by Ed Lyon
A historically overlooked, or at least minimized, constitutional guarantee is that excessive bail amounts must not be imposed upon citizens accused of crimes. Cash bails routinely far exceed not only most people’s ability to pay but are usually far in excess of the severity of the crime at bar. Study after study has proven that people of color and the poor are the largest groups adversely affected by this routinely imposed unconstitutional practice. These same (and similar other studies) also have shown that there are an increased number of convictions in cases where the accused were effectively denied bail by setting a cash bail so high it could not be met. Even with bail bondsmen available, most of the accused are not able to raise just the 10 percent required because the total bail amounts are set so high.
As federal judge after federal judge begin to recognize the unconstitutionality, inequity, and downright unfairness of the cash bail system, rulings ordering positive changes are slowly but surely taking hold.
Texas: For instance, as reported in the April 2019 issue of Criminal Legal News, p.38, a federal judge ruled the Houston, Texas, cash bail system unconstitutional and ordered changes.
Presiding Republican judges did everything they could to torpedo reforms until the voters replaced these recalcitrant jurists with primarily Democrat judges. These mainly women of color dismissed the pending appeal and implemented a stunningly successful system. In a Solomonesque decision, the new Her Honors agreed to a seven-year monitor to oversee the new system, which should serve to protect it from adverse changes in the event of a political wind shift.
Other positive safeguards include the appointment of counsel at an accused’s initial appearance and extensive data collection, so Harris County, Texas, may analyze its pretrial relief performances and make changes where needed. Harris County is fast becoming a cashless bail practice leader the entire nation would do well to emulate.
Down the road from Houston, a September 11, 2018, federal court decision in the form of temporary injunctive relief now requires detainees to be provided assistance of counsel at bail hearings.
It appears that judges’ and prosecutors’ knee-jerk reactions are virtual mirrors of the earlier Houston officials. While district court judges predict chaos and Galveston County Criminal District Attorney Jack Roady called the injunction an “impermissible and unjustified expansion of the Sixth Amendment,” the federal judge remains immovable on his position.
U.S. Magistrate Judge Andrew Edison opined: “It should shock absolutely nobody that the failure [of an accused] to have counsel during an initial bail hearing [in Galveston County], when a critical decision is made concerning pretrial release, leads to concrete harm in the form of outcomes that are far worse than if counsel were provided.” U.S. District Judge George Hanks adopted this conclusion when he issued the injunction.
Louisiana: In August 2019, the U.S. Court of Appeals for the Fifth Circuit upheld a federal district judge’s ruling concerning bail practices in New Orleans. That ruling stood out in a particular way to set precedent by explaining in clear, easily understood language how the cash bail system violates equal protection and due process of the law. “Plaintiffs [the arrestees] have been deprived of their fundamental right to pretrial liberty. Given that deprivation of liberty requires a heightened standard of [a judge has to prove that there is] clear and convincing evidence” that an arrestee should be held in pretrial detention, wrote Judge Elden E. Fallon.
Orleans Parish judges must make these findings only after arrestees appear with counsel at arraignments. Many parish judges have simply dispensed with cash bail altogether.
Missouri: In St. Louis, Missouri, a federal judge found the system to be unconstitutional because judges are not taking into account an arrestee’s ability to pay exorbitant bail amounts. The average yearly income for that area is $38,000 while the average bail amount is $25,000. The judge ordered new hearings for current pretrial detainees and hearings for all new arrestees to be held within 48 hours of their arrest. Local officials oppose the judge’s orders and motioned for a stay, which was denied.
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