit.

Here’s a preview story of the hearing. I think we all know the basic outline at this point, so all I really care about is when we’ll get the final order from Judge Rosenthal. And then we can relitigate everything in the 2020 elections.

Ogg continues to have problems with the bail settlement

I don’t like this.

Kim Ogg

District Attorney Kim Ogg is rallying police officers across Harris County to show up in federal court en masse to oppose to a landmark bail reform agreement at a final hearing set for this month.

She emailed about 100 police chiefs to invite them to attend an Oct. 28 court proceeding before Chief U.S. District Judge Lee Rosenthal to lend support on an issue she says “endangers the public.”

In addition to recruiting top brass to the hearing, Ogg also requested that her lieutenants be present to support her concerns about portions of the settlement that allowed most defendants arrested on minor offenses to await trial at home without posting up-front cash bail, according to her spokesman, Dane Schiller.

Ogg expressed misgivings about the proposed consent decree approved last summer by Commissioners Court after months of intensive meetings between county leaders, judges and the lawyers for the plaintiffs in the 2016 class action.

Ogg, who is not a defendant in the lawsuit, is among a number of parties, including many from the bail bond industry, who submitted concerns about the settlement in court during the summer.

“The district attorney has always supported bail reform, so that nobody is held just because they are poor, but she also says public safety should always be considered,” Schiller said.

[…]

The county public defender, who has been friends with Ogg since law school, said he suspects Ogg’s approach will be perceived as overkill by Rosenthal, the region’s highest ranking lifetime appointee to the federal bench.

“A courtroom full of police officers is not going to intimidate her,” said Harris County Public Defender Alex Bunin. “She might be insulted that they would do that to her.”

“It’s over the top, and this kind of bravado backfires every time,” Bunin added. He said the majority of the concerns Ogg raised were resolved by a judicial rule passed in January.

See here and here for the background. I agree with Alex Bunin here, this is not going to help and will serve as fuel for Ogg’s primary opponents. The fears being expressed are overblown, and frankly it’s fine by me if the county has to experience a little inconvenience to accommodate a non-violent offender who need assistance getting back to court. As I’ve said before, I’d much rather pay for an Uber for that guy than pay to feed, clothe, and house him for some number of weeks or months. Maybe – stay with me here – we could arrest fewer of these non-violent mostly drug offenders in the first place, which would go a long way towards reducing inconvenience for everyone. In the meantime, the bail agreement is in place and it is going to be the law. Let’s all do what we can to make it work.

The visiting judge and the public defender

I want to understand more about this.

Commissioner Rodney Ellis is calling for a review of the process used to select substitute judges after fielding a scathing letter from the county’s public defender outlining two decades of allegations against ex-Judge Jim Wallace and questioning whether he is eligible to still sit as a “visiting” jurist in light of his disciplinary history.

The former elected judge, a Republican who left the bench in 2018, was one of 11 publicly admonished by state oversight officials in August for allegedly violating judicial canons by ordering hearing officers to deny no-cost bail to thousands of poor defendants.

That admonishment — which the State Commission on Judicial Conduct later retracted, according to Wallace’s attorney — was just one of nearly a dozen incidents outlined in the two-page letter, which also detailed Wallace’s previous disciplinary actions and a more recent courtroom spat when he suggested that a female attorney was objecting too often and told her she should just “stay standing through the whole trial and save your knees.”

The letter, signed by Chief Public Defender Alex Bunin, called those actions “prejudicial to a fair trial” and suggested that the county get a legal opinion on whether Wallace is still eligible to get work as a visiting judge in light of his history.

The regional administrative judge who approves such appointments said that Wallace does qualify because his disciplinary matters were considered lower-level infractions. Wallace, meanwhile, disputed some of the allegations against him, and argued that his other actions were justified or taken out of context.

“They’re bringing up a bunch of stuff that’s totally not true and inaccurate,” he told the Houston Chronicle. “I’m a judge that comes from the old school but I’m not gonna be intimidated by the public defender’s office.”

To Ellis, the letter raises questions about whether judges who were voted out of office or left the bench should still be overseeing local courtrooms. Though he conceded it’s not clear what changes county-level elected officials could implement, on Friday he added the issue to the next Commissioners Court agenda and said he planned to go to the county attorney for advice.

“I’m not sure what can be done,” he said, “but I’m sure what cannot be — and that’s for us to turn a blind eye.”

See here for more on that admonishment. I for one would like to know for sure if the State Commission on Judicial Conduct did in fact retract it, which if true seems to me to be a big deal and a key fact, or if this one judge’s lawyer is just saying they did. The rest of the story goes into the charges levied by Alex Bunin and Judge Wallace’s responses to them. I don’t have nearly enough information to assess them, so I support Commissioner Ellis’ call to review the entire system, which I’m guessing hasn’t had any such review ever. Maybe everything is working fine, maybe there are a few tweaks here and there that could be made, and maybe a wholesale overhaul is in order. Now is as good a time as any to do that, so let’s move on it and see what we find out.

Galveston ordered to provide counsel at bail hearings

Sure seems like the proper thing to do.

Add Galveston to the list of Texas counties that have been court ordered to change their bail practices.

A federal district judge on Wednesday issued a temporary injunction in a 2018 lawsuit where attorneys for inmates have called Galveston County’s money bail system discriminatory against poor criminal defendants. The court’s order doesn’t target the entire pretrial system — which has largely changed since the suit was filed after federal rulings against Harris County. But it requires poor arrestees to have a lawyer at their first court appearance, where their bail is set to determine the monetary or other conditions under which an arrestee can be released from jail before trial.

The ACLU of Texas, which represents Galveston County inmates in the lawsuit, said in a statement after the order that it was the first court in the country to conclude that the Sixth Amendment, which guarantees a right to counsel, requires defense attorneys to be provided at initial bail-setting hearings.

“It’s a matter of basic fairness that you should get a lawyer before a judge decides whether to lock you in jail,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Unsurprisingly, without lawyers to advocate for their release, many people wind up in jail who shouldn’t be there. And even a short time in jail can have devastating repercussions on someone’s life.”

[…]

Since the lawsuit was filed — and as the two most populous counties in the state were repeatedly slammed by federal judges for their bail practices — Galveston County has transformed its pretrial practices. The district attorney’s office still recommends bail amounts from a schedule, but the judicial officer setting bail now has financial information the defendant provided before the first court appearance. Defendants who want to request a lower bond amount for financial reasons can get a second bail review hearing, typically within 12 hours of their first court appearance, where a defense attorney is present to represent all the defendants before the judge in that time slot.

