May 6, 2017

Civil Liberties Win Against Police-Prosecutor State in Odonnell v. Harris County

Odonnell v. Harris County, Texas, (Civil Action No H-16-1414)
Madison, Wisconsin — There's a story in Dane County Wisconsin that's been circulating among jurists, academics, journalists and myriad civil liberties activists for years.

The story goes like this: A civil liberties activist and a cop are sharing a ride, making small talk.

As the car proceeds, the cop repeatedly points out the window to pedestrians on the sidewalk or crossing the street, saying, "he's a perp[atrator]" and "she's a perp[atrator]," noting the cloths worn, posture taken, the gait (one's manner of walking), and other visible traits purportedly marking people as latent criminals.

The black and brown criminal pedestrians were apparently the easiest to spot; I mean what's this young, black dude up to, if not trouble. This is profiling, not policing.

As pretextual stops of cars continue, (drivers are easier to pull over than pedestrians), municipal police are armed with a powerful weapon to imprison perps, and the perps don't even have to be convicted of a traffic offense: Cops just cite drivers for whatever they can think of and sympathetic judges will set bail for $1,000s and some perps can't pay so the perps stay in jail. Problem solved. [Worked great for Sandra Bland who eventually committed suicide; Ms. Bland had often criticized police for killing people so tossing her in a cell was justice, in the minds of many municipal police.]

Pre-conviction fines, court deposits, bails do not have to originate from traffic violations, any civil citation will do, and with respect to clear violations of equal protection and due process: Tell it to the judge. This means a lot of latent criminal folks land up in jail.

Now comes a major civil liberties case out of the United States Court for the Southern District of Texas, (Houston Division), heard by Lee H. Rosenthal, Chief, United States District Judge, (Ballotpedia), (Federal Judicial Center).

The case is Odonnell, et al. v. Harris County, Texas et al, (Civil Action No. H-16-1414). Odonnell may end this despicable practice of municipal police and court systems.

Writes Lee Rosenberg in the New York Times in late April 2017:

A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution.

The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail.

The ruling, part of a civil rights lawsuit against the county, came Friday 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.

Judge Rosenthal wrote in the ruling, '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.' She cited 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; it is a temporary measure as the larger case works its way through the courts. But legal scholars and the groups that brought the case said the ruling was a victory in the movement to overhaul the bail system that has been growing around the country. Judge 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.

A May 5 New York Times editorial spells out what is at stake in Odonnell:

Maranda Lynn ODonnell, a 22-year-old single mother in Harris County, Tex., was arrested last year for driving without a valid license. The judge set her bail at $2,500. She couldn’t afford anything close to that, so she spent three days in jail — even though she posed no risk of skipping town or endangering anyone if she were released.

'In our society,' the Supreme Court has held (in) [United States v. Salerno 481 U.S. 739 (1987)], 'liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.' Yet across America, poor people like Ms. ODonnell are held in jail for days, weeks or even months solely because they don’t have the cash to bail themselves out. All of them are presumed innocent under the law, and many may in fact be innocent, yet most plead guilty just to get out (usually with a sentence of time served). It’s a repulsive practice, and last week, in a case that could have national implications for bail reform, a Federal District Court judge in Houston ruled that it was also unconstitutional.

In a 193-page ruling that followed a lengthy trial, the judge, Lee Rosenthal, said that money bail should be used for people charged with misdemeanors 'only in the narrowest of cases,' and even then only when there are strong safeguards in place to ensure that defendants receive due process before being locked up.

Harris County, which includes Houston and has the third-largest jail system in the country, fails on both counts, Judge Rosenthal said. Judges there require defendants to post bail, regardless of ability to pay, likelihood that they won’t return to court or how minor the charges are.

As a result, poor people charged with a misdemeanor end up stuck behind bars, while people with money who are charged with the same offense walk free.

The county’s lawyer defended this policy by arguing that poor defendants — who are disproportionately black and Latino — stay in jail not because they can’t buy their way out but because they 'want' to be there, especially 'if it’s a cold week.' Judge Rosenthal called this despicable claim 'uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery.'

The real explanation is straightforward: As cash bail has fueled a politically influential, multibillion-dollar industry, courts are relying on it more, and people who can’t afford it are getting locked up at ever greater rates. Judge Rosenthal noted that only two decades ago, less than one-third of people in Texas jails were awaiting trial; today, it’s three-quarters. Forty percent of all misdemeanor defendants in Texas are locked up until their cases are resolved, at a huge cost to the state, and most because they can’t afford bail. ...

The ruling in the Harris County case is temporary, but its broader significance lies in the slew of factual findings Judge Rosenthal made and the legal conclusions she reached. Her careful reasoning could transform the growing debate over bail reform nationwide, where an estimated 450,000 people are held in pretrial detention on a given day.

Whether people, as viewed by some police and some local judges, are unconvicted criminals walking, driving, holding pro-civil liberties views and voicing these views, neither "police power nor judicial discretion are boundless," as noted by Judge Rosenthal, (p. 188).

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