Originally published in Liberato.US on March 18, 2018
Reposted with permission of the author
In case you haven’t heard, the bail reform movement is definitely picking up steam. A federal lawsuit in Florida alleges that the state’s bail system is unconstitutional and seeks to force judges there to consider the defendant’s ability to pay when setting bail in misdemeanor cases. A bail reform task force in Ohio has developed a set of recommendations to prevent defendants from being kept in jail before trial simply because they cannot afford to post a bond. Mr. Liberal Moneybags Tom Steyer is funding efforts to change the bail system in California. Delaware has joined other jurisdictions in reducing reliance on cash bail, including Arizona, New Mexico, Maryland, New Jersey, and the District of Columbia. In all, more than 40 states are considering changes to their bail and pretrial detention procedures. Among the alternatives being considered are ankle monitors and evidence-based risk assessment tools to gauge flight risk.
A class action suit in Houston, Texas alleges that Harris County’s system of setting bail for indigent misdemeanor defendants violates the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution. In a preliminary ruling in February, the U.S. 5th Circuit Court of Appeals affirmed that the complainant class would likely succeed on the merits of its due process and equal protection claims. The case has been returned to the trial court for further proceedings. [Southern District of Texas #: 4:16-cv-01414]
The 14th Amendment states:
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Bail in Texas involves posting a 10 percent bond, usually through a bail bond agency, or being released on personal recognizance but becoming liable for the full amount if the defendant fails to appear for the court date. Under the Texas Criminal Code, a hearing officer or judge is supposed to review the defendant’s financial circumstances, flight risk, and other factors in setting bail. But personal recognizance is denied and upfront payments are required 90 percent of the time in Harris County which strikes me, based on my experience as a criminal defense attorney in D.C., as inordinately high for misdemeanor cases.
In Harris County, bail amounts are supposed to be reviewed by a different judge within 24 hours, but defendants routinely wait days, then come under tremendous pressure to accept time-served plea deals before they are even appointed a lawyer. In D.C., by contrast, indigent defendants are appointed lawyers up front before the first hearing. Harris County deems failure to own a car as a strike against personal recognizance, so there is a circular loop where indigence itself increases the likelihood that an indigent defendant will have to post cash bond. That’s weird. The trial court reviewed the data and found that the imposition of a financial bond does not make defendants any more likely to appear than personal recognizance does. The trial court also found that defendants who were detained because they couldn’t post a financial bond had worse outcomes than those who could. They pled guilty more often, got jail sentences more often, the jail sentences were longer, and these defendants were more likely to lose their job. The whole exercise appears to be counter-productive because these defendants were also more likely to commit other crimes in the future.
Harris County’s bail system treats similar flight risks differently based merely on financial circumstances. Under case law, imprisonment solely because of indigent status is considered invidious discrimination that offends both due process and equal protection. In this case, the 5th Circuit gave the bail reform movement a lot of what it wanted. Defendants must be given a meaningful opportunity to show what they can or cannot pay, the court ruled.
For you equal protection geeks out there, the 5th Circuit applied a heightened but intermediate level of scrutiny because inability to pay was resulting in deprivation of a basic liberty interest—freedom from incarceration.
Maybe I’m just a mushy-headed defense attorney, but Harris County’s bail system strikes me as unjust. However, the problem may not be the imposition of cash bonds per se, but the customary infrequency with which personal recognizance is granted in Harris County and other places around the country. I was talking about this with someone a few months ago. They said cash bond was a big problem in Philadelphia. I said it wasn’t a big problem in D.C. when I was doing criminal cases there. The difference may be that personal recognizance is pretty routine in D.C. for misdemeanor cases. Most misdemeanor defendants are released on personal recognizance and almost all show up for their court dates. Maybe the answer is as simple as setting the presumption in favor of personal recognizance in misdemeanor cases, while retaining cash bond for demonstrable flight risks. This would reconcile the competing interests at stake and afford adequate due process as well as equal protection of the law to indigent defendants. But regardless of how it’s done, we should all be able to agree that poor people should not be kept in jail or pressured to plead guilty simply because they don’t have any money.