U.S. District Judge George Hanks Jr.’s injunction, however, said the county needs to have a lawyer not just at the review hearings, but at the initial court appearance. He clarified that the order applies to those arrested without warrants and that are first seen in court through Galveston County jail. Hanks adopted the recommendation of magistrate judge Andrew Edison, who said having a defense attorney at a hearing where the court determines how, if at all, to release a defendant before trial, is “a no-brainer.”

See here and here for the background. A copy of the ruling is here and a copy of the magistrate’s recommendations is here. I have to say, I don’t know what the argument against providing an attorney for defendants at bail hearings is, but we’ll find out if there’s an appeal. The Chron has more.

One more step towards the bail lawsuit settlement

We’re almost there. I know it feels like we’ve been there for awhile and are just waiting for it all to become official, but there were still a few checkpoints to get through first, and this is one of them.

In a move that signals she will likely approve a landmark bail agreement, a federal judge in Houston issued a lengthy opinion Thursday meticulously addressing concerns raised by outside parties to the proposed consent decree that would govern bail practices in Harris County for the next seven years.

The 55-page document from Chief U.S. District Judge Lee H. Rosenthal is not the norm in that preliminary approvals at this point in most class action suits usually take up half a page, at most two pages, according to lawyers familiar with typical dockets.

In the opinion, the judge addresses whether the deal was properly negotiated, whether it addressed the needs of all parties and whether the solution was adequate given the potential delays, costs and impact on public safety.

Specifically, she said the plan hit on the key factors required: it addressed the constitutional violations, protected poor defendants, safeguarded the public and reduced the chances that defendants would miss hearings.

While atypical, Rosenthal’s comprehensive memorandum and opinion are in keeping with how the judge runs her office, according to a former law clerk who served in the Houston federal courthouse.

“I’d say this is pretty standard for a judge who is thorough to a fault,” the former clerk said. “It definitely signals ultimate approval, but the point isn’t to telegraph.”

The clerk, who asked to remain anonymous, continued, “It’s simply to respond to the filings in a complete and timely way.”

[…]

Two county commissioners who opposed the resolution — Jack Cagle and Steve Radack — submitted their concerns to the judge along with District Attorney Kim Ogg, the Pasadena police chief and several organizations. The objectors included the Harris County Deputies’ Organization, the Houston Area Police Chiefs Association, the Texas School District Police Chiefs’Association, the Professional Bondsmen of Harris County, Equal Justice Now, Crime Stoppers of Houston, Inc. and the Harris County Domestic Violence Coordinating Council.

The parties directly involved in the case then submitted detailed responses to these amicus or “friend of the court” briefs.

Rosenthal said “the amicus briefs and objections do not identify an adequate basis to deny preliminary approval of the proposed settlement and consent decree.”

See here for the background. Ogg, who continues to talk about the imminent settlement in a way that makes one think she’s asking for trouble in her forthcoming primary election, made a statement about how it’s now all up to the judges to make this work. It’s always been all up to the judges, it’s just that in the past they did a lousy job of that. There’s a “final fairness hearing” set for October 21, and I’m guessing we’ll get the officially signed and sanctioned settlement agreement some time after that. I’m ready for this to be over and done.

The felony judges who abused the bail system

Shame on them all.

Three sitting judges and eight former district judges in Harris County were publicly admonished by the State Commission on Judicial Conduct in response to complaints that for years they violated state law and judicial cannons by ordering hearing officers to deny no-cost bail to thousands of poor defendants.

But the actions this week came too late to affect most jurists’ behavior on the bench. Seven left their district seats last year either because they didn’t run or lost elections. One lost re-election back in 2016.

The misconduct probes of all 11 judges began in February 2018, when the Houston Chronicle obtained copies of memos and notes that showed that for a full decade most of Harris County’s felony court judges had provided different types of written or verbal instructions to the county’s hearing officers to routinely deny no-cash bail to all or most newly-arrested defendants.

The agency’s findings confirm most bans were in effect for years and largely went unnoticed and unchallenged until 2017 when Harris County judges and other officials were civilly sued in federal court for allegedly violating the rights of poor defendants by routinely failing to provide no-cost bail in many misdemeanor as well as felony cases.(The county is now in the process of settling that lawsuit).

In its August disciplinary orders, the commission concluded that through various actions all 11 Harris County district judges willfully violated judicial cannons and also “failed to comply with the law and failed to maintain competence in the law” by instructing hearing officers not to issue personal bonds even though under state law the hearing officers had the authority and duty to do so, the orders say. Under state laws and ethical cannons, the hearing officers are supposed to consider each defendant’s case and circumstances individually.

Let’s be clear here: These judges were found by the State Commission on Judicial Conduct not just to have violated rules of conduct that they are expected to follow, they actually broke the law by systematically denying personal recognizance bonds to poor defendants. This is serious stuff.

You may say “but these are FELONY defendants!” Sure, but it’s still the case that some number of them will never be convicted of a crime. Some of them will agree to a plea deal for a misdemeanor or lesser felony for which the sentence includes no jail time. Some, regardless of how their case gets adjudicated, represent little to no risk to public safety. How big a risk they are to public safety is completely unrelated to how much cash or collateral they can scrape up to buy their way out of jail. Again, Robert Durst got bailed out. There remains a bail lawsuit in Harris County over the practices in the felony courts, and there’s a similar lawsuit in Dallas that’s working its way towards a resolution. Standard practices are going to change, because they have to change.

The judges who were admonished included former longtime Harris County District Judge Michael McSpadden, who retired last year after many years presiding over the 209th District Court. The commission found McSpadden had, like many other longtime judges, issued blanket instructions to deny all personal recognizance or PR bond requests from Nov. 20, 2009 to Feb. 1, 2017. McSpadden had previously written a letter to the Houston Chronicle in March 2018 where he admitted that “it is true I have instructed the magistrates not to grant these bonds in our felony cases to all defendants, never specifying a certain race or gender.”

McSpadden told the Chronicle on Thursday that he stands behind his decision to deny PR bonds even if it violated the law.

“I have great respect for the work of the commission. But I still feel the same way. I, as the elected judge, would like to make the decision on free bonds for accused felons rather than turn those important duties over to the magistrates. And it would take one more day to do this,” he said.

