What Happens If I’m Too Poor to Make Bail?
The Eighth Amendment to the U.S. Constitution states that “excessive bail shall not be required” in criminal cases. Bail is not supposed to be a fine or punishment. Rather, it is a bond that you provide to guarantee your appearance at trial. In many cases judges do not even require cash bail–they will take you at your word (or “personal bond”) that you will show up for any required court dates. Unfortunately the Texas court system, particularly in Harris County, has a long history of using high bail amounts in misdemeanor cases to keep poor defendants in jail for days, even months, at a time despite the fact they pose no flight risk or danger to the community.
Federal Judge Orders Release of Indigent Inmates Charged With Misdemeanors
But the tide may finally be turning against such abusive bail practices. This past April, a federal judge in Houston issued a preliminary injunction against Harris County, ordering the release of dozens of jail inmates who are awaiting trial for misdemeanor offenses but could not afford to post the required bail. According to Houstonia, the County has reportedly spent “more than $2 million” opposing the underlying lawsuit,, which was brought in May 2016 by a number of county jail inmates. The judge’s injunction is currently under appeal to the U.S. Fifth Circuit Court of Appeals. But neither the Fifth Circuit nor U.S. Supreme Court Justice Clarence Thomas would stay the injunction pending resolution of the County’s appeal, which is scheduled for oral arguments in October.
The lead plaintiff in this case is a 22-year-old single mother. She was arrested in May 2016 for allegedly “driving with an invalid license.” A hearing officer set her bail at $2,500. But due to the plaintiff’s financial circumstances–she could not afford housing and had just started a new job–it was impossible for her to come up with that money. Although she was eligible for release on personal bond, the hearing officer claimed she did not “qualify” for such treatment. After three days in custody–and another hearing where a judge refused to reduce the amount of bail–a third-party posted her bond.
This and similar stories from other misdemeanor defendants led Chief U.S. District Judge Lee H. Rosenthal to find there were fundamental constitutional problems with Harris County’s bail system. In a comprehensive April 28 opinion, Rosenthal noted that “the modern bail-bond industry and the mass incarceration on which it thrives present important questions that must be examined against current law and recent developments.” And while acknowledging recent efforts by Harris County’s leadership to reform the bail system, Rosenthal said an injunction was necessary to provide basic safeguards for defendants’ constitutional rights.
More to the point, Rosenthal found that “Harris County has a consistent and systematic policy and practice of imposing secured money bail as de facto orders of pretrial detention in misdemeanor cases.” Such orders unconstitutionally discriminate against poor defendants, as they will not be released from jail pending trial unless they agree to pay “at least a bail bondsman’s premium.” Typically, bondsman demand 10 percent of the total bail upfront. But for an indigent Houstonian, even that can be too much of a burden. After all, if you lack a permanent residence and only have part-time, minimum wage employment, coming up with $250 towards a $2,500 bond may simply not be feasible.
Rosenthal also said there was “inadequate” evidence to support Harris County’s claim that cash bail was absolutely necessary in non-violent misdemeanor cases to secure “a defendant’s appearance or law-abiding behavior before trial.” To the contrary, the County’s practices amounted to a violation of the constitutional right of due process. Consequently, the judge enjoined both the County Judges of Harris County and the sheriff’s office from “detaining misdemeanor defendants who are otherwise eligible for release but cannot pay a secured financial condition of release.” The injunction does not, however, apply to anyone charged with a felony.
A Houston Criminal Defense Lawyer Can Help Get You Out of Jail
Rosenthal is not the only Houston-area judge looking to reform Harris County’s bail practices. Houstonia recently reported on the work of Criminal Court Judge Darrell Jordan, who was elected to the bench last November as “part of a wave of progressive candidates.” Since taking office, Jordan has made a point of releasing misdemeanor defendants on personal bond, even if they have a prior criminal history. “I just want to treat everybody the same,” the judge told Houstonia, adding that “[i]f they were a person with means, they would be back home.”
Speak to a Bail and Bond Proceeding Attorney Today!
Although the bond situation may be improving, the system still has a long way to go. If you are arrested in and around the Houston area on any criminal charge, even a misdemeanor offense, your first priority is to get out of jail as soon as possible. An experienced Texas criminal defense lawyer can help. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston, or League City if you need to speak with an attorney right away.
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