HOUSTON (CN) – The man in charge of Texas’ busiest jail is a
defendant in a federal class action attacking his county’s bail system,
yet he sided with the plaintiffs Wednesday, testifying that most poor
misdemeanor arrestees should be released from jail on no-fee bonds.
Just two months into his tenure, Harris County Sheriff Ed Gonzalez is
standing at the crossroads of criminal justice reform and business as
usual in the state’s most populous county with his thumb out, eager to
help implement changes he says are long overdue.
Gonzalez took the stand Wednesday before U.S. District Judge Lee
Rosenthal, gold-lined shoulder patches framing his crisp black service
uniform, and maintained the unflappable demeanor that Houston, Harris
County’s seat, came to expect during his three terms on the City
“I personally don’t believe it’s a rational system,” Gonzalez told
plaintiffs’ attorney Neal Manne about the county’s bail system. “When we
look at equal protection, in my opinion it should be equal protection
for everyone, but statistically speaking it doesn’t bear that out. When I
see that many of the people inside the jail, on any given day an
average of 9,000, are just poor and can’t bond out, and I look at racial
disparities, disproportionally communities of color, then that’s very
concerning to me.”
John O’Neill with Winston Strawn in Houston is part of a team
defending 15 of the county’s 16 criminal court judges against the class
action, in which lead plaintiff Maranda ODonnell claims the judges and
five hearing officers that oversee probable cause hearings
unconstitutionally set bail for misdemeanor defendants with no regard to
their ability to pay.
O’Neill hugged a podium and leaned into a microphone Wednesday,
questioning Gonzalez about the actual impact of misdemeanor defendants
on the jail that is often close to its state-mandated inmate capacity.
“The jail has capacity for 10,000 prisoners and you run sometimes at
9,700 prisoners. Is it fair to say that only about 380 to 500 of those
are misdemeanor offenders?” O’Neill said.
“That sounds about right,” Gonzalez said.
“Generally the misdemeanor pretrial defendants make up only 3 to 5
percent of the jail population, and a substantial number are in
progress, being processed and will be out within two days?” O’Neill
Fifteen people died in the custody of the Harris County Sheriff’s
Office in 2016, and critics say the crowded jail puts inmates in danger.
But O’Neill challenged that conventional wisdom.
“That is a terrible tragedy. But to be fair the death rate inside the
jail is actually less than the death rate of people outside the jail,”
Judge Rosenthal stopped him: “Are you arguing it’s safer in jail because you can’t afford to get out?”
O’Neill answered, “No I’m arguing that it’s totally incorrect to
indicate the jail is an extremely unsafe place, that the death rate
itself shows that it’s not true.”
Gonzalez conceded to O’Neill that he believes the jail provides
adequate medical care to inmates, 30 percent of whom, he said, have a
medical or mental health issue.
But the sheriff said jail isn’t an ideal place to get medical treatment.
“It’s adequate, yes, but never enough. One of my concerns when
somebody dies in our custody is could they have been better served out
in the community receiving ongoing treatment or around their family?” he
Throughout the litigation, and before the lawsuit was filed
in May 2016, Harris County officials have touted grant-funded reforms
they are developing that they claim will make the county the gold
standard nationally for a criminal justice system that prioritizes
The most frequently cited reform is a new risk-assessment tool that
is set to launch July 1, that proponents say will rate misdemeanor
defendants on their risk of not showing up to hearings, or otherwise
violating bond, without pretrial services staff having to interview
them, and advise judges to quickly let low-to-moderate risk defendants
out of jail on personal recognizance bonds, also called no-fee bonds.
The county asked Rosenthal to stay the lawsuit until after the tool is implemented. She declined.
Harris County Criminal Court No. 16 Judge Darrell Jordan doesn’t buy
the hype. After 10 years as a criminal defense attorney, Jordan took
office in January and testified that when he first put on his robes he
was shocked to learn how much autonomy judges have.
Like Gonzalez, Jordan believes the bail system is unjust and broken.
And like the sheriff, he’s a defendant in the class action, but agrees
with the plaintiffs. Due to their views, the county has assigned both
Gonzalez and Jordan their own county attorneys, while retaining outside
counsel for the other 15 criminal judges and five magistrate judges at
The county has spent more than $1.2 million on private attorneys for the case.
Jordan prides himself on giving more no-fee bonds to poor defendants
than any of his colleagues. All the Harris County criminal judges
preside over misdemeanor courts.
Jordan, a 40-year-old African American who could pass for 30, wore a
dark blue suit and tie Wednesday, folding his 6-foot-3-inch frame into
the witness stand next to Rosenthal.
He said he doesn’t think the risk-assessment tool will lead to more
judges releasing defendants on no-fee bonds because the judges will
still have discretion whether to follow its recommendations.
Jordan said a preliminary injunction is needed because though Harris
County criminal judges changed their court rules in August to favor
no-fee bonds for 12 charges, including marijuana possession and
prostitution, judges are still setting money bonds for people who are
obviously poor and a low risk for skipping bond.
“I believe it’s necessary because in my short time once I recognized
that things were wrong then I changed immediately to make sure I’m doing
the things that are right. It’s almost like knowing your tub is leaking
and saying, ‘Let’s wait six months, we’re going to have a new fix for
it.’ If you truly care you fix it that day,” he said.
Jordan showed how he gears his court towards getting people out of
jail. Jordan said a young man told him last week he works for his dad
and his dad could bail him out, but he didn’t have the phone number.
“I said, ‘Well where does he work?’ Because his dad owned the
company,” Jordan testified. “We Googled it from the bench. I called his
dad and I said, ‘I know this isn’t a call you were expecting, but your
son is in jail and we’re trying to determine how much he can afford to
pay to get out?’
“He had two cases, $4,000 bond on each. His dad said, ‘Well I can
come up with $200.’ I said, ‘OK sir I’m going to lower your son’s bonds
to $1,000 each.’ He said, ‘Alright I’ll come down there and get him
out.’ I hung up the phone and I told the defendant, ‘See you later.’”
Defendants in Harris County and throughout the nation must typically pay bail bondsmen 10 percent of the set bail to bond out.
Rosenthal, a stickler for hard figures, said she would like to see
the difference in the number of bond violations in Jordan’s court as
compared to other courts that don’t hand out no-fee bonds so liberally.
She ordered the parties to get her reports on bond violations for each of the county’s 16 criminal courts.
“You’re a lab experiment, congratulations,” she told Jordan.
“Thank you,” he said.
Jordan said during a break in the proceedings Wednesday he feels like
an outsider among his peers because, due to the litigation, they’ve
been told not to talk to each other, though they are meeting Thursday
morning to discuss the new risk-assessment tool.
“I have to go to a meeting with all the judges tomorrow and they’re going to be looking at me crazy, I don’t care,” he said.
The preliminary injunction hearing is scheduled to run through at
least Thursday this week, take a week off and resume March 21 if needed.