INDIGENT DEFENSE

ABA asks appeals court to rule against rigid bail system

April 12, 2021

The American Bar Association filed an amicus brief on April 5, seeking to have the U.S. Court of Appeals for the 5th Circuit rule that a bail system that allows pretrial release only if the defendant pays a specific amount of bail money violates the Equal Protection and Due Process clauses of the 14th Amendment. 

For more than 50 years, the ABA has researched and analyzed money bail systems.

For more than 50 years, the ABA has researched and analyzed money bail systems.

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The case, arising out of Dallas County, Texas, tests the constitutionality of the use of a firm bail system that does not consider a defendant’s ability to pay. In recent years, the ABA has filed several similar briefs nationwide, including one in 2017 with the U.S. Court of Appeals for the 5th Circuit challenging the money bail system in Harris County, Texas, over nearly identical concerns.

In that Houston-area case, the appeals court in 2019 effectively suspended the bail system, but the court did not provide a holding that would serve as guidance for lower courts to use within the circuit. The bail system for misdemeanor offenses was subsequently overhauled by court order and county officials. 

In 2018, a federal district court in Dallas ordered that each defendant in Dallas County receive a full individualized hearing on their bail request, rather than have bail set by court magistrates on a firm monetary schedule. The 5th Circuit upheld the lower court order late last year, but again declined to articulate a due process right to be free from mandatory money bail. The affected pre-trial detainees and the ABA are seeking more clarity from the court.

The ABA brief noted that for more than 50 years the ABA has researched and analyzed money bail systems, and those efforts are reflected in the ABA Criminal Justice Standards on Pretrial Release and ABA policy adopted in 2017 that seeks to reduce the link between pretrial detention and a defendant’s ability to pay. The brief also noted that a money bail system violates U.S. Supreme Court decisions “affirming that individuals may not be jailed solely because of their inability to pay fines, fees and court costs.”

The ABA brief also maintained that rigid money bail systems also represent bad public policy because they could adversely impact a pre-trial detainee’s employment, schooling, rehabilitation and family obligations.

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