[…]

The three active Harris County District Judges who were admonished were: Hazel Jones, of the 174th District Court, Herb Richie of the 337th District Court and George Powell of the 351st District Court.

Michael McSpadden’s first duty as a judge was to follow the law. He did not do that. I don’t give a crap what his feelings were. He failed to do his job, and I am glad he is no longer on the bench.

I am not happy that three Democratic judges were also found to be doing this. All three are up for election next year, and there are no more Republican judges on the district or county courts for Democrats to aim for. But we can still perform upgrades, and these courts are at the front of the line for that. Democrats with a criminal justice background, an interest in becoming a judge, and a commitment to following the law, should look here first.

(Obligatory copy editing nitpick: A “cannon” is a big gun. A “canon” is a fundamental principle or general rule, and is the thing that these judges violated. Spelling counts, y’all.)

Ogg’s objections

This kind of came out of the blue.

Kim Ogg

Harris County District Attorney Kim Ogg — who has been aligned with bail reformers during an ongoing legal conflict over the disparate treatment of poor defendants — filed a brief Thursday opposing portions of the consent decree governing the misdemeanor bail system, prompting fellow Democrats on the bench to question why Ogg is raising her concerns at the eleventh hour.

Ogg’s amicus brief landed on the docket this week amid a flurry of eight or nine pleadings and letters from individuals and groups opposing the bail agreement, including briefs by Republican Commissioners Steve Radack and Jack Cagle, who both voted against the settlement and have opposed what they consider “bells and whistles” the parties added which they say extend beyond the scope of the lawsuit.

[…]

The district attorney said in her court filing that the bail deal disproportionately favors the convenience of defendants over the needs of victims, witnesses and other stakeholders.

Ogg also expressed concern that the settlement removes the role of the prosecutor in getting defendants to show up for court and sets sanctions for noncompliance with the new bail process without providing clarity about what’s expected from prosecutors.

“It is fundamentally unfair to expose 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,” it says.

In addition, the DA objected to the “unfettered and unreviewable discretion” allowed to judges to delay or “outright excuse” defendants from appearing in court, which Ogg says violates Texas law.

Judge Darrell Jordan, the presiding jurist on the County Courts at Law, said he and his fellow judges welcome all criticism, but he said Ogg had ample opportunity to give this input while the settlement was being hammered out.

Jordan said Ogg’s office played an essential role in developing rule 9.1, which allows about 85 percent of defendants to be released on no-cash bond.

“Her former First Assistant Tom Berg was a great asset during the entire process,” Jordan said. “Once he left the office Kim Ogg was a ghost.”

“She has not attended any meetings or sent a representative since Mr. Berg’s departure. I have called, texted and emailed the District Attorney and she does not respond,” Jordan continued. “Government cannot function the way it should when there is no communication.”

Jordan said the judges have set an emergency meeting for the misdemeanor judges to review Ogg’s brief “line-by line” and “address all concerns raised by the District Attorney.”

You can read her filing here. I skimmed through it and it seemed more superficial than substantive, but I Am Not A Lawyer so take that for what it’s worth. Alec Karakatsanis, who is a lawyer and in fact represented the plaintiffs, is quoted in the story saying these are “some minor objections that are not significant issues”, so take that for much more than what my comments are worth. They have until Sunday to respond to this and any other brief. Judge Rosenthal will get the final say, presumably some time in September. Grits for Breakfast has more.

The Harris County bail lawsuit effect on Dallas County

The Trib looks to see if the recent Harris County bail lawsuit settlement might affect the bail lawsuit in Dallas County.

“Anytime one county settles, it could possibly provide a roadmap for another county, but I can’t say that it will,” said Dallas County District Attorney John Creuzot, whose county’s bail practices have also been slammed by a federal judge. “The landscape of this lawsuit is different.”

A big piece of that is because Dallas’ lawsuit, like another in Harris and one in Galveston, targets bail practices not only for misdemeanor defendants, but for felony cases, too.

[…]

“I’ve been studying very closely what’s happening in Harris County, and I think that it’s a step in the right direction and something that we should … modify or use as a blueprint for felony cases,” said State District Court Judge Brandon Birmingham, a Democrat and defendant in Dallas’ lawsuit. He was especially interested in the idea of an open-hours court.

Adding felonies to the lawsuit against bail practices in Dallas brought a new complication, however. The judges work for the state, not the county, and are being represented by the Texas attorney general’s office, which claims they have no jurisdiction over early bail decisions. County officials, who are largely Democratic, have said the attorney general’s office, run by Republican Ken Paxton, has stalled settlement talks and reform efforts.

“The fact that felony judges are part of the lawsuit complicates resolution,” said Dallas County Judge Clay Jenkins, a Democrat. “The AG office’s public positions on criminal justice reform and bail reform are not the same as the Commissioners Court or most of our elected judges.”

The attorney general’s office did not immediately respond to a request for comment.

In a court filing last month, Texas Solicitor General Kyle Hawkins wrote that the Dallas lawsuit goes too far by including felony judges. He said bail decisions are set by county judicial officers before felony judges assume jurisdiction over criminal matters.

“Despite tens of thousands of words spilled in this case so far, [the plaintiff] has yet to articulate just what she expects the felony judges to do, going forward, to remedy her alleged harm,” Hawkins wrote.

But things appear to be moving toward resolution. Two district judges, including Birmingham, recently began conducting their own bail hearings every morning and hired a lawyer to represent them instead of the attorney general. Jenkins and Creuzot confirmed that the parties are now headed to mediation to hopefully come up with a settlement proposal or consent decree.

See here for more on the second Harris County lawsuit, the one involving felony cases. It was filed in January and I haven’t seen any updates as yet, nor do I know if the AG’s office has gotten involved. Be that as it may, it seems to me that the underlying principle is the same, and should be viewed through a similar lens by the federal court. This time, Harris will follow behind Dallas, so we’ll see where they lead us.

Commissioners Court approves bail lawsuit settlement

Excellent.

Harris County Commissioners Court approved a historic settlement Tuesday fixing a bail system a federal judge found unconstitutional and ushering in a new era for criminal justice in one of the nation’s largest metropolitan areas.

The deal resulted from months of intensive negotiations between the county and lawyers for indigent misdemeanor defendants who sued over a two-tiered system that jailed people prior to trial if they couldn’t pay up front cash bail but allowed people with similar backgrounds and charges to resume their lives and await trial at home.

