Judge Rosenthal heard testimony from the Hearing Officers setting bail amounts on the front lines and poignantly found them non-credible: "The Hearing Officers' testimony that they do not 'know' whether imposing secured money bail will have the effect of detention in any given case ... and their testimony that they do not intend that secured money bail have that effect, is not credible." In fact, she attributed "little to no credibility in the Hearing Officers' claims of careful case-by-case consideration." In the hearings she watched, they "treat the bail schedule, if not binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount."
If Judge Rosenthal were Politfact columnist, she'd be giving the Hearing Officers a "Pants on Fire" rating. To the extent that appellate courts must rely on her credibility assessments, and on many topics, they must, those lines may well preclude quite a few appellate paths for the defendants.
Her critique extended beyond the Hearing Officers, though to elected judges acting as "policymakers" overseeing Harris' County pretrial-detention mill, whom she found to be willfully and conveniently ignorant about the human impact of they system they're running:
policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial. In addition to the absence of any information about the relative performance of secured and unsecured conditions of release to achieve these goals, the policymakers have testified under oath that their policy would not change despite evidence showing that release on unsecured personal bonds or with no financial conditions is no less effective than release on secured money bail at achieving the goals of appearance at trial or avoidance of new criminal activity during pretrial release.That's exactly right - they're not going to change unless somebody makes them, and Judge Rosenthal clearly has decided she's that somebody.
Grits has been singing this song for years and am glad to have such a powerful voice join the chorus. Indeed, while Judge Rosenthal must give judicial "policymakers" the benefit of the doubt and conclude they are "apparently unaware" of these things - because that's what they testified - Grits doesn't believe it for a second, having engaged in frank conversations with more than a few of those policymakers over the years. They knew. They just didn't care. But a 193-page ruling for plaintiffs by a federal judge has a way of making policymakers care about issues that weren't priorities for them before. The injunction flat-out forbids Harris County detaining misdemeanor defendants solely because they can't pay, and asserts the the federal court will craft the new system so that it passes constitutional muster.
Meanwhile Texas' bail reform legislation - SB 1338 by Whitmire - is on the intent calendar and eligible for a vote in the senate this week. In light of Judge Rosenthal's ruling - what seemed before like a bold step now almost seems timid. But all these concurrent trends are at least headed in the right direction.