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Houston Division Case 4:16-cv-01414 Document 302 Filed on 04/28/17 in TXSD Page 1 of 193 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT April 28, 2017 FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk HOUSTON DIVISION MARANDA LYNN ODONNELL, et al., § On behalf of themselves and all others § similarly situated, § § Plaintiffs, § § CIVIL ACTION NO. H-16-1414 VS. § § HARRIS COUNTY, TEXAS, et al., § § Defendants. § MEMORANDUM AND OPINION SETTING OUT FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction. 3 I. Findings of Fact. 8 A. Procedural Background. 8 B. The Evidence in the Record.. 10 1. The Parties. 10 2. The Fact Witnesses. 15 3. The Expert Witnesses. 18 4. Overview of the Factual and Legal Issues. 19 C. The Historical Development of Bail in the United States and in Harris County . 23 1. The Constitutionalization of Bail.. 23 2. Statutory and Judicial Bail Reform: Pretrial Services, Probable Cause Hearings, and “Meaningful” Alternatives to Secured Money Bail. 25 3. Bail at the Federal Level. 31 4. Bail under Texas Law. 35 5. Recent Distinctions Drawn Between Bail and Preventive Detention. 38 a. Washington, D.C... 38 b. New Mexico.. 40 c. New Jersey. 41 d. New Orleans.. 42 e. Maryland. 43 f. Alabama. 44 g. Calhoun, Georgia. 46 h. Conclusion. 49 1 Case 4:16-cv-01414 Document 302 Filed on 04/28/17 in TXSD Page 2 of 193 D. The Use of Bail in Harris County Misdemeanor Pretrial Detention. 50 1. The Statutory Framework. 50 2. Arrest and Booking. 55 3. The Probable Cause and Bail-Setting Hearing.. 63 4. The First Appearance Before a County Judge. 77 5. Disposition of Misdemeanor Cases. 83 6. The Use of Bail to Detain. 87 E. The Population Statistics of Misdemeanor Detainees at Each Stage in the Post- arrest Process. 95 1. Arrestees Detained More than 24 Hours Before the Probable Cause Hearing.. 95 2. Arrestees Detained More than 48 Hours Before a Bail Review. 97 3. Arrestees Detained Until Case Disposition. 99 4. Arrestees Detained “Because of” Indigence. 100 5. Bond Forfeitures and Re-Arrests for New Criminal Activity. 106 F. The Effects of Pretrial Detention on Misdemeanor Defendants Who Cannot Pay Secured Money Bail.. 112 G. Comparisons to Other Jurisdictions.. 115 H. Proposed Bail Reforms. 117 1. Changes to Risk Assessment. 117 2. Changes to the System’s Efficiency.. 120 3. Changes to the Probable Cause Hearings. 122 4. Texas House Bill 3011 / Senate Bill 1338.. 123 I. Conclusions on Findings of Fact. 126 II. Conclusions of Law. 132 A. The Legal Standards.. 132 B. Likelihood of Success on the Merits. 133 1. The Standard of Review.. 133 a. Equal Protection.. 134 b. Due Process. 142 2. The Constitutional Requirements. 143 a. Equal Protection.. 143 b. Due Process. 145 c. Excessive Bail. 156 3. Harris County Policies that Violate Constitutional Requirements.. 158 a. Municipal Liability under § 1983. 158 b. The County Judges’ Policies and Customs: Equal Protection. 160 c. The County Judges’ Policies and Customs: Due Process. 167 d. The Sheriff’s Policies under Equal Protection and Due Process . 169 4. Judicial Conduct that Violates Constitutional Requirements. 171 5. Conclusion on Likelihood of Success on the Merits. 172 C. Irreparable Injury. 174 2 Case 4:16-cv-01414 Document 302 Filed on 04/28/17 in TXSD Page 3 of 193 D. Balancing the Harms. 175 E. The Public Interest. 178 F. Bond.. 178 III. Remedy. 178 IV. Conclusion. 190 A. Summary Judgment. 190 B. Preliminary Injunction. 192 Introduction “Twenty years ago, not quite one-third of [Texas’s] jail population was awaiting trial. Now the number is three-fourths. Liberty is precious to Americans, and any deprivation must be scrutinized. To protect public safety and ensure that those accused of a crime will appear at trial, persons charged with breaking the law may be detained before their guilt or innocence can be adjudicated, but that detention must not extend beyond its justifications. Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing. Though presumed innocent, they lose their jobs and families, and are more likely to re-offend. And if all this weren’t bad enough, taxpayers must shoulder the cost—a staggering $1 billion per year.” The Honorable Nathan L. Hecht, Chief Justice of the Texas Supreme Court, Remarks Delivered to the 85th Texas Legislature, Feb. 1, 2017. This case requires the court to decide the constitutionality of a bail system that detains 40 percent of all those arrested only on misdemeanor charges, many of whom are indigent and cannot pay the amount needed for release on secured money bail. These indigent arrestees are otherwise eligible for pretrial release, yet they are detained for days or weeks until their cases are resolved, creating the problems that Chief Justice Hecht identified. The question addressed in this Memorandum and Opinion is narrow: whether the plaintiffs have met their burden of showing a 3 Case 4:16-cv-01414 Document 302 Filed on 04/28/17 in TXSD Page 4 of 193 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, 1 The plaintiffs have not given each of their exhibits a unique number. When clarity requires, the opinion identifies the plaintiffs’ exhibits by category number and unique title. After the motion hearing, the defendants produced the 2016 Pretrial Services Annual Report. (Docket Entry No. 290, Ex. 1). When the opinion discusses or refers to the annual reports, the text uses the 2015 figures the parties’ experts and briefing relied on, and the recently reported 2016 data is generally supplied in footnotes. The numbers do not differ significantly from year to year. In 2015, for example, 50,947 people were arrested only on misdemeanor charges, compared to 49,628 in 2016. (Id. at 8); Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8. 4 Case 4:16-cv-01414 Document 302 Filed.
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