“This was the result of careful negotiation,” County Judge Lina Hidalgo said just before the commissioner’s voted 3-2 to approve the deal.

The vote split along party lines. Commissioners Jack Cagle and Steve Radack, the only Republicans now on the the commissioners court, voted against it.

The settlement agreement — which still must be approved by a federal judge — installs a monitor to oversee the new bail protocol for seven years. It provides comprehensive public defense services and safeguards to help ensure defendants show up for court. It will allow about 85 percent of people arrested on misdemeanors to avoid pretrial detention. The settlement also calls for transparent data collection, which will allow the county to keep better track of what’s working and what isn’t.

You know the background, so see here for the previous update. I can only wonder what would have happened in a world where Democrats swept the judicial races but failed to win those two seats on Commissioners Court. I feel pretty confident saying that as of July 30 in that alternate universe, there would not be an agreement in place. Elections, they do have consequences. Congratulations one and all for getting this done.

Final bail settlement reached

We are coming to the end of a very long road.

A long-awaited settlement in Harris County’s historic bail lawsuit won tentative approval Friday from all parties, setting up a possible end to a contentious system that kept poor people behind bars on low-level charges while those with money could walk free.

The agreement — if approved by a federal judge and county officials — would formally adopt the judge’s findings and modernize the way local officials handle bail hearings for the steady stream of people arrested every day on misdemeanors.

Key reforms in the lengthy consent decree include revised judicial protocol, access to more public defense services, open court hours for defendants to clear or prevent warrants, as well as text reminders about hearings and a bail education program for officials and the public. The county will have a court-appointed monitor for seven years to oversee implementation.

The county also would agree to pay about $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit. An additional $2.1 million in legal fees has been waived by the Susman Godfrey firm.

Commissioner Rodney Ellis, who has championed bail and criminal justice reform for decades, called the agreement one of the highlights of his career.

“It’s a major civil rights victory that will have national implications,” Ellis said. “This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”

The deal could provide a road map for other jurisdictions around the country to rethink their bail systems amid widespread overcrowding and a nationwide push for criminal justice reform.

Commissioners Court is set to vote Tuesday on the proposed deal. Chief U.S. District Judge Lee H. Rosenthal could then consider approving it after a hearing Aug. 21.

See here for some background. I got a press release from the Texas Organizing Project on Thursday about this, so I’ve been eagerly awaiting the news story. I can predict with confidence that Commissioners Court will approve this by a 3-2 margin. Elections have consequences. Kudos to everyone who worked hard to make this happen.

Some county race updates

2020 is going to be a very different election year in Harris County, because for the first time in anyone’s memory all of the non-HCDE countywide offices are held by Democrats. If you’re a Democrat in Harris County and you want to run for judge or an executive countywide position, you either need someone to step down or you need to challenge an incumbent Democrat. This month, we’re seeing some activity on that score, as two Democratic hopefuls have filed designation of treasurer reports for the purpose of running for County Attorney against three-term incumbent Vince Ryan. They are Ben Rose, who ran for HD134 in 2016, and Christian Menefee, past president of the Houston Black American Democrats (HBAD). That makes this one of the main local primaries to watch for 2020.

I have expected that someone, possibly more than one someone, would challenge Ryan, assuming he doesn’t decide to retire. We can agree that while Vince Ryan has generally been a fine County Attorney – his office has been sufficiently aggressive in enforcing environmental law that the Lege has taken steps to clip his wings, and he quickly put an end to then-Clerk Stan Stanart’s equivocating nonsense following the Obergefell ruling, among other things – a lot of people did not care for how he handled the bail lawsuit. If Ryan does run for a fourth term, I’m sure we’ll relitigate that with vigor. Regardless of whether Ryan is on the ballot or not, I hope we also have a spirited argument about what the role of the Harris County Attorney should be in a blue county with a Democratic majority on Commissioners Court. Is there room to take a more activist role in fighting against the actions by the state and federal government that directly harm Harris County? Maybe the answer to that question is No, and maybe the answer to that question is “Yes, but it comes with significant risk”, but I think it’s a question worth exploring. Let’s talk about what a Harris County Attorney should be doing, not just what that office and the person in charge of it have been doing.

I mentioned that the two At Large HCDE seats that remain in Republican hands are the last countywide seats held by a member of the GOP. They are At Large positions 5 and 7, now held by the execrable Michael Wolfe and the dinosaur Don Sumners. Both of them now have declared challengers, as Andrea Duhon and David Brown have filed treasurer reports against them. Duhon, who ran for and narrowly lost the HCDE Precinct 3 race last year, is up against Wolfe, while Brown will oppose Sumners. I won’t be surprised if they have company in their primaries, but for now they’re the ones.

Finally, I haven’t seen a treasurer filing, but Diana Alexander has announced her intention to challenge County Commissioner Steve Radack in Precinct 3. Alexander manages the Indivisible Houston, Pantsuit Republic, and Pantsuit Republic Houston Facebook groups; I don’t know anything else about her at this time. I can say for certain that others will be entering this race, as this is the top local prize for Democrats to pursue. Some names I have heard mentioned in connection with this include term-limited Council Member Mike Laster, former State Rep. Kristi Thibaut, and Precinct 1 Constable Alan Rosen, who would not be able to say anything about this without triggering resign to run. If you’ve heard other names being bandied about for this, please leave a comment and let us know.

House passes a bail reform bill

For what it’s worth.

Rep. Kyle Kacal

The Texas House gave an initial stamp of approval Thursday to a bill that addresses bail practices, which courts recently deemed unconstitutional in the state’s two most populous counties for discriminating against poor criminal defendants who can’t pay for their release from jail.

But a last-minute amendment actually limits who can be released from behind bars without having cash.

Reform advocates have called for a system that could get poor, nonviolent defendants out of jail before their trial, but the amendment by state Rep. Oscar Longoria, D-Mission, is more restrictive than current law on no-cost releases. It would not allow judicial officers to release defendants on no-cost bonds for numerous reasons, including if they haven’t shown up to a court hearing in the previous two years, were charged with a violent offense or were charged with a crime that involves more than 4 grams of a controlled substance.

House Bill 2020 was one of several bail reform measures filed this year after federal court rulings, jail deaths and a state trooper’s murder drew attention to Texas’ pretrial jailing practices after the last legislative session. As it was presented to the chamber, the bill would have required officials to consider a defendant’s risk of danger or skipping court before making bail decisions. The successful amendment nixed that requirement if a defendant is released on a preset bail amount.

