Criminal Justice

ABA files amicus brief challenging money bail system as House of Delegates considers resolution

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Just before the ABA’s House of Delegates considers a resolution opposing the use of money bail—systems that require large cash payments in exchange for a defendant’s freedom—the Association has filed an amicus brief calling one county’s bail system unconstitutional.

The brief (PDF) was filed Aug. 9 in O’Donnell v. Harris County, Texas, a case pending in the New Orleans-based 5th U.S. Circuit Court of Appeals. Maranda Lynn O’Donnell and other plaintiffs argue that Harris County’s use of a bail schedule—a list of crimes with corresponding bail amounts—is unconstitutional because it effectively conditions freedom on the defendant’s ability to pay.

In May, a federal judge in the Southern District of Texas strongly agreed. Judge Lee Rosenthal found that Harris County had been using high bail amounts as “preventative detention,” rather than to ensure that the defendant appears for trial. Rosenthal’s lengthy ruling cited 2,300 hours of video footage of misdemeanor probable cause hearings, where she said one hearing officer outright said he was glad the defendant would go back to jail. In another case, Rosenthal said, a defendant pleaded guilty expressly to get out of jail after a hearing officer wrongly calculated that defendant’s criminal history.

The ABA’s amicus brief asks the 5th Circuit to affirm Rosenthal’s ruling. The ABA’s interest stems from its Criminal Justice Standards, the brief says, which say financial bail systems should consider the defendant’s ability to pay. The 14th Amendment’s due process and equal protection clauses require this, the brief says. The U.S. Supreme Court has repeatedly ruled that jurisdictions may not jail people solely for their inability to pay fines, fees and court costs, and financial bail falls into that category, it says. If a system doesn’t account for the defendant’s ability to pay—as Harris County allegedly does not, since it uses a pre-set bail schedule—it is unconstitutional.

“Pretrial detention disrupts indigent defendants’ lives, leads to worse legal outcomes, and pressures innocent defendants to plead guilty,” the brief says. “At the same time, money-bail systems do not improve appearance rates or public safety, and substantially consume public resources. It is no surprise, therefore, that a wide range of criminal justice stakeholders and a growing number of States and local jurisdictions have joined the ABA in rejecting the use of money bail.”

The case has attracted amici to both sides. Among others, the states of Arizona, Hawaii, Texas, Nebraska and Kansas, and the American Bail Coalition have supported Harris County, while a group of current and former prosecutors and a group of Texas religious leaders have supported the plaintiffs’ position. The Conference of Chief Justices weighed in with a brief supporting neither side but acknowledging that bail systems that don’t consider ability to pay raise constitutional questions.

The brief was filed as the ABA kicks off its Annual Meeting in New York City, where the House of Delegates on Monday will consider a resolution on financial bail. Resolution 112C asks jurisdictions to make policies forbidding pretrial detention based solely on the defendant’s ability to pay, and require courts to order financial bail only when the defendant’s appearance can’t be assured another way. It’s being advanced in the House by the Criminal Justice Section.

This is the second case in which the ABA has filed an amicus brief opposing financial bail; the association weighed in about a year ago on Walker v. City of Calhoun, Georgia, pending at the Atlanta-based 11th Circuit. Prior to that, the association supported a lawsuit seeking to end the use of private, for-profit probation systems that jail defendants who can’t pay fines, in the Cincinnati-based 6th Circuit’s Rodriguez v. Providence Community Corrections Inc.. That case is still pending; Walker has been remanded to district court.

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