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Court must consider defendant's ability to pay when setting bail, Dallas federal judge says

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Setting bail without considering a defendant’s ability to pay bond violates equal protection rights, a Dallas federal judge ruled last Thursday.

Most Texas state courts use a bail money system, in which bond is determined by a fixed schedule, the Texas Tribune reports. Nationwide, several lawsuits have targeted money bail systems, according to the article, and a similar lawsuit is pending in Texas’ Harris County, which includes Houston. The Harris County lawsuit only involves misdemeanors, according to the article.

In that lawsuit, U.S. District Judge Lee Rosenthal ordered that all misdemeanor defendants be released on no-cost, sheriff-issued bonds if they don’t have a hearing within 24 hours. In August, the New Orleans-based 5th U.S. Circuit Court of Appeals in a 2-1 opinion stayed a portion of the order requiring automatic release of those unable to pay bail, and left in place language that required an individualized hearing to set bail within 48 hours.

Harris County officials and the bail bond industry have argued that the lawsuits prioritize a defendant’s ability to pay bond over public safety, the Texas Tribune reports.

The Dallas County lawsuit was filed by four nonprofits on behalf of six inmates whose bond ranged from $500 to $50,000, the Dallas Morning News reports. It’s a temporary order, the article notes, but U.S. District Judge David Godbey indicated that the plaintiffs are likely to prevail based on the merits of their arguments.

Godbey published a memorandum opinion order and a preliminary injunction order Sept. 20.

Godbey’s memorandum opinion order states that if a magistrate does not release a suspect after he or she indicates that they can’t afford bail, the detainee is entitled to an individual hearing within 48 hours. The direction does not apply to defendants ineligible for pretrial release.

“To enforce the 48-hour timeline, the county must make a weekly report to the district court of defendants identified above for whom a timely individual assessment has not been held,” the preliminary injunction states. “The county must also notify the defendant’s counsel and/or next of kin of the delay. A pattern of delays might warrant further relief from the district court.”

New Jersey essentially ended cash bail in 2017, the Marshall Project reported, and six states have limited cash bail through laws, constitutional amendment or rules of criminal procedure. Judges in California, Texas and elsewhere have struck down bail systems as fundamentally unfair.

See also:

ABA Journal: “Bail industry battles reforms that threaten its livelihood”