Is Bail Unconstitutional?

Leon Nehfakh has an interesting story on Slate.com that asks that question: is bail unconstitutional? The current bail system in most parts of the country (including Dallas) is this: if you’re charged with a crime and haven’t gone to court to resolve that charge yet, the county will set a bail amount. If you can afford to post that bail (either in it’s entirety, called a cash bond, or in part through a private bondsman, called a surety bond), then you get out of jail and await the resolution of your case in the free world. If you cannot afford to post either a cash or surety bond, you wait in jail. It’s well-documented that people who wait in jail get a raw deal; they get tend to lose jobs, housing, and relationships, lose out on personal connections, and worst – they get worse outcomes in their cases than people free on bond.

Neyfakh’s story looks at a civil rights lawyer who’s filed a series of class-action lawsuits, so far in small cities but he’s looking to expand nationally, challenging the status quo when it comes to setting bail. In their lawsuits, they argue that:

by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14th Amendment.

Distilled in it’s simplest terms, they argue:

Detention should be based on…whether the person is a danger to the community or a flight risk–not how much money’s in their pocket.

To be fair, that’s the law in Texas (just not the practice). More on the Texas bail law in a second… First, let’s look at how one city in the story fixed this problem (when they were sued). They moved to an “unsecured bond” system. Instead of requiring the accused to post money up front or rot in jail, they have instituted a system where the accused gets out of jail by paying nothing and only pays if he doesn’t appear in court when he/she’s supposed to. My jaw dropped when I read that. What a beautifully simple system. It’s one major flaw (that I can see immediately, at least) is that it doesn’t generate the revenue the current status quo system does (and that’s a whopper of a problem, practically… because counties love their money).

Okay, back to Texas law (you know you’ve been salivating for some legal jargon discussion!). For you law nerds out there, Texas Code of Criminal Procedure Article 17.15 says the court should consider the following in setting the amount of bail: 1) bail should be sufficiently high to give reasonable assurance that the person will show up to court; 2) bail shouldn’t be used as an “instrument of oppression” (you can’t set bail so high that it de facto keeps people in jail); 3) the nature of the offense and circumstances under which it was committed should be considered; 4) “the ability to make bail is to be regarded, and proof may be taken upon this point.”

There’s a surprising amount to talk about right there in the 4 points in the Texas bail statute.

#1 – Okay, set the bail high enough that it gets the person’s attention and they’re likely to do what they’re supposed to and show up to court. That’s a no-brainer. I have no problem with that.

#2 – Lawyers constantly use the “instrument of oppression” phrase to argue bail is set too high. The problem with this (in my opinion) is that “instrument of oppression” sounds cool but what does it mean, exactly? It’s a vague term that has more umph when you hear it than it does in practice. Besides, when a judge sets a bail at XYZ dollar amount, how far do you think you’re going to get arguing that the judge’s decision is an instrument of oppression? No one wants to be an oppressor. No one thinks they’re an oppressor. Judge’s immediately ignore this point. I’m not focusing on this in court, personally.

#3 – Again, no-brainer. Yes, the judge should take the offense and how it was committed into account. A grisly murder shouldn’t get the same bond as a possession of marijuana. This isn’t problem in the law or in practice.

#4 – Bingo; this is a problem in practice. Sure, if you set a hearing and ask for bail to be reduced and put on testimony that they cannot afford the bail as currently set, here’s what they can afford, and so on… the judge will listen to your testimony and argument. But it’s clear that when setting bonds, they rely on #3 and to a lesser extent #1 much more so. Way more so. Infinitely more so. What do I mean? 99% of bonds are set early on without a hearing. In Dallas (as in many other counties) the judges have a “bond schedule,” which is a list of bond amounts the judges have agreed are appropriate for various offenses combined with various criminal histories. Charged with possession of cocaine and have no priors? Beep boop boop…. out spits your bond amount. Charged with robbery with one prior? Beep boop boop…. out spits your bond amount. Is any attention paid to what the defendant can pay? No. that’s ignored in it’s entirety – IMHO – entirely in violation of the law. It’s only when a lawyer challenges a bond with a hearing – and brings testimony and argues they can afford this lesser amount – that the rest of what’s required by law is even taken into consideration.

So what’s the answer? I don’t know exactly, but it has to be some combination of more pretrial release programs, personal recognizance bonds, cite & summons, or maybe the “unsecured bond” system the story talks about (where you aren’t required to pay any bail money up-front and only pay if you don’t appear in court).