The bill’s author, state Rep. Kyle Kacal, R-College Station, said he worked in coordination with Republican Gov. Greg Abbott’s office on the measure, but it has changed significantly since it was filed in March. One of the most notable revisions before coming to the floor was that it no longer puts the power over systemic bail changes under the governor’s office.

[…]

Longoria’s amendment drastically alters the bill, but he emphasized that the move to restrict release for defendants on personal bonds — which have no upfront cost — for some defendants was based on safety, noting that it limited no-cost release for sexual assault and family violence offenses.

“It was more of a community safety issue,” he told The Texas Tribune after the bill passed. “A lot of judges don’t have the proper training to basically admonish the defendants and set proper bond.”

The amendment went against what many advocates have pushed for, and Marc Levin with the Texas Public Policy Foundation, a conservative think tank, said he would push to have the Senate remove it if the bill finally passes the House.

“It certainly would contribute to inequality in the system, and it could contribute to dangerous people who have money being released when they shouldn’t,” he said.

Some bail reform advocates have also criticized the bill for still relying on money bail instead of presuming release on no-cost bonds for nonviolent defendants. At a hearing last month, the criminal justice advocacy group Texas Fair Defense Project claimed the bill at that time didn’t adequately address federal court rulings that said Harris and Dallas counties’ bail practices kept people in jail simply because they were too poor to pay their bonds, and the group called for individual bail hearings within two days. The organization also said the bill’s requirement of a risk assessment would prohibit judges from automatically releasing from jail most misdemeanor defendants on a no-cost bond. Newly elected judges in Harris County adopted that practice amid legal woes the county faced from the federal ruling.

“We would like to see … that they’re still allowed to make a decision to automatically release defendants on really low-level, nonviolent offense,” Emily Gerrick, a staff attorney for the organization, said at the hearing.

Amendments to allow counties to release defendants on no-cost bonds before a risk assessment and to address the court rulings that called for individualized bail hearings failed Thursday.

See here and here for the background. Earlier bills by Rep. Andrew Murr and Sen. John Whitmire appear to be dead at this point, so it’s this bill or nothing. Grits believes none of these bills were going to address the main constitutional flaws in the existing system, which should be clarified in the coming months by the Fifth Circuit. After reading through this story, I’m inclined to agree. If this bill falls short of what the court is likely to order, what’s the point? Whatever the case, it’s up to the Senate now.

We need more than just bail reform

Bail reform is based on the radical idea that locking up non-violent, low-risk people who have been arrested on minor charges is a very bad and very expensive thing to do. But let’s take a step back from that and note that lots of people get arrested for things they shouldn’t get arrested for.

As the House Criminal Jurisprudence Committee today prepares to hear HB 2754 (White), the committee substitute to which would limit most Class C misdemeanor arrests (with certain public safety exceptions), Just Liberty put out a new analysis of data titled, “Thousands of Sandra Blands: Analyzing Class-C-misdemeanor arrests and use-of-force at Texas traffic stops.”

The analysis relies on the new racial profiling reports which came out March 1st, analyzing information for Texas police departments in cities with more than 50,000 people, and sheriffs in counties with more than 100,000. Here’s the table from Appendix One of the report with the underlying data.

Readers will recall that new detail about Class-C arrests, use of force, and outcomes of searches were added to the report as part of the Sandra Bland Actpassed in 2017. But the provision to restrict Class C arrests was removed before the law was passed. So HB 2754 amounts to unfinished business for those concerned about what happened to Sandra Bland.

Our findings: The practice of arresting drivers for Class C misdemeanors – not warrants, and not more serious offenses – is more widespread than portrayed by law enforcement. The 96 police and sheriffs in our sample arrested people nearly 23,000 times for Class-C misdemeanors last year, with the Texas Department of Public Safety accounting for nearly 5,000 more.

[…]

These data represent fewer than 100 law enforcement agencies, but more than 2,000 agencies must submit racial profiling reports because they perform traffic stops in come capacity. Agencies in our dataset represent the largest jurisdictions, but not all by a longshot. If we assume that these departments plus DPS represent 60 percent of traffic stops in the state, and that the average arrest rate for the other 40 percent is the same as in this sample, then Texas law enforcement agencies arrested more than 45,000 people at traffic stops statewide last year, the report estimated.

These higher-than-previously-understood estimates are corroborated by Texas Appleseed’s recent analysis of jail bookings. Examining data from eleven (11) counties, they found more than 30,000 jail bookings where Class C misdemeanors (not warrants) were the highest charge. The difference between analyzing jail bookings and racial-profiling data is that jail bookings include Class C arrests which happened anywhere. The racial profiling reports Just Liberty analyzed only consider arrests made during traffic stops.

Taken together, these analyses demonstrate that the overall number of Class C arrests is much higher than anyone ever imagined when this topic has been discussed in the past.

The full report is here. It’s short, so go read it. How many people over the years do you think have spent time in the Harris County Jail because of a traffic stop? How many millions of your taxes do you think went to keeping them there?

Bail lawsuit settlement outline taking shape

We should have a final version in a couple of weeks.

A proposed settlement in the landmark Harris County bail lawsuit would significantly change how the county treats poor defendants in misdemeanor cases by providing free social and transportation services and relaxing penalties for missed court dates.

The draft deal includes a number of reforms aimed at ensuring poor defendants arrive for court hearings and are not unfairly pressured into guilty pleas. They would, among other changes: require Harris County to provide free child care at courthouses, develop a two-way communication system between courts and defendants, give cell phones to poor defendants and pay for public transit or ride share services for defendants without access to transportation to court.

“I’m not aware of any county, or city the size of Houston… doing those type of innovative things,” said Mary McCord, a former federal prosecutor who filed an amicus brief in the case on behalf of the poor defendants. “Ultimately, the county is going to save so much money by not keeping these people in jail.”

The proffered agreement would require the county to operate at least one night or weekend docket to provide a more convenient opportunity for defendants with family, work and education commitments. Courts would be barred from charging any fees to poor defendants, defined as those earning less than 200 percent of the federal poverty level, which is about $25,000 for someone with no dependents.

