Commissioners exchange words over bail bond lawsuit

© Houston Chronicle • Mar. 28, 2017

Tensions flared at Harris County Commissioners Court Tuesday after new Commissioner Rodney Ellis filed legal papers supporting civil rights groups in their high-profile federal lawsuit against the county and its bail system.

In a rare public argument before dozens of onlookers at the meeting Tuesday, Ellis’ colleagues — all Republicans — took issue with his action, with some calling the move unprecedented and insinuating that the county attorney should consider whether Ellis could be excluded from private discussions about the lawsuit in the future.

“I’m concerned about how this impacts commissioners court, impacts executive sessions,” said Precinct 3 Commissioner Steve Radack, who represents western and northwestern portions of the county, including Katy and Cypress. “I’ve never been through something like this before.”

The exchange shows how the lawsuit has exposed new fissures in county government. Ellis, a former state senator, says he is making good on a promise to shake up the traditionally quiet, non-combative style of the governing board of the country’s third-largest county, with strategies he says have successfully helped him in a Republican-dominated state Legislature.

After the meeting, Ellis defended his actions, saying he would be prepared to take legal action if he were excluded from executive sessions. Without the lawsuit, he said, the system would not have changed.

“If it were not for politics and pressure, the administrators here in the county would still be administering for decades,” he said.

The lawsuit calls for an immediate fix to a county system that the civil rights groups say jails poor defendants simply because they cannot afford up-front cash bonds.

In his court filing this week — submitted with the NAACP Legal Defense Fund — Ellis said the county uses a “wealth-based bail policy,” adding that “knowingly incarcerating indigent people charged with misdemeanors solely because they are unable to pay the bail constitutes a blatant and unlawful penalty for poverty, not an incentive to return to court.”

On Tuesday, Radack, County Judge Ed Emmett and Precinct 4 Commissioner Jack Cagle questioned the effectiveness of Ellis’ style and pointed to the county’s ongoing dedication toward criminal justice reform.

“I know you’re passionate about criminal justice,” Emmett said to Ellis during the meeting. “But so are we. What comes across here, is a ‘you versus us’ attitude, and that’s unfounded. We’re really all on the same side.”

The federal lawsuit was filed in May by two civil rights groups and a local law firm claiming the county’s bail system violates the rights of poor people facing misdemeanor charges by enforcing a rigid bail schedule that does not take into account a person’s ability to pay.

The county’s team of lawyers has argued that bail reforms are already taking shape. A new protocol for assessing risk factors – paid for by a MacArthur grant – will go into effect in July.

The number of misdemeanor defendants released on personal bonds has increased in recent months, according to new data presented in court, though lawyers for the civil rights groups say the county is undercounting the number of defendants languishing in jail.

Ellis’ brief offers to help Chief U.S. District Judge Lee H. Rosenthal assess the collateral impact that cash bail has for poor, mentally ill and homeless people and African-Americans — who are jailed at disproportionately greater rates and suffer extreme economic harms when they spend time behind bars.

In addition, the brief says, lengthy jail time impacts their legal prospects and their health. It mentions the example of Sandra Bland, a black motorist arrested in Waller County after a traffic stop, who committed suicide after spending a weekend in jail on a bond she could not afford.

The civil rights groups’ remedy for Harris County is “eminently feasible, cost-efficient, and narrowly-tailored,” and is consistent with the county’s ongoing aims to improve bail practices, the brief says.

Ellis’ legal filing comes after an exhaustive two-week hearing that ended this month in which the county sheriff, district attorney, public defender and several judges weighed in on whether the current bail practices deprive people of their constitutional rights to equal protection under the law and due process.

Over Ellis’ opposing vote, the commissioners have approved $1.6 million in attorneys’ fees to fight the suit, as of this month. Ellis — the only commissioner to attend the case hearings — has also publicly called on the county to settle the suit.

Precinct 4 Commissioner Jack Cagle said during the meeting Tuesday that Ellis should come to commissioners with proposals instead of using methods such as the legal filing.

“I want you to know, I’m calling upon you to put on your commissioner hat, not your lawyer hat, not your senator hat,” Cagle said heatedly.

Meanwhile, the county has been focusing on criminal justice reform on several fronts. Earlier this year, commissioners approved a pilot program to have public defenders at bail hearings, an effort they said could help reduce the jailing of thousands of defendants.

The county is also implementing a new risk assessment tool for hearing officers to better determine whether people can be released prior to trial. Both are expected to go into effect this summer.

Emmett pointed to the reforms as examples that the county is moving forward, and that many of the issues brought up by the lawsuit would be resolved in coming months. Radack said the county should not risk spending millions of public dollars on unnecessary reforms by settling the suit, and should stay the course on the reforms.

“I have said I am not for settling this case,” he said.

Radack called the situation “very uncomfortable” but said the public discussion Tuesday was among the best commissioners court meetings he had attended in recent months. Both he and Ellis called for increased public discussion of the bail bond system.