Too Broke For Bail?

Lawsuit could have unfortunate consequences

The 8th Amendment to the U.S. Constitution is best known for its prohibition of cruel and unusual punishment. What is often overlooked is the amendment also protects criminal defendants from “excessive” bail requirements.

Most see this as requiring judges to assess a reasonable bail for the offense. But does it also mandate bail be set with regard to the financial resources of the defendant? Or in the case of the indigent, a free pass out of jail?

That’s the argument in O’Donnell v. Harris County, a case working its way through the court system.

The argument is that people arrested on misdemeanors, such as unpaid traffic fines, should be released if they can’t afford to post bail. Currently, they are detained. Plaintiffs’ attorneys say this amounts to “wealth discrimination” against poor defendants.

And at least one federal judge has agreed. At the end of April, District Judge Lee Rosenthal issued a temporary order barring Harris County from keeping indigent misdemeanor defendants locked up in lieu of posting bail.

We don’t know how this will play out in court, but we do see plenty of problems if the plaintiffs win.

Yes, jails are overcrowded, and keeping the indigent locked up on relatively minor charges is costly. That’s why even some folks in law enforcement support the lawsuit.

But the idea that such a practice imposes discrimination is ludicrous. One might just as well argue that high bail for a wealthy defendant is discrimination. The fact is that bail is supposed to guarantee a defendant’s appearance. It is supposed to impose a hardship if forfeited. Without that, the system has no purpose whatsoever.

Also, right now, the talk is of misdemeanor cases. But how long will it be before felony cases are also on the table? Set the precedent, and there will be those who test the limits. A claim of poverty should not allow a suspect to walk free with no guarantee he or she won’t continue walking right out of the law’s reach.

Right now, judges in Texas can consider a number of factors in setting bail. They look at financial resources, so there is already a level of protection in place for indigents. But judges also consider the defendant’s record, an assessment of flight risk and perceived danger to the community. Will these other factors become secondary to avoiding “wealth discrimination”? We would like to think common sense would prevail, but we cannot be sure in this day and age.

Is the bail system perfect? No. But does that mean we should throw it out and open the cells for anyone who claims they can’t make bail? Certainly not.