ABA Bail Policy: Taking Steps to Achieve Reform

At the 2017 Annual Meeting in New York, the ABA House of Delegates adopted a resolution on the use of bail. Resolution 112C urges jurisdictions to release defendants on their own recognizance unless a court determines “that release on cash bail or secured bond is necessary to assure the defendant’s appearance and no other conditions will suffice for that purpose” (emphasis added). It further urges that courts be prohibited from “imposing a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.”

In the two years since the House of Delegates passed this resolution, bail reform has been a high priority for the ABA. From urging Congress to take legislative action to supporting bail reform lawsuits by filing amicus curiae briefs, the ABA has taken a leading role in efforts to ensure that no individual is detained pretrial due to inability to afford bail or bond.

Money bail systems historically result in the detention of indigent defendants simply because they cannot pay the bond or bail set, and not because they actually pose an increased risk of harm to the public. As the ABA recently observed in a letter to Congress, “[c]urrently more than 450,000 Americans are jailed while awaiting trial simply because they cannot afford money bail.” The use of money bail to detain the poor is unquestionably expensive for jurisdictions. The ABA reported to Congress that “State and local governments spend $14 billion a year to house this portion of the jail population alone.” Additionally, these defendants often lose their jobs during detention, jeopardizing the financial security of the families and potentially increasing dependence on social safety net programs.

Federal legislative proposals to remedy the situation have been proposed for years in both the House and the Senate. In February 2016, Representative Ted Lieu (D-Cal.) introduced a bail reform bill in the House of Representatives that sought to prohibit the payment of money as a condition for pretrial release in all federal courts in addition to rendering states that continue to utilize money bail as a condition of pretrial release ineligible for funding under the Byrne JAG Memorial Fund. More recently, Senators Kamala Harris (D-Cal.) and Rand Paul (R-Ky.) introduced the Pretrial Integrity and Safety Act to the Senate Judiciary Committee. The bill’s purpose is to provide grants to states and tribes to implement reforms to “encourage the replacement of the use of payment of secured money bail as a condition of pretrial release in criminal cases, and for other purposes.” These legislative reforms hold a lot of promise, but as yet have not gotten traction in Congress.

But legislation is not the only means of achieving reform. Recently, bail programs that deny indigent defendants release due to inability to pay have come under constitutional attack. In Houston, Texas, O’Donnell v. Harris County, 251 F. Supp. 3d 1052 (S.D. Tex. 2017), challenged the use of money bail to detain indigent defendants. The case was brought on behalf of single mother Maranda Lynn O’Donnell, who could not afford her $2,500 bail for driving without her driver’s license and consequently spent two days in jail. In the District Court for the Southern District of Texas, Chief Judge Lee H. Rosenthal held that Harris County’s bail system violated the equal protection and due process clauses and issued a temporary injunction. In her ruling, Chief Judge Rosenthal found that 40 percent of misdemeanor defendants in Harris County are unable to post bail and remain detained. Of those detained due to inability to post bail, 84 percent plead guilty at the first opportunity. By comparison, less than half of those in Harris County who are released on bond plead guilty. This suggests that at least some of those incarcerated due to inability to pay the set bond do so simply in order to return to their lives. On this basis, Judge Rosenthal ordered the release of all misdemeanor defendants within 24 hours of arrest if they sign an affidavit stating their inability to pay, unless subject to other warrants or holds.

A panel of the Fifth Circuit Court of Appeals heard argument on the case this fall. The ABA filed an amicus curiae brief urging the court to uphold Judge Rosenthal's decision:

The ABA’s Standards have long rejected money bail systems that fail to consider adequately a defendant’s ability to pay. Such systems are inherently discriminatory, deleterious to the rights of the accused, unnecessary to ensure justice and public safety, and contrary to the bedrock constitutional principles that the ABA’s Standards embrace. The ABA’s current Standards—shaped by decades of exhaustive research—promote alternatives to money bail and pretrial detention, and endorse only those bail systems that adequately consider pretrial detainees’ individual circumstances.

The Court of Appeals for the Fifth Circuit issued its decision on February 16, 2018, and found the District Court’s due process and equal protection analyses largely persuasive. The court wrote:

In sum, the essence of the district court’s equal protection analysis can be boiled down to the following: take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent. Applying the County’s current custom and practice, with their lack of individualized assessment and mechanical application of the secured bail schedule, both arrestees would almost certainly receive identical secured bail amounts. One arrestee is able to post bond, and the other is not. As a result, 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. The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart. The district court held that this state of affairs violates the equal protection clause, and we agree.

The court remanded for some minor changes to the District Court’s injunction but allowed the current injunction to remain in place until those modifications can be made. Rather than appeal, Harris County has agreed to settle the lawsuit. In addition to creating a new bail policy that will ensure automatic, no-cash pretrial release for the vast majority low-level defendants, the settlement includes provisions to establish transportation, child care and other assistance to help low-income individuals attend their court dates. The settlement is being opposed by the District Attorney in Harris County, and a hearing on final approval of the settlement was scheduled for October 28, 2019.

The ABA has filed amicus curiae briefs in bail reform cases in the 11th Circuit Court of Appeals and the Supreme Court of California. Additional lawsuits are pending in jurisdictions across the country, including Dallas, Detroit, and Jacksonville, Florida.

Malia Brink serves as counsel for public defense to the ABA Standing Committee on Legal Aid and Indigent Defendants. She may be reached at [email protected].