Galveston County hit with bail lawsuit similar to Harris County case

A female inmate sits in a single cell in an acute unit of the mental heath unit at the Harris County Jail in Houston. (AP Photo/Eric Gay) A female inmate sits in a single cell in an acute unit of the mental heath unit at the Harris County Jail in Houston. (AP Photo/Eric Gay) Photo: Eric Gay, STF Photo: Eric Gay, STF Image 1 of / 1 Caption Close Galveston County hit with bail lawsuit similar to Harris County case 1 / 1 Back to Gallery

After a contentious bail battle in Harris County, Galveston County has been hit with a similar claim accusing the county of violating the constitutional rights of people arrested on misdemeanors and felonies through a cash bail system that favors wealthier defendants over poorer ones.

The ACLU of Texas, the ACLU and Arnold & Porter law firm filed the federal class-action suit Sunday, targeting local judges and magistrates as well as Galveston County District Attorney Jack Roady. It's the first of the ACLU's bail reform cases to take action against a county's top prosecutor.

"There's no reason to trust poor people less than you trust wealthier people and hold them in jail while you're letting wealthier people who commit the same crimes go free," said Trisha Trigilio, senior staff attorney for the ACLU of Texas.

Galveston County Judge Mark Henry said Monday that he had not had a chance to look at the lawsuit but that the county is open to reforming its bail system.

"It's not necessarily in our control," he said. "There are about 15 other elected officials that have to agree and implement their part of it."

The district attorney declined to comment, citing pending litigation. Ten of the magistrates and judges did not respond to requests for comment. One declined to comment and another could not be reached.

The lawsuit was filed on behalf of Aaron Booth, 36, of Galveston, who was arrested on felony drug possession charges Sunday but couldn't afford to post his $20,000 bail — the minimum amount permitted under Galveston County's felony bail schedule for that charge.

The suit accuses county officials of operating an arbitrary, two-tiered system of justice based on wealth, in violation of the right to counsel, the right to due process and equal protection under the law.

"Wealthier people can purchase their release, while similarly situated, but less wealthy people accused of the same crimes are locked in jail," the suit alleges.

READ MORE: Dallas County's bail system hit with lawsuit mirroring Harris County case

The lawsuit says the magistrate judge who saw Booth the morning of his arrest automatically adopted his bail amount and did not ask about his ability to pay or determine whether he was a flight risk.

Booth then asked the magistrate judge for a court-appointed attorney because he couldn't afford his own. But the court did not appoint a counsel for him until sometime Monday. He has remained in jail, unable to post bond, according to the suit.

Under Galveston County's bail system, each offense has an assigned dollar amount. If a person can arrange to pay the full amount to the sheriff in cash or property, or can arrange for payment through a bail bond company or another third party, the sheriff releases that person automatically.

Those who cannot pay the pre-determined bail amount must remain in jail indefinitely — and that prolonged detention has consequences. A Texas Indigent Defense Commission review found that felony arrestees who are released while awaiting trial are almost twice as likely to end up with probation or a deferred sentence as those who stay in jail.

The ACLU of Texas had previously issued two separate deadlines for Galveston County to implement reforms to its bail system after a meeting with county officials in August. The organization began in investigation into the county's pretrial detention practices starting in March 2017.

The Galveston County Commissioner's Court asked the Council of State Governments Justice Center — a nonprofit focused on criminal justice issues — to study and prepare a report on ongoing issues with the county's jail and criminal justice system, and suggest possible reforms.

The audit found that the county's jail population increased by 11 percent from 2015 to 2016, driven largely by a marked increase in pretrial detainees, who comprised 71 percent of the total jail population.

READ MORE: Hurricane Harvey blamed for latest overcrowding at Harris County jail

The legal claim against Galveston County comes just as the end seems to be in sight for Harris County.

Chief U.S. District Judge Lee H. Rosenthal ruled that Harris County's bail system was unconstitutional and unfair to indigent defendants. She issued an order requiring Harris County to provide no-cash bail for qualified misdemeanor defendants who had been held, sometimes for months, while awaiting trial because they didn't have the funds to get out.

Harris County has shelled out more than $5 million in fighting the suit, which was filed on behalf of a single mother who spent two days in jail on a driving infraction because she couldn't afford $2,500 bail.

Earlier this year, the 5th U.S. Circuit Court of Appeals largely upheld Rosenthal's order, but has yet to rule on a narrow issue.

The Harris County case spurred a similar suit in Dallas County filed in January by the ACLU of Texas, the ACLU, Civil Rights Corps and the Texas Fair Defense Project.

All three cases rest on similar claims: wealth based detention systems are "arbitrary" and violate the Constitution. But unlike in Harris County, the Galveston and Dallas cases both include defendants facing felonies, not just those facing misdemeanors.

"A person's wealth should never decide their freedom, but that's exactly what's happening in Texas and across the country," said Brandon Buskey, ACLU staff attorney. "Galveston's bail system disregards the presumption of innocence, destroys families, and negatively affects jobs, and homes."

The Galveston County Commissioner's Court passed a resolution in September supporting an immediate end to pretrial detention for misdemeanor and state jail cell arrests and committing a minimum of $2 million to those efforts.

The county also voted in December to approve a contract with the Council of State Governments to help implement reforms to the county's jail system.

But Trigilio said that the county has not committed to large-scale changes to its bail system within an appropriate timeframe. The ACLU outlined steps to create a model pretrial system, but said the county did not respond to the requests.

"We're very open to collaborative solutions with policymakers, in fact, that's what we prefer," Trigilio said. "But it's important to act with the urgency that the situation merits, and when they're locking hundreds of people away every day just because they're poor, that's not something we can tolerate while we work out the nuances of a system that might be in place any year from now."

Henry, the county judge, said officials have been working with the ACLU "for nine months or so" to implement their suggested reforms to the bail system.

"We are certainly trying, yes," he said. "Those changes we are absolutely committed to making."

Keri Blakinger covers criminal justice and prisons for the Chronicle. Follow her on Twitter at @keribla. Nick Powell covers Galveston County for the Chronicle. Follow him on Twitter at @nickpowellchron.