August 10, 2017

ABA urges Fifth Circuit to rule rigid bail system used in Harris County, Texas, unconstitutional

CHICAGO, Aug. 10, 2017 — The American Bar Association filed an amicus brief Wednesday, contending that a bail system in Harris County, Texas, that allows pretrial release only if the defendant pays a secured amount of bail money violates the Equal Protection and Due Process clauses of the 14th Amendment.

The brief is the ABA’s third amicus brief challenging money-bail systems, popular in scores of jurisdictions nationwide, that do not consider a defendant’s ability to pay. It comes a few days before the ABA House of Delegates meets and considers Resolution 112C. The resolution urges governments to adopt pretrial detention policies and procedures that favor release on personal recognizance or unsecured bonds and to permit cash bonds or secured bonds only upon a court finding that such financial conditions will ensure appearance. The House meets near the close of the ABA Annual Meeting that begins Thursday in New York.

The brief, in support of a group of defendants in Harris County, notes that a money-bail system for misdemeanors that does not take into consideration the defendant’s ability to pay is unfair, will hobble the accused person’s ability to muster a defense to the charges and imposes a grave human toll. The case is now before the U.S. Court of Appeals for the Fifth Circuit.

“Under our system of justice, the right of any individual to liberty, and to effective defense against criminal charges, should not depend on that person’s ability to pay,” the ABA brief said. As an alternative to the money bail system, the brief cites the ABA’s Criminal Justice Standards as providing “guidance on how jurisdictions can protect the constitutional rights of the accused while advancing their legitimate criminal justice interests.”

In the past 16 months, the ABA filed similar briefs in two other cases. In Rodriguez v. PCC, the ABA challenged use of a probation fee schedule employed by a for-profit company in Rutherford County, Tenn. The second brief was in the 11th Circuit in Maurice Walker v. City of Calhoun, Ga.

The amicus brief in in O’Donnell v. Harris County, Texas is here. 

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