Fifth Circuit Affirms Central Holding That Reformed Harris County's Bail System

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Neal Manne, managing partner of Susman Godfrey.[/caption] The U.S. Court of Appeals for the Fifth Circuit has largely upheld a monumental decision that dismantles Harris County’s bail system because it holds thousands of people behind bars for no other reason than that they are poor. Last year, U.S. District Judge Lee Rosenthal of Houston ruled in O'Donnell v. Harris County that the bail system used in Texas' biggest county violated the due process and equal protection rights of indigent people arrested for minor offenses. Rosenthal also rejected Harris County’s argument that persons who have been arrested have no right to affordable bail. In its Feb. 16 ruling, the Fifth Circuit agreed with the due process and equal protection analysis in Rosenthal’s 193-page decision that ultimately led her to issue an injunction preventing Harris County from jailing misdemeanor defendants who are eligible for release but can’t afford bail. “In sum, the essence of the district court’s equal protection analysis can be boiled down to the following: take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent,” wrote Judge Edith Brown Clement. “Applying the County’s current custom and practice, with their lack of individualized assessment and mechanical application of the secured bail schedule, both arrestees would almost certainly receive identical secured bail amounts. One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration,” Clement wrote. “The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart. The district court held that this state of affairs violates the equal protection clause, and we agree.” However, the Fifth Circuit concluded that Rosenthal’s injunction altering Harris County’s bail bond system was overly broad and instructed her to make adjustments to the order such as requiring that county employee verify an arrestee’s ability to pay a bond. Neal Manne, a partner in Houston’s Susman Godfrey who filed the federal challenge to Harris County’s bail bond system as a pro bono project, said the Fifth Circuit’s decision is a huge victory. “One of the most important things was that the panel expressly affirmed all of Judge Rosenthal’s voluminous findings of fact,” said Manne, who was recognized as Texas Lawyer’s “Attorney of the Year” in 2017 after winning the ruling from Rosenthal. “It is a very powerful affirmance for us,” Manne said of the Fifth Circuit’s decision. “The other thing that intrigued me was where they said that while they were vacating the injunction, they emphasized that it stays in place. It stays in place until Judge Rosenthal creates a new one. The Fifth Circuit recognized that what was overbroad in the injunction pales in comparison by not enjoining Harris County at all.”