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Posted August 16, 2018 at 12:00 AM by Michael J. Whitlock - 0 Comments

The 5th Circuit Court of Appeals yesterday released a critical decision on a motion for stay filed by the Harris County Criminal Court Judges, defendants in ODonnell v. Harris County Judges. A ruling that was filed August 14.

 
Harris County has spent millions of dollars providing a defense for their 14 judges in a case that is currently on appeal in the 5th Circuit Court of Appeals out of New Orleans. The 5th ruled in favor of the Judges and granted a stay of the trial court’s preliminary injunction which thus far has permitted thousands of arrestees to be released with no bail, resulting in a near 50% failure to appear rate.
 
I don’t have a law degree or a shingle, but I recognize a positive ruling when I see one. Our side has boiled down the argument against “poor people languishing in jail pre-trial” to this; let those who can afford bail post bail while those who are unable to post bail should receive a bail hearing within 48 hours of arrest. The 5th’s order underscores this argument in this passage:
 
The remedy to automatic detention of the indigent is more process to allow them alternatives. Those who cannot afford the set bail are entitled to an individualized hearing within 48 hours to determine whether lowering that bail would be release on sufficient sureties.
 
So, the court is saying, a remedy has been provided to those claiming to be unable to afford bail. That remedy is a hearing within 48 hours of arrest. The court went on to say:
 
Now that the requirement of a hearing is in place, the only remaining contention about the 48-hour window concerns only the inability to afford bail. And that is an equal protection claim consistently rejected on rational-basis review.
 
The individualized hearing imposed by the district court as modeled on the panel’s suggestions is sufficient to cure the automatic imposition of bail. It does so in a way that is rationally related to the state’s interest in securing the appearance of the arrestees.
 
My take away is simply this; if you have a bond schedule in place, those that can post bail will do so relatively quickly which frees up bed space and saves the county money while those who are unable to afford bail will be granted a hearing within 48 hours to have their bail reviewed. Perfectly fair and logical and serves both those who can afford bail (which the order says this group should also not be discriminated against) and those who cannot afford bail as set.
 
The 5th has ruled in the judges' favor on the motion to stay enforcement of the district court’s preliminary injunction, the appeal itself is ongoing. The 5th concludes:
 
But there is, “no such…fundamental substantive due process right to be free from any form of wealth-based detention.”
 
If only this decision could have been made within 48 hours of the ODonnell case being filed, Harris County would have saved millions of dollars and would not have a criminal justice catastrophe on their hands. With this ruling by the 5th Circuit, the situation in Harris County should see immediate improvement.

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