PRESIDENT GEORGE W. BUSH’S SOLICITOR GENERAL, PAUL D. CLEMENT, INFORMS A FEDERAL JUDGE THAT HARRIS COUNTY’S BAIL SYSTEM IS CONSTITUTIONAL
February 23, 2017
Late last week, Former U.S. Solicitor General Paul D. Clement filed an amicus brief in the pending case ODonnell v. Harris County, Texas, et. al, where a group of Plaintiffs’ lawyers have filed another copy-cat bail lawsuit, this time challenging the constitutionality of monetary conditions and schedules of bail in Harris County, Texas. The suit claims that if someone cannot “afford their bail,” then then such discriminates against defendants based on wealth in violation of the equal protection clause of the 14th Amendment of the United States Constitution. This is one in a long line of cases filed throughout the country initiated by former U.S. Attorney General Eric Holder.
For the American Bail Coalition, Harris County Bail Agents Association, and the Professional Bondsmen of Texas, we have known all along that the Harris County bail system is constitutional. While there has been seemingly a lot of confusion in the case, it became clear to all three associations that we needed to help focus the litigation on the heart of the issue: whether the underlying theory of whether the current system violates the equal protection clause of the United States Constitution.
Said ABC Executive Director Jeff Clayton: “You’d like to be able to phone over to the U.S. Supreme Court to ask whether this novel theory of liability is going to stand so that the county doesn’t have to waste the time and resources necessary dealing with these litigious plaintiffs in order to get to the final answer as to whether Harris County’s bail system is constitutional or not.” While the road to the Supreme Court could be a long one, Clayton said, “Asking Paul Clement to opine on the constitutionality of the law now is the next best thing to asking the U.S. Supreme Court directly—he is the pre-eminent constitutional lawyer of our time, and we have the utmost confidence in his abilities.”
In the brief, General Clement cut right to the chase: “The Harris County bail system is constitutional.” A review of the history of bail lead to the conclusion that, “Bail is a liberty-promoting institution as old as the Republic…Harris County’s bail system falls comfortably within the long constitutional tradition of monetary bail.” Clement further noted that the system “falls well within the bounds of reason and the Constitution.”
PBT’s President Glenn Meeker made it clear that everyone in Texas was looking for some concrete direction as bail has become a hot topic of discussion. “These lawsuits have created unnecessary uncertainty, I believe, and it was time to cut to the chase and get down to brass-tacks. We knew Mr. Clement would help us put the issues for the judge into a better focus.”
Troy McLehany of the Harris County Bail Agents echoed those sentiments: “These Plaintiffs lawyers are creating chaos that is more smoke-and-mirrors than reality. I’m no constitutional lawyer, but Mr. Clement’s plain-spoken and direct approach was what was needed in this case to support the Judges in their efforts to show that not only have they have not been violating people’s rights but that they have been doing what is required of them under the United States Constitution.”
On March 6, 2017, the case will go to a hearing, which may ultimately decide whether Harris County’s bail system is constitutional or not. American Bail Coalition Chairman William Carmichael noted this one in a long series of lawsuits that has required great coordination, effort, and resources. Said Carmichael: “This historic and misguided effort to re-define the settled meaning of the Eighth Amendment to the United States Constitution, which creates a stable balance in our criminal justice system, will not succeed. As long as I’m around, we will work tirelessly to eradicate these attempts to fundamentally weaken the rule of law in this Country.”
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