The proposal also would reduce penalties for missed court dates. A defendant could not be deemed to have failed to appear if he arrived in court on the day assigned, even if he was hours late. Defendants would be allowed to reschedule court appearances for any reason at least two times without negative consequences. Judges only could issue bench warrants 30 days after a missed a court appearance, so long as the court already has attempted to contact the defendant with a rescheduled hearing date.

In addition, judges would be required to permit defendants to skip hearings where their presence is unnecessary, such as routine meetings between prosecutors, defense attorneys and judges that do not involve testimony or fact-finding.

At the heart of the 23-page proposed settlement, a copy of which was obtained by the Houston Chronicle, is the codification of a new bail schedule unveiled by the slate of newly elected of criminal judges in January, under which about 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds.

“Our current goal now is to become the model misdemeanor court system in America,” said Harris County Criminal Court at Law Judge Darrell Jordan, a bail reform advocate and the only Democrat on the misdemeanor bench when the case began. “I think the proposals in the settlement, as far as the wraparound services for misdemeanor defendants, is a great step in that direction.”

[…]

Harris County Judge Lina Hidalgo issued a statement late Friday stressing that the proposal is preliminary, and could change.

“We’re working well with the plaintiffs to reach an agreement that will provide a model for bail reform around the country while also being feasible for the county to implement,” she said.

Precinct 2 Commissioner Adrian Garcia said he is eager to negotiate a settlement that balances the needs of defendants against those of victims and county taxpayers. He declined to speak to specific provisions in the proposed settlement, but said he has concerns that some may be too expensive or unrealistic.

“I’ll just say there’s a number of things that immediately hit me like, ‘I’m not sure how we’re going to do that,’” Garcia said.

Precinct 3 Commissioner Steve Radack and Precinct 4’s Jack Cagle panned the proposal, which they said is too broad. The pair of Republicans said it should instead focus on implementing bail rules that ignore a defendant’s ability to pay.

“If my learned colleagues are going to strive for free Uber rides for the accused, I’d strongly advocate we provide the same to victims,” Cagle said.

Just a reminder, for anyone who might be fixating on the Uber rides or childcare aspects of this, the goal here is to get people to show up for their court dates. I would remind you that the alternative to paying for those relatively small things is paying to house, feed, and clothe thousands of people for weeks or months at a time, and that we have been doing exactly that for decades now. And if it’s the Uber thing that’s really sticking in your craw, then I trust you support a robust expansion of our public transit and pedestrian infrastructure so that it’s practical for anyone to take a bus to the courthouse. (Though having said that, if Commissioner Cagle was being sincere and not sarcastic, providing rides to the courthouse for victims who need them seems like a good idea to me.)

Again, just to review. Locking people up who have not been convicted of a crime is (with limited exceptions) wrong. Locking people up who have been arrested on charges that would normally not carry jail time if they were convicted is wrong. Locking people up for technical violations that have nothing to do with the crimes with which they have been charged is wrong. We spend tens of millions of dollars of our tax dollars every year doing these things. This is our chance to spend a whole lot less, and to get better results for it.

An overview on bail reform

From Mother Jones, a look at how bail reform is progressing in Harris County. I’m going to focus on the part about the second bail-related lawsuit, which covers felony arrests.

A federal judge in Harris County is currently considering a case that would transform the way bail is set for people charged with felonies, a population that comprises the vast majority of people in jail awaiting trial.

The lawsuit, filed in January by civil rights groups against the county and its sheriff, argues that detaining felony defendants simply because they can’t afford bail discriminates against the poor and often forces them to take guilty pleas just to get out faster. The suit asks the court to stop the practice of jailing people who aren’t a threat to public safety prior to trial only because they can’t pay. According to the suit, in 2017, up to 85 percent of those arrested for felonies were booked into jail because they couldn’t make bail.

[…]

The settlement [in the misdemeanor case lawsuit] was a watershed moment. “I don’t think we can understate the cultural significance,” says Alec Karakatsanis, who was a lawyer with Equal Justice Under Law when the case was settled and is now an attorney with Civil Rights Corps. Although other counties and states have similarly reformed their bail systems—California abolished cash bail last year, and Washington, DC, largely did away with the practice decades ago—Harris County’s size makes the victory particularly significant.

And while the settlement details were being ironed out, the same lawyers from the misdemeanor case filed the felony suit.

“Once we were having very constructive, productive discussions with the new misdemeanor judges about a final settlement, we realized it was time now to move on to the next piece of the problem,” said Neal Manne, an attorney representing the plaintiffs in both lawsuits.

The felony case, a class action, was filed on behalf of three men who had been charged with nonviolent felony offenses, including driving under the influence and drug possession. The men were assigned bail amounts between $15,000 and $30,000. None of them could pay, and two of them remain detained since being brought into custody in mid-January. (The other made bail after about two weeks in jail.) Like the misdemeanor case, lawyers for the plaintiffs are arguing that such a bail system discriminates against poor inmates who are otherwise low risk.

But if the misdemeanor case was a big deal, the case currently in front of the court will be a game-changer. As of March 2016, misdemeanor defendants comprise only about 8 percent of the county jail’s pretrial population—felony defendants, meanwhile, account for the rest. In fact, 77 percent of the entire county jail population, or approximately 6,000 people, at any given time are felony defendants awaiting trial, most of them for nonviolent offenses. And like people charged with misdemeanors, most of the defendants in jail for felony charges are stuck there because they can’t afford a bond. Although there are no national figures available on how many people are in jail because they can’t pay, data from the Prison Policy Initiative says that every day, 465,000 people are held in jail pretrial, and the organization estimates that hundreds of thousands of these people are there because they can’t afford bail.

If the district court sides with Karakatsanis and his clients, Harris County would be one of the largest in the country to severely limit the use of cash bail. The parties will be negotiating a settlement over the next several weeks, and Manne said he’s optimistic those talks will result in a similar outcome as the misdemeanor suit.

See here and here for some background. The story does not note that there are bills filed in the Legislature that would implement much of the reforms from the Harris County lawsuit statewide. Harris County was a watershed here not just because it’s the biggest county, with the biggest jail population, but also because for the most part, the other big counties have not taken similar action yet. The precedent this lawsuit set will certainly affect any future and current lawsuits in other counties, whether or not the proposed bills pass. There of course remains some resistance to the whole thing, but that is by this point a diminishing position. I look forward to seeing how the negotiations over the felony bail lawsuit turn out.

Abbott wants in on bail reform

Not sure yet what to make of this.

