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Texas County Cash Bail System Is 'Instrument of Oppression'

By George Khoury, Esq. on February 20, 2018 11:13 AM

It is no secret that the justice system tends to favor the wealthy. People with more money are better able to afford the cost of accessing justice. And it's not just paying the costs for private attorneys and experts in civil cases, in the criminal justice system simply being able to afford bail provides the wealthy with a significant privilege and advantage compared to those who can't afford any amount of bail.

The Fifth Circuit recently weighed in on the Harris County bail system which relies on fixed bail amounts for various charges, and which been recently been upended by a district court ruling that could have potential released many pretrial detainees. Both courts agreed and ruled the fixed bail amounts were unconstitutional as a result of due process and equal protection violations, but the circuit court had to reign in the lower court's order for going a bit too far.

Bail as Oppression

In the opinion of both courts, allowing fixed bail amounts to be used to effectively incarcerate an individual before they even stand trial turns the bail system into an "instrument of oppression." Harris County's system does in fact contain procedures for pretrial detainees to request modification to bail based on an individualized assessment, however, the assessment system was found to be so broken that it constituted a due process violation. Basically, though it was there, it just wasn't used effectively.

Unfortunately for those potentially covered by the district court order, the Fifth Circuit pulled back on the part of it that would have required the release of pretrial detainees if certain bail procedures were not completed in a timely fashion. Also, the Fifth Circuit expanded the amount of time that a bail hearing must be held from 24 to 48 hours. Additionally, it pulled back on the requirement that a hearing officer's denial must be in writing and state the reasons.

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