A week has passed since the 5th U.S. Circuit Court of Appeals issued a much-anticipated court ruling in O'Donnel v. Harris County, in which justices reaffirmed a lower court's ruling that the cash bail system works for the rich but not the poor.
"The wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration," Judge Edith Brown Clement wrote in the appellate opinion. "The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart."
It's a decision that could lay precedent for a recent federal lawsuit involving the Dallas County Jail over its cash-bail system. Filed by civil rights groups on behalf of six plaintiffs who had been incarcerated at the jail, the lawsuit accuses county officials of operating a two-tiered system of justice based on wealth, similar to Harris County officials, and violating due process and equal protection clauses of the U.S. Constitution.
"When you have two people who look the same, and the only difference is the money in their pocket, the poor person remains in jail and the rich person walks free," says Trisha Trigilio, an attorney for the American Civil Liberties Union of Texas. "This is a landmark ruling that undermines the way pretrial operates in jurisdictions across Texas."
Although civil rights groups consider it a landmark victory, proponents of the cash-bail system consider it a small win and one that works more in their favor, says Jeff Clayton, policy director for the American Bail Coalition, a trade association for bail bond companies, which collect fees to post bail for defendants.
The American Bail Coalition led its Feb. 15 press release with a snippet of the 5th Circuit's ruling: "Bail is not purely defined by what the detainee can afford."
That means no automatic get-out-of-jail-free card for poor people charged with misdemeanors, but that was hardly the point of the court's ruling. As Clement wrote in the next paragraph, "state law forbids the setting of bail as an 'instrument of oppression.' Thus, magistrates may not impose a secured bail solely for the purpose of detaining the accused. And, when the accused is indigent, setting a secured bail will, in most cases, have the same effect as a detention order."
The upshot of the ruling is that setting bail amounts based solely on a rigid schedule and jailing poor people merely charged with crimes because they're too poor to pay a bondsman's fees isn't allowed. In their ruling, the 5th Circuit justices agreed, for the most part, with the lower court's decision, but they found the remedies proposed overly stringent.
Harris County will still have to fix its pretrial procedures. Poor defendants who successfully file affidavits proving they're indigent will be entitled to bail hearings within 48 hours.
In late January, the ACLU of Texas, the Civil Rights Corps and the Texas Fair Defense Project filed a lawsuit against Dallas County, its sheriff and the county’s judges and magistrates for violating constitutional rights of people arrested for misdemeanors and felonies in regards to the cash bail system.
"No person should be kept in a cage just because she doesn't have enough money to make a payment," Civil Rights Corps attorney Elizabeth Rossi said in the Jan. 22 press release. "The decision to throw a person who is presumed innocent in a jail cell is a serious one. And a person’s access to money should not be the only factor that determines whether she is free or is in jail."
Bond company lobbyists don't contest that people should be given bail hearings within 48 hours, but that wasn't happening in Harris County.
It's the same issue people incarcerated in the Dallas County Jail are facing. Trigilio with the ACLU of Texas says Dallas County doesn't have a process at all. Arrestees don't get individualized inquiries at 48 hours and often languish in jail for weeks if they can't afford bail. It's a similar system set up in major counties across Texas, she says.
"[The appellate opinion says] that when bail imposed almost automatically detains poor people, it violates due process," Trigilio says. "That is how the Dallas system works."
Dallas County has been taking steps to fix the problem. In June, it created a pretrial services division to make moves to shift low-risk inmates and people with mental illness out of jail, where feeding and housing them costs the county millions of dollars each year. It's also focusing on a risk-based assessment to determine if they're high, medium or low risk to skip their court hearing.
Although a final fix for Dallas County's broken bail system is still out of reach, a criminal justice reform advocate spoke with county commissioners in early February to discuss a system that isn't biased toward those who can get cash quickly. Sandra Guerra Thompson, the director of the University of Houston's Criminal Justice Institute, advised commissioners that the best way to fight the ACLU's lawsuit and achieve justice for those arrested in Dallas County involves releasing as many people as possible before trial with as few conditions as possible. Thompson said that warehousing people in jail before trail costs taxpayers money and increases the chance that others will commit crimes when they get out, in some cases to get bail money for their friends and family members in jail.
"That's why [bail reform] has become such a big civil rights issue," she told commissioners. "In Texas, the pretrial detainee population makes up 75 percent of all jail inhabitants."
Trigilio says the bail industry is simply trying to gloss over an important point and that the lower court reviewed social science studies and found that paying bail in advance doesn't improve the rates of appearance in court or decrease crimes after a defendant's release. Most people who go through the system, she says, aren't a flight risk.
"It is no more effective than having someone sign a [personal recognizance] bond," she says. "[The government] would do well to have [more] people sign a PR bond. The system would be fairer, and it would be more efficient."
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