The ongoing federal lawsuits (and the potential for new ones) and recent jail deaths have further spurred efforts in Texas to address the court rulings and help get poor people accused of nonviolent crimes out of jail. Republican Gov. Greg Abbott has prioritized fixing the bail system this session, but he has focused more on making it harder for dangerous defendants to get out of jail.

But when this legislative session’s first pair of major reform bills were filed last month by a Democratic senator and Republican House representative who have worked on the issue for years, Abbott was silent. Now, he appears to have thrown his weight behind a less-detailed bill with the same name. A key difference: It puts power over changes to Texas’ bail system directly into his office — giving him control over the creation of a risk-assessment tool to be used in bail decisions.

The bill was only recently filed, and advocacy groups for bail reform have acknowledged that it will likely be tweaked as it moves through the Legislature, but the legislation still has drawn concern from groups that say it doesn’t properly address the problems that led to federal litigation and that it is fully “unworkable” in some areas.

“If the Legislature does not want federal courts to design local bail systems in Texas, they need to pass a bill that corrects the essential problem of people who could otherwise safely be released being jailed for no other reason than their not having money for bail,” said Mary Schmid Mergler, director of the criminal justice project for the advocacy group Texas Appleseed, in an email to The Texas Tribune.

She added that the first bills filed are more comprehensive and research driven.

[…]

A primary piece of Whitmire and Murr’s legislation would have the state’s Office of Court Administration create a risk-assessment tool to help judges determine an arrestee’s potential for posing a danger or skipping court hearings if released from jail before trial. It would also establish procedures in statute aimed at releasing poor, low-risk defendants from jail on no-cost bonds while those deemed a high risk would be detained before trial without the option of bailing out with cash. (Currently in Texas, bail release can only be denied in capital murder cases or in certain repeat felony or bail violation circumstances.)

The second Damon Allen Act filed this month by state Rep. Kyle Kacal, R-College Station, also includes a risk-assessment tool, but it doesn’t specify how and when the tool would be used to affect bail practices. Instead, it creates a program within the governor’s office that would both develop the tool and recommend best practices for pretrial release decisions.

“I think [Abbott] and his office produced the Kacal bill, which means we’ve got a lot of work to do with the governor’s office if we’re going to pursue my bill,” Whitmire told the Tribune last week. “I know [Abbott] wants to control it.”

[…]

A risk-assessment tool is included in Kacal’s legislation, but it is much less specific than Whitmire and Murr’s bills, which explicitly lay out how and by when judicial officers must use the tool in making bail decisions, in part nodding to the necessary changes called for by federal judges in Harris and Dallas counties. Instead, the Kacal (and now Whitmire) legislation places the power for creating the risk-assessment tool, as well as deciding on best practices for pretrial release, directly under the governor.

The bill would create a Bail Advisory Program within the governor’s Criminal Justice Division, a grant-making arm of the executive office. The governor would appoint a director, and the program would develop a pretrial risk-assessment tool for bail decisions (with help from the Office of Court Administration), recommend best practices for bail decisions and collect data on bail practices statewide.

“[Abbott’s] concerned about who would get out on a [no-cost] bond, and I guess he thinks if he came up with a risk-assessment model, he would be able to have more input,” Whitmire said.

See here for some background. I am of course generally suspicious of Abbott’s motives, but so far reform advocates haven’t complained, Whitmire has expressed his willingness to work with him, and as Whitmire notes they do need the governor’s signature. If this increases the odds of the bill passing, and it doesn’t result in the bill being too watered down, then this is fine. Everyone agrees there will be changes made to the final bill, so that’s what we need to watch.

A lawsuit against bail reform

That would be a No from me.

A Harris County judge has sided with lawyers for the Harris County Sheriff’s Office and a slate of new Democratic judges vying to loosen misdemeanor bail rules this weekend, rather than grant a request of three bail bond companies that would have delayed the start of the proposed revisions .

The companies argued Thursday that the court-ordered bail reform — believed to be a key step in a lengthy legal fight over the pre-trial detention of poor, low-level offenders — would jeopardize their Houston bail bonds business.

“They won’t get to write as many bail bonds as they did before and they won’t make as much money as they did before,” said Allan Van Fleet, a lawyer representing the judges.

[…]

The reform, the companies argue, violates state law because it would guarantee many defendants a specific type of bail without first providing them individual hearings before a judge, and because it would require the sheriff to reject some bonds that otherwise would be valid under state law, among other reasons.

“We have a constitutional right to make our living by bail bonds and if they want to amend the way the things are, they can do that but it still has to be by state law,” said Kevin Pennell, who represented Set ‘Em Free Bail Bonds, A Better Bail Bond and Advantage Bail Bonds in the county suit filed Thursday.

Eightieth Civil Court Judge Larry Weiman countered the argument before he denied the order.

“Doesn’t the court have to balance the constitutional right of the defendants, those who are arrested and charged with a crime,” Weiman asked, before resetting the temporary injunction hearing to March 11.

I’ll bet tobacco farmers used to make a pretty good living, too. I don’t know about you, but I’m not sorry for the societal and legal changes that led to the decline of that profession. There will still be a need for bail bonds going forward. There just won’t be as much of a need for them. That is as it should be. A hearing to review the proposed settlement in the original lawsuit will be on March 8. We’ll see where we stand then.

Trying again for bail reform at the Lege

A very worthwhile pursuit.

Sen. John Whitmire

State Sen. John Whitmire, D-Houston, and state Rep. Andrew Murr, R-Junction, announced Monday at the Capitol that they have again filed legislation that would implement a risk-assessment tool for judges to use when making bail decisions, among other proposals. Joining them in support of the legislation were the state’s two top judges, Texas Supreme Court Chief Justice Nathan Hecht — who has publicly called for a change to Texas’ system for years — and Court of Criminal Appeals Presiding Judge Sharon Keller.

“I don’t believe I’ve seen anything more broken in the criminal justice system than our current bail bond process,” Whitmire said. “If we do not fix it, ladies and gentlemen, the federal courts will.”

Bail is a legal mechanism to ensure defendants appear in court for their hearings after being charged with a crime. The most common practice is money bail, in which judicial officers set a bond amount that defendants must pay in order to be released. In the last few years, lawsuits have popped up all over the country — including in Texas — arguing that the system wrongfully detains poor defendants until their case is resolved while similar defendants with cash are allowed to go free.

