In an amicus brief filed Thursday, a group of 67 current and former elected prosecutors, Attorneys General, US Attorneys, and Department of Justice officials in more than 30 states urged the US 5th Circuit Court of Appeals to end cash bail for misdemeanor offenses in Harris County, Texas. Harris, where Houston is located, is the most populous county in TX.
“Harris County’s practice of detaining indigent misdemeanor defendants based solely on their inability to pay money bail, while others similarly situated but able to pay are released, offends the Constitution, undermines confidence in the criminal justice system, impedes the work of prosecutors, and fails to promote safer communities,” the public safety officials wrote in the filed an amicus brief.
Harris County District Attorney Kim Ogg signed the brief. (From California, San Francisco District Attorney George Gascon, former Assistant US Attorney Miriam Krinsky, former LA County DA Gil Garcetti, and former LA County DA Ira Reiner joined the brief, among others.) Prosecutors play a major role in the cash bail process, as their recommendations for bail carry more weight with judges than bail recommendations made by defense attorneys. In March, DA Ogg directed prosecutors to recommend to judges that misdemeanor defendants be released on their own recognizance in most cases.
“Harris County’s wealth-based bail system has for decades inflicted punishment on poor people before guilt has been proven, while releasing those with money into our communities even when the offenders were dangerous,” District Attorney Ogg said. “As the chief prosecutor, we must level the playing field in order to preserve the public’s trust and safety.”
In May 2016 the Civil Rights Corp filed a federal lawsuit on behalf of a 22-year-old mother who, after being charged with a misdemeanor for driving without a valid license, was held in Harris County Jail for two days because she could not afford to post $2,500 bail. Depending on the outcome, the class-action lawsuit has the potential to transform bail practices that favor the wealthy across the nation.
The Lawyers’ Committee for Civil Rights Under Law, the Southern Poverty Law Center (SPLC), the American Civil Liberties Union (ACLU), and the ACLU of Texas also joined with 11 other organizations filing amicus briefs in support of the lawsuit.
Six states, as well as the American Bail Coalition, Professional Bondsmen of Texas, and Professional Bondsmen of Harris County filed amicus briefs in support of Harris County’s appeal to maintain its current bail system.
In June, US Supreme Court Justice Clarence Thomas rejected Harris County’s attempt to stay a preliminary injunction from a federal judge that ordered the release of hundreds of pretrial misdemeanor defendants who could not afford to pay bail.
“If you worry about public safety and the responsible use of taxpayer dollars, these briefs make clear that our reliance on cash bail not only raises serious constitutional concerns, but is also just bad public policy” said Sarah Turberville, Director of Justice Programs at The Constitution Project. “The unbelievably broad nature of support for the petitioners in this case makes that plain for all to see.”
Research shows that people held while they await trial are more likely to plead guilty, more likely to be convicted, more likely to receive a jail sentence, and more likely to have longer sentences if convicted than their people who are released pre-trial.
“Opportunities for pretrial diversion programs, often available to those on pretrial release for misdemeanor offenses, are unavailable to detainees,” the prosecutors’ brief states. “And access to counsel may be severely hampered, undermining the preparation of a defense, enlistment of witnesses, and accumulation of evidence. To avoid these consequences, the accused may see an early guilty plea as the most expedient way to obtain release, as many misdemeanor defendants are sentenced to time served.” This, unfortunately, can result in the conviction of people who are innocent.
In Los Angeles County, approximately half of jail inmates are awaiting trial behind bars, often because they cannot afford to post bail, according to LA County Sheriff Jim McDonnell. In March, LA County joined a growing number of municipalities re-evaluating their justice system’s use of money bail.
In California, a bill, SB 10, authored by CA Sen. Bob Hertzberg (D-Van Nuys), would replace the state’s current bail system with pretrial risk assessment. The bill would also create services to help people who have been freed before trial to get back to court and to comply with the conditions of their pretrial release. While SB 10 made it through the CA Senate and is awaiting a decision from the Assembly Appropriations Committee, an identical bill by Assemblymember Rob Bonta (D-Oakland), AB 42, was shot down in the Assembly Appropriations Committee in June. Thus, the bill’s fate appears to be grim.
In fact, the publication MapLight found that the Democrats in the Assembly who are opposing bail reform “have received the lion’s share of campaign contributions from companies and organizations that are threatened by potential reforms.” According to MapLight’s analysis of state campaign finance records, those in opposition were the recipients of almost three times as much campaign money from the for-profit bail industry as their peers who favor pretrial reform.
At the national level, US Sens. Kamala D. Harris (D-CA) and Rand Paul (R-KY) introduced a bail reform bill in July, that would authorize a $10 million, three-year grant period that would incentivize either eliminating or reforming the use of cash bail at the state level.