On January 21st the American Civil Liberties Union along with other civil rights activists filed a federal class-action lawsuit against Dallas County for violations of citizens’ equal rights protection in the County’s money-bail practices. This widespread problem and its far-reaching consequences have long been overlooked by legislators and the public. The ACLU is finally shedding light on this unconstitutional practice and the practical problems it causes.
A Flawed System in Dallas
Dallas County designed the current system to meet the goals of protecting the safety of the public and ensure appearances in court by the accused. But the flawed process does not take into account the collateral damage to individual liberties the system currently causes.
If you are arrested in Dallas, you will be processed and booked into jail at Lew Sterrett, then eventually will see a magistrate judge who will inform you of your charges set your bail amount. The amount of your bail is based solely on your criminal history and the charge for which you were arrested, with little to no other analysis. The magistrate conducts no analysis of the facts leading to the arrest, no determination of whether you are a flight risk or a danger to the public, no consideration for your own financial ability to post bail, and very little analysis of any mitigating factors. Once this bail number is set, you may either post bail by paying the full amount, or you can go through a bail bondsman and post bond, which is 10% of the total bail.
The effect of this process, aptly labeled as “money bail,” is that “Can you pay?” becomes the only factor in whether an accused gets released. If the accused can pay the fee, they’re out . . . regardless of how dangerous they are, and if you cannot pay the fee, you’re detained . . . regardless of whether these charges will stick or not.
The US Constitution and Criminal Law Guard Against these Practices
The mantra “innocent until proven guilty” is not found in the Constitution but has long been recognized by American and International Law as the standard for an accused person. The Constitution addresses this concept and bail in the same context under the 8th Amendment which prohibits excessive bail for a person accused of a crime. The Constitution further applies these rights to all Americans—regardless of race, gender, religion, ethnicity, or socio-economic status—through the 14th Amendment which dictates that no State shall deprive any person of life, liberty, or property without due process of law, nor deny any person equal protection under the laws.
The Unconstitutional Bail Practice produces Unintended Consequences
When applied, Dallas’ unconstitutional money bail practices infringe on constitutional rights and indirectly cause major problems to the accused and their family.
The most glaring violation is that levying an impossible bail amount against an accused person flies in the face of their right to be presumed innocent until proven guilty. Once police arrest and charge the person, bail is imposed almost solely on the arresting charge with little to no analysis of the facts leading to this point. If the person cannot meet bail, they are detained in jail as if they have already been convicted of the crime in complete contravention of this principle.
When an accused cannot make bond, they await their first court date and then have a decision to make – do I plead guilty to avoid posting bond and to get me out of here? Or do I maintain my innocence, fight the charges, but risk remaining in jail for months or even years before I can fight these charges at trial? For many, there is no choice but to plead guilty because they cannot afford to lose their jobs, ask their families to undergo financial hardship to get them out on bond, or mentally they cannot deal with the idea of waiting months in county lockup for trial.
If the accused does decide to fight the charges and tough it out in jail until trial, the money bail practice creates obstacles for trial preparation because the defense lawyer must conduct all interviews in jail. The most obvious problems are the lack of privacy to protect attorney-client confidentiality in trial prep, but practically a lawyer is better equipped for trial prep in the office with all the resources and tools available . . . not sitting in jail with no resource material, computers, or notes to assist in preparing a trial strategy.
Another less thought about consequence when the only question bail answers is “can you pay it?” is that individuals who should be behind bars because their crimes are so blatant and violent can still make bail if they have the funds. This concept completely negates the first goal of the bail system: ensuring public safety.
The ACLU Suit Attacks the Problems and Sheds Light on the Needed Solutions
The ACLU challenges the money bail system in Dallas County as violative of the 14th Amendment because it sets and implements a bail system based solely on “whether you can pay.” The Plaintiffs selected to have varying bail amounts ranging from $500 - $60,000, but none can afford to post bail and are therefore forced to sit in jail awaiting developments in their criminal cases. The lawsuit argues that the wealth based system is arbitrary and violates the 14th Amendment’s Due Process Clause because it deprives the accused of their liberty without an actual process to vet the bail amount. Additionally, the practice discriminates against lower socio-economic classes because their ability to make bail for the same charge is not provided equal protection under the laws to an accused who enjoys a higher income. As the ACLU points out: “They are essentially being jailed for being poor.”
The lawsuit points out the problem and asks the judiciary to strike down these practices, but it will be up to the legislature and county officials to implement change. As the ACLU points out, there needs to be an actual process to analyze facts actually relevant to the goal of bail: public safety and ensuring appearance at court. If the County would conduct an analysis of the accused’s potential danger to the public, flight risk in appearing at trial, and financial ability to pay bail, it would be addressing the goals of bail without stepping on individual liberties. As the ACLU points out, applying policies like call-in requirements, text message reminders of court dates, and reporting obligations to a bonding officer are far more effective in making sure the accused appears at court than a bail price tag.
These changes will cost money but are necessary to target this attack on our individual liberties and constitutional rights. Criminal Defense Lawyers in Dallas hope that the ACLU will prevail in its lawsuit in Dallas much like it has in Alabama, Mississippi, Georgia, Louisiana, Missouri, and Tennessee.
For more information or if you have any concerns or questions related to this post, give us a call at 214-494-9916.