Tuesday, July 4, 2017

The cost of freedom: Reforming America's money bail system

Gideon v. Wainwright proclaimed the right of every criminal defendant to the assistance of counsel, regardless of ability to pay. In theory, this guarantees a more even playing field in our criminal justice system. The poor may have been granted access to public defenders, but in a country of extreme wealth and income inequality, they don’t get off that easy.

Enter the money bail system. Hundreds of thousands of people currently sit in jail around the country simply because they cannot afford to make bail while waiting for trial, many for misdemeanor offenses. Money bail schedules predetermine bail amounts without inquiring into ability to pay or any extenuating circumstances. Those who work with incarcerated individuals know all too well what happens to these people, who at this point are “presumed innocent.” On the inside, they face the oppressive conditions of American jails. On the outside, they face the loss of housing, employment, custody of children, and faith in a system that will fairly adjudicate their case. They are more likely to plead guilty, more likely to be convicted at trial, and more likely to receive longer sentences. The message is clear: poverty can make you lose your freedom.
The tide is turning on this wealth-based system of pre-trial detention. Last year, two civil rights groups, Texas Fair Defense Project and Civil Rights Corps, and Houston-based litigation shop Susman Godfrey, challenged Harris County, Texas in federal court on the constitutionality of its money bail system. Harris County, Texas is the third-most populous county in the nation and home to 50,000 misdemeanor arrestees every year. In April, Chief Judge Lee H. Rosenthal of the Southern District of Texas issued a monumental 193-page ruling enjoining the money bail system in Harris County on equal protection and due process grounds, in O’Donnell v. Harris County, No. H-16-1414 (S.D. Tex. Apr. 28, 2017). Harris County’s emergency request for a stay of the order was rejected by the Fifth Circuit and by Justice Clarence Thomas on the Supreme Court in June. Harris County has started releasing misdemeanor arrestees and investing in reforming its bail system.
This decision will still have to be reviewed in full by the Fifth Circuit and likely the Supreme Court as well, and there are practical questions on implementation. Nonetheless, Judge Rosenthal’s order already has nationwide impact and implications for public defenders. The dynamics of plea negotiations, for example, are clearly different when the client is at home rather than a holding cell.
Similar challenges have been brought closer to home. In 2016, Judge Crabtree of the District of Kansas issued an injunction against the money bail system in the City of Dodge City, Kansas. The Court ordered Dodge City to release all non-warrant arrestees on municipal ordinance violations, because the use of a secured bail as a condition of release “implicates the protections of the Equal Protection Clause when such condition is applied to the indigent person.” Martinez v. City of Dodge City, No. 15-CV-9344-DDC-TJJ (D. Kan. Apr. 26, 2016). These decisions show that while the influence of wealth on the criminal justice system is deep and pervasive, the poor and the wealthy alike may soon have an equal opportunity to fight their charges outside the confines of a jail.

For more information:
Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (2016), available at https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047

Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (2016), available at http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf

Full Decision from Judge Lee H. Rosenthal available at

---Contributed by David Huang, Stanford Law 2019

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