It is Time to Learn from Harris County’s Mistakes on Bail Reform: Local Officials Can Take Simple Steps to Avoid Costly Litigation.
May 7 2018
As yet another jurisdiction, Galveston County, is taken to federal court by the ACLU of Texas over their bail system, it is time for local officials to finally realize that taking simple actions allowable under existing state law can fix the problem and keep them out of the crosshairs of costly litigation.
Officials need to take note of the Galveston system and lawsuit filed yesterday and do one critical and simple thing—set up a system that clearly meets the basic constitutional requirements that the U.S. Court of Appeals for the Fifth Circuit was necessary in order for the system to be constitutional. Once that is done, the separate policy discussions on how far to move the needle on using financial or non-financial conditions can separately and appropriately analyzed in each jurisdiction.
Of course, we previously obtained the opinion of an attorney in Texas who is an expert in bail law to help guide local jurisdictions in their compliance after the Fifth Circuit issued its ruling in ODonnel v. Harris County, Texas et al. Apparently, not all took the time to review that information, conduct an appropriate local review, and make what are really some pretty basic changes to the bail setting and review process. Read his opinion here: 5th Circuit Rules Bail Constitutional, Reverses Harris County Court.
The case of Booth v. Galveston County, et al was filed April 8, 2018 in the United States District Court for the Southern District of Texas and alleges that Aaron Booth was arrested for possession of a controlled substance and is in jail on a $20,000 bail for which he cannot afford to post.
The complaint alleges that he will sit in jail for weeks until he receives a meaningful bail hearing. That is an obvious constitutional problem. Yet, one that is easily fixed as we have previously noted.
Simply put, there must be a meaningful bail review hearing where one can actually address their case as to bail within 48 hours of when a bail has been set pursuant to a bail schedule. A local jurisdiction can do all the “magistrating” it wants, but those hearings need to be meaningful and if they are anything like the hearings we have seen in Harris County, they are not meaningful.
In Galveston, it is alleged that basically all defendants go before a magistrate in what is essentially a ministerial and not adversarial proceeding. In fact, there are no attorneys present at the hearing. Not only must there be a hearing within 48 hours, but also the defendant needs to have the opportunity to be represented by counsel. In Galveston, they are not represented by counsel, and even those that have prior attorneys are denied a meaningful bail review hearing within 48 hours.
For local officials, bond schedules facilitate immediate release. They are a good and effective tool to allow people to bail out of jail. But, adequate due process is necessary if such bail schedules are utilized.
Of course, keep in mind, without them all local jurisdictions would be charged with setting all bails in open court with the defendant represented by counsel within 48 hours. Therefore, the bail schedules perform to allow for immediate releases, allowing judges to review the results and smooth out any outliers.
The message is simple—allow bail schedules to function as they have been, however, give defendants their day in court to argue the merits of bail within 48 hours, and everything will work itself out.