In a speech to the 2017 Legislature, Hecht argued for reforms by noting that 75 percent of people in Texas jails have not been convicted. To illustrate what he considers a flawed system, he cited the case of a grandmother who was kept in jail for about two months on a $150,000 bond after allegedly shoplifting $105 worth of clothes for her grandchildren.

The bipartisan legislation filed Monday aims to help poor, low-level defendants get out of jail on free bonds and keep in jail those thought to be flight risks or threats to public safety. The proposed risk-assessment tool would have to be used within two days of arrest to help judges determine the defendant’s level of risk based on criminal history, not just the current offense. The bills are similar to last session’s, when legislation passed the Senate but died before reaching the House floor.

Whitmire blamed his 2017 bill’s failure on the powerful bail bond industry, which includes companies that front the full cost of a bail bond at a fee of about 10 percent. (A defendant being held on a $1,000 bond, for example, could pay $100 to a bail bond company to be released.) He said last session that bail bond companies opposed the bill because it would cut into their cash flow, but those in the industry have argued the measure would lessen a judge’s discretion and threaten public safety by letting more people out of jail.

[…]

To set bail, most Texas jurisdictions use bail schedules, in which a bond amount is set based solely on the criminal charge. The proposed risk assessment tool would also take into account the defendant’s criminal history and age.

If the tool determines that a defendant shows a lower risk of skipping court hearings or posing a threat to public safety, the judicial officer would release the person on a no-cost “personal bond” with or without conditions, like GPS tracking or drug testing. Under the proposed measure, judges and magistrates could still impose money bail if they decided it was the least restrictive way to ensure court appearance and public safety, but they could not use it as a way to detain poor defendants before their trials.

The risk assessment tool is meant to keep poor defendants from being kept in jail before being convicted simply because they can’t afford a low-cost bond amount. Critics of current bail practices have argued that risk assessment tools considering criminal history can reinforce a system that prejudices against poor people of color. If someone was arrested on a charge earlier tied to race or poverty status, that person would be given a higher risk level. But the critics still support the tool over current practices.

“Until we can get some better tools, then the risk assessment system would need to work for now,” said Tarsha Jackson, criminal justice director of the Texas Organizing Project, a nonprofit that advocates for low-income communities and people of color.

The other piece of the proposed legislation would change bail practices — and the Texas Constitution — to allow judicial officers to deny bail if they believe money bail or a personal bond couldn’t reasonably ensure the person would show up for court or if that person might endanger the safety of a victim or the public.

Since release on bail is a constitutional right in Texas except in capital murder cases, changing this part of the law requires voter approval even after the Legislature passes it.

See here and here for the background. Whitmire got his bill through the Senate in 2017, but neither his bill nor Murr’s made it out of committee in the House. This year, we have the settlement of the Harris County litigation and support for the idea of bail reform from Greg Abbott, so perhaps the odds are better. It’s never a bad time to call your legislators and let them know you would like them to support these bills.

Bail reform settlement looks to be a go

Excellent news.

Chief U.S. District Court Judge Lee H. Rosenthal on Friday offered initial support for new bail rules proposed by Harris County, signaling the three-year lawsuit challenging the county’s cash bond system soon may reach its conclusion.

The settlement of the case, which Harris County has spent more than $9 million defending, would seal victory for the poor misdemeanor defendants who brought the suit and allow Rosenthal and both legal teams to turn their attention to a similar lawsuit challenging the county’s felony bail system.

“We’ve actively been talking to each other,” said Neal Manne, an attorney representing the poor defendants. “I think we’d be ready in a month to come back to the court with a final, permanent order.”

For the first time in a federal court hearing, all the parties in the misdemeanor suit stood in agreement Friday afternoon about how the case should be settled. In an unusual scene in Rosenthal’s 11th-floor courtroom, the attorneys in the once-contentious case urged Rosenthal to sign off on new bail rules proposed by the newly elected slate of Democratic misdemeanor judges.

[…]

Rosenthal, who in 2017 agreed Harris County’s bail system was unfair to poor defendants, suggested waiting to see how well the new bail rules work in practice before issuing her approval. With the opening of the new joint processing center for inmates, the judge said minor, unforeseen problems may need to be addressed.

“The devil, in the broader issues, is in the day-to-day,” Rosenthal said. She ordered the parties to return March 8.

Allan Van Fleet, the attorney representing the misdemeanor judges, agreed that the revised bail system will require each part of Harris County’s criminal justice apparatus to cooperate.

“The judges are committed, with the sheriff, the DA, the plaintiffs, that we’re going to work together to get the best system that anybody can come with,” Van Fleet said.

See here for the previous update. We’re headed in the right direction, and we know where we’re going. It’s a new day.

Joint processing center opens

This was a long time coming, but it should be worth the wait.

More than a decade after city voters approved a bond measure to fund it, Houston and Harris County opened a joint inmate processing center Thursday that officials say will eliminate the redundant practice of booking inmates at the city jail before transferring them to the county lockup.

The downtown center, replete with a digital processing system, open booking areas and dormitory-style units, was designed to be more efficient and to square with the city and county’s evolving attitude on criminal justice, officials said.

“This streamlined, expedited booking process is a true game-changer for Harris County law enforcement families,” Sheriff Ed Gonzalez told a roomful of elected officials and law enforcement officers at the new facility Thursday. “Every minute an officer spends escorting a prisoner through the intake process is another minute that they’re off the street keeping our neighborhood safe.”

For years, Houston police have booked suspects at one of two city jails, before transferring them to the Harris County Jail and booking them again. Eliminating the excess work is anticipated to free up about 100 police officers assigned to jail duty.

The city is set to cover 30 percent of the facility’s annual operating costs, amounting to about $14.5 million, said Andy Icken, Houston’s chief development officer.

[…]

The facility’s new digital booking system means officers will be freed from much of the paperwork that typically bogs them down. Officers also no longer will have to escort suspects across public streets, Gonzalez said, because they will be able to park in a sallyport attached to the building. He estimated officers would be in and out of the center within 20 minutes.

The facility, located across from the Baker Street Jail on San Jacinto Street, covers 246,000 square feet and will begin processing detainees Saturday.

See here for the previous update, which was in 2015 when ground was broken following the successful 2013 bond referendum. A 2007 county referendum that would have built more jail space had been voted down, and boy howdy does that look like a good decision in retrospect. This will get people processed through faster, and will cost less to operate. I just hope it won’t be prone to flooding. Kudos all around for finally getting this done.