A U.S. appeals court is being asked by numerous current and former prosecutors via an amicus brief to do away with a bail system in Texas that requires cash bonds for misdemeanors. The prosecutors are saying that doing so can destroy those living in poverty. Many who have committed very minor offenses remain locked up because they cannot afford to return home.
Several U.S. states have already modified their bail systems so those with minor offenses are not held until trial simply because they can’t afford to post bail. As an alternative, some have used risk assessment programs allowing the release of some defendants under supervision. These programs are intended to keep potentially dangerous individuals under lock and key, while allowing only those committing very minor crimes to be released.
A lawsuit was filed by 22-year-old Maranda O’Donnell who was pulled over in Harris County and arrested for allegedly driving with an invalid license back in May 2016. For the crime, a hearing officer set her bond at $2,500 during a video that lasted 60 seconds. A mother on federal assistance, relying on the Women, Infants and Children (WIC) program to feed her family, while she stayed at a friend’s, O’Donnell could not afford this amount. But the hearing officer never asked her if she could afford the bond, nor was any defense attorney present to argue on her behalf. Instead, she was instructed to remain silent as the conditions of were laid out, knowing she simply could not afford to be released to her family. Many other video arraignments issued in the county showed individuals forced to remain silent or indicating, to no avail, they could not provide the money because they’re homeless.
Now, joining in the battle against requiring cash payments is Democratic Harris County District Attorney Kim Ogg. “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,” Ogg said.
The U.S. Justice Department under Democratic President Barack Obama filed an amicus brief in a federal circuit court in August 2016 which stated requiring inmates to pay bail for release before a trial violates civil rights and discriminates against people who cannot afford to do so.
In April of this year, a Houston judge struck down the county’s system, alleging it was unfair to the poor. Some defendants being held for minor offenses were even released. However, Harris County appealed, claiming its system is constitutional and it has the right to apply bail.
The Harris County sheriff has also joined the amicus brief. Supporters say defendants kept in jail because they cannot afford bail risk losing their careers and homes for crimes as minor as traffic violations. In total, the brief was signed by 70 current and former elected prosecutors, state attorneys general, U.S. Attorneys, and U.S. Department of Justice officials.
Critics of proposed alternatives say that they do not adequately protect the public from offenders. The systems are subjective and allow for repeat offenses.