Summary of Argument
“Innocent until proven guilty” is the foundation of the American criminal justice system. This principle has existed for millennia and is woven into the fabric of our Constitution. An essential corollary to this principle is the rule that an individual has a fundamental right to liberty before trial. A pending criminal charge does not give the State a license to deprive a person of freedom. This right to pretrial liberty has long been protected through bail, which historically would be determined based on an individualized assessment of the person’s ability to pay, potential flight risk, and threat to public safety.
Having learned from the long English experience with bail and its abuses, the Founders sought to secure these rights through several provisions of the Constitution. The Fifth Amendment provides that no per- son shall be deprived of liberty without due process, while the Fourteenth Amendment imposes the same requirement on the States and provides that everyone, be they rich or poor, shall receive the equal protection of the laws. Further underscoring the importance of pretrial liberty—and the risk that a bail requirement can be abused—the Eighth Amendment expressly prohibits excessive bail. Article 1 the Texas Constitution offers the same protection.
Importantly, when these fundamental constitutional protections were adopted, commercial surety bail did not exist. Thus, reasonable, non-excessive bail necessarily meant bail that an individual defendant could plausibly afford with his or her own resources—not an amount of which the average person could, at best, pay a fraction.
Harris County’s bail system defies these core principles. At cattle-call hearings lasting little more than a minute, during which they typically are prevented from speaking in their own defense, individuals arrested on nonviolent misdemeanor charges almost invariably find them- selves detained until trial because they cannot pay a predetermined bail amount that has been set without regard to their individual circumstances, risk to public safety, or ability to pay. And those predetermined bail amounts are set on the assumption that a commercial bail bondsman will guarantee the full amount, placing them well beyond the typical de- fendant’s means.
A system that deprives individuals of liberty without a meaningful hearing and without regard to their personal circumstances is the very definition of a due process violation. A system that predicates a person’s continued liberty on the ability to pay a fixed amount of money, regard- less of ability to pay, contravenes the requirements of equal protection and non-excessive bail. The State may not jail a person solely because he has been arrested, and it may not jail him solely because he is poor. That he is both poor and arrested does not enhance the State’s claim on his liberty. Worse, the upshot of this regime is that punishment—indeed, often the only jail time that will be inflicted—occurs before trial and conviction, perverting the principle of presumed innocence that is the bed- rock of our justice system.
Further, pretrial detention has distorting, coercive effects on the ultimate resolution of criminal charges. Many detainees will waive valid defenses and plead guilty because doing so is the only way to get out of jail. Even those pretrial detainees who make it to trial are more likely to be convicted and to receive longer sentences.
This system is not merely unconstitutional, but also hugely expensive. The taxpayers of Harris County are forced to spend $472,663.48 to house pretrial detainees every single day. Nationwide, the cost is stag- gering—$38 million per day. Studies suggest that even a modest change in the bail system, by which the people with the lowest bonds were re- leased without bail instead of detained, would have saved Harris County $20 million over a five-year period. Reinvesting just some of these sav- ings elsewhere in the criminal justice system—in indigent defense, in prosecutor’s resources, in the courts themselves—would make it fairer and faster.
These deprivations of liberty, and the accompanying vast expendi- tures, have not made Harris County any safer. Studies show no correla- tion between releasing someone on a money bond and better pretrial per- formance. In fact, individuals released on personal bond were more likely to appear at subsequent court dates and less likely to commit additional crimes pending trial.
In addition to the monetary costs to taxpayers, the Harris County bail system imposes great human costs on the people in the Harris County community. Pretrial detention destabilizes and upends lives, stripping many otherwise-productive citizens of their jobs and connections to family and community. This effect is all the more insidious given that the vast majority of misdemeanor defendants will not be sentenced to imprisonment even after they are convicted. By that time, the damage has been done, with long-lasting effects. Studies show that the amount of time an individual is held pretrial correlates to a higher likelihood of committing crimes even years later.
There is a better way. Modest changes to Harris County’s system, relying on risk-assessment tools already in place and based on evidence-based and validated metrics—rather than rote application of a predetermined bail amount—would provide a constitutional and reliable way to guide who should be released and who should be detained.