CIVIL RIGHTS GROUPS SUE CITY OF HOUSTON OVER DELAY OF PROBABLE CAUSE HEARINGS

The longer a person who can't afford bail may wait for a probable cause hearing, the higher the chances are that they lose their job while in jail, yet hundreds of people waited more than three days and some waited as long as a week

By Meagan Flynn

Houston Press
December 7, 2016

A pair of civil rights organizations have sued the City of Houston over its incarceration of poor defendants, alleging that hundreds of Houstonians have been held in jail longer than 48 hours before seeing a judge, as the Constitution requires.

Filing suit in federal court late Monday, the Texas Fair Defense Project and Civil Rights Corps are seeking class-action status for anyone jailed over the past two years for what the groups say was an unreasonable amount of time before a judge could determine whether their arrests were legal. (Civil Rights Corps has also sued Harris County over the county's bail schedule, which its attorneys say is unconstitutional.)

In that first probable-cause hearing, which is conducted through video monitors, Harris County magistrates also read defendants their rights and formally assign them a bail amount. Even a one- or two-day delay in providing defendants this hearing could have serious effects on people's lives, attorneys say.

“When you get arrested, you get arrested on the basis of the police officer thinking a crime was committed,” said Rebecca Bernhardt, executive director of the Texas Fair Defense Project. “The hearing before an independent magistrate is this very basic constitutional protection that really is standing between the residents of Houston and a police state, where the police arrest people and there is no check on that power. That's why these hearings have to happen, at the very least, within 48 hours.”

Spokespeople for the City of Houston did not return a request for comment for this story.

According to Harris County Pretrial Services's annual report, nearly 900 people in 2015 were immediately released from jail after a magistrate found there was no probable cause for their arrest. The longer a person who can't afford bail may wait for that hearing, the higher the chances are that they lose their job while waiting, Bernhardt said. Focusing on jail booking data from this summer, the Fair Defense Project and Civil Rights Corps found that hundreds of people waited more than three days and some waited as long as a week. (It is unclear whether any of them were immediately released for lack of probable cause.)

The Houston Press reviewed that same jail booking data in September and found more than 1,000 people in July and August had waited more than three days before they were transferred to the Harris County Jail, where the hearings take place via video. Ryan Sullivan, a spokesman for the Harris County Sheriff's Office, had said the delays in inmate transfers were due to a combination of overcrowding at the jail and a new mental health screening form, which was intended to help jail staff identify defendants at risk of suicide but was bogging down the booking process.

The jail had become so packed, Sullivan told the Press, that the sheriff actually had to tell HPD at one point to stop sending them more inmates, thus leading to the delays.

"We couldn't keep up with the rate of people we had coming here," Sullivan said then. "No room at the inn — that's literally the phrase that we use. We are limited to a certain number of people, and that's that."

Bernhardt, however, said that overcrowding at the county jail is not an excuse for violating people's constitutional rights. Still, the city ends up with the lawsuit, she said, because the onus is on Houston police to either release defendants from the city jail after 48 hours or find a different way to ensure people see a magistrate within the 48-hour timeframe.

“The bottom line is, the Harris County Jail and City of Houston have a constitutional obligation to work it out,” Bernhardt said. “Plus, you have a Harris County Jail that's already doing magistration by tele-video, and you're telling me in this day and age that they couldn't figure out how to put up a tele-video system somewhere in the Houston jail? That that was too hard? They have options. They have lots, frankly. All of them lawful and reasonable.”

She added that fear of releasing people from jail is not necessarily a valid argument, given defendants who have money to bail out are released immediately anyway, no matter how violent the crime is. Poor defendants, however, have to wait.

“One thing that goes to the core of why this is a fundamental unfairness — and I think people sometimes gloss over this — is that the experience of being in the criminal justice system in the United States, step by step, can be profoundly disempowering and unfair,” Bernhardt said. “This case shows that the system doesn't value the time of people who are arrested, especially poor people. It doesn't take the presumption of innocence very seriously at all. And frankly, that translates to, as people, we are not valued by this system.

“We want to have a fair system,” she added. “It matters that the system is legitimate”

EDITOR’S NOTE: I’ve long maintained that we have two criminal justice systems – one for those who can afford it and one for those who can’t.