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New Harris County bail lawsuit challenges thousands jailed on felony arrests

January 22, 2019

The legal team that successfully challenged Harris County’s misdemeanor bail system for unfairly detaining indigent defendants has filed a new class action this week challenging the use of costly bail for felony arrests that makes jail the only option for thousands of poor defendants awaiting trial.

The lawyers note that since 2009, 125 people have died while awaiting trial in the Harris County Jail, including a woman who committed suicide this month who couldn’t make her original bail of $3,000.

This new lawsuit, which hit the docket during the Martin Luther King Day holiday, claims that the county is holding people unjustly, simply because they cannot afford cash bail, whereas people arrested for the same offenses who can afford to pay, simply resume their lives. The indigent defendants are suing the county and Sheriff Ed Gonzalez, claiming the bail policy violates equal protection and due process. The 44-page brief says that nearly 70 percent of felony arrests in the county are for nonviolent offenses. Felony defendants make up 90 percent of the jail population, meaning that a shift in bail policy could have a major impact on the cost of incarceration.

The three named plaintiffs were all arrested this month on nonviolent offenses and remain in jail without the means to post bond.

Dwight Russell, 61, of Houston, is being held on his third driving while intoxicated arrest. The court imposed a $25,000 bond, but did not assess his ability to pay it, determine if jailing him was the best option or allow him to present evidence, according to court documents. Russell is unemployed, receives food stamps and lives with his sister. Johnnie Pierson, 51, of Houston, was arrested on a drug possession charge. He couldn’t pay $15,000 bond, and no determinations were made about his ability to pay nor was he given the chance to submit evidence. Pierson is also on food stamps and does occasional work as a mechanic. The third plaintiff, Joseph Ortuno, 18, was arrested on a charge of drug possession with intent to deliver and faces $30,000 bail. Ortuno is in high school and sometimes helps his uncle with tile work, but cannot pay the bond.

The Washington, D.C.-based Civil Rights Corps, which has sued over felony bail systems in Dallas, New Orleans, Alabama, Oklahoma and California, filed the new lawsuit jointly with the Houston firm Susman Godrey and the Texas Civil Rights Project — which takes the place of another civil rights organization that helped on the misdemeanor case. Their request that the new case be considered a related filing indicates they want Chief U.S. District Judge Lee H. Rosenthal to hear the matter.

BAIL BREAKTHROUGH: Harris County judges unveil drastic new plan for no-cash bail

The county’s nearly three-year legal spat over how the courts handle misdemeanor bail is headed toward a settlement. The county spent about $9 million defending itself against the lawsuit, in which Rosenthal ruled that the county’s policy amounted to “wealth-based” detention. Last week the new panel of misdemeanor judges approved a new bail policy that would allow 85 percent of misdemeanor defendants to be released on cash-free bail. The policy allows a few exceptions for people who must appear before a judge before a bail determination can be made.

Gabrielle Banks covers federal court for the Houston Chronicle. Follow her on Twitter and send her tips at Gabrielle.Banks@chron.com.

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