HOUSTON — The American Bar Association filed an amicus brief Monday, contending that the bail system in Dallas County, Texas, which 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.
The ABA has filed several similar briefs nationwide, including one several years ago with the U.S. Court of Appeals for the 5th Circuit challenging the money bail system in Harris County, Texas, because it did not consider a defendant’s ability to pay. In that Houston area case, the appeals court in 2019 effectively suspended the bail system, but the court did not provide a firm holding, statement of conclusions or 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 find a substantive due process right to be free from wealth-based detention. Both sides have appealed that ruling.
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 lessen the link between pretrial detention and a defendant’s ability to pay. The brief also noted that a money bail system violates a series of U.S. Supreme Court decisions “affirming that individuals may not be jailed solely because of their inability to pay fines, fees and court costs.”
A mandatory money bail system, such as that relied upon in Dallas County, also is bad public policy, the ABA said, because confinement for pretrial detainees often adversely impacts a defendant’s employment, schooling, rehabilitation and family obligations.
Outlining what it called “bedrock principles,” the ABA brief emphasized that “money bail should not be used as de facto pretrial detention … should be a last resort-remedy imposed only if non-monetary conditions are unable to secure the accused’s return to court (and) … should always take into account the accused’s ability to pay.”
Lawyers in the firm of Jenner & Block filed the brief pro bono on behalf of the ABA.