BREAKING: US Court of Appeals for the 5th Circuit Serves Up Huge Win for Harris County Criminal Court at Law Judges

U.S. Court of Appeals for the 5th Circuit grants request to issue a stay in Harris County bail case giving the County Criminal Court at Law Judges a huge win.


There is no right to an affordable bail in the United States—only a right to be heard within 48 hours on whether bail is excessive or not under the Eighth Amendment.

Yesterday, the U.S. Court of Appeals for the Fifth Circuit granted the request of the Harris County Criminal Court at Law judges to issue a stay of what they considered Judge Rosenthal’s illegal order which required the continuing release of people who allegedly cannot afford their bail.

RELATEDBREAKING: Harris County, TX – Citing “Irreparable Harm to the Community,” Criminal Law Judges Demand Immediate Injunction in Bail Case

Essentially, the Court of Appeals held that Judge Rosenthal ignored the original decision from the Fifth Circuit, and issued a similarly flawed order.

Let’s start with Court’s conclusion in this case:

In sum, the expansive injunction entered on remand repeats the mistake of the original injunction: It amounts to the outright elimination of secured bail for indigent misdemeanor arrestees.  But there is no such . . . fundamental substantive due process right to be free from any form of wealth-based detention.  The sweeping injunction is overbroad.

In other words, the Court of Appeals affirmed a second time that the constitution does not require the outright elimination of secured bail for indigent defendants.  There is, as the Court held, no right to affordable bail.

The Court also said that the risk of irreparable harm to the public and the Judges was established in this case:

The Judges have made an adequate showing to satisfy the remaining three factors. They and the public are harmed by [Judge Rosenthal’s order] enjoining the County’s bail system.

In another stunning holding, the Court of Appeals said that when there is adequate due process allowing for a meaningful bail review hearing within 48 hours, the heightened scrutiny to such procedures goes away.  If there is adequate due process, the Court instead should impose the standard of rational basis, under which most government entities almost always prevail.

Of course, we’ve been saying this all along.  The issue in Harris County was not the wealth-based discrimination per se, but instead it was the idea that wealth-based discrimination without adequate due process was the problem.  A defendant could not raise the issue even though they appeared in front of a magistrate.  The Court of Appeals ultimately confirmed this.  Said the Court:

Were we to find the 48-hour detention improper, we would have to affirm the district court’s elimination of secured bail for the category of arrestees addressed in Section 7. That is expressly what ODonnell I forbids. That panel found that a procedural violation is subject to procedural relief. That some arrestees would continue to afford and pay bail while others would avail themselves of the new hearing within 48 hours is an inherent part of this calculus.

So, while over 50% of misdemeanor defendants in Harris County were thumbing their nose at the system and not showing up for Court, the Court of Appeals has finally stopped the madness and previewed that the Judges are likely going to succeed on the merits in this case.

The Harris County revolving jail door will now stop, and the judges get to back to being judges without the interference of a federal judge who is playing legal twister to try to dodge the inevitable.

Vindication is the best word to describe the outcome in this decision.  Yet, we are going to hear from the other side that it’s still a huge victory, but let’s call it what it really is: after spending millions and millions of dollars on both sides, the Plaintiffs won the right to a more speedy hearing than they had before.  That was the settlement of the first case, Varden v. City of Clanton, when Eric Holder kicked off this movement—that a hearing within 48 hours is required if a bail is set by a schedule.

It is too bad taxpayer money had to be wasted because a federal judge gave plaintiffs more relief than they settled for and agreed was constitutional.  The Plaintiffs probably could have gotten the same deal they got in Dothan, Moss Point, Varden, City of Dodge City, etc., but they chose to go for the whole banana, and lost.

We expect a similar result when the U.S. Court of Appeals for the Eleventh Circuit issues a decision in Walker v. Calhoun, Georgia.

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