Odonnell v. Harris Cnty.

251 F.Supp.3d 1052

Maranda Lynn ODONNELL, et al., On behalf of themselves and all others similarly situated, Plaintiffs,

v.HARRIS COUNTY, TEXAS, et al., Defendants.

CIVIL ACTION NO. H-16-1414.

United States District Court, S.D. Texas, Houston Division.

Signed April 28, 2017

Alec Karakatsanis, Elizabeth Anne Rossi, Washington, DC, Krisina Janaye Zuniga, Lexie Giselle White, Neal S. Manne, Alejandra C. Salinas, Susman Godfrey LLP, Houston, TX, Michael Gervais, Susman Godfrey L.L.P., New York, NY, Rebecca Bernhardt, Susanne Ashley Pringle, Austin, TX, for Plaintiffs.

Michael A. Stafford, Gardere Wynne Sewell LLP, Michael Paul Fleming, Michael P. Fleming & Associates, P.C., John Ellis O'Neill, Corinne Stone, John R. Keville, Robert Lawrence Green, III, Sheryl Anne Falk, Winston and Strawn LLP, Victoria Lynn Jimenez, Laura Beckman Hedge, Harris County Attorney's Office, Katharine Davenport David, Houston, TX, Kenneth Wayne Good, Law Office of Ken W. Good PLLD, Tyler, TX, for Defendants.

MEMORANDUM AND OPINION SETTING OUT FINDINGS OF FACT AND CONCLUSIONS OF LAW

Lee H. Rosenthal, Chief United States District Judge

Introduction...1057

I. Findings of Fact...1060

A. Procedural Background...1060

B. The Evidence in the Record...1061

1. The Parties...1062

2. The Fact Witnesses...1064

3. The Expert Witnesses...1066

4. Overview of the Factual and Legal Issues...1067

C. The Historical Development of Bail in the United States and in Harris County...1068

1. The Constitutionalization of Bail...1068

2. Statutory and Judicial Bail Reform: Pretrial Services, Probable Cause Hearings, and "Meaningful" Alternatives to Secured Money Bail...1070

3. Bail at the Federal Level...1073

4. Bail under Texas Law...1076

5. Recent Distinctions Drawn Between Bail and Preventive Detention...1078

a. Washington, D.C....1078

b. New Mexico...1079

c. New Jersey...1079

d. New Orleans...1080

e. Maryland...1080

f. Alabama...1081

g. Calhoun, Georgia...1082

h. Conclusion...1084

D. The Use of Bail in Harris County Misdemeanor Pretrial Detention...1084

1. The Statutory Framework...1084

2. Arrest and Booking...1087

3. The Probable Cause and Bail–Setting Hearing...1092

4. The First Appearance Before a County Judge...1101

5. Disposition of Misdemeanor Cases...1104

6. The Use of Bail to Detain...1107

E. The Population Statistics of Misdemeanor Detainees at Each Stage in the Post-arrest Process...1111

1. Arrestees Detained More than 24 Hours Before the Probable Cause Hearing...1111

2. Arrestees Detained More than 48 Hours Before a Bail Review...1112

3. Arrestees Detained Until Case Disposition...1114

4. Arrestees Detained "Because of" Indigence...1114

5. Bond Forfeitures and Re–Arrests for New Criminal Activity...1117

F. The Effects of Pretrial Detention on Misdemeanor Defendants Who Cannot Pay Secured Money Bail...1121

G. Comparisons to Other Jurisdictions...1122

H. Proposed Bail Reforms...1124

1. Changes to Risk Assessment...1124

2. Changes to the System's Efficiency...1125

3. Changes to the Probable Cause Hearings...1126

4. Texas House Bill 3011 / Senate Bill 1338...1127

I. Conclusions on Findings of Fact...1129

II. Conclusions of Law...1132

A. The Legal Standards...1132

B. Likelihood of Success on the Merits...1133

1. The Standard of Review...1133

a. Equal Protection...1134

b. Due Process...1139

2. The Constitutional Requirements...1140

a. Equal Protection...1140

b. Due Process...1140

c. Excessive Bail...1147

3. Harris County Policies that Violate Constitutional Requirements...1148

a. Municipal Liability under § 1983...1148

b. The County Judges' Policies and Customs: Equal Protection...1149

c. The County Judges' Policies and Customs: Due Process...1153

d. The Sheriff's Policies under Equal Protection and Due Process ...1154

4. Judicial Conduct that Violates Constitutional Requirements...1155

5. Conclusion on Likelihood of Success on the Merits...1156

C. Irreparable Injury...1157

D. Balancing the Harms...1158

E. The Public Interest...1159

F. Bond...1159

III. Remedy...1160

IV. Conclusion...1166

A. Summary Judgment...1166

B. Preliminary Injunction...1167

Introduction

"Twenty years ago, not quite one-third of [Texas's] jail population was awaiting trial. Now the number is three-fourths. Liberty is precious to Americans, and any deprivation must be scrutinized. To protect public safety and ensure that those accused of a crime will appear at trial, persons charged with breaking the law may be detained before their guilt or innocence can be adjudicated, but that detention must not extend beyond its justifications. Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing. Though presumed innocent, they lose their jobs and families, and are more likely to re-offend. And if all this weren't bad enough, taxpayers must shoulder the cost—a staggering $1 billion per year." The Honorable Nathan L. Hecht, Chief Justice of the Texas Supreme Court, Remarks Delivered to the 85th Texas Legislature , Feb. 1, 2017.

This case requires the court to decide the constitutionality of a bail system that detains 40 percent of all those arrested only on misdemeanor charges, many of whom are indigent and cannot pay the amount needed for release on secured money bail. These indigent arrestees are otherwise eligible for pretrial release, yet they are detained for days or weeks until their cases are resolved, creating the problems that Chief Justice Hecht identified. The question addressed in this Memorandum and Opinion is narrow: whether the plaintiffs have met their burden of showing a likelihood of success on the merits of their claims and the other factors necessary for a preliminary injunction against Harris County's policies and practices of imposing secured money bail on indigent misdemeanor defendants. Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder sued while detained in the Harris County Jail on misdemeanor charges. They allege that they were detained because they were too poor to pay the amount needed for release on the secured money bail imposed by the County's policies and practices. (Docket Entry Nos. 3, 41, 54). They ask this court to certify a Rule 23(b)(2) class and preliminarily enjoin Harris County, the Harris County Sheriff, and—to the extent they are State enforcement officers or County policymakers—the Harris County Criminal Court at Law Judges, from maintaining a "wealth-based post-arrest detention scheme." (Docket Entry No. 143 at 2).

This case is difficult and complex. The Harris County Jail is the third largest jail in the United States. Pls. Ex. 12(aa) at 1. Although misdemeanor arrestees awaiting trial make up about 5.5 percent of the Harris County Jail population on any given day, see id. at 13, about 50,000 people are arrested in Harris County on Class A and Class B misdemeanor charges each year. Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8.¹ The arrests are made by a number of law-enforcement agencies, including the Houston Police Department and the police forces of smaller municipalities, the Texas Department of Public Safety, and the Harris County Sheriff's Office. Id. Harris County's bail system is regulated by State law, local municipal codes, informal rules, unwritten customary practices, and the actions of judges in particular cases. The legal issues implicate intertwined Supreme Court and Fifth Circuit precedents on the level of judicial scrutiny in equal protection and due process cases and on the tailoring of sufficient means to legitimate ends.

Bail has a longstanding presence in the Anglo–American common law tradition. Despite this pedigree, the modern bail-bond industry and the mass incarceration on which it thrives present important questions that must be examined against current law and recent developments. Extrajudicial reforms have caused a sea change in American bail practices within the last few years. Harris County is also in the midst of commendable and important efforts to reform its bail system for misdemeanor arrests. The reform effort follows similar work in other cities and counties around the country. This work is informed by recent empirical data about the effects of secured money bail on a misdemeanor defendant's likely appearance at hearings and other law-abiding conduct before trial, as well as the harmful effects on the defendant's life.

The plaintiffs contend that certainly before, and even with, the implemented reforms, Harris County's bail system for misdemeanor arrests will continue to violate the Constitution. This case is one of many similar cases recently filed around the country challenging long-established bail practices. Most have settled because the parties have agreed to significant reform. This case is one of the first, although not the only one, that requires a court to examine in detail the constitutionality of a specific bail system for misdemeanor arrestees. This case is also one of the most thoroughly and skillfully presented by able counsel on all sides, giving the court the best information available to decide these difficult issues.

One other complication is worth noting at the outset. Since this case was filed, the 2016 election replaced the Harris County Sheriff and the presiding County Judge of Criminal Court at Law No. 16. (Docket Entry Nos. 158, 168). The new Sheriff and County Judge have taken positions adverse to their codefendants, although each continues to oppose certain aspects of the plaintiffs' request for preliminary injunctive relief.² Nonparty County officials, including the newly elected Harris County District Attorney and one of the Harris County Commissioners, have filed amicus briefs supporting the plaintiffs. (Docket Entry Nos. 206, 272). Harris County's Chief Public Defender has filed a declaration supporting the defendants. Def. Ex. 23. The lines of affinity and adversity between the defendants and their nonparty County colleagues are not always clear.

Even with the factual and legal complexities, at the heart of this case are two straightforward questions: Can a jurisdiction impose secured money bail on...