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Prosecutors seek to end injustice of Harris County's bail system

In April, a federal judge in Houston struck down Harris County's bail system on the grounds that it is unjust to the poor. The reason is that the county requires cash bonds for misdemeanors, which many low-income defendants simply can't afford. The judge ruled it was unconstitutional for people to be held in jail simply because they can't afford bail and ordered the release of some misdemeanor defendants.

Unfortunately, Harris County appealed that ruling, claiming its system is fully constitutional and that each U.S. county has the right to determine the conditions of bail and pre-trial release.

States and counties across the U.S. have been engaging in bail reform to address this very problem, however. The Eighth Amendment to the U.S. Constitution guarantees that "excessive bail shall not be required." Although case law in the area is sparse, it's hard to interpret "excessive bail" as meaning something other than bail that people generally cannot afford and which has little relation to the seriousness of their crimes.

Around this time last year, the Justice Department filed an amicus brief in the federal case. It claimed that requiring cash bail in order to obtain pre-trial release is a violation of defendants' civil rights and also discriminates against low-income defendants.

Now, a group of nearly 70 prosecutors from the state, county and federal levels -- along with Harris County's own district attorney and sheriff -- have filed their own amicus brief urging the Fifth Circuit Court of Appeals to strike down Harris County's bail system.

"Harris County's wealth-based bail system has for decades inflicted punishment on poor people before guilt has been proven," said the Harris County DA, "while releasing those with money into our communities even when the offenders were dangerous."

Even more unjust, potentially, is the fact that many people plead guilty at trial because they were never released and can be sentenced to time served. According to the amicus brief, this could easily result in innocent people being found guilty.

In lieu of cash bail such as that required by Harris County, some other county and state bail systems perform risk assessments that allow non-dangerous people to be released on their own recognizance or into pre-trial supervision programs. People assessed as potentially dangerous are not released. However, some critics believe the risk assessments are not adequate to protect the public.

The amicus brief against Harris County's cash bail system for misdemeanors was signed by current and former elected prosecutors, attorneys general of a number states, U.S. attorneys and officials from the Department of Justice.

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