Harris County bail system unconstitutional

A federal judge has declared that the cash bail system used in Harris County is unconstitutional because it’s fundamentally unfair to the poor.

Judge Lee H. Rosenthal ordered the country to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail.

The 193-page ruling is part of a civil rights lawsuit against the county in a case that began when a woman was arrested on a charge of driving without a license and spent more than two days in jail because she could not post $2,500 in bail. In all, three people sued the county while they were in jail for minor misdemeanors, claiming they were held because they were too poor to come up with bail money.

With this ruling, the District Attorney’s Office estimates thousands of people will be released sooner than under the previous rules, and hundreds will no longer have to sit in jail waiting for their trial. Rosenthal ordered the county to begin releasing indigent inmates on May 15 while they await trial on misdemeanor offenses.

Rosenthal concluded the county’s bail policy violates the due process and equal protection clauses of the Constitution.

“Liberty is precious to Americans and any deprivation must be scrutinized,” the order states, citing a comment from Texas Supreme Court Chief Justice Nathan Hecht.

The judge also granted “class-action” status to the case, meaning that her findings will apply to all misdemeanor defendants taken into custody.

“Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention,” the judge wrote, citing statistics showing that 40 percent of people arrested on misdemeanor charges in the county had been detained until their cases were resolved.

The order is not final, though; it is a temporary measure as the larger case works its way through the courts. Rosenthal’s order came after eight days of witness testimony and the presentation of volumes of evidence — 300 written exhibits, and 2,300 video recordings of hearings in which bail was set.

“I think it represents a real change in our legal system,” said Alec Karakatsanis, the executive director of Civil Rights Corps, a legal nonprofit based in Washington, which brought the case along with another nonprofit, the Texas Fair Defense Project, as well as the private law firm Susman Godfrey.

Karakatsanis described the ruling as a “comprehensive and robust condemnation of the existing money bail system” that would reverberate